     Case: 09-20430     Document: 00511101823          Page: 1    Date Filed: 05/05/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                             May 5, 2010
                                     No. 09-20430
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

FENGHUI FAN,

                                                   Plaintiff-Appellant

v.

VICKI BREWER, Principal Designated Student Officer, University of Texas
Medical Branch; UNIVERSITY OF TEXAS MEDICAL BRANCH GRADUATE
SCHOOL; DAVID CALLENDAR, Doctor, University of Texas Medical Branch,
President; CARY COOPER, Doctor, University of Texas Medical Branch
Graduate School Dean; DORIAN COPPENHAVER, Doctor, University of Texas
Medical Branch Graduate School Associate Dean,

                                                   Defendants-Appellees


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:08-CV-3524


Before JOLLY, WIENER, and ELROD, Circuit Judges.
PER CURIAM:*
        Fenghui Fan, who is a native of China, entered the United States on a
student visa and became a Ph.D. student at the University of Texas Medical
Branch (UTMB).            Fan was academically dismissed after he received



        *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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                                 No. 09-20430

unsatisfactory grades in two courses. Vicki Brewer, whom Fan identifies as the
Principal Designated Student Officer (PDSO) at the University of Texas Medical
Branch, then made an entry in the database of the Student Exchange and
Visitors Information System (SEVIS) reflecting Fan’s changed academic status.
Fan was subsequently taken into custody by immigration officials and was
placed in removal proceedings.
      Fan then filed a civil rights complaint against Brewer seeking injunctive
relief in the form of changes to his grades, revocation of his academic dismissal,
and updates to his SEVIS record to reflect that he was still a student. Fan also
demanded that he be awarded $500,000 in compensatory damages for
termination of his study toward a Ph.D.
      The district court dismissed the action. It determined that Brewer had
been sued in her official capacity and that she was entitled to Eleventh
Amendment immunity on Fan’s claims for monetary damages and on his claims
for retrospective injunctive relief. As to Fan’s other federal law claims, the
district court determined that Fan had failed to state a claim on which relief
could be granted. The district court also denied Fan’s motion to add defendants.
      Fan now appeals the dismissal of his claims against Brewer. Giving
liberal constriction to Fan’s pro se brief, we also understand him to appeal the
denial of his motion to add defendants, which the district court implicitly treated
as a motion to amend the complaint.
      A district court’s grant of a motion to dismiss for failure to state a claim
under Fed. R. Civ. P. 12(b)(6) is subject to de novo review. In re Katrina Canal
Breaches Litigation, 495 F.3d 191, 205 (5th Cir. 2007). A plaintiff fails to state
a claim when the complaint does not contain “‘enough facts to state a claim to
relief that is plausible on its face.’” Id. (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). “Factual allegations must be enough to raise a right to
relief above the speculative level, on the assumption that all the allegations in
the complaint are true (even if doubtful in fact).” Twombly, 550 U.S. at 555

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(quotation marks, citations, and footnote omitted). A district court does not
abuse its discretion in denying leave to amend if allowing amendment of the
complaint would be futile. Briggs v. Mississippi, 331 F.3d 499, 508 (5th Cir.
2003). This court determines futility by applying “the same standard of legal
sufficiency as applies under Rule 12(b)(6).” Stripling v. Jordan Production Co.,
LLC, 234 F.3d 863, 873 (5th Cir. 2000) (quotation marks and citations omitted).
      Fan argues that, because UTMB received federal funding, none of the
defendants has immunity under the Eleventh Amendment.              A state is not
immune under the Eleventh Amendment from suit in federal court for a
violation of, “title VI of the Civil Rights Act of 1964, or the provisions of any
other Federal statute prohibiting discrimination by recipients of Federal
financial assistance.” 42 U.S.C. § 2000d-7(a)(1). However, Fan, who claims that
he was discriminated against on account of his national origin, has not shown
that he has stated a claim on which relief could be granted under Title VI or
under VII of the Civil Rights Act of 1964. See Twombly, 550 U.S. at 555. To the
extent that Fan argues that he is entitled to relief under the Equal Protection
Clause for discrimination based on his national origin, his claims fail under the
same analysis applicable to his Title VII claim. See Lauderdale v. Tex. Dep’t of
Criminal Justice, Institutional Div., 512 F.3d 157, 166 (5th Cir. 2007).    F a n ’s
claims against Brewer are based on her actions in updating the SEVIS database
to reflect his academic dismissal. Because Brewer was merely fulfilling her duty
under federal law to update the SEVIS database, see 8 C.F.R. § 214.3(g)(1)(vi),
Fan’s claim for violation of the “Border Security Act” fails to state a claim on
which relief may be granted; moreover, the claim is legally frivolous because it
is based on an indisputably meritless legal theory. See Neitzke v. Williams, 490
U.S. 319, 325 (1989). To the extent that Fan asserts other federal law claims
against Brewer, his conclusory allegations fail to state a claim on which relief an
be granted. See Twombly, 550 U.S. at 555.



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                                No. 09-20430

      Finally, Fan argues that his unsatisfactory grades were not based on his
academic performance and achievements. He argues that the district court
erred in dismissing his due process challenges to his grades and his academic
dismissal, and he claims that his rights to “free association and free assembly”
under the First Amendment were violated.
      Fan’s complaint shows that he received hearings at which he appealed his
grades and that he was also afforded a hearing regarding his academic
dismissal. The procedures afforded Fan were more than sufficient to satisfy
applicable due process standards. See Board of Curators of the Univ. of Missouri
v. Horowitz, 435 U.S. 78, 85-86 (1978); Davis v. Mann, 882 F.2d 967, 973-75 (5th
Cir. 1989). Fan has not shown error in the district court’s dismissal of his First
Amendment claim. See Regents of University of Michigan v. Ewing, 474 U.S.
214, 226 (1985).
      The judgment of the district court is affirmed.       Brewer’s motion for
summary affirmance and to stay the briefing deadlines is denied. See Southern
Farm Bureau Cas. Ins. Co. v. Morgan, 339 F. 2d 755, 756 (5th Cir. 1964). All
other outstanding motions are also denied.
      AFFIRMED; MOTION FOR SUMMARY AFFIRMANCE DENIED; ALL
OTHER OUTSTANDING MOTIONS DENIED.




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