Perez v. Tex. A&M Univ. At Corpus Christi

• Decision Date: 02 December 2013
• Docket Number: CIVIL ACTION NO. 2:13-CV-225
• Court: U.S. District Court — Southern District of Texas
• Parties: MARIA ELENA PEREZ, Plaintiff, v. TEXAS A&M UNIVERSITY AT CORPUS CHRISTI, et al, Defendants.

MARIA ELENA PEREZ, Plaintiff, v. TEXAS A&M UNIVERSITY AT CORPUS CHRISTI, et al, Defendants.

CIVIL ACTION NO. 2:13-CV-225

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS CORPUS CHRISTI DIVISION

ORDERED: December 2, 2013

ORDER

Before the Court is Defendants' Motion to Dismiss Plaintiff's Amended Complaint (D.E. 18). Plaintiff, a former nursing student at Texas A&M University at Corpus Christi (the University), brings this action against the University and her professors, alleging that her dismissal from the program violated her constitutional, statutory, and common law rights. Defendants challenge this Court's jurisdiction over certain claims. They further argue that Plaintiff has not stated any claim upon which relief may be granted. For the reasons set out below, the Motion is GRANTED.

FACTUAL ALLEGATIONS

At issue are the claims in Plaintiff, Maria Elena Perez's (Perez's) "Amended Original Complaint and Demand for Jury Trial" (D.E. 15).¹ Perez began her education in the nursing program at Texas A&M International University in Laredo, Texas, in Januaryof 2009, establishing what she describes as "an excellent record of academic achievement."

Perez transferred to the University in Corpus Christi for the Spring 2011 semester to continue working toward a Baccalaureate of Science in Nursing. In the Fall semester, she completed her course work for her "Med Surge II" class, which includes a clinical rotation. While she had no problem with the clinical portion of the course, her exam grades fell short of the 75 average required to pass the course. Her professor, Julie Schwein Fomenko (Fomenko), refused to make an exception to department policy and Perez failed the class. Perez claims that this refusal is discriminatory because Fomenko was known to make exceptions to this exam grade requirement for other students.

Perez repeated the Med Surge II class in the Spring 2012 semester. This time, however, she failed the clinical portion of the class as a result of three warnings, which Perez alleges were issued in bad faith, arbitrarily, and capriciously. First, she received a warning because she failed to complete and upload a Hospital Orientation, which was due January 27, 2012. Perez was warned that she had to complete the relevant modules by February 22, 2012. Perez did complete the modules by the new deadline, but alleges that the warning was improper because the syllabus did not require the original January deadline and because the elementary school setting for her clinical rotation did not require prior completion of the Hospital Orientation.

Second, Perez received a warning from Rachel S. Miller Roberge (Roberge), Clinical Instructor of Nursing for being late to a clinical and for failing to properly resubmit a care plan. Perez had originally submitted her care plan using her Fall 2011Med Surge II form rather than the Spring 2012 form, which contained additional categories. Perez claims that Roberge told her that, if she simply added the lab sheet and the reference page, the submission would be sufficient. Roberge found the submission of the two items insufficient because Perez had not corrected the entire care plan and denied telling Perez that simply adding the two categories would be sufficient. Perez eventually submitted additional care plans on which she received passing grades.

In connection with the second warning, Roberge also complained that Perez was late to the clinical on April 12, 2012. Perez does not deny being fifty-five minutes late, but explains that she had been preoccupied with important personal matters and had not checked the schedule. She alleges that she made up the time by not taking a lunch break. She further complains that another student who was about thirty minutes late on the same day did not receive a warning.

The third warning again came from Roberge with respect to Perez's clinical performance. That warning complained that Perez was not certain about a patient's blood pressure condition, she did not give a patient a full dosage of an injection, and she did not know what another patient's medication was for and did not know the reason for that patient's hospitalization. Perez does not deny these accusations, but seeks to excuse her performance because she had not been given sufficient time, Roberge made her nervous, and she made an "honest mistake" as a result of being anxious, knowing that a third warning would end her participation in the nursing program.

Plaintiff was expelled from the nursing program one class shy of graduation. She filed an appeal with the nursing department pursuant to the Nursing Student's Handbook,but was advised that such department appeals were no longer available. She sought reinstatement to the program, which was denied. She then appealed to the University. This resulted in three hearings. The first hearing was conducted without Perez being present. Perez participated in the second hearing and "had an opportunity to plead her case." Perez was excluded from the third hearing at which Fomenko appeared with counsel. Having access to the audio tape of that hearing, Perez alleges that Fomenko made defamatory statements about her.

The University affirmed the dismissal of Perez from the nursing program. Perez argues that this action was arbitrary, capricious, and discriminatory against her because she is Hispanic and of Mexican descent. She claims that students with similar academic performance were treated more favorably because of race. Among the allegations are interventions by the University's administrators to ensure that Caucasian and non-Hispanic students receive passing grades and the application of different standards regarding academic performance and dismissal determinations.

Plaintiff has included as a Defendant Mary Jane-Dean Hamilton (Hamilton), Associate Dean of the Nursing Department. While Hamilton is named in the liability counts in connection with official policy or official acts of the University, nothing in the Complaint describes the specific actionable conduct attributed to Hamilton.

DISCUSSION

Perez alleges her causes of action in nine counts, including violation of procedural and substantive due process rights, deprivation of equal protection and equal rights, breach of contract, defamation, intentional infliction of emotional distress, and violationof the Texas Civil Rights Act. Defendants assert that the Texas Tort Claims Act and Eleventh Amendment immunity require dismissal of Perez's claims. They also assert that 42 U.S.C. § 1983 does not apply to them and that qualified immunity shields the individual Defendants from liability. Furthermore, they suggest that the factual allegations do not state deprivations of due process or equal protection, that the Texas state constitution does not provide a remedy within this Court's jurisdiction, and that the Texas Civil Rights Act allegations are insufficient to determine a claim or to establish jurisdiction over that claim. The arguments will be discussed in the order in which Plaintiff pled her causes of action.

A. 42 U.S.C. § 1983: Count One - Fifth Amendment Due Process; Count Two - Fourteenth Amendment Due Process; and Count Three - Fourteenth Amendment Equal Protection

In her first three counts, Perez claims that she was deprived of her property and liberty interests as a result of arbitrary, intentional, discriminatory, and defamatory acts taken in reckless disregard of her rights so as to shock the conscience. She claims that her right to seek a nursing school education is a fundamental right that constitutes a property interest and her expectation of an unblemished reputation and future career in nursing constitutes a protected liberty interest. Perez states that her dismissal from the University's nursing program was arbitrary, capricious, motivated by bad faith, and based on false accusations that prejudiced the review committee. She further claims that she was intentionally singled out and treated less favorably than other similarly situated persons without any rational basis for the difference in treatment.

1. University and Officials are Not Subject to Suit for Damages.

First, Defendants correctly assert that the University and the individual Defendants acting in their official capacity are not "persons" subject to liability under 42 U.S.C. § 1983. D.E. 18, pp. 8-9. Neither a state nor its officials and state universities are "persons" against whom a plaintiff may bring a private right of action for money damages. Will v. Michigan State Dep't of Police, 491 U.S. 58, 71 & n.10, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989); see also Lapides v. Board of Regents of the University System of Georgia, 535 U.S. 613, 617, 122 S.Ct. 1640, 152 L.Ed.2d 806 (2002). The Fifth Circuit has also specifically recognized that state universities as arms of the state are not "persons" under § 1983. Stotter v. University of Texas at San Antonio, 508 F.3d 812, 821 (5^th Cir. 2007) (citing Laxey v. Louisiana Bd. of Trustees, 22 F.3d 621, 623 n.2 (5^th Cir. 1994) and Texas v. Walker, 142 F.3d 813, 820 n.10 (5^th Cir. 1998)). Texas A&M University at Corpus Christi is such a state university. Tex. Educ. Code §§ 61.003(3), 86.02, 87.401.

Perez does not provide any counter-argument to this basis for dismissal of the claim. D.E. 21. Pursuant to Local Rule 7.4, the failure to brief an argument in response to a basis for relief expressed in a motion constitutes a representation of "no objection" to the relief. Thus Defendants have shown that they are entitled to dismissal of the § 1983 claims for money damages against the University and the individual Defendants in their official capacity.

2. Individual Defendants Are Entitled to Qualified Immunity.

a. Procedurally, the Qualified Immunity Defense is a Proper Basis for a Rule 12(b) Motion.

Defendants assert that the individual Defendants acting in their individual capacity are entitled to qualified immunity because their actions were discretionary and their conduct...