Herron v. Virginia Com. University

• Decision Date: 29 April 2004
• Docket Number: No. CIV.A. 3:03CV590.,CIV.A. 3:03CV590.
• Parties: Lesia HERRON, Plaintiff, v. VIRGINIA COMMONWEALTH UNIVERSITY, Defendant.
• Court: U.S. District Court — Eastern District of Virginia

366 F.Supp.2d 355

Lesia HERRON, Plaintiff, v. VIRGINIA COMMONWEALTH UNIVERSITY, Defendant.

No. CIV.A. 3:03CV590.

United States District Court, E.D. Virginia, Richmond Division.

April 29, 2004.

Steven Bennett Gould, Bethesda, MD, for Plaintiff.

David Lee Ross, Pamela Finley Boston Richmond, VA, for Defendant.

MEMORANDUM OPINION

DOHNAL, United States Magistrate Judge.

This matter is before the court on several pending motions: (1) Plaintiff's Motion for Leave to File a First Amended Complaint (Pl.'s Mot. First Am. Compl.); (2) Plaintiff's Motion for Leave to File a Second Amended Complaint (Pl.'s Mot. Second Am. Compl.); (3) Defendant Virginia Commonwealth University's Motion for Summary Judgment (Def.'s Mot. Summ. J.); (4) Plaintiff's Motion for Partial Summary Judgment (Pl.'s Mot. Partial Summ. J.); and (5) Defendant's Objections and Motion to Strike Plaintiff's Expert Designation (Def.'s Mot. Strike Expert).¹ The court has reviewed the pleadings and entertained oral argument; therefore, the matter is ready for resolution.

For the reasons set forth herein, Plaintiff's motions for leave to amend are DENIED and the Defendant Virginia Commonwealth University's (VCU) motion for summary judgment is GRANTED, all remaining motions being DENIED as moot.

Plaintiff's Motions for Leave to Amend

Leave to amend shall be freely granted when justice so requires. Fed.R.Civ.P. 15(a). In two separate motions for leave to amend, Plaintiff seeks to add a new claim, a new party, and new factual assertions. The Defendant argues that despite the liberal amendment rules, the court is constrained to deny leave where a proposed amendment would be futile. Roper v. County of Chesterfield, 807 F.Supp. 1221 (E.D.Va.1992). In this case, even when considered in the light most favorable to the Plaintiff, the proposed amendments would not form the basis of recovery and therefore leave to amend is not warranted.

In her original complaint, Plaintiff asserts that she was terminated² as a student in the Defendant's nurse anesthetist program based on her race in violation of her civil rights and in breach of the Defendant's contract with all students to abide by various policies and procedures as set forth in a student handbook. (Compl.¶¶ 15-19). More specifically, Plaintiff asserts she was subjected to an academic review panel hearing without consideration of lesser alternatives that had been afforded other non-minority students similarly-situated; that she was not given advance written notice of the issues to be considered by the panel as required by the procedure set forth in the handbook; and that she was forced to resign thereafter when the decisionmaker told her of his intention to follow the panel's recommendation of termination. Id; (Pl.'s Mem. P. & A. in Supp. Mot. Summ. J. at 9, ¶ 28).

In her first motion for leave to amend the original complaint, Plaintiff seeks to add the claim that she was denied her constitutional right of due process by the failure of the Defendant's agents to formally advise her of the administrative charges against her in advance of the hearing as a required procedure for such proceedings. The Defendant objects to the proposed amendment as futile where the Defendant is not a "person" subject to liability in the § 1983 action asserted, and because of the Defendant's immunity from suit without its consent as an agency of a sovereign state. (Opp'n to Mot. Leave File First Am. Compl.). The Defendant also asserts that the motion should be denied because the additional factual averments that are the basis of the proposed amendments had to have been within the knowledge of the Plaintiff when the original complaint was filed and that the failure to plead them at that juncture and the resulting delay cannot be excused. Id.

In her Motion for Leave to File a Second Amended Complaint, the Plaintiff seeks to address the argument raised by the Defendant that it is not a "person"³ susceptible to suit by adding the individual decisionmaker involved (Dr. Fallacaro) as a defendant in both his official and individual capacities. (Pl.'s Mot. Second Am. Compl.).⁴ The Plaintiff also asserts that the potential individual liability of the decisionmaker was only developed during ongoing discovery and that the basic underlying facts involved remain the same so that the Defendant cannot claim prejudice. Id. In response, the Defendant reiterates its earlier arguments in opposition to the Plaintiff's first motion to amend, adding that not only was the proposed amendment made on the eve of trial so as to be unduly prejudicial, especially where the proposed additional party has not had the opportunity to conduct his own discovery with his own counsel, but the proposed amendment would also be futile because the acts complained of were allegedly committed by yet a different individual agent of the Defendant involved in the process (Dr. Reese). (Opp'n to Mot. Leave to File Second Am. Compl.).⁵ In addition, the Defendant asserts that no facts are alleged in either the original complaint or the proposed amended version(s) that could constitute a theory that Plaintiff was terminated by constructive discharge as is necessary as a matter of law to sustain the claim that she was denied her constitutional and/or statutory right(s) to due process. Id.

In order to determine whether the Plaintiff's proposed amendments would be futile, the court must determine whether the new facts adequately state a cognizable claim. Here, Plaintiff alleges a Fourteenth Amendment Due Process violation because she received inadequate notice of the charges against her. To state a due process claim, the Plaintiff must show that she had: (1) a protected liberty or property interest; (2) of which the Defendant deprived her; (2) without due process. Bd. of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). The Supreme Court has held that academic dismissals implicate a student's liberty or property interests and are thereby protected by the due process guarantee of the Fourteenth Amendment. Goss v. Lopez, 419 U.S. 565, 573, 95 S.Ct. 729, 42 L.Ed.2d 725 (citing Roth, 408 U.S. at 577, 92 S.Ct. 2701). However, the Supreme Court has drawn a distinction as to the nature and extent of the procedural safeguards required before an academic institution takes adverse action based on academic performance as opposed to disciplinary charges. The Court has held that academic dismissals require only "an `informal give-and-take' between the student and the administrative body dismissing him that would, at least, give the student `the opportunity to characterize his conduct and put it in what he deems the proper context.'" Bd. of Curators of the Univ. of Missouri v. Horowitz, 435 U.S. 78, 86, 98 S.Ct. 948, 55 L.Ed.2d 124 (1978)(citing Goss, 419 U.S. at 584, 95 S.Ct. 729).⁶

Plaintiff argues that because she was dismissed for disciplinary as well as academic reasons, the Defendant was required to provide her with the more stringent procedural safeguards for disciplinary dismissals. See Henson v. Honor Comm. of Univ. Virginia, 719 F.2d 69, 74 (4th Cir.1983)(holding that a student's dismissal for disciplinary rather than academic reasons required a more stringent procedural protection.) However, here, the adverse actions all derived from Plaintiff's academic performance as a student nurse anesthetist in a clinical setting and not from any disciplinary charge of the nature to warrant a more stringent standard. The evidence discloses without meaningful refutation that the Plaintiff was unable to perform basic but crucial tasks such as understanding and creating anesthesia plans, operating equipment that measures a patient's vital signs, performing patient intubation, and monitoring patient safety during procedures. (Def.'s Br. Supp. Mot. Summ. J.)(Def.'s Mem.)(Affs. of Nancy Stelling ¶¶ 6-8; Michelle Grant ¶¶ 6-7; Kathy Baker ¶¶ 5, 8-9; Wendy Vokac ¶¶ 5-8; Michelle Minta ¶¶ 5-9; Donna Ells ¶¶ 6-10; Charles Gould ¶ 4; George Bugbee ¶¶ 6 — 10, 12; Sandra L. Barnes ¶¶ 2-3; Kirk Willis Tanner ¶ 2; Joanne Leslie Fletcher ¶¶ 2-3; James P. Embrey ¶¶ 3, 5-9; Michael Fallacaro ¶¶ 11, 13-17, 22, 24; Charles Reese ¶¶ 30-37, 39-40). The evidence presented also demonstrates that instructors and clinical supervisors consistently perceived that Plaintiff was unable to accept or integrate instruction or criticism into her clinical performance and that she genuinely displayed a poor attitude. (Def.'s Mem.) (Affs. Grant ¶¶ 4, 6,7.8; Baker ¶¶ 5-6;Vokac ¶ 8; Minta ¶¶ 8-9; Ells ¶¶ 4, 10-11; Bugbee ¶¶ 6,7, 10; Barnes ¶¶ 2-3; Tanner ¶ 2; Fletcher ¶¶ 2-3; Embrey ¶¶ 5-9; Fallacaro ¶¶ 17, 19, 28, and attached exs; Reese ¶¶ 36, 38, 44, 54). The Defendant maintains that it was primarily concerned with patient safety when assessing Plaintiff's progress and that even though the main reason for such concern was Plaintiff's lack of skill, her poor attitude that included an air of combativeness when confronted with instruction also contributed to the problem. (Def.'s Mem. at 28). The Plaintiff argues that such assertions are demonstrative of disciplinary action, not academic dismissal, and that the unprofessional behavior recounted by Defendant's witnesses was simply a misunderstanding. (Pl.'s Opp'n to Def.'s Mot. Summ. J. at 23-25).

The Plaintiff was enrolled in a professional degree program that required the student to master hands-on medical skills coextensive with the academic component of study. In this case, the Plaintiff is more like the plaintiff in Horowitz who, in the opinion of the academic decisionmakers, would not be able to advance in the program to become a medical doctor because she could not competently perform the clinical aspects ("hands-on") of a nurse anesthetist. 435 U.S. at 81, 98 S.Ct. 948 (holding that failure to perform in the clinical setting was part of the student's academic performance). In contrast, cases where students were disciplined and afforded a broader...