                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 12-1961


SYLVIA E. NOFSINGER,

                Plaintiff - Appellant,

          v.

VIRGINIA COMMONWEALTH UNIVERSITY; E. DOUGLAS BOUDINOT, Dean,
School of Graduate Studies; CECIL B. DRAIN, Dean, School of
Allied Health Professions; THOMAS P. MAYHEW, Chair and
Associate Professor, Department of Physical Therapy; U. S.
PHYSICAL THERAPY, INC.,

                Defendants - Appellees,

          and

LISA D. SHOAF, Associate Professor, Department of Physical
Therapy; EMMA WHEELER, Assistant Professor, Chair of
Admissions,

                Defendants.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. James R. Spencer, District
Judge. (3:12-cv-00236-JRS)


Submitted:   February 28, 2013              Decided:   April 2, 2013


Before MOTZ and DUNCAN, Circuit Judges, and HAMILTON, Senior
Circuit Judge.


Affirmed by unpublished per curiam opinion.
Sylvia E. Nofsinger, Appellant Pro Se. Martha Murphey Parrish,
Assistant Attorney General, Catherine Crooks Hill, Christy
Monolo, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond,
Virginia; Annemarie DiNardo Cleary, Douglas P. Rucker, Jr.,
SANDS ANDERSON, PC, Richmond, Virginia, for Appellees.


Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

            Sylvia E. Nofsinger appeals the district court’s order

granting Defendants’ motions to dismiss her complaint pursuant

to Fed. R. Civ. P. 12(b)(1) and 12(b)(6).                      Nofsinger’s claims

relate     to    her     dismissal     from      the    Virginia         Commonwealth

University (“VCU”) graduate physical therapy program.                        Pursuant

to   an   affiliation      agreement     between       VCU    and    U.S.    Physical

Therapy,     Inc.      (“USPT”),     Nofsinger     enrolled         in   a   required

clinical instruction course conducted by a USPT employee.                       After

receiving a failing clinical grade and subsequent dismissal from

VCU, Nofsinger filed a complaint against VCU, USPT, and five

individual VCU faculty members.              For the reasons that follow, we

affirm.

            We review de novo a district court’s order dismissing

a complaint for failure to state a claim, assuming that all

well-pleaded nonconclusory factual allegations in the complaint

are true.       Aziz v. Alcolac, Inc., 658 F.3d 388, 391 (4th Cir.

2011).     A Rule 12(b)(6) motion challenges the legal sufficiency

of the complaint.        Francis v. Giacomelli, 588 F.3d 186, 192 (4th

Cir. 2009).       “To survive a motion to dismiss pursuant to Rule

12(b)(6), plaintiff’s ‘[f]actual allegations must be enough to

raise a right to relief above the speculative level,’ thereby

‘nudg[ing]      their   claims     across    the   line      from   conceivable    to



                                         3
plausible.’”       Aziz, 658 F.3d at 391 (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555 (2007)).

            Nofsinger     argues     that      the     district     court    erred    in

denying her due process claim.                 Generally, a due process claim

requires     a    two-part    analysis:        “whether    [the     plaintiff]       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).      Our review of the record establishes that Nofsinger

failed to allege a protected property interest in her continued

enrollment in VCU’s graduate program and that, in any event, VCU

afforded Nofsinger sufficient procedural process.

            Nofsinger also appeals the district court’s denial of

her equal protection claim.           The Equal Protection Clause of the

Fourteenth       Amendment    requires         “that    all    persons      similarly

situated should be treated alike.”               City of Cleburne v. Cleburne

Living Ctr., 473 U.S. 432, 439 (1985).                  “To succeed on an equal

protection claim, a plaintiff must first demonstrate that he has

been treated differently from others with whom he is similarly

situated    and    that   the   unequal        treatment      was   the     result    of

intentional       or    purposeful     discrimination.”                Morrison       v.

Garraghty,       239   F.3d   648,   654       (4th    Cir.   2001).        Nofsinger

reasserts her arguments that VCU treated her differently from

several similarly situated students and dismissed her from the

graduate program based on personal animus harbored against her

                                           4
by the individual defendants.                      We conclude that the district

court correctly found that Nofsinger failed to specify how the

alleged        students      were    similarly       situated      and,    furthermore,

failed    to     establish       that   any      differential      treatment     was   the

result of discrimination.

               Nofsinger also appeals the district court’s dismissal

of her breach of contract claim against USPT.                       Nofsinger alleges

that     she     was    an    intended      third     party      beneficiary     of    the

affiliation agreement between VCU and USPT, asserting that USPT

breached       several       provisions       of    the   contract.        Because     the

district       court    correctly       found      that   USPT     did    not   make   the

ultimate decisions to assign Nofsinger a failing grade or to

dismiss her from the VCU graduate program, we conclude that the

district court correctly dismissed this claim.

               Finally, Nofsinger asserts breach of contract claims

against VCU and the individual defendants.                          Because Nofsinger

did not allege a breach of contract claim against the individual

defendants in the district court, we conclude that Nofsinger may

not    now     pursue     this      claim   in     this   court.         Nofsinger     also

challenges the district court’s determination that her contract

claims against VCU are barred by the Eleventh Amendment.                               “The

existence of sovereign immunity is a question of law” reviewed

de novo.        S.C. Wildlife Fed’n v. Limehouse, 549 F.3d 324, 332

(4th Cir. 2008).          “In the absence of consent a suit in which the

                                               5
State or one of its agencies or departments is named as the

defendant is proscribed by the Eleventh Amendment . . . whether

the relief sought is legal or equitable.”                      Papasan v. Allain,

478 U.S. 265, 276 (1986) (internal quotation marks and citations

omitted).     Because VCU did not consent to suit, the district

court properly dismissed Nofsinger’s contract claims against VCU

as barred by the Eleventh Amendment.

            Accordingly,     although       we   grant    leave    to    proceed    in

forma   pauperis,    we    affirm   the     district       court’s      order.     We

dispense    with    oral    argument      because        the    facts    and     legal

contentions   are   adequately      presented      in     the    materials     before

this court and argument would not aid the decisional process.



                                                                           AFFIRMED




                                        6
