McLean v. Mississippi State University

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF MISSISSIPPI

ABERDEEN DIVISION

SHANNON MCLEAN PLAINTIFF

v. CIVIL ACTION NO. 1:19-CV-00122-GHD-RP

MISSISSIPPI STATE UNIVERSITY; et al. DEFENDANTS

OPINION

Presently before the Court is the Defendants President Mark Keenum, Dr. Andrew Mackin,

Dr. Gary Burt, and Julie Burt’s motion pursuant to Rule 12(b)(6) of the Federal Rules of Civil

Procedure to dismiss the Plaintiffs claims that are pending against them [17]. The Plaintiff asserts

claims against President Keenum solely in his official capacity as President of the Defendant

Mississippi State University; the remaining individual Defendants are sued solely in their

individual capacities. The Defendant Mississippi State University is not a party to the present

motion, Upon due consideration, the Court finds that the motion should be granted in part and

denied in part.

I Factual and Procedural Background

The Plaintiff is an active duty United States Army veterinary officer who was sponsored

by the Army to further her training at the Defendant Mississippi State University (“MSU”), where

she served as a small animal internal medicine resident at the College of Veterinary Medicine from

July 2017 until January 2019 [Complaint, Doc. 1, at 11]. In January 2019, her residency was

terminated by the school [Doc. 1, at {27]. She brings this action against MSU, its President in his

official capacity, and three other MSU employees in their respective individual capacities,

asserting claims for sex discrimination and retaliation in violation of Title IX, 42 U.S.C. § 1983,

and the Due Process and Equal Protection Clauses of the U.S. Constitution [Doc. |]. The

Defendants, other than MSU, have now filed the presently pending motion seeking dismissal of

the Plaintiff's claims, asserting that President Keenum, who is named in his official capacity, is

entitled to Eleventh Amendment immunity, and that the individual Defendants are entitled to

qualified immunity.

i. Standard of Review

When deciding a Rule 12(b)(6) motion to dismiss, the Court is limited to the allegations

set forth in the complaint and any documents attached to the complaint. Walker v. Webco Indus.,

Inc., 562 F. App’x 215, 216-17 (Sth Cir. 2014) (per curiam) (citing Kennedy v. Chase Manhattan

Bank USA, NA, 369 F.3d 833, 839 (Sth Cir. 2004)). “{A plaintiff's] complaint therefore must

contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its

face.” Phillips v. City of Dallas, Tex., 781 F.3d 772, 775-76 (Sth Cir. 2015) (quoting Ashcroft v.

Igbal, 556 U.S. 662, 678, 129 8, Ct. 1937, 173 L. Ed. 2d 868 (2009) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S, 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007))). A claim is facially

plausible when the pleaded factual content “allows the court to draw the reasonable inference that

the defendant is liable for the misconduct alleged.” Jgbal, 556 U.S. at 678, 129 S. Ct. 1937 (citing

Twombly, 550 U.S. at 556, 1278. Ct. 1955).

In other words, “plaintiffs must allege facts that support the elements of the cause of action

in order to make out a valid claim.” Webb v. Morella, 522 F, App’x 238, 241 (Sth Cir. 2013) (per

curiam) (quoting City of Clinton, Ark. v. Pilgrim's Pride Corp., 632 F.3d 148, 152-53 (Sth Cir.

2010) (internal quotation marks omitted)). “{C]onclusory allegations or legal conclusions

‘masquerading as factual conclusions will not suffice to prevent a motion to dismiss.” /d, (quoting

Fernandez—Montes y. Allied Pilots Ass'n, 987 F.2d 278, 284 (Sth Cir. 1993) Gnternal quotation

marks omitted)). “Dismissal is appropriate when the plaintiff has not alleged ‘enough facts to state

a claim to relief that is plausible on its face’ and has failed to ‘raise a right to relief above the

speculative level.’ ” Emesowum v. Houston Police Dep’t, 561 F. App’x 372, 372 (Sth Cir, 2014)

(per curiam) (quoting Twombly, 550 U.S. at 555, 570, 1278. Ct. 1955).

As for Eleventh Amendment immunity, asserted by the Defendant President Keenum as a

bar to the Plaintiffs claims against him, the Eleventh Amendment provides that “[t]he judicial

power of the United States shall not be construed to extend to any suit in law or equity, commenced

or prosecuted against one of the United States by Citizen of another State...” U.S. Const. Amend.

XI. In essence, unless an exception applies, Eleventh Amendment immunity means that “non-

consenting states may not be sued by private individuals in federal court,” and it encompasses

“suits by citizens against their own states.” Board of Trs. Of the Univ. of Alabama y. Garrett, 526

U.S. 356, 363 (2001). This immunity extends to any entity deemed an arm or alter ego of the state,

and can include state officials sued in their official capacity, because in such instances, “a suit

against a state official in his or her official capacity is not a suit against the official but rather is a

suit against the official’s office.” Jd.; Hafer v. Melo, 502 U.S. 21, 25 (2000); Willy. Mich. Dep’t

of State Police, 491 U.S. 58, 71 (1989).

As for the individual Defendants’ assertion of qualified immunity, “qualified immunity

serves to shield ... government officials from civil liability for damages based upon the

performance of discretionary functions if the official’s acts were objectively reasonable in light of

then clearly established law.” Thompson v. Upshur County, Texas, 245 ¥.3d 447, 456 (S® Cir.

2001); see Hyatt v. Thomas, 843 F.3d 172, 177 (Sth Cir. 2016) (“Qualified immunity protects

officers from suit unless their conduct violates a clearly established constitutional right.”) (quoting

Mace y. City of Palestine, Tex., 333 F.3d 621, 623 (5th Cir. 2003)). Qualified immunity calls for

a bifurcated test in which the court must first determine (1) “whether the plaintiff has alleged a

violation of a clearly established statutory or constitutional right that was clearly established at the

time of the challenged conduct and, if so, (2) whether the defendant [official’s] conduct was

objectively unreasonable.” Ashcroft v. al~Kidd, 563 U.S. 731 (2011); Palmer v. Johnson, 193 F.3d

346, 351 (5" Cir, 1999). “Once a defendant asserts the qualified immunity defense, {t]he plaintiff

bears the burden of negating qualified immunity.’” Jd. (quoting Brown v. Callahan, 623 F.3d 249,

253 (5th Cir, 2010)). “Despite this burden-shifting, all reasonable inferences must be drawn in the

non-movant plaintiff's favor.” id. (citing Brown, 623 F.3d at 253).

HI, Analysis and Discussion

a. Defendant President Keenum’s Assertion of Eleventh Amendment

Immunity

The Plaintiff asserts claims against President Mark Keenum, the President of Defendant

MSU, solely in his official capacity [Doc. 1]. The Complaint makes clear that “only prospective

equitable relief concerning violations of federal law is being sought against Mr. Keenum.” [Doc.

1, at § 7]. President Keenum asserts that the Plaintiffs claims against him are barred by the

Eleventh Amendment and that no exception applies. The Plaintiff asserts that the Ex parte Young,

209 U.S. 123 (1908), exception applies to her claims against President Keenum and Eleventh

Amendment immunity is therefore not applicable.

As noted above, the Eleventh Amendment bars suits by private citizens against a state in

federal court; this immunity extends to state officials who are acting in their official capacity. K.P.

v. LeBlanc, 627 F.3d 115, 124 (Sth Cir, 2010). The Ex parte Young exception to immunity is

narrow but applies when the plaintiff seeks to enjoin the subject state official to “conform their

future conduct to the requirements of federal law.” Quern v. Jordan, 440 U.S. 332, 337 (1979).

In determining whether the exception applies, “a court need only conduct a straightforward inquiry

into whether [the] complaint alleges an ongoing violation of federal law and seeks relief properly

characterized as prospective.” Cantu Servs., Inc, y. Roberie, 535 Fed. Appx. 342, 344 (Sth Cir.

July 9, 2013). In other words, suit may be brought against a state official in his or her official

capacity in certain situations where that suit seeks only prospective injunctive or declaratory relief

in order to end a continuing violation of federal law. Walker v, Livingston, 381 F. App’x 477, 478

(5th Cir. 2010) (citing Seminole Tribe of Fla, v. Florida, 517 U.S. 44, 73 (1996)).

In making the requisite “straightforward inquiry into whether [the] complaint alleges an

ongoing violation of federal law and seeks relief properly characterized as prospective,” see, □□□□□

Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261, 296 (1997), the Court notes that the

Plaintiff's complaint specifically states that “only prospective equitable relief concerning

violations of federal law is being sought against Mr. Keenum.” [Doc. 1, at 7]. The Court further

notes that the Plaintiff has alleged violations of federal, not state, law in the complaint, and that

the Plaintiff's Prayer for Relief (denoted “Remedies” in the complaint) includes prospective

equitable relief, including an injunction “prohibiting any future similar violations.” [Doc. 1].

Because the Plaintiff has narrowly tailored both her allegations and the relief sought against

President Keenum, solely in his official capacity, the Court finds that the Ex parte Young exception

to Eleventh Amendment immunity applies. Accordingly, the portion of the Defendants’ motion

seeking dismissal of the Plaintiff's claims against President Keenum is denied,

b. Individual Defendants’ Motion to Dismiss Based Upon Qualified Immunity

The Plaintiff has asserted claims against Dr. Andrew Mackin, Dr. Gary Burt, and Julie

Burt, in their individual capacities [Doc. 1 at {4 8-10]. Drs, Mackin and Burt are veterinarians and

faculty members at MSU’s College of Veterinary Medicine; Ms. Burt is an employee of MSU who

works at the College. All three individual Defendants assert that they are entitled to qualified

immunity.

The Plaintiff's allegations, particularly in relation to Dr. Burt and Ms. Burt, are sparse and

hardly rise to the level of alleging that the individual Defendants engaged in conduct that deprived

her of a clearly established statutory or constitutional right. Specifically, the Plaintiff alleges that

Dr. Burt and Ms. Burt, along with Dr. Mackin and Mr. Keenum, mistakenly suspected that the

Plaintiff sent a letter to others (unnamed) that criticized MSU [Doc. 1 at f§ 34,47]. The Plaintiff

further alleges that Dr. Mackin, who is a Professor of Small Animal Medicine and the Head of the

College’s Department of Clinical Sciences, sent a letter to the Plaintiff's commanding officer

outlining the reasons for the Plaintiff's termination from the resident program (Doe. | at {{] 28-29,

31-34, 52-53; Mackin Letter, Doc. No. 17-1]. The Plaintiff alleges that the letter is untrue and

harmed her reputation and work for the military [Doc. 1, at § 29]. No further allegations in the

Plaintiff's complaint are directed towards any conduct on the part of the individual Defendants.

As noted above, qualified immunity shields state officials from suit so long as the official’s

complained-of conduct did not violate a clearly established statutory or constitutional right that a

reasonable official would have known violated the law. Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982); Morgan v. Swanson, 659 F.3d 359, 371 (Sth Cir, 2011). The Plaintiff bears the burden of

negating a defendant’s invocation of qualified immunity. Howell v. Town of Ball, 827 F.3d 515,

525 (5th Cir, 2016).

In the case sub judice, the Plaintiff alleges that the individual Defendants engaged in the

following conduct: (1) that Defendant Dr. Mackin “stridently criticized” the Plaintiff's character,

work ethic, professional abilities, and emotional health in his letter to the Plaintiff's commanding

officer that announced the Plaintiff's termination from her residency at MSU [Mackin letter, Doc.

No. 17-1]; and (2) that all three of the individual Defendants mistakenly believed that the Plaintiff

sent, to unnamed recipients, a letter critical of MSU [Doc. | at J§ 34, 47]. The Plaintiff then, based

on these allegations and no others, asserts that the individual Defendants violated her equal

protection rights, violated her procedural due process rights in depriving her of a liberty and

property interest, retaliated against her for the exercise of her free speech rights, and violated her

substantive due process rights. The Court considers these claims in turn.

As to the Plaintiff's claim of First Amendment retaliation, the Plaintiff alleges that the

individual Defendants mistakenly believed that she authored and circulated a letter criticizing the

School, and then retaliated against her by ending her residency [Doc. 1, at [47-51]. In a similar

case involving this same College, however, this Court found that a veterinary student’s letter

criticizing the College’s faulty did not provide the basis for a First Amendment violation.

Marinello v. Bushby, No. 1:95CV167-D-D, 1996 WL 671410, at *8-*9 (N.D. Miss. Nov. 1, 1996).

Given this caselaw that specifically involved MSU’s College of Veterinary Medicine and a similar

letter and allegations, the Court finds that the Plaintiff has not alleged a violation of a clearly

established statutory or constitutional right that was clearly established at the time of the

challenged conduct. Accordingly, the individual Defendants are entitled to qualified immunity as

to this claim.

Next, the Plaintiff alleges claims for violation of her procedural due process rights, for

deprivation of a liberty interest and a property interest. First, the Plaintiff asserts that Dr. Mackin’s

letter to the Plaintiff's commanding officer detailing the reasons for the Plaintiff's removal from

the residency program deprived her of a liberty interest [Doc. | at { 28-29, 52-56}. The Plaintiff

makes no allegations in relation to Dr. Mackin’s letter with respect to the other individual

Defendants. The Fifth Circuit has in any event made clear that a deprivation of liberty claim lies

against the government entity, “not a government employee or official.” Sims v. City of

Madisonville, 894 F.3d 632, 642 (5th Cir. 2018) (citing Rosenstein v. City of Dallas, 876 F.2d 392,

395 (Sth Cir. 1989). Accordingly, the Court finds that the individual Defendants are entitled to

qualified immunity as to this claim.

As for the Plaintiffs assertion of a property interest procedural due process claim, the Fifth

Circuit has held that medical residents “are not employees protected by the due process clause.”

Shaboon v. Duncan, 252 F.3d 722, 732 (Sth Cir. 2001); Davis vy. Mann, 882 F.2d 967, 974 (Sth

Cir. 1989). The Court therefore finds, because the Plaintiff was a medical (veterinary) resident

and not an employee of MSU, that the individual Defendants are entitled to qualified immunity as

to this claim.

Finally, the Plaintiff asserts claims against the individual Defendants for violations of her

substantive due process rights and the Equal Protection Clause. Her allegations against these

Defendants, however, fall far short of demonstrating that that they violated a clearly established

statutory or constitutional right in a manner that a reasonable official would have known violated

the law with respect to these claims. As noted above, as to the Defendants Dr. Burt and Jule Burt,

the Plaintiff makes no specific factual allegations other than that they mistakenly believed she

circulated a letter critical of MSU. No further allegations regarding any conduct on the part of

these two individual Defendants appears in the complaint. The Plaintiff has therefore clearly failed

to meet her burden in overcoming their assertion of qualified immunity as to these claims.

As for the Plaintiffs allegations related to the Defendant Dr. Mackin, which relate to the

letter he sent to her commanding officer, a substantive due process claim focuses not on the

procedures that the government followed in relation to an event such as the Plaintiff's removal

from the residency program, but rather on whether the government had an adequate reason for

doing so. McMullen v. Starkville Oktibbeha County Consolidated Sch, Dist., 200 F. Supp. 3d 649,

658 (N.D. Miss. 2016). Because federal courts are usually “not the appropriate forum in which to

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review the multitude of personnel decisions that are made daily by public agencies,” in order to

demonstrate a substantive due process violation, the Plaintiff must show that her removal from the

residency program was “arbitrary or capricious.” See McMullen, 200 F. Supp. 3d at 659 (granting

motion for qualified immunity with respect to substantive due process claim in favor of school

superintendent and school principal in case involving discharged school district employee). Here,

at least insofar as the Plaintiff’s allegations against Dr. Mackin are concerned, the Plaintiff has not

demonstrated that Dr. Mackin’s actions violated a clearly established statutory or constitutional

substantive due process right of which a reasonable person would have known, or that Dr.

Mackin’s actions so lacked a basis in fact that the contents of the letter were “arbitrary, capricious,

or taken without professional judgment.” Jd. at 660; Lewis v. University of Texas Med. Branch at

Galveston, 665 F.3d 625, 631 (Sth Cir. 1998). Accordingly, the Court finds that Dr. Mackin is

entitled to qualified immunity as to this claim.

Finally, as alluded to above, the Plaintiff's allegations with respect to these three individual

Defendants in no way demonstrate that her claim for equal protection against them is viable — her

one mention of comparison to her male counterparts, which focuses on her evaluation scores, was

not mentioned in Dr. Mackin’s letter to the Plaintiff's commander. In any event, the Plaintiff

makes no allegation, particularly with respect to the three individual Defendants, that any

similarly-situated male resident veterinarian was subject to the same criticisms yet was retained in

the program, Such a comparison is required in order to viably state an equal protection claim,

Mitchell v. Mills, 895 F.3d 365 (Sth Cir. 2018); Lindquist v. City of Pasadena, Texas, 669 F.3d

225 (Sth Cir. 2012); Lee v. Kansas City Southern Ry. Co., 574 F.3d 253, 260 (Sth Cir, 2009).

Accordingly, the Court finds that the three subject individual Defendants are entitled to qualified

immunity as to this claim.

In sum, the Court finds that the Plaintiff has failed to meet her burden to negate the

individual Defendants’ invocation of qualified immunity. The Plaintiff has failed to show that the

individual Defendants’ conduct regarding the Plaintiffs termination from her residency was

objectively unreasonable. The Court therefore finds that the individual Defendants -- Dr. Andrew

Mackin, Dr. Gary Burt, and Julie Burt - are entitled to qualified immunity and dismissal from this

litigation.

IV. Conclusion ‘

In sum, for all of the foregoing reasons, the Court finds that (1) the individual Defendants

Dr. Andrew Mackin, Dr, Gary Burt, and Julie Burt’s motion for qualified immunity is granted and

they are dismissed as Defendants in this litigation; (2) the Defendant President Mark Keenum’s

motion to dismiss based upon Eleventh Amendment immunity is denied, and he remains a

Defendant in this litigation solely in his official capacity. The Plaintiff's claims against Defendant

Mississippi State University and against the President Mark Keenum, in his official capacity, shall!

proceed.

An order in accordance with this opinion shall issue this day.

vais, tte [Fay

THIS, the # / day of July, 2020.

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