                        NOT RECOMMENDED FOR PUBLICATION
                                File Name: 14a0258n.06

                                         No. 12-2230
                                                                                   FILED
                              UNITED STATES COURT OF APPEALS                  Apr 04, 2014
                                   FOR THE SIXTH CIRCUIT                 DEBORAH S. HUNT, Clerk


LINDA MARTINSON,                                   )
                                                   )
       Plaintiff-Appellant,                        )
                                                   )
v.                                                 )       ON APPEAL FROM THE
                                                   )       UNITED STATES DISTRICT
REGENTS OF THE UNIVERSITY OF                       )       COURT FOR THE EASTERN
MICHIGAN, a constitutional body corporate;         )       DISTRICT OF MICHIGAN
CAROL LOVELAND-CHERRY, individually                )
and in her official capacity; JUDITH LYNCH-        )
SAUER, individually and in her official            )       OPINION
capacity; and BONNIE HAGERTY,                      )
individually and in her official capacity,         )
                                                   )
       Defendants-Appellees.                       )
                                                   )


Before: DAUGHTREY, GIBBONS, and DONALD, Circuit Judges.


       BERNICE BOUIE DONALD, Circuit Judge. Linda Martinson was expelled from the

School of Nursing at the University of Michigan (“University”) in November of 2007. After

unsuccessfully seeking readmission through the University’s internal review process, Martinson

sued the Board of Regents and several School of Nursing administrators, relying primarily on

42 U.S.C. § 1983. The District Court dismissed the vast majority of Martinson’s claims under

Federal Rules of Civil Procedure (“Rules”) 12(b)(1) and 12(b)(6) but allowed her procedural due

process claim against the administrators in their individual capacities to proceed to summary

judgment. The claim was then dismissed under Rule 56, the District Court having determined that
No. 12-2230, Martinson v. Regents of the University of Michigan


Martinson received all the process that she was due. Martinson now appeals the summary dismissal

of her procedural due process claim and the dismissal of her substantive due process claim at the

pleading stage. For the reasons below, we AFFIRM the dismissal of both claims.

                                                 I.

       A.        Factual Background

       In August of 2007, Martinson began an accelerated, second-career nursing program at the

University’s School of Nursing. By her own admission, she began having performance problems

in one of her clinical courses the next month. Martinson’s daughter recently had received an

unexpected diagnosis, and, on September 17, 2007, Martinson informed the course instructor, Diane

Bohn, of her daughter’s medical problems. Citing its accelerated pace, Bohn recommended that

Martinson consider leaving the nursing program. According to Bohn, the workload and stress level

would only increase with time. Martinson decided to stay, however, and she felt that her

relationship with Bohn “rapidly deteriorated” from that point forward.


       On October 8, 2007, Martinson received a mid-semester warning from Bohn that detailed

several deficiencies in her performance, including failure to timely complete certain tutorials,

general disorganization in planning and implementing patient care, failure to communicate with

patients, and failure to meet weekly expectations. Martinson signed the warning but, indicating that

it was “factually inaccurate” and contained “glaring omissions,” noted that she did so with “severe

reservations.”




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No. 12-2230, Martinson v. Regents of the University of Michigan


       Three days later, Martinson told some fellow students that she was in danger of failing and

allegedly demanded that they help her. Several students indicated that Martinson’s attitude was

hostile, and many expressed feelings of fear and discomfort. Later that same day, Martinson

confronted one of the nurses in the locker room about negative comments that she allegedly had

communicated to Bohn about Martinson. The nurse reported the incident to Bohn and later testified

that Martinson’s conduct and demeanor had frightened her.


       At various times between September 17, 2007, and October 16, 2007, Bohn communicated

with several School of Nursing Administrators—Bonnie Hagerty, Director for Undergraduate

Programs and Associate Professor; Judith Lynch-Sauer, Director for the Office of Student Affairs

and Clinical Assistant Professor; and Carol Loveland-Cherry, Executive Associate Dean for

Academic Affairs and Professor—about Martinson’s performance problems and involved them in

meetings with Martinson.      Martinson was “not receptive” to the criticism offered by the

administrators at these meetings. After one such meeting on October 12, 2007, Martinson felt that

Lynch-Sauer and Hagerty “had developed a strong, personal dislike for [her], wanted to expel her,

and were looking for a justification for the same.”


       Lynch-Sauer stated that an early October meeting that she and Hagerty had with Martinson

“to try to help her do some problem solving and get back on track” was not productive: “Martinson

saw only one solution and that was to change clinical instructors as she felt [Bohn] was the cause

of her problems.” Lynch-Sauer and Hagerty agreed to meet with Martinson again and to include




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No. 12-2230, Martinson v. Regents of the University of Michigan


Bohn. In the meantime, they requested that Martinson “look at where she was having difficulty in

the course and . . . come up with some ideas about how best to address them.”


       Lynch-Sauer, Hagerty, and Martinson reconvened with Bohn one week later. According to

Lynch-Sauer, Martinson had not developed an action plan and “was very adamant that it was up to

[Bohn] to do so.” Bohn, on the other hand, had developed some guidelines for Martinson, but

Martinson would not respond to them, saying “that she had been advised by a friend to say nothing”

and that “the only solution was to change instructors.” When she was informed that replacing Bohn

was not possible, Martinson “became very angry and the tone of her voice became threatening.”

Martinson said that “something would be happening but wouldn’t say what this would be.” Both

Lynch-Sauer and Hagerty testified that they felt threatened or unnerved by this comment and by

Martinson’s behavior.


       According to Hagerty, several of Martinson’s classmates asked to meet with Hagerty and

Lynch-Sauer to express concerns about Martinson’s behavior, which Hagerty described as

“increasingly erratic.” Hagerty also stated that patients expressed concerns about Martinson’s

performance and behavior. One of Martinson’s clinical group members stated that she no longer

would meet with Martinson in person, “even in public places,” requesting transfer to another group

if Martinson insisted otherwise. Another complained of an “air of discomfort” in meetings with

Martinson, describing a disagreement that resulted in a verbal “attack” by Martinson and expressing

“a sense of fear” that “similar tirades would result” any time Martinson did not get her way.




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No. 12-2230, Martinson v. Regents of the University of Michigan


       On October 16, 2007, Bohn filed a report with Loveland-Cherry in which she alleged that

Martinson had violated the student code of conduct. The next day, Loveland-Cherry and Hagerty

met with Martinson to discuss the report. At Loveland-Cherry’s request, two University public

safety officers also attended the meeting.


       Martinson was again “unreceptive,” and she received a letter and a copy of the code of

conduct from Loveland-Cherry at the conclusion of the meeting. The letter advised Martinson that

the administration had received reports that she may have violated the code of conduct. The conduct

at issue included Martinson’s being on unit without faculty supervision, confronting clinical staff

in an argumentative manner, and engaging in extended and hostile interactions with fellow students

and faculty. The letter also stated that Tara Engholm, Loveland-Cherry’s executive secretary, would

contact Martinson later that day to schedule a preliminary hearing and that a full hearing by the

Committee on Academic Admissions and Scholastic Standing (“CAASS”) would follow. Finally,

the letter instructed Martinson not to contact program staff, faculty, or students, and not to attend

clinical classes or be present on clinical units “[u]ntil the potential Code violation c[ould] be

resolved via established procedure[.]” Martinson also received a no-trespass citation from the public

safety officers that subjected her to arrest upon entering any buildings owned or leased by the

University.


       On October 18, 2007, the day after the meeting, Loveland-Cherry submitted a request to the

Vice-President of Student Affairs, Dr. E. Royster Harper, seeking Martinson’s immediate removal

from the School of Nursing. Dr. Harper concluded that Martinson’s conduct did not warrant


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No. 12-2230, Martinson v. Regents of the University of Michigan


immediate removal under either the University’s emergency mental health policy or its bylaws for

behavioral misconduct. He noted, however, that the reports of Martinson’s conduct were “indeed

troubling,” approved of continued monitoring of Martinson, and “highly recommended” that

Martinson be referred to campus counseling services for an assessment.


        On October 19, 2007, Engholm sent an email to Martinson after making several phone calls

to her to schedule the preliminary hearing. Engholm’s email informed Martinson that the

preliminary hearing had been scheduled for Monday, October 22, 2007, at 9:30 A.M. and requested

that Martinson respond immediately by phone or email if she could not attend. Martinson responded

that she was not able to attend the preliminary hearing.


        On October 22, 2007, Loveland-Cherry sent Martinson a second letter and a summary of the

incidents comprising the possible code of conduct violation. The letter explained that Engholm

would contact Martinson again to schedule the preliminary hearing and stated that the matter

automatically would be forwarded to CAASS if the preliminary hearing could not be scheduled

within thirty days. Although the summary of incidents did not name individual students, it detailed

in six, single-spaced pages several instances of hostile and intimidating conduct by Martinson that

allegedly interfered with “the ability of other students, faculty, and staff . . . to participate in the

School’s educational programs.” Additionally, the summary stated the following:

        Based on reports from faculty, students, and staff, a picture emerges of a student
        whose behavior is unpredictable—ranging from intense controlled quiet to agitated,
        angry [sic] characterized by yelling and encroachment on others [sic] personal space.
        Ms. Martinson, [sic] consistently challenges others even when they are trying to help
        her, blames others for her lack of performance, refers to personal stresses that she is

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No. 12-2230, Martinson v. Regents of the University of Michigan


        experiencing but when offered options for assistance lashes out saying that
        individuals are being “too personal,” and refuses any suggestions for assistance from
        resources such as [campus counseling services]. In fact, she has become angry
        whenever [campus counseling services] are suggested. Her fellow students have
        indicated to faculty their discomfort and fear with [sic] Linda’s behaviors towards
        them and the clinical faculty member, [Bohn].

        Engholm sent Martinson a follow-up email on October 30, 2007. The email’s subject line

read “RESPONSE REQUIRED - Preliminary Hearing,” and its body advised Martinson that the

preliminary hearing had been rescheduled for Monday, November 5, 2007, at 8:00 A.M. The email

also provided the location of the preliminary hearing and asked Martinson to confirm her attendance

before 1:00 P.M. the next day. Martinson did not respond until November 5, 2007, after the

preliminary hearing had begun, and she did not attend the hearing. It was determined at the

preliminary hearing that Martinson’s case should be advanced to CAASS for review on an expedited

basis. A hearing before a CAASS panel was scheduled for November 9, 2007.


        According to Martinson, her schedule had not permitted her to respond to Engholm’s email

“in a timely fashion,” and she would not have been able to prepare an adequate defense for the

preliminary hearing because it was scheduled during the last week of classes, which was “very

busy.” Martinson also complained that she had not been provided with several documents

referenced in the summary of incidents that she had received from Loveland-Cherry on October 22,

2007.


        In the days leading up to the November 9 CAASS hearing, several students sent emails to

Hagerty and Lynch-Sauer that accused Martinson of hostile and unprofessional conduct. Among



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No. 12-2230, Martinson v. Regents of the University of Michigan


other things, the students accused Martinson of putting her head in the windows of people’s cars to

prevent their driving away from her and expressed concerns about Martinson’s “volatility,” her

“potential for aggression,” and their safety. On November 7, 2007, Loveland-Cherry attempted to

hand Martinson a packet of information regarding the CAASS hearing, but Martinson would not

accept it. Accordingly, Loveland-Cherry sent Martinson an email with the packet of information

attached. Martinson never opened the attachment, and she did not attend the CAASS hearing on

November 9.


       At the CAASS hearing, the evidence included testimony from Bohn, Lynch-Sauer, and

Hagerty, as well as several written statements and emails from students. The CAASS panel also

noted that Martinson had a criminal record for assault. The panel ultimately found that Martinson

had violated the provision of the code of conduct that required nursing students to “maintain

compassionate and caring relationship [sic] with colleagues and others with a commitment to the

fair treatment of individuals . . . [and to avoid] any and all prejudicial actions, any form of

harassment or threatening behavior, or disrespect for effect [sic] of one’s actions on others.” Bohn

suggested that rather than being expelled Martinson should be strictly monitored until she had

addressed some personal issues.


       A copy of the CAASS panel report was sent to Martinson on November 14, 2007, along with

exhibits, informing Martinson that a final decision would be rendered on November 16, 2007, and

advising her that she could submit a statement to CAASS for consideration before that time.




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No. 12-2230, Martinson v. Regents of the University of Michigan


Martinson submitted no statement to CAASS prior to November 16, and CAASS approved her

immediate and permanent expulsion from the University on that date.


       Martinson submitted a statement to CAASS after her expulsion was approved, detailing facts

that she allegedly would have presented at the CAASS hearing “had [she] received sufficient time

and opportunity.” The statement failed to address any of the allegations regarding Martinson’s

hostile and threatening behavior. Martinson then appealed her expulsion to the University’s

Grievance Review Board (“GRB”). The GRB agreed with Martinson, finding that she had not been

given adequate time to respond to the charges against her and recommending that a new CAASS

panel be convened. But the School of Nursing rejected the GRB’s recommendation, Dean Kathleen

Potempa having determined that the board failed to “take into account the full history of all attempts

to communicate with [Martinson] both for the Preliminary Inquiry and the Hearing.”


       In a letter dated August 28, 2008, Dean Potempa advised Martinson that she had decided to

reject the GRB’s recommendation and uphold Martinson’s expulsion. According to Dean Potempa,

Martinson’s “pattern of non-responsiveness to all sources of communication including [her] refusal

to accept material from [Loveland-Cherry] regarding the Hearing and refusal to open the attachment

to the email from Dr. Loveland-Cherry . . . [we]re inexcusable.” Dean Potempa also stated that

Martinson’s “disruptive behavior” and “inappropriate communication style” indicated that

Martinson was not capable of satisfying the School of Nursing’s requirements.




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No. 12-2230, Martinson v. Regents of the University of Michigan


       B.         Procedural History

       Martinson subsequently filed the present action in the District Court under 42 U.S.C. § 1983.

Her six-count Complaint named Loveland-Cherry, Lynch-Sauer, and Hagerty as defendants in their

official and individual capacities along with the University’s Board of Regents, asserting that they

had violated Martinson’s right to substantive and procedural due process under the federal and

Michigan constitutions. In addition to damages, Martinson sought a declaratory judgment under

Rule 57 and 28 U.S.C. § 2201 that would void her expulsion.


       Relying on Rules 12(b)(1) and 12(b)(6),1 the District Court partially granted the defendants’

motion to dismiss on September 28, 2011, ruling that Martinson’s state-law claims were barred by

Eleventh Amendment sovereign immunity and finding that Martinson failed to state a plausible

substantive due process claim. The District Court also found, however, that Martinson had alleged

sufficient facts to move forward on her procedural due process claim and noted that injunctive relief

remained available if the claim proved meritorious.


       While their motion to dismiss was pending, the defendants moved for summary judgment.

Although Martinson had opposed the motion to dismiss and prematurely had attempted to appeal

its partial granting,2 she failed to file a response to the motion for summary judgment despite being

              1
                The motion to dismiss expressly invoked only Rule 12(b)(6), but defendants’ reply in
     support of the motion “note[d] that their Eleventh Amendment immunity defense implicate[d] the
     [c]ourt’s subject matter jurisdiction . . . under Rule 12(b)(1).” The District Court reviewed Martinson’s
     claims under both Rules.
              2
                 On May 22, 2013, this Court dismissed the attempted appeal, No. 11-2363, because the
     District Court’s order of September 28, 2011, “disposed of fewer than all the claims or parties involved
     in this action . . .did not direct entry of a final, appealable judgment under Federal Rule of Civil
     Procedure 54(b)[,]” and was not “an immediately appealable ‘collateral order.’”

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No. 12-2230, Martinson v. Regents of the University of Michigan


afforded extensions of time amounting to three months “to fully devote to . . . [it].” Martinson also

did not appear at the scheduled hearing on the motion for summary judgment.


        On August 16, 2012, the District Court granted summary judgment against Martinson and

dismissed her Complaint with prejudice under Rule 56. Martinson timely appealed.


                                                  II.

        Although she has identified as many as six related issues, Martinson essentially raises only

two claims of error on appeal: (1) the dismissal of her substantive due process claim under Rule

12(b)(6) and (2) the dismissal of her procedural due process claim under Rule 56. We begin with

Martinson’s most promising claim, the alleged deprivation of procedural due process, which

survived Appellees’ motion to dismiss but failed at the summary judgment stage.


                                                  III.

       We review de novo the grant of a motion for summary judgment under Rule 56, drawing all

reasonable inferences in favor of the non-moving party. Branham v. Gannett Satellite Info. Network,

Inc., 619 F.3d 563, 568 (6th Cir. 2010) (citation omitted). “Summary judgment is appropriate when

there are no genuine issues of material fact and when the moving party is entitled to judgment as a

matter of law.” Id. (citing Fed. R. Civ. P. 56(c)). The non-moving party “may not rely on the hope

that the trier of fact will disbelieve the movant’s denial of a disputed fact,” Alexander v. CareSource,

576 F.3d 551, 558 (6th Cir. 2009) (internal quotation marks and citation omitted), nor will a “mere

scintilla of evidence” discharge its burden, La Quinta Corp. v. Heartland Props. LLC, 603 F.3d 327,


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No. 12-2230, Martinson v. Regents of the University of Michigan


335 (6th Cir. 2010) (internal quotation marks and citation omitted). Instead, to survive a well-

supported motion for summary judgment, the non-moving party “must make an affirmative

showing” of evidence sufficient to allow a trier of fact to find in its favor. Alexander, 576 F.3d at

558 (citation omitted).


       These well-settled principles are dispositive here, and we affirm the grant of summary

judgment on Martinson’s procedural due process claim. There is little question that Appellees’

motion for summary judgment was well supported, marshaling more than thirty exhibits—including

deposition excerpts, responses to written discovery, and written correspondence—and as many pages

of legal authority to secure the dismissal of Martinson’s Complaint. Martinson, by contrast, made

no showing whatsoever in response to the motion, neither filing a response nor appearing at the

motion hearing. On that basis alone, the District Court would have been justified in granting

summary judgment against her. See Alexander, 576 F.3d at 558 (“[T]he failure to present any

evidence to counter a well-supported motion for summary judgment alone is grounds for granting

the motion.” (citation and internal quotation marks omitted)).


        Although Martinson contends that her case is “somewhat unique” because she is pro se, she

appropriately recognizes that this “status gives her no quarter from her requirement to answer the

Summary Judgment motion.” (Appellant Br. at 32-33); see also United States v. Ninety-Three

Firearms, 330 F.3d 414, 427 (6th Cir. 2003) (“[T]his court clearly has held that no . . . rule

providing ‘special assistance’ exists with respect to nonprisoner pro se litigants [on summary




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No. 12-2230, Martinson v. Regents of the University of Michigan


judgment].”) Nevertheless, the District Court went to great lengths to accommodate Martinson

because she was without legal representation.


       In its September 28, 2011, opinion and order granting Appellees’ motion to dismiss, the

District Court ordered Martinson to respond to Appellees’ motion for summary judgment no later

than October 21, 2011. At the time, the motion had been pending since August 8, 2011. After

Martinson requested an extension, the District Court gave her until November 30, 2011, to file a

response. The District Court expressly recognized that Martinson had been without counsel since

November 5, 2010, observing that it already had granted her “multiple extensions” and “afforded

her great leniency in pressing forward with her claims” as a result. Still, Martinson did not file a

response.


       On June 5, 2012, the District Court scheduled a hearing on the motion for summary judgment

and gave Martinson another two weeks—until June 19, 2012—to respond. Martinson neither

responded to the motion nor attended the hearing. Finally, on August 16, 2012, the District Court

granted the motion for summary judgment and dismissed Martinson’s Complaint with prejudice.

Accordingly, Martinson had more than ten months between the filing of the motion for summary

judgment and the final extended deadline by which the District Court required her to respond to it.

She chose not to do so. As the District Court admonished in dismissing Martinson’s Complaint, “the

law cannot reward such calculated inaction.”




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No. 12-2230, Martinson v. Regents of the University of Michigan


        Martinson rejoins, contrary to our precedents, that her failure to respond to the motion for

summary judgment was not a sufficient ground upon which to grant it. But see Alexander, 576 F.3d

at 558. Even so, however, Martinson does not contend that the District Court failed to “look to the

facts on record to determine if a factual dispute exists.” Instead, she disputes the conclusions that

the District Court drew from those facts. According to Martinson, “[t]he biggest factual question

. . . is whether [the individual Appellees] were acting out of personal dislike for [her] and a personal

desire to remove her from the program.” But the individual Appellees’ personal feelings about

Martinson are entirely irrelevant to the question of whether Martinson received the constitutionally

adequate “notice, and . . . opportunity to be heard” that procedural due process guarantees. Flaim

v. Med. Coll. of Ohio, 418 F.3d 629, 634 (6th Cir. 2005) (citation omitted).


        As the District Court noted at the pleading stage of this matter, this court has determined that

“the Due Process Clause is implicated by higher education disciplinary decisions.” Id. at 633. But,

recognizing that “[t]he amount of process due will vary according to the facts of each case,” id. at

634 (emphasis added), the District Court expressly reserved the question of whether Martinson

received constitutionally sufficient process for review on summary judgment. At the summary

judgement stage, the District Court answered this question in the affirmative: “Plaintiff had both

adequate notice and sufficient opportunity to be heard.”


        With regard to adequacy of notice, the District Court found as follows:

        (1)     that the October 8, 2007, mid-semester warning that Martinson received from
                Bohn put her on notice “that her conduct with patients and her academic
                performance were matters of concern that [she] needed to address”;

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No. 12-2230, Martinson v. Regents of the University of Michigan


       (2)    that the October 17, 2007, meeting between Loveland-Cherry, Hagerty, and
              Martinson and the letter from Loveland-Cherry that Martinson received at the
              meeting’s conclusion “describ[ed] several of the behaviors that allegedly
              were disrupting the teaching environment,” including confronting clinical
              staff in an argumentative manner and engaging in extended and hostile
              interactions with fellow students and faculty;
       (3)    that the second letter Loveland-Cherry sent Martinson on October 22, 2007,
              which included a six-page summary of the incidents comprising the putative
              honor code violation at issue, gave her “even more specific information
              regarding . . . the basis of the conduct code inquiry”; and
       (4)    that, on November 7, 2007, two days prior to the CAASS hearing on
              November 9, 2007, Loveland-Cherry emailed Martinson a packet of
              information regarding the hearing after Martinson refused to accept the
              packet when Loveland-Cherry attempted to hand it to her in person.

       Regarding Martinson’s opportunity to be heard, the District Court found the following:

       (1)    that, after Martinson stated that she could not attend the preliminary hearing
              on October 22, 2007, Loveland-Cherry’s secretary, Tara Engholm, sent
              Martinson an email on October 30, 2007, rescheduling the preliminary
              hearing for November 5, 2007; although Martinson admits having received
              the email, “she chose not to respond or defend herself until after the hearing
              already was in progress” (emphasis in original);
       (2)    that, despite receiving the information packet about the CAASS hearing from
              Loveland-Cherry on November 7, 2009—after refusing to accept it in
              person—Martinson, again, did not attend the hearing and, again, did not offer
              any response to the charges against her; and
       (3)    that, although a copy of the CAASS panel report was sent to Martinson on
              November 14, 2007, along with exhibits, advising Martinson that she could
              submit a statement to CAASS for consideration before a final decision was
              rendered on November 16, 2007, she again made no response until after she
              was expelled.


       To the findings on notice, Martinson has no real answer, relying on the Supreme Court’s

decision in Mullane v. Central Hanover Bank & Trust Company, 339 U.S. 306, 314 (1950), for the

proposition that Appellees were required to employ notice “reasonably calculated, under all the

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No. 12-2230, Martinson v. Regents of the University of Michigan


circumstances,” to apprise her of the charges against her. But Martinson does not fare any better

under Mullane than under the test this court articulated in Flaim, 418 F.3d at 634 (relying on

Mathews v. Eldridge, 424 U.S. 319 (1976)), which varies “depending upon the nature of the interest

affected, and the circumstances of the deprivation,” id. (citation and internal quotation marks

omitted).    Martinson was expelled from the School of Nursing for failing to “maintain

compassionate and caring relationship [sic] with colleagues and others with a commitment to the

fair treatment of individuals . . . [and to avoid] any and all prejudicial actions, any form of

harassment or threatening behavior, or disrespect for effect [sic] of one’s actions on others.”

Assuming arguendo that the mid-semester warning of October 8, 2007, did not apprise Martinson

of the alleged conduct that resulted in this failure, there is little question that the letter and meeting

of October 17, the second letter and summary of October 22, the information packet of November

7, and the CAASS panel report of November 14 did. Accordingly, the District Court did not err in

concluding that Martinson received constitutionally sufficient notice.


        On the question of opportunity for hearing, Martinson has a better but equally unavailing

argument. Martinson contends, for example, that the seven-day delay between October 30, 2007,

and the preliminary hearing on November 5, 2007, “[wa]s not enough for her to prepare an adequate

defense.” And when she successfully pursued an administrative appeal to the GRB, she contended

that the scheduling of the November 9, 2007, CAASS hearing four days after the November 5, 2007,

preliminary hearing was unreasonable. The GRB’s agreement with Martinson supports this

argument.



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No. 12-2230, Martinson v. Regents of the University of Michigan


       But as Dean Potempa concluded, the GRB did not “take into account the full history of all

attempts to communicate with [Martinson] both for the Preliminary Inquiry and the Hearing.”

Martinson failed to attend either the November 5, 2007, preliminary hearing or the CAASS hearing

on November 9, 2007. She also failed to respond to Engholm’s email regarding the scheduling of

the preliminary hearing—despite having six days’ lead time—until after the hearing already was in

progress. She refused even to accept materials from Loveland-Cherry regarding the CAASS hearing

when Loveland-Cherry attempted to hand them to her, and she thereafter refused to review the

materials when Loveland-Cherry subsequently emailed them to her. Additionally, Martinson failed

to submit a statement to CAASS regarding her potential expulsion—despite being expressly invited

to do so—until after the expulsion already had been approved. The post hoc statement that

Martinson did submit failed to rebut—or even to address—the conduct on which her expulsion was

based. Each these failures was a missed opportunity to be heard.


       Such conduct was, as Dean Potempa put it, “inexcusable.” Martinson “simply chose not to

respond and defend” herself during the administrative proceedings, and she demonstrated similar

scorn for the summary judgment proceedings before the District Court. Martinson’s procedural due

process claim must therefore fail.


                                               IV.

       So, too, must Martinson’s substantive due process claim, which did not survive

comparatively lenient review under Rule 12(b)(6), fail. See Tucker v. Union of Needletrades, Indus.

& Textile Emps., 407 F.3d 784, 788 (6th Cir. 2005) (“Once a case has progressed to the summary

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No. 12-2230, Martinson v. Regents of the University of Michigan


judgment stage . . . the liberal pleading standards under . . . the Federal Rules are inapplicable.”

(internal quotation marks, citations, and alterations omitted)). We review the dismissal of a claim

under Rule 12(b)(6) de novo, Courie v. Alcoa Wheel & Forged Prods., 577 F.3d 625, 629 (6th Cir.

2009) (citation omitted), mindful of the Supreme Court’s instruction that a claim may only survive

a motion to dismiss if “it ‘contain[s] sufficient factual matter, accepted as true, to state a claim for

relief that is plausible on its face,’” id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

Although the plausibility standard does not amount to a “probability requirement,” it requires “more

than a sheer possibility that a defendant has acted unlawfully.” Estate of Barney v. PNC Bank, 714

F.3d 920, 924 (6th Cir. 2013) (internal quotation marks and citation omitted). A complaint satisfies

this standard when its factual content allows a court reasonably to draw the inference that the relief

it requests is warranted against the defendant that it names. Id.


       As an initial matter, we note that the Supreme Court never has held that the interest in

continued education at a public university constitutes a fundamental property or liberty interest that

finds refuge in the substantive protections of the Due Process Clause. See Rogers v. Tenn. Bd of

Regents, 273 F. App’x 458, 463 (6th Cir. 2008) (citing Regents of the Univ. of Mich. v. Ewing, 474

U.S. 214, 22-23 (1985) and Bd. of Curators of Univ. of Mo. v. Horowitz, 435 U.S. 78, 91-92 (1978)

and noting that the High Court has only assumed, arguendo, that such a right exists). Seeking to fill

that void, our own precedent suggests that the opposite is true. See id. (“[Appellant’s] interest in

her nursing education is not protected by substantive due process.”). Moreover, in Bell v. Ohio State

University we expressly stated that, in the absence of an equal protection violation, “we c[ould] see



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No. 12-2230, Martinson v. Regents of the University of Michigan


no basis for finding that a medical student’s interest in continuing her medical school education is

protected by substantive due process.” 351 F.3d 240, 251 (6th Cir. 2003). Martinson alleges no

equal protection violation, and her complaint cannot be read to allege facts that could amount to a

denial of equal protection.


       Martinson acknowledges this precedent but contends that her substantive due process rights

were violated through “arbitrary and capricious” government action. But Martinson’s expulsion

from the School of Nursing was neither arbitrary nor capricious. Each of the individual Appellees

had witnessed Martinson’s failure to “maintain compassionate and caring relationship [sic] with

colleagues and others . . .[and to avoid] any form of harassment or threatening behavior, or

disrespect for effect [sic] of one’s actions on others.” The decision to expel Martinson could not

have been arbitrary or capricious when those personal experiences were reconciled with the

similar—and, in some cases, more extreme—reported experiences of Martinson’s peers, staff, and

patients at the School of Nursing.3 Therefore, the substantive due process claim that Martinson has

alleged is not plausible and, like her procedural due process claim, must fail.




              3
                Accordingly, Martinson’s suggestion that her expulsion reflects “individual animus”
     implicating equal protection interests is not plausible. Neither does Martinson’s reliance on Dr.
     Harper’s determination that her conduct did not require immediate removal under the University’s
     emergency mental health policy or its bylaws for behavioral misconduct salvage her claim. Martinson
     was expelled for violations of the student code of conduct, not the University’s emergency mental
     health policy or bylaws, and that decision was not arbitrary or capricious for the reasons stated above.

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No. 12-2230, Martinson v. Regents of the University of Michigan


                                                V.

       For these reasons, we AFFIRM the summary dismissal of Martinson’s procedural due

process claim under Rule 56 as well as the dismissal of her substantive due process claim under Rule

12(b)(6).




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