                                UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                                No. 08-1637


DOUGLAS P. BROWN,

                  Plaintiff - Appellant,

             v.

RECTORS AND VISITORS OF THE UNIVERSITY OF VIRGINIA; JAMES A.
MARSHALL,

                  Defendants – Appellees.



Appeal from the United States District Court for the Western
District of Virginia, at Charlottesville.    Norman K. Moon,
District Judge. (3:07-cv-00030-nkm-bwc)


Submitted:    August 26, 2009                 Decided:   January 19, 2010


Before NIEMEYER, KING, and AGEE, Circuit Judges.


Affirmed by unpublished per curiam opinion.


Paul Erik Wilke, Charlottesville, Virginia, for Appellant.
Richard   C.   Kast,    Special   Assistant Attorney General,
Charlottesville, Virginia, for Appellees.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

           Douglas   Brown     appeals       the    district    court’s     order

granting the Defendants’ motion to dismiss his complaint for

failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6).

Brown raised claims of violation of due process and breach of

contract arising from his removal from a graduate program in

chemistry at the University of Virginia.                    The district court

found that Brown failed to plead a violation of his due process

rights or a breach of contract claim, and that Defendant James

Marshall is entitled to qualified immunity.                    For the reasons

stated below, we affirm.



                               I Due Process

           Brown first argues that the district court erroneously

found that he was entitled to only minimal process because he

was removed from the program for academic reasons, rather than

disciplinary reasons.      Under the Fourteenth Amendment, no state

“shall . . . deprive any person of life, liberty, or property,

without   due   process   of   law.”       U.S.    Const.   amend.   XIV,   §   1.

Generally, a due process claim requires a two-part analysis:

“whether [the claimant] was deprived of a protected interest,

and, if so, what process was his due.”              Logan v. Zimmerman Brush

Co., 455 U.S. 422, 428 (1982).         In the context of claims against

institutions of higher learning, the Supreme Court has assumed

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without deciding that students have a protected property right

in    continued     enrollment.        See          Regents       of   Univ.     of     Mich.    v.

Ewing, 474 U.S. 214, 222-23 (1985) (assuming the existence of a

protected property interest in student’s continued enrollment);

Bd. of Curators, Univ. of Mo. v. Horowitz, 435 U.S. 78, 84-85

(1978)     (assuming    existence          of   dismissed          student’s       liberty       or

property interests); see also Tigrett v. Rector & Visitors of

the Univ. of Va., 290 F.3d 620, 627 (4th Cir. 2002) (noting

assumption).

             When    determining       what         type    of     procedural         safeguards

are     required       in     the      educational            setting,           courts     have

consistently        drawn      a      distinction             between          academic         and

disciplinary       dismissals.         Horowitz,            435    U.S.     at    87.     When    a

school     takes    serious     disciplinary            action         against     a    student,

generally the student must be offered notice and an opportunity

to    be   heard.      Goss     v.     Lopez,         419     U.S.      565,      579    (1975).

Procedural    requirements           are    greatly         reduced,      however,        when   a

student is dismissed for academic, as opposed to disciplinary,

reasons.      Horowitz,         435        U.S.       at      87-88.        “[D]isciplinary

proceedings    require        more    stringent         procedural          protection      than

academic     evaluations,       even       though      the        effects    of    an    adverse

decision on the student may be the same.”                          Henson v. Honor Comm.

of Univ. of Va., 719 F.2d 69, 74 (4th Cir. 1983).



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            The district court did not err in finding that Brown

was   dismissed        for    academic    reasons,        rather    than     disciplinary

reasons.         Although       Brown’s    complaint         suggests       that   he   was

removed     for        his     failure     to       abide     by     the      Defendants’

interpretation of the graduate program’s rules and regulations,

rather    than     as    a     direct    result      of     his    failing     the   Ph.D.

candidacy exam, the complaint also indicates that the decision

to remove him was based upon his failure to complete his M.S.

degree    thesis       within    the    required      time    limits    following       his

failure on the candidacy exam.                    The Graduate Studies Committee,

which Marshall heads, interpreted its rules governing academic

standards       for     timely    completion         of    the     graduate    program’s

requirements, rather than disciplinary rules governing student

conduct, to find that Brown was no longer eligible to remain in

the program.          Because Brown was removed for academic reasons,

rather than disciplinary reasons, the district court properly

found    that    the     removal       decision     was     entitled    to     heightened

deference        and         subject     to       greatly         reduced      procedural

requirements.



                                II Qualified Immunity

            Brown next contends that the district court engaged in

improper fact-finding that contradicted the allegations in his

complaint when it found that the notice and hearing process he

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received in January 2004 was relevant to his ultimate removal

from the program in 2006, resulting in an improper finding that

Marshall was entitled to qualified immunity.

             We review de novo a district court’s Rule 12(b)(6)

dismissal,        “focus[ing]       only   on     the     legal   sufficiency    of    the

complaint.”        Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir.

2008).      “[W]hen ruling on a defendant’s motion to dismiss, a

judge      must    accept     as    true     all     of    the    factual   allegations

contained in the complaint.”                  Erickson v. Pardus, 127 S. Ct.

2197, 2200 (2007) (citations omitted).                       However, to survive a

Rule 12(b)(6) motion, “[f]actual allegations must be enough to

raise a right to relief above the speculative level,” and the

pleading must contain “enough facts to state a claim to relief

that is plausible on its face.”                   Bell Atl. Corp. v. Twombly, 550

U.S. 544, 555, 570 (2007).                   “[T]he tenet that a court must

accept as true all of the allegations contained in a complaint

is inapplicable to legal conclusions” or “[t]hreadbare recitals

of   the    elements     of     a    cause      of   action,      supported     by    mere

conclusory statements.”               Ashcroft v. Iqbal, 129 S. Ct. 1937,

1949 (2009).         A complaint may survive a motion to dismiss only

if it “states a plausible claim for relief” that “permit[s] the

court to infer more than the mere possibility of misconduct”

based upon “its judicial experience and common sense.”                           Id. at

1950.

                                              5
               Qualified     immunity          protects         government          officials

performing       discretionary         functions       from      liability         for    civil

damages    “insofar     as       their      conduct    does      not    violate          clearly

established       statutory       or     constitutional          rights       of    which        a

reasonable person would have known.”                      Harlow v. Fitzgerald, 457

U.S. 800, 818 (1982).              The court must “determine whether the

plaintiff        has   alleged           the       deprivation          of     an        actual

constitutional right at all,” and, if so, “whether that right

was clearly established at the time of the alleged violation.”

Conn v. Gabbert, 526 U.S. 286, 290 (1999). For a right to be

clearly established, “its contours must be sufficiently clear

that   a   reasonable       official        would   understand         that   what        he    is

doing violates that right.”                 Hope v. Pelzer, 536 U.S. 730, 739

(2002) (internal quotation omitted).

               The district court did not engage in improper fact-

finding in determining that Marshall was entitled to qualified

immunity.        The allegations in Brown’s complaint describe the

hearing process that was afforded him in January 2004, after he

was    first    informed     that      he    was    not    in    compliance         with       the

requirements for remaining in the graduate program.                                  Although

the complaint states in a conclusory fashion that Brown was not

afforded    notice     or    a    hearing      prior      to    his    removal      from       the

program in 2006, the district court was not required to accept

as true this statement that merely described a legal element of

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the cause of action.               Because Brown’s complaint did not state

any purported reason for his removal from the program that did

not relate to his failure to complete his M.S. thesis in a

timely    fashion,        the   court    did     not    err    in    finding      that   the

process    Brown     was    afforded      in     2004    related      to   his    ultimate

removal in 2006.           Accordingly, the court did not err in finding

that any minimal violation of his due process rights that might

have     occurred     did       not    violate     a     right      that    was    clearly

established,        and     that      Marshall     was     entitled        to     qualified

immunity.



                                III Breach of Contract

            Brown also argues that the district court erred in

finding that the Graduate Student Handbook referenced in the

complaint did not constitute a contract between himself and UVA

as a matter of law.                The district court did not err because

Brown’s complaint contained only conclusory allegations that the

Graduate Student Handbook constituted a contract between himself

and UVA, and that assertion was unsupported by the terms of the

Handbook    and     expressly         contradicted       by    the    Graduate      Record

incorporated therein.

            For     the     foregoing     reasons,        we   affirm      the    district

court’s order.        We dispense with oral argument because the facts

and legal contentions are adequately presented in the materials

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before   the   court   and   argument   would   not   aid   the   decisional

process.

                                                                    AFFIRMED




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