     Case: 17-40223      Document: 00514220928         Page: 1    Date Filed: 11/01/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fifth Circuit

                                    No. 17-40223                                  FILED
                                  Summary Calendar                         November 1, 2017
                                                                             Lyle W. Cayce
                                                                                  Clerk
BRIAN GORDON,

              Plaintiff - Appellant

v.

UNIVERSITY OF TEXAS MEDICAL BRANCH, doing business as Animal
Resource Center; TONI D’AGOSTINO,

              Defendants - Appellees




                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 3:16-CV-42


Before JOLLY, OWEN, and HAYNES, Circuit Judges.
PER CURIAM:*
       The University of Texas Medical Branch (“UTMB”) fired Brian Gordon
from his position as an attending veterinarian after he raised concerns about
the treatment of animals at UTMB. Gordon had reported his concerns to his
supervisor and a committee charged with oversight of animal testing. He later
sued UTMB and his supervisor Toni D’Agostino under 42 U.S.C. § 1983,


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-40223
alleging violations of his First Amendment free speech rights and his
Fourteenth Amendment due process rights. Gordon also asserted a claim for
defamation. The district court dismissed all claims with prejudice, concluding
Gordon’s First Amended Complaint failed to state a claim under § 1983 and
declining to exercise supplemental jurisdiction over the state-law defamation
claim. It also denied Gordon the opportunity to again amend his complaint.
Without passing upon the concerning allegations of UTMB’s treatment of the
animals, we affirm the district court’s order in all respects but one. 1 We
examine both the First Amended Complaint and the proposed Second
Amended Complaint below.
      For his First Amendment claim, Gordon fails to allege, as he must, that
he spoke as a private citizen rather than pursuant to his official duties. See
Garcetti v. Ceballos, 547 U.S. 410 (2006). “The critical question under Garcetti
is whether the speech at issue is itself ordinarily within the scope of an
employee's duties, not whether it merely concerns those duties.” Lane v.
Franks, 134 S. Ct. 2369, 2379 (2014). Though he conclusorily states that he
spoke as a private citizen, all of the other allegations support one conclusion:
that he spoke pursuant to his official job duties.
      Gordon bases his claims on reports he made to his supervisor and to the
Institutional Animal Care and Use Committee (“IACUC”) at UTMB. Research
facilities like UTMB must establish an IACUC to oversee the treatment of
animals.    9 C.F.R. § 2.31(a).       Because the IACUC includes at least one
individual unaffiliated with the research facility, see id. § 2.31(b)(3)(ii), Gordon
believes that UTMB’s IACUC was not “simply another form of internal


      1 We typically review denial of leave to amend under an abuse of discretion standard.
But where, as here, we affirm the denial on the grounds that amendment would be futile, we
review de novo—the same standard of review that applies to the district court’s decision to
dismiss the complaint. See Stripling v. Jordan Prod. Co., LLC, 234 F.3d 863, 868, 872 (5th
Cir. 2000).
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                                  No. 17-40223
supervision.” But the IACUC is considered an “agent of the research facility,”
and not an outside entity. Id. § 2.31(c). It oversees the “activities involving
animals” at the research facility. Id. Gordon was in a regulatorily required
role that was a part of and reported to the IACUC. See id. §§ 2.31(d), 2.33(a)(3).
The IACUC was a part of UTMB and Gordon’s reports were part of his typical
job duties; therefore, he acted pursuant to his official duties.
      Gordon also fails to sufficiently allege a damages claim for denial of his
procedural due process rights. Gordon maintains that he was entitled to, but
never received, a “name-clearing hearing.”       To allege a damages claim for
denial of a name-clearing hearing, a plaintiff must allege that he was
“discharged, that defamatory charges were made against him in connection
with the discharge, that the charges were false, that no meaningful public
hearing was conducted pre-discharge, that the charges were made public, that
he requested a hearing in which to clear his name, and that the request was
denied.” Rosenstein v. City of Dallas, 876 F.2d 392, 395–96 (5th Cir. 1989)
(footnotes omitted), opinion reinstated in part, 901 F.2d 61 (5th Cir. 1990) (en
banc). Gordon does not identify any statement made “in connection with the
discharge” that was “false.” Id. at 396 n.3.
      Instead, Gordon alleges that David Niesel—Gordon’s supervisor’s
supervisor and not a defendant in this suit—told a reporter, months after the
termination, that Gordon was “a bad employee” and that he “should not believe
anything [Gordon] said.” We have held that a plaintiff must allege that the
state actor made “concrete, false assertions of wrongdoing on the part of the
plaintiff,” not offer mere “opinion” about the employee.     Blackburn v. City of
Marshall, 42 F.3d 925, 936 (5th Cir. 1995); see also San Jacinto Sav. & Loan
v. Kacal, 928 F.2d 697, 702 (5th Cir. 1991) (per curiam) (“The record does not
contain, however, any evidence that the City or Hale made a concrete assertion
that Kacal condoned the alleged alcohol and drug activity.”); Connelly v.
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                                       No. 17-40223
Comptroller of the Currency, 876 F.2d 1209, 1215 (5th Cir. 1989) (“The letter
to the Westwood charter applicants said that: ‘We are of the opinion that Mr.
Connelly does not possess the qualifications for the position of President of
Westwood National Bank . . . ’ The opinion of the Comptroller contains no false
factual representations, concrete or otherwise.”) (ellipsis in original);
Huffstutler v. Bergland, 607 F.2d 1090, 1092 (5th Cir. 1979) (per curiam). The
comments here are exclusively opinions, rather than “concrete charges” that
were connected to Gordon’s discharge. To the extent that Gordon complains
about D’Agostino reporting such comments to Niesel, he fails to allege that “the
charges were made public.” Rosenstein, 876 F.2d at 396.
       In sum, Gordon does not allege a violation of any of his federal
constitutional rights.       Consequently, even considering the allegations in
Gordon’s proposed Second Amended Complaint, he fails to state a claim for
violation of § 1983. 2
       Having dismissed all federal claims, the district court had discretion to
decline to exercise supplemental jurisdiction over Gordon’s state law claim.
See 28 U.S.C. § 1367(c)(3); Rhyne v. Henderson Cty., 973 F.2d 386, 395 (5th Cir.
1992). But when a district court exercises its discretion and dismisses the
state-law claims, it must do so without prejudice so that the plaintiff may refile
in the appropriate state court. See Bass v. Parkwood Hosp., 180 F.3d 234, 246
(5th Cir. 1999). The court erred by dismissing the defamation claim with
prejudice.



       2 The district court also dismissed all claims asserted against UTMB because, as a
state agency, it was entitled to sovereign immunity. That conclusion is also correct. See
Richardson v. S. Univ., 118 F.3d 450, 456 (5th Cir. 1997) (holding that universities may be
arms of the state entitled to sovereign immunity); see also Scott v. Pfizer Inc., 182 F. App’x
312, 315 (5th Cir. 2006) (“UTMB is an agency of the State of Texas, giving it Eleventh
Amendment immunity.”) (per curiam). Gordon does not meaningfully challenge this
conclusion on appeal or identify new allegations in the proposed Second Amended Complaint
that would alter the analysis.
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                                No. 17-40223
      Accordingly, we VACATE the district court’s dismissal with prejudice of
Gordon’s defamation claim and REMAND for the district court to enter an
order dismissing the claim without prejudice.     We AFFIRM in all other
respects.




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