           Case: 12-13272   Date Filed: 02/27/2013   Page: 1 of 8

                                                        [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 12-13272
                        Non-Argument Calendar
                      ________________________

                    D.C. Docket 4:11-cv-00079-CDL


MOSI TYRONE WELLS,

                                                           Plaintiff-Appellant,

                                  versus

COLUMBUS TECHNICAL COLLEGE,
LINN M. STOREY,
J. ROBERT JONES,
WILLIAM COOPER,
RONNIE MCBRIDE,

                                                        Defendants-Appellees.

                    ___________________________

               Appeal from the United States District Court
                   for the Middle District of Georgia
                   ____________________________
                           (February 27, 2013)

Before WILSON, JORDAN, and ANDERSON, Circuit Judges.

PER CURIAM:
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      Mosi Wells, proceeding pro se, appeals the district court’s dismissal of his

civil rights complaint, filed pursuant to 42 U.S.C. § 1983. Mr. Wells, a former

student at Columbus Technical College, alleged that the school and some of its

officials violated his Fourteenth Amendment due process rights by suspending him

without a hearing. After a review of the record and the parties’ briefs, we affirm.

      Mr. Wells, a former welding student at Columbus Tech, was suspended for

12 months after multiple incidents of “unacceptable behavior.” In the first incident,

which resulted in a written warning, Mr. Wells was involved in a verbal and

physical altercation with another student. The exact details of the second incident

are unclear, but involved Mr. Wells and two other students. Dr. Linn Storey, Vice-

President of Academic Affairs, read Mr. Wells the second incident report, and

warned him that another incident would result in a suspension. In the third

incident, Mr. Wells confronted two of his teachers, Mr. William Cooper and Mr.

Ronnie McBride, and accused them of lying in the second incident report. After a

brief verbal exchange, Mr. McBride asked him to leave, but Mr. Wells refused.

Campus security eventually escorted Mr. Wells off campus.

      Vice-President Storey sent Mr. Wells a suspension letter, which set forth a

12-month suspension for violations of the Student Code of Conduct. Mr. Wells

filed a written notice of appeal to the Office of the President. President J. Robert

Jones upheld the suspension, citing Mr. Wells’ “inability to manage [his] anger.”


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      Mr. Wells filed a pro se complaint under § 1983 against Columbus Tech,

President Jones, Vice-President Storey, Mr. Cooper, and Mr. McBride seeking

damages, an injunction, and declaratory relief. The district court liberally construed

the complaint as alleging claims against the Columbus Tech officials in their

individual and official capacities. The court dismissed the claims against Mr.

Cooper and Mr. McBride, finding the complaint “completely devoid of any

meaningful factual allegations against [them].” Mr. Wells does not appeal this

ruling. The court also dismissed the claims against the remaining defendants

because (1) Columbus Tech, which is part of the Technical College System of

Georgia, and its officials sued in their official capacities, were immune from suits

for monetary damages under the Eleventh Amendment; (2) the Eleventh

Amendment barred the injunctive and declaratory relief claims against Columbus

Tech and its officials, as Mr. Wells was attempting to “remedy alleged past

violations of his constitutional rights;” (3) the individual defendants were entitled

to qualified immunity for denial of a pre-deprivation hearing; (4) Mr. Wells failed

to state a procedural due process claim for denial of a post-deprivation hearing

when an adequate state court remedy existed; and (5) Mr. Wells failed to allege the

denial of a fundamental right to properly implicate substantive due process.

      On appeal, Mr. Wells asserts that the defendants were not entitled to

qualified immunity and the district court erred in dismissing his procedural and


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substantive due process claims. He primarily focuses on Vice-President Storey’s

alleged failure to comply with Columbus Tech’s policies regarding the

investigation of “unacceptable behavior,” President Jones’ failure to “remedy the

errors by [Dr.] Storey on appeal,” and his alleged entitlement to a hearing before

and after he was suspended.1

       Mr. Wells does not appear to challenge the district court’s dismissal of all

claims against Columbus Tech and its employees in their official capacities. Even

if we liberally construe Mr. Wells’ appellate brief, however, such an argument

would fail. Neither a state nor state officials acting in their official capacities are

“persons” within the meaning of § 1983. See Will v. Mich. Dep’t of State Police,

491 U.S. 58, 71 (1989). Accordingly, Mr. Wells cannot sue Columbus Tech (a

state entity for Eleventh Amendment purposes), or its officials in their official

capacities under § 1983, absent a claim under Ex Parte Young, 209 U.S. 123

(1908). Therefore, we focus solely on the claims against the individual defendants.

       Mr. Wells’ substantive due process claim fails as a matter of law.

Substantive due process protects fundamental rights and liberty interests. See

Washington v. Glucksberg, 521 U.S. 702, 720 (1997). Although Mr. Wells alleges

he was denied the right to an education and to learn a trade, education is not a right

       1
          We do not reach Mr. Wells’ claim of reputational injury because this allegation does not
appear in his complaint, and the district court did not abuse its discretion in declining to consider
it for the first time on a motion to reconsider. See Mays v. U.S. Postal Serv., 122 F.3d 43, 46
(11th Cir. 1997).

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“granted to individuals by the Constitution.” Plyler v. Doe, 457 U.S. 202, 221

(1982). The district court therefore did not err in dismissing this claim.

      As for procedural due process, a student generally should be afforded notice

and an opportunity to be heard before being suspended from a state school. See

Goss v. Lopez, 419 U.S. 565, 581–82 (1975). See also Castle v. Appalachian Tech.

Coll., 631 F.3d 1194, 1197 (11th Cir. 2011) (“[D]epriving a public school student

of a pre-suspension hearing constitutes a violation of due process”). But where the

student’s “presence poses a continuing danger to persons or property or an ongoing

threat of disrupting the academic process,” a student can be immediately removed

from school without a pre-deprivation hearing, though “the necessary notice and

rudimentary hearing should follow as soon as practicable.” Goss, 491 U.S. at 582–

83. This circuit has not definitively settled the specific nature of the process due a

student in an emergency situation. See Barnes v. Zaccari, 669 F.3d 1295, 1306

(11th Cir. 2012) (leaving issue open).

      Even if school officials fail to provide adequate due process, they may be

immune from suit in their individual capacities under the doctrine of qualified

immunity. “Qualified immunity shields government officials sued in their

individual capacity from liability for civil damages if their conduct does not violate

clearly established statutory or constitutional rights of which a reasonable person

would have known.” Castle, 631 F.3d at 1197 (internal quotation marks omitted).


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To claim qualified immunity, the defendants must first show that they were

performing a discretionary function, which the parties here do not dispute. See

Barnes, 669 F.3d at 1303. Then the burden shifts to the plaintiff to show that the

defendants violated a constitutional right that was clearly established at the time of

the violation. See id. We review the district court’s decision to grant qualified

immunity on a motion to dismiss de novo, and accept the factual allegations in the

complaint as true. See Dalrymple v. Reno, 334 F.3d 991, 994 (11th Cir. 2003).

      We need not decide whether Mr. Wells’ right to due process was violated,

because the district court correctly determined that the right was not clearly

established at the time of the alleged violation. A right is “clearly established”

when it is clear to a reasonable official that his conduct is unlawful under the

circumstances. See Vinyard v. Wilson, 311 F.3d 1340, 1350 (11th Cir. 2002).

Based on the state of the law at the time of Mr. Wells’ suspension, a reasonable

school official could have concluded that the “continuing danger” exception

applied, thereby obviating the need for a pre-suspension hearing. Although the

details of each incident leading to his suspension are not completely clear, the

record establishes that Mr. Wells was involved in a physical altercation with

another student several weeks before he was ultimately suspended. He also

disrupted the academic process by accusing his teachers of lying and refusing to

leave the welding shop upon his teacher’s request. In light of these facts and the


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limited number of cases interpreting the “continuing danger” exception, a

reasonable school official could have concluded that Mr. Wells “posed a

continuing danger to persons or property or an ongoing threat of disrupting the

academic process,” such that a pre-suspension hearing was not required. The

district court properly concluded that under these circumstances, the defendants

were entitled to qualified immunity. 2

       Mr. Wells also challenges the district court’s conclusion that he failed to

state a procedural due process claim for denial of a post-deprivation hearing

because an adequate remedy existed in state court. “[P]rocedural due process

violations do not even exist unless no adequate state remedies are available.”

Cotton v. Jackson, 216 F.3d 1328, 1331 n.2 (11th Cir. 2000). In his appellate brief,

Mr. Wells acknowledges that mandamus is an available state remedy, see O.C.G.A

§ 9-6-20, but claims this remedy is inadequate because the process would take

more than six months and could not fully compensate him for his perceived losses.

We disagree. So long as the state court has the power to remedy any procedural

alleged deficiency, Mr. Wells was not deprived of due process. See McKinney v.

Pate, 20 F.3d 1550, 1564 (11th Cir. 1994) (en banc) (“[T]he presence of a

satisfactory state remedy mandates that we find that no procedural due process
       2
         Additionally, we have affirmed the grant of qualified immunity when “it was not clearly
established at the time [the plaintiff] was suspended that the immediate availability of an appeals
process would not have adequately protected [the plaintiff’s] due process rights.” See Castle, 631
F.3d at 1201. Mr. Wells was afforded an immediate appeal, and a reasonable school official
could have concluded that such an appeal sufficiently protected Mr. Wells’ due process rights.

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violation occurred). See also Cotton, 216 F.3d at 1333 (“[W]e believe that

mandamus would be an adequate remedy to ensure that Plaintiff was not deprived

of his due process rights.”). The Fourteenth Amendment only requires the

opportunity for procedural due process, see Horton v. Bd. of Cnty. Comm’rs, 202

F.3d 1297, 1300 (11th Cir. 2000), and the remedy need not be ideal. Cf. Hudson v.

Palmer, 468 U.S. 517, 535 (1984) (noting that the state remedy and the remedy

under § 1983 do not have to be identical). The district court properly held that an

adequate state remedy existed, thereby precluding Mr. Wells’ post-deprivation

procedural due process claim.

      AFFIRMED.




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