                                                             [DO NOT PUBLISH]


                IN THE UNITED STATES COURT OF APPEALS
                                                                    FILED
                          FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                            ________________________ ELEVENTH CIRCUIT
                                                              SEPTEMBER 2, 2009
                                  No. 08-16903                THOMAS K. KAHN
                              Non-Argument Calendar                CLERK
                            ________________________

                       D. C. Docket No. 08-00077-CV-RWS-2


SUZANNE SARVER,

                                                               Plaintiff-Appellant,

                                        versus


RON JACKSON,
each personally and in their official capacities,
KRISTI CARMAN,
each personally and in their official capacities,
et al.,

                                                             Defendants-Appellees.

                            ________________________

                    Appeal from the United States District Court
                       for the Northern District of Georgia
                         _________________________
                               (September 2, 2009)

Before EDMONDSON, BLACK and PRYOR, Circuit Judges.

PER CURIAM:
       Suzanne Sarver, a student at North Georgia Technical College (NGTC)

proceeding pro se, appeals the dismissal of her civil complaint filed pursuant to 42

U.S.C. § 1983 and Title IX, 20 U.S.C. § 1681.1 Sarver argues the district court

erred in dismissing her complaint pursuant to Rule 12(b)(6) for failure to state a

claim upon which relief can be granted. She asserts she sufficiently alleged:

(1) the defendants violated her due process rights under § 1983 before suspending

her from school; (2) the Georgia torts of slander, libel, and defamation of

character; and (3) sexual harassment by the staff and students interfered with her

ability to attend school, and the deliberate indifference of the staff created an

intimidating and hostile school environment. We review each claim in turn. After

de novo review, we affirm the district court’s dismissal of her complaint.2




       1
          “Pro se pleadings are held to a less stringent standard than pleadings drafted by
attorneys and will, therefore, be liberally construed.” Tannenbaum v. United States, 148 F.3d
1262, 1263 (11th Cir.1998).
       2
          To survive dismissal for failure to state a claim, “a plaintiff’s obligation to provide the
‘grounds’ of his ‘entitlement to relief’ requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not do.” Bell Atlantic Corp. v.
Twombly, 127 S. Ct. 1955, 1964-65 (2007). “Factual allegations must be enough to raise a right
to relief above the speculative level.” Id. at 1965. A district court may properly dismiss a
complaint if it rests only on “conclusory allegations, unwarranted deductions of facts or legal
conclusions masquerading as facts.” Oxford Asset Mgmt., Ltd. v. Jaharis, 297 F.3d 1182, 1188
(11th Cir. 2002).

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                    I. DUE PROCESS CLAIM UNDER § 1983

      Sarver argues her due process rights were violated because (1) the school set

the hearing during exams, (2) she was only given a general statement of the

charges, (3) her sanction was arbitrarily increased to a suspension, and (4) her

appeal was ignored because it was sent by e-mail. Sarver also contends the

defendants were not entitled to qualified immunity.

      Section 1983 provides a remedy for deprivation of federal statutory and

constitutional rights. Almand v. DeKalb, 103 F.3d 1510, 1512 (11th Cir. 1997).

“In order to prevail on a civil rights action under § 1983, a plaintiff must show that

he or she was deprived of a federal right by a person acting under color of state

law.” Griffin v. City of Opa-Locka, 261 F.3d 1295, 1303 (11th Cir. 2001). A state

official, when sued in his official capacity for damages, is not a person within the

meaning of § 1983. Will v. Michigan Dep’t of State Police, 109 S. Ct. 2304, 2312

(1989).

      Furthermore, “[q]ualified immunity protects government officials

performing discretionary functions from suits in their individual capacities unless

their conduct violates ‘clearly established statutory or constitutional rights of

which a reasonable person would have known.’” Andujar v. Rodriguez, 486 F.3d

1199, 1202 (11th Cir. 2007). Qualified immunity is an affirmative defense that



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must be pled, or else it is deemed waived. Skrtich v. Thornton, 280 F.3d 1295,

1306 (11th Cir. 2002). Qualified immunity may be asserted on a pretrial motion to

dismiss under Rule 12(b)(6) for failure to state a claim. Id.

      As employees of NGTC, each of the defendants were state officials acting

within the scope of their employment. Accordingly, they were not subject to suit

for damages in their official capacities. Will, 109 S. Ct. at 2312. Furthermore, the

district court correctly dismissed the complaint for damages against the defendants

in their individual capacities as barred by the doctrine of qualified immunity. The

defendants were performing discretionary functions authorized as part of their

employment when determining whether to impose disciplinary sanctions against

Sarver. See Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1265-66 (11th

Cir. 2004) (holding a defendant performed a discretionary function if he: “(a)

perform[ed] a legitimate job-related function (that is, pursu[ed] a job-related goal),

(b) through means that were within his power to utilize”). The defendants also

properly raised the defense in their motion to dismiss. See Skrtich, 280 F.3d at

1306. Therefore, they are entitled to qualified immunity unless Sarver can satisfy

the following two-part analysis to defeat qualified immunity: (1) the facts, as

alleged and viewed in the light most favorable to the plaintiff, must establish a

constitutional violation; and (2) the constitutional right violated must be clearly



                                           4
established. Saucier v. Katz, 121 S. Ct. 2151, 2156 (2001), abrogated in part by

Pearson v. Callahan, 129 S. Ct. 808, 818 (2009) (holding district courts have

discretion as to the order in which to address the two prongs).

       With respect to the first prong, Sarver asserts a violation of her

constitutional right to due process. “The fundamental requisite of due process is

the opportunity to be heard, and with regard to student suspensions, students must

be given reasonable notice and an opportunity to have a hearing.” Nash v. Auburn

Univ., 812 F.2d 655, 660, 663 (11th Cir. 1987). Students “have the right to

respond [to the charges], but their rights in the academic disciplinary process are

not co-extensive with the rights of litigants in a civil trial or with those of

defendants in a criminal trial.” Id. at 664. The nature of the hearing will depend

upon the circumstances of the particular case, but, in general, a hearing should give

the student an opportunity to present her side in considerable detail. Dixon v.

Alabama State Bd. of Ed., 294 F.2d 150, 159 (5th Cir. 1961) (“[A] hearing which

gives the Board or the administrative authorities of the college an opportunity to

hear both sides in considerable detail is best suited to protect the rights of all

involved. This is not to imply that a full-dress judicial hearing, with the right to

cross-examine witnesses, is required.”).




                                            5
      Sarver failed to allege facts establishing a violation of her right to due

process. She indicated in her complaint she was notified of the charges against her

and given an opportunity to be heard and present a defense. Sarver failed to appear

at any scheduled meetings to address the violations with which she was charged.

Sarver was then sent a letter informing her of the charges against her, and notifying

her she was being put on disciplinary probation. Defendants then gave Sarver the

opportunity to appeal and scheduled a hearing date for her appeal, but Sarver did

not attend. Sarver’s decision not to participate in the process does not negate the

fact she was given the opportunity to be heard and present her side.

      Because each of the defendants were state officials acting within the scope

of their employment, the district court correctly concluded they were not subject to

suit for damages in their official capacities. Furthermore, the district court

correctly concluded the defendants were entitled to qualified immunity, because

they were performing discretionary functions, and Sarver failed to establish their

conduct violated her constitutional right to due process.

         II. STATE LIBEL, SLANDER, AND DEFAMATION CLAIMS

      Sarver’s complaint alleged the school officials made false verbal and written

statements about her, and made such statements with the intent to defame Sarver’s




                                           6
character. Sarver also contends the defendants should not have blacked out the

names of those making the alleged defamatory and libelous comments.

      Under Georgia law, “libel is a false and malicious defamation of another,

expressed in print, writing, pictures, or signs, tending to injure the reputation of the

person and exposing him to public hatred, contempt, or ridicule.” O.C.G.A.

§ 51-5-1. Slander is oral defamation which includes, “uttering any disparaging

words productive of special damage which flows naturally therefrom.” O.C.G.A.

§ 51-5-4.

      The district court correctly found Sarver failed to state a claim, as her

complaint failed to identify any specific written or verbal statements attributed to

the defendants. See Oxford Asset Mgmt., Ltd. v. Jaharis, 297 F.3d 1182, 1188

(11th Cir. 2002) (holding conclusory allegations are insufficient to state a claim).

In fact, Sarver concedes in her brief she did not know who made the statements

which formed the basis of her tort claims. In any case, absent an express waiver by

the state, the Eleventh Amendment bars state law claims against a state in federal

court. Maynard v. Bd. of Regents, 342 F.3d 1281, 1287 (11th Cir. 2003). Georgia

tort law makes it clear it has not waived its sovereign immunity for tort claims

against state officers or employees. See O.C.G.A. § 50-21-25(a). Furthermore, a

tort claim based purely on state law cannot be brought under § 1983. See Almand,



                                            7
103 F.3d at 1512 (“[S]ection 1983 must not supplant tort law; liability is

appropriate solely for violations of federally protected rights.”).

                                III. TITLE IX CLAIM

      Sarver’s complaint alleges sexual harassment by the staff and students

interfered with her ability to attend school, and the deliberate indifference of the

staff created an intimidating and hostile school environment. Sarver also contends

the defendants were repeatedly notified of the Title IX violation and did nothing.

      Title IX provides, in pertinent part, “[n]o person . . . shall, on the basis of

sex, be excluded from participation in, be denied the benefits of, or be subjected to

discrimination under any education program or activity receiving Federal financial

assistance.” 20 U.S.C. § 1681(a). In Gebser v. Lago Vista Independent Sch. Dist.,

118 S. Ct. 1989 (1998), the Supreme Court held a school district will not be liable

in damages under Title IX for teacher-on-student sexual harassment “unless an

official of the school district who at a minimum has authority to institute corrective

measures on the district’s behalf has actual notice of, and is deliberately indifferent

to, the teacher’s misconduct.” Id. at 1993. Deliberate indifference is defined as

“an official decision by the recipient [of federal funds] not to remedy the

violation.” Id. at 1999. When a Title IX plaintiff seeks damages against a school

district for student-on-student harassment, the harassment must be “so severe,



                                           8
pervasive, and objectively offensive that it denied its victims the equal access to

education that Title IX is designed to protect.” Sauls v. Pierce County Sch. Dist.,

399 F.3d 1279, 1284 (11th Cir. 2005).

      The district court correctly dismissed Sarver’s Title IX claim, as Sarver’s

complaint failed to allege facts demonstrating any defendants were on notice of the

alleged harassment and demonstrated any deliberate indifference to the matter.

Furthermore, Sarver did not make any non-conclusory allegations about who

harassed her, what that harassment entailed, or how the alleged harassment was on

account of her sex.

      For the foregoing reasons, the district court did not err in dismissing

Sarver’s complaint in its entirety. Accordingly, we affirm.

      AFFIRMED.




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