Salehpoor v. Shahinpoor

• Decision Date: 18 February 2004
• Docket Number: No. 02-2314.,02-2314.
• Citation: 358 F.3d 782
• Parties: Karim SALEHPOOR, Plaintiff-Appellant, v. Mohsen SHAHINPOOR; Keykhosrow Firoozbakhsh; David E. Thompson; Regents of the University of New Mexico; and Randy G. Boeglin, individually and in their official capacities, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

358 F.3d 782

Karim SALEHPOOR, Plaintiff-Appellant, v. Mohsen SHAHINPOOR; Keykhosrow Firoozbakhsh; David E. Thompson; Regents of the University of New Mexico; and Randy G. Boeglin, individually and in their official capacities, Defendants-Appellees.

No. 02-2314.

United States Court of Appeals, Tenth Circuit.

February 18, 2004.

COPYRIGHT MATERIAL OMITTED

Dennis W. Montoya of Montoya Law, Inc., Albuquerque, NM, for Plaintiff-Appellant.

Daniel Joseph Macke (Elizabeth L. German with him on the brief) of Brown & German, Albuquerque, NM, for Defendants-Appellees Keykhosrow Firoozbakhsh, David E. Thompson, Randy G. Boeglin, and Regents of the University of New Mexico.

Sean Olivas (Melanie Frassanito with him on the brief) of Keleher & McLeod, P.A., Albuquerque, NM, for Defendant-Appellee Moshen Shahinpoor.

Before EBEL, McKAY, and LUCERO, Circuit Judges.

McKAY, Circuit Judge.

Appellant Salehpoor was a Ph.D. candidate in mechanical engineering at the University of New Mexico. Appellant alleges that, prior to the defense of his dissertation, he discovered and reported to UNM authorities that his academic advisor, Appellee Shahinpoor, illegally converted Appellant's research material for the benefit of his own corporation. He also claims that Shahinpoor gave the information to a visiting professor who transferred it to a graduate student in Iran for use in that student's thesis. Appellant alleges that after he complained to the Dean of the School of Engineering about Appellee Shahinpoor, UNM Appellees¹ conspired to deny him his constitutional rights concerning the defense and completion of his dissertation. Appellant alleges that, as a result, he was constructively discharged from the Ph.D. program and barred from campus without due process.

It is important to note the exact time line of events that underlie Appellant's complaint. Appellant's initial report to UNM authorities regarding the alleged conversion of his research materials took place in May 1998 when Appellant was still considered a doctoral student. After the Spring 1998 semester, Appellant's status changed to visitor because he was no longer enrolled as a student. Aplt.App. at 178, 183. Over the course of the summer and fall, Appellant and UNM Appellees made efforts to resolve the situation. Appellant's concerns were investigated and the Examining Committee found no merit to his allegations. Id. at 217, 225-26. After efforts to resolve the conflict failed, Appellant was barred from campus in December 1998 because his conduct had become increasingly disruptive, confrontational, and abusive. Id. at 183. Thus, even though the course of events is progressive, Appellant's complaint has two sequentially different components: 1) the initial report of the alleged conversion which took place while he was still considered a student, and 2) the ban from campus because of his behavior which took place while he was considered a visitor.

In his complaint, Appellant raised several federal and state claims, including deprivation of property without due process, conspiracy to deny him his constitutional rights in violation of § 1985, failure to adequately train and supervise,² whistle blowing retaliation,³ unjust enrichment, prima facie tort, conversion, and defamation. The district court dismissed all of Appellant's federal claims against the UNM Appellees. Then, in a later order, the court dismissed all remaining federal claims, declined to exercise jurisdiction over the state law claims, and dismissed the case in its entirety.⁴

On appeal, we are asked to address whether the district court erred in granting UNM Appellees' and Appellee Shahinpoor's separate motions to dismiss on the basis of qualified immunity which were construed as motions for summary judgment. "A motion to dismiss pursuant to Rule 12(b)(6) is treated as a motion for summary judgment when premised on materials outside the pleadings, and the opposing party is afforded the same notice and opportunity to respond as provided in Rule 56." Hall v. Bellmon, 935 F.2d 1106, 1110-11 (10th Cir.1991). Appellant, the nonmoving party, submitted all materials outside the pleadings which were considered by the district court. Neither party argues on appeal that they were not given an opportunity to respond to these materials. Therefore, the district court correctly postured its dismissal of the case as one for summary judgment. We review de novo the district court's grants of summary judgment. Steele v. Thiokol Corp., 241 F.3d 1248, 1252 (10th Cir.2001).

In evaluating claims of qualified immunity, we must first determine whether "the defendant's actions violated a constitutional or statutory right." Albright v. Rodriguez, 51 F.3d 1531, 1534 (10th Cir.1995). We then "determine whether the right was so clearly established that a reasonable person would have known that [his] conduct violated that right." Id. at 1534-35. We have held that "[o]rdinarily, in order for the law to be clearly established, there must be a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts must have found the law to be as the plaintiff maintains." Harris v. Robinson, 273 F.3d 927, 931 (10th Cir.2001) (quoting Medina v. City and County of Denver, 960 F.2d 1493, 1498 (10th Cir.1992)).

We note initially that Appellant's brief is conclusory and does not provide cogent arguments or legal authority supporting many of his claims. We will not "manufacture a party's argument on appeal when it has failed in its burden to draw our attention to the error below." Scott v. Hern, 216 F.3d 897, 910 n. 7 (10th Cir.2000) (citations and internal quotations omitted). Additionally, Appellant relies almost exclusively on the allegations on the face of his complaint in his argument that the district court erred in dismissing the case. For example, Appellant subtitles several of his argument sections as follows: "The plain language of Appellant's complaint states claims for violation of due process" and "The plain language of Appellant's complaint states a claim for First Amendment violation." Aplt. Br. at ii, 21, 22. However, as noted above, this case was correctly decided as one for summary judgment — not for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6). Reference to facial assertions in a complaint are not sufficient to overcome Rule 56 summary judgment when the record as a whole reveals that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Panis v. Mission Hills Bank, N.A., 60 F.3d 1486, 1490 (10th Cir.1995).

The nonmoving party may not rest upon the mere allegations or denials of [his] pleading. The nonmoving party must go beyond the pleadings and establish, through admissible evidence, that there is a genuine issue of material fact that must be resolved by the trier of fact. The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.

Id. (internal citations and quotations omitted). Additionally, the section in Appellant's brief which references "additional evidence" does not provide citations to the record in support of the "ample evidence" it claims exists. Aplt. Br. at 28-29. To the extent that we can decipher Appellant's arguments on appeal, there is no support in the briefs or the record for his contentions.

Appellant's initial contention is that Appellees violated his due process rights. However, as stated by the district court, "[his] complaint is devoid of specifics regarding what due process rights were violated by [Appellees'] actions." Aplt.App. at 250. Appellant appears to be arguing that Appellees violated his substantive due process rights, but it is unclear from his briefs what substantive due process right or rights he alleges were violated. The district court, liberally construing Appellant's complaint, correctly held that Appellant had no clearly established substantive due process right to a temporary or replacement dissertation advisor, an office, or freedom from having to conduct a second dissertation defense.

Even assuming, without deciding, that Appellant had a clearly established right to continued enrollment as a doctoral student, the district court did not err in finding that Appellees' actions were not arbitrary. See Archuleta v. Colorado Dep't of Insts., 936 F.2d 483, 489 n. 6, 490 (10th Cir.1991) (majority assumed without deciding that plaintiff's property interest in enrollment was entitled to the protection of substantive due process); see also Regents of Univ. of Michigan v. Ewing, 474 U.S. 214, 227-28, 106 S.Ct. 507, 88 L.Ed.2d 523 (1985) (majority assumed for purposes of opinion that university student had substantive property interest in continued enrollment but held that any such right was not violated because university had not acted arbitrarily in dismissing student from program). After Appellant's May 1998 report to UNM Appellees that Appellee Shahinpoor illegally converted his research materials and Appellee Shahinpoor's alleged "offensive, prejudicial conduct towards Appellant and Appellant's Ph.D. dissertation program," see Aplt. Br. at 8, the record reflects that Appellant was given four options by the Associate Dean including: 1) leaving UNM, 2) completing his work under the direction of Appellee Shahinpoor, 3) completing a dissertation under the direction of another advisor, and 4) submitting a formal grievance. Aplt. App. at 223-24. Appellant chose to file a grievance and completed the grievance process and an appeal. He was also offered a liaison to assist in completion of his dissertation. Id. at 181-82. The record reflects that Appellees took Appellant's grievance seriously and investigated his concerns. See id. at 177-84, 221-26. It was not until December 1998, after efforts to resolve the situation had failed, that Appellant was...