MITCHELL v. WINSTON SALEM STATE UNIVERSITY

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

ALVIN MITCHELL, )

)

Plaintiff, )

)

v. ) 1:19CV130

)

WINSTON-SALEM STATE UNIVERSITY, )

ELWOOD ROBINSON, CAROLYNN )

BERRY, and IVEY BROWN, )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

OSTEEN, JR., District Judge

Plaintiff Alvin Mitchell brings seven state-law claims and

one federal claim against Defendants Winston-Salem State

University1 (“WSSU”), Elwood Robinson, Carolynn Berry, and Ivey

Brown. (Doc. 6.) Defendants move to dismiss Plaintiff’s claims

pursuant to Rules 12(b)(1), (2) and (6) of the Federal Rules of

Civil Procedure. (Doc. 13.)

For the reasons set forth herein, the court will grant

Defendants’ motion with regard to Plaintiff’s § 1983 due process

1 Plaintiff originally captioned this case listing “Winston-

Salem State Univ. Board of Trustees” as a defendant instead of

“Winston-Salem State University.” However, Plaintiff lists

“Winston-Salem State University” as a defendant in the Amended

Complaint, instead of “Winston-Salem State Univ. Board of

Trustees.” (Amended Complaint (Doc. 6) ¶ 2.) The court will

therefore treat WSSU as the defendant and the case caption is

hereby amended to reflect this change.

claim and will decline to exercise supplemental jurisdiction

over the remaining state claims. The court will dismiss the

remaining claims without prejudice.

I. FACTUAL AND PROCEDURAL BACKGROUND

On a motion to dismiss, a court must “accept as true all of

the factual allegations contained in the complaint . . . .” Ray

v. Roane, 948 F.3d 222, 226 (4th Cir. 2020) (citing King v.

Rubenstein, 825 F.3d 206, 212 (4th Cir. 2016)). The facts, taken

in the light most favorable to Plaintiff, are as follows.

A. Factual Background

1. Parties

Plaintiff is a citizen of North Carolina. (Amended

Complaint (“Am. Compl.”) (Doc. 6) ¶ 1.) Defendant WSSU is a

“constituent institution of the University of North Carolina

established pursuant to N.C. Gen. Stat. § 116-4.” (Id. ¶ 2.)

Defendant Elwood Robinson is the Chancellor of WSSU. (Id. ¶ 3.)

Defendant Carolynn Berry was the Interim Provost and Vice

Chancellor for Academic Affairs during the relevant time period.

(Id. ¶ 4.) Defendant Ivey Brown is General Counsel for WSSU.

(Id. ¶ 5.) Defendants Robinson, Berry, and Brown (together,

“Individual Defendants”) are all employed by WSSU. (Id. ¶¶ 3–5.)

2. Plaintiff’s Employment with WSSU

Plaintiff was hired as an Associate Professor in WSSU’s

Department of Social Sciences in July 2006 and was granted

tenure in December 2008. (Id. ¶¶ 17–18.)

Between the summer of 2007 and the summer of 2017,

Plaintiff “consistently” taught summer courses at WSSU, teaching

on average three or four courses. (Id. ¶ 19, 22-23.) Plaintiff

taught these summer courses as an associate professor “under a

separate, supplemental, teaching contract,” under which he

earned supplemental pay. (Id. ¶ 22, 24–25.)

3. Plaintiff’s Suspension and Dismissal

On August 31, 2017, Plaintiff received a Notice for

Imposition of Serious Sanction (the “Dismissal Letter”) from

Defendant Berry. (Id. ¶ 25.) “The Dismissal Letter notified

Plaintiff that he would immediately be placed on ‘suspension

with pay.’” (Id. ¶ 26.) The Dismissal Letter also “notified

Plaintiff of his right to appeal the recommendation for

dismissal, but it did not provide a right to appeal the

suspension.” (Id. ¶ 28.) “The last two sentences of the

Dismissal Letter provide[d]: ‘Your suspension with pay will

terminate with the exhaustion of your appeal rights. Please

refer to the Faculty Handbook and The Code of the University of

North Carolina Board of Governors [(“the Code”)] for more

information.’” (Id. ¶ 33.)

The Dismissal Letter stated several reasons for Plaintiff’s

suspension and dismissal.2 Defendant Berry, in the Dismissal

Letter, accused Plaintiff of failing to open an online course

for the 2017–2018 academic year, despite Plaintiff’s department

chair asking him to do so. (Defs.’ Mem. in Supp. of Mot. to

Dismiss (“Defs.’ Br.”) (Doc. 14) Ex. A, Dismissal Letter (Doc.

14-1) at 1.) Plaintiff also allegedly gave a student an

Incomplete grade. (Id. at 2.) The student allegedly turned in

the assignments to complete the requirements, but Plaintiff

failed to respond, resulting in the student receiving an F,

which impacted the student’s financial aid and his ability to

register for classes the following semester. (Id.)

Further, Plaintiff allegedly refused to respond to his

department chairs regarding this matter, which required them to

address Plaintiff in person. (Id.) Allegedly, “University Police

was called due to safety concerns related to the hostile and

erratic behavior that was displayed on this date.” (Id.)

2 While Plaintiff did not attach the Dismissal Letter to his

Amended Complaint, the court may consider documents “attached to

the motion to dismiss, so long as they are integral to the

complaint and authentic.” Philips v. Pitt Cty. Mem’l Hosp., 572

F.3d 176, 180 (4th Cir. 2009). Here, the Dismissal Letter is

integral to the complaint, given Plaintiff refers to it numerous

times throughout the Amended Complaint. (See, e.g., Am. Compl.

(Doc. 6) ¶¶ 25–26, 33.) Plaintiff also has not contested the

Dismissal Letter’s authenticity. The court finds it may properly

consider the Dismissal Letter in its analysis of the present

motion.

Finally, Defendant Berry accused Plaintiff of unprofessional

interactions, including sending “derogatory and racially charged

communications to one of [his] department chairs.” (Id.)

Plaintiff submitted his notice of appeal on September 9,

2017. (Am Compl. ¶ 34.)

4. WSSU Surveillance Videos

Plaintiff’s attorney requested surveillance footage

regarding the on-campus incident involving Plaintiff. (Id.

¶¶ 35–36.) WSSU did not produce the footage, and Plaintiff

alleges Defendant Brown “provided contradicting explanations for

why the footage was not produced, by erroneously stating that

there were no cameras inside the building and later saying that

the relevant footage had been taped over.” (Id. ¶ 37.) Plaintiff

alleges this footage would have assisted Plaintiff in presenting

his case to the WSSU Faculty Hearing Committee (the “Faculty

Committee”). (Id. ¶¶ 42–43.)

5. Faculty Committee Hearing and Plaintiff’s Appeal

The Faculty Committee held a hearing on Plaintiff’s

suspension on January 10, 2018. (Id. ¶ 44.) The Faculty

Committee “unanimously determined that WSSU failed to meet its

burden of proof to show by ‘clear and convincing’ evidence that

sufficient grounds existed to support Plaintiff’s dismissal,”

and “recommended Chancellor Robinson not accept the

recommendation for Plaintiff’s dismissal.” (Id. ¶¶ 45–46.)

Defendant Robinson reviewed the Committee’s recommendation,

“disagreed that WSSU failed to meet its burden of proof, and on

January 30, 2018, asked the Faculty Committee to reconvene the

hearing to take evidence from Plaintiff.” (Id. ¶ 47.) On

February 14, 2018, “Plaintiff notified the Faculty Committee

that he had no further evidence to present,” after expressing

concerns that Defendant Robinson was violating procedures set

out in the Code. (Id. ¶ 48.) The following day, the “Faculty

Committee unanimously renew[ed] its recommendation to the

Chancellor that Plaintiff not be dismissed.” (Id. ¶ 49.)

Defendant Robinson renewed his decision to dismiss Plaintiff on

March 7, 2018. (Id. ¶ 50.)

Plaintiff appealed Defendant Robinson’s recommendation to

the WSSU Board of Trustees on March 20, 2018. (Id. ¶ 51.) On

April 5, 2018, and April 11, 2018, the Vice Chancellor sent

Plaintiff procedural instructions for his appeal. (Id. ¶ 52.)

Plaintiff submitted his objections to the proposed record on

appeal to the Board of Trustees, though Plaintiff alleged he

never received a response concerning the objections. (Id. ¶ 53.)

The Board of Trustees notified Plaintiff on August 6, 2018,

that it was upholding Defendant Robinson’s dismissal

recommendation. “The letter stated that the Board of Trustee’s

decision was made based on ‘the written transcript and the

related exhibits,’ rather than the entire record.” (Id. ¶ 54.)

The letter further stated, “This decision is final, except you

may file by formal notice a written petition for review with the

Board of Governors . . . [a] copy of § IX of the WSSU Faculty

Handbook, which details your appeal rights, is enclosed.” (Id.

¶ 57.)

Plaintiff appealed the Board of Trustees’ decision on

August 21, 2018, “to the UNC Board of Governors following the

procedures set out in the WSSU Faculty Handbook and Section 603

of the Code.” (Id. ¶ 58.)

“Plaintiff’s pay ended after August 2018.” (Id. ¶ 65.)

Plaintiff did not receive any notice that his pay would end.

(Id. ¶ 67.) Plaintiff alleges WSSU processed Plaintiff’s

dismissal, even though “his appeal [was] still pending before

the Board of Governors.” (Id. ¶ 94.) “[A]round this time WSSU

also started informing people that Plaintiff was ‘dismissed,’”

and Plaintiff’s information was removed from the WSSU online

faculty listings. (Id. ¶¶ 81–82.)

On May 23, 2019, the Board of Governors adopted the

recommendation of its Committee on Personnel and Tenure and

upheld Plaintiff’s discharge.3 (Joint Status Report (Doc. 19) at

1.) Plaintiff appealed the Board of Governor’s decision on

June 24, 2019, by filing a petition for judicial review in

Forsyth County Superior Court under Article 4 of North

Carolina’s Administrative Procedures Act. (Id.) The Board of

Governors moved to stay Plaintiff’s petition based on the issues

raised in the present action. (Id. at 2.) The Forsyth County

Superior Court granted the Board of Governors’ motion until this

court’s final disposition. (Id.; Doc. 20-1 at 1–2.)

6. Alleged Problems with Plaintiff’s Appeal Process

Plaintiff raises several issues regarding his appeal

process.

Regarding his suspension, Plaintiff alleges “WSSU is only

authorized to use suspension as an ‘exceptional’ remedy.” (Am.

Compl. (Doc. 6) ¶ 27.) He alleges that the Dismissal Letter “did

not provide[] notice of the ‘exceptional’ grounds that WSSU

alleged made suspension appropriate.” (Id. ¶ 29.)

Defendant Berry allegedly “did not gather any information

from Plaintiff prior to delivering the Dismissal Letter in order

3 On January 17, 2020, the court requested an update

regarding the status of Plaintiff’s appeal to the Board of

Governors of the University of North Carolina System. (Text

Order 01/17/2020.) The parties filed a Joint Status Report on

January 27, 2020. (Doc. 19.) On January 29, 2019, when Plaintiff

filed his Amended Complaint, his appeal was still pending before

the Board of Governors. (Am. Compl. (Doc. 6) ¶ 94.)

to determine if there were exceptional circumstances meriting

suspension.” (Id. ¶ 30.) Plaintiff further alleges that “there

was no discussion about whether Plaintiff should be reassigned

in lieu of suspension.” (Id. ¶ 31.) Finally, Plaintiff alleges

Defendants Berry and/or Robinson “failed to appropriately

exercise her or his discretion by summarily suspending Plaintiff

without exceptional cause.” (Id. ¶ 32.)

He further alleges that there were “procedural

inconsistencies among the letters Plaintiff received from the

Board of Trustees on April 5, April 11, and August 6.” (Id.

¶ 55.) In particular, “Plaintiff was informed in one letter that

the Grievance Committee would be reviewing his appeal while

another letter stated the Appeals Committee would be making the

determination,” and Plaintiff alleges “it is unclear if the

Board of Trustees voted on the recommendation for Plaintiff’s

dismissal.” (Id. ¶¶ 55–56.)

Next, “[o]n August 10, 2018, Plaintiff’s attorney requested

[Defendant] Brown provide ‘all minutes/documents/notes/

recordings from the Board of Trustees’ meetings (including

committee meetings) concerning this matter.’” (Id. ¶ 59.)

Plaintiff alleges that these items have yet to be provided. (Id.

¶ 60.)

Also on August 10, Plaintiff’s counsel questioned Defendant

Brown “as to whether he advised the Board of Trustees during the

deliberations,” to which Defendant Brown responded,

“‘[h]istorically, I would do a memo to the Board advising them

on their options and giving my assessment of how they should

decide. That was not done this time.’” (Id. ¶¶ 61–62.)

Plaintiff also takes issue with his pay ending. (Id. ¶ 86.)

Defendant Brown allegedly told Plaintiff “that pay ‘is

guaranteed through the final decision on the discharge’ in

accordance with Section 603 of the Code.” (Id. ¶ 68.) The

Complaint includes a contradictory statement from Defendant

Brown, however; Plaintiff alleges Defendant Brown “represented

that the Chancellor is the ‘final decision maker’ regarding the

decision to stop Plaintiff’s pay, and reiterated that Section

603 of the Code ‘does not say that pay is guaranteed through the

final decision and any appeals of that decision.’” (Id. ¶ 70

(emphasis added).) Plaintiff alleges “[Defendant] Robinson made

the decision to stop Plaintiff’s pay when he submitted his

appeal to the Board of Governors.” (Id. ¶ 80.)

Section 603(9) of the Code “provides that the decision of

the Board of Trustees ‘shall be final except that the faculty

member may, within 14 calendar days after receiving the

trustees’ decision, file a written notice of appeal.” (Id.

¶ 71a.) Section 603(10) states that “Suspension shall be

exceptional and shall be with full pay.” (Id. ¶ 12.)4 The WSSU

Faculty Handbook states that the Trustees’ decision “shall be

final, except for an appeal to the Board of Governors . . . .”

(Defs.’ Br. (Doc. 14) Ex. B, Excerpts from WSSC Faculty Handbook

(Doc. 14-2) at 2.)5 Plaintiff alleges Section 603 of the Code has

been adopted pursuant to statutory authority and has the force

and effect of law. (Id. ¶ 85.)

Plaintiff alleges other WSSU faculty members, as well as

faculty members employed at other universities within the

University of North Carolina system, have been paid during their

appeals to the Board of Governors. (Id. ¶¶ 83–84.)

B. Procedural Background

Plaintiff originally filed his Complaint in the Superior

Court for Forsyth County, North Carolina. (Doc. 1-1.) Defendants

removed the complaint to this court pursuant to 28 U.S.C.

§§ 1331, 1367(a), and 1441(a). (Notice of Removal (Doc. 1) at

1-2.) Plaintiff then filed an Amended Complaint. (Doc. 6.)

Defendants filed a motion to dismiss, (Doc. 13), and a

4 Any references to the Code refer to the sections of the

Code as they were during the relevant time of Plaintiff’s

action.

5 All citations in this Memorandum Opinion and Order to

documents filed with the court refer to the page numbers located

at the bottom right-hand corner of the documents as they appear

on CM/ECF.

supporting memorandum, (Defs.’ Br. (Doc. 14)). Plaintiff

responded, (Pl.’s Brief in Resp. to Mot. to Dismiss (“Pl.’s

Resp.”) (Doc. 16)), and Defendants replied, (Defs.’ Reply (Doc.

18)).

Plaintiff brings eight claims against Defendants. Claim One

alleges breach of contract against all Defendants. (Am. Compl.

(Doc. 6) ¶¶ 103–10.) Claim Two alleges a violation of Article I,

Section 19 of the North Carolina Constitution against all

Defendants. (Id. ¶¶ 112–33.) Claim Three alleges a violation of

Article I, Sections 1 and 35 of the North Carolina Constitution

against all Defendants. (Id. ¶¶ 134–37.) Claim Four alleges

retaliation in violation of N.C. Gen. Stat. § 126-87 against all

Defendants. (Id. ¶¶ 138–43.) Claim Five alleges a violation of

42 U.S.C. § 1983 for substantive and procedural due process

violations against all Defendants. (Id. ¶¶ 144–56.) Claim Six

alleges a violation of the Public Records Act, N.C. Gen. Stat.

§ 132-9, against all Defendants. (Id. ¶¶ 157–66.) Claim Seven

alleges a defamation claim against all Defendants. (Id. ¶¶ 167–

72.) Finally, Claim Eight alleges an invasion of privacy by

intrusion into seclusion claim against all Defendants. (Id.

¶¶ 173–79.)

Regarding Individual Defendants, Plaintiff sues Defendants

Robinson and Berry in their official and individual capacities

and sues Defendant Brown solely in his official capacity. (Id.

at 1.)

II. ANALYSIS

Defendants challenge Plaintiff’s Complaint on three

grounds. First, Defendants argue they are immune from

Plaintiff’s contract, constitutional, and tort claims. (Defs.’

Br. (Doc. 14) at 7.) Second, Defendants argue that Plaintiff is

barred from suing Defendants Robinson and Berry in their

individual capacities because WSSU is the real party at

interest, and the Individual Defendants enjoy public official

and qualified immunity. (Id. at 16–17.) Third, Defendants argue

that Plaintiff’s claims fail to state a claim. (Id. at 21.)

The court will dismiss Plaintiff’s § 1983 claim against

WSSU and Individual Defendants in their official capacities

under Rule 12(b)(1), and against Individual Defendants in their

individual capacities under Rule 12(b)(6). Because the court

will dismiss Plaintiff’s § 1983 claim, Plaintiff’s sole federal

question claim, and the court will decline to exercise

supplemental jurisdiction over the remaining state law claims.

The court will first address Defendants’ sovereign immunity

arguments, then Defendants’ qualified immunity arguments.

A. Sovereign Immunity and the 11th Amendment

Defendants partially base their motion to dismiss on

Federal Rules of Civil Procedure 12(b)(1) and 12(b)(2). (Defs.’

Br. (Doc. 14) at 5.)

Under Federal Rule of Civil Procedure 12(b)(1), a plaintiff

must prove by a preponderance of the evidence the existence of

subject-matter jurisdiction. See Demetres v. East West Constr.,

Inc., 776 F.3d 271, 272 (4th Cir. 2015). A defendant may

challenge subject-matter jurisdiction facially or factually. See

Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009). In a

facial challenge, a defendant asserts that the allegations,

taken as true, are insufficient to establish subject-matter

jurisdiction. See id. The court then effectively affords a

plaintiff “‘the same procedural protection as he would receive

under a rule 12(b)(6) consideration,” taking the facts as true

and denying the Rule 12(b)(1) motion if the complaint “alleges

sufficient facts to invoke subject matter jurisdiction.” Id.

(quoting Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982)).

In a factual challenge, a defendant asserts that the

jurisdictional allegations are false, and the court may look

beyond the complaint to resolve the disputed jurisdictional

facts without converting the motion to one for summary judgment.

Kerns, 585 F.3d at 192-93.

However, where the Eleventh Amendment bar has been asserted

by a party, that party has the burden of proving that it is

entitled to sovereign immunity. Hutto v. S.C. Ret. Sys., 773

F.3d 536, 543 (4th Cir. 2014).6

Under Federal Rule of Civil Procedure 12(b)(2), a plaintiff

must ultimately prove by a preponderance of the evidence that

this court’s personal jurisdiction over a defendant is proper.

Combs v. Bakker, 886 F.2d 673, 676 (4th Cir. 1989). A plaintiff

need only “make a prima facie showing of a sufficient

jurisdictional basis in order to survive the jurisdictional

challenge.” Id. (citation omitted).

6 As a district court in the Eastern District of Virginia

notes:

Courts have not been uniform as to whether a

dismissal due to Eleventh Amendment sovereign immunity

should be examined through Rule 12(b)(1) or Rule

12(b)(6). “The recent trend, however, appears to treat

Eleventh Amendment [i]mmunity motions under Rule

12(b)(1).” The distinction makes no practical

difference, however. In the Court’s Rule 12(b)(1)

analysis, it provides [the plaintiff] the same

procedural protections afforded under Rule 12(b)(6).

Fleming v. Va. State Univ., Civil Action No. 3:15cv268,

2016 WL 927186, at *1 n.4 (E.D. Va. Mar. 4, 2016). The

court finds this court’s reasoning persuasive and will

consider the Eleventh Amendment issue under Rule 12(b)(1).

See also McCants v. Nat’l Collegiate Athletic Ass’n, 251

F. Supp. 3d 952, 955 (M.D.N.C. 2017) (evaluating Eleventh

Amendment issues under Rule 12(b)(1)).

1. Winston-Salem State University

Winston-Salem State University is immune from suit as an

“arm of the state” under the Eleventh Amendment. WSSU is an

agency of the State of North Carolina. See N.C. Gen. Stat.

§ 116-4 (naming WSSU as one of the constituent institutions of

the North Carolina system); Huang v. Bd. of Governors of Univ.

of N.C., 902 F.2d 1134, 1139 n.6 (4th Cir. 1990) (recognizing

the Board of Governors of the University of North Carolina as an

alter ego of the State of North Carolina); McAdoo v. Univ. of

N.C. at Chapel Hill, 248 F. Supp. 3d 705, 718–19 (M.D.N.C. 2017)

(holding that the University of North Carolina (“UNC”) and its

constituent institutions are “arms and alter egos” of the State

of North Carolina for Eleventh Amendment immunity purposes).

Also, because WSSU is an agency of the State of North

Carolina, it is not a “person” within the meaning of § 1983 and

thus does not fall within the purview of § 1983. See Will v.

Mich. Dep’t of State Police, 491 U.S. 58, 64 (1989). Moreover,

even if WSSU qualified as a “person,” the Eleventh Amendment

would protect it from suit under § 1983. See Quern v. Jordan,

440 U.S. 332, 341 (1979); see also Pennhurst State Sch. & Hosp.

v. Halderman, 465 U.S. 89, 100 (1984) (“It is clear, of course,

that in the absence of consent a suit in which the State or one

of its agencies or departments is named as the defendant is

proscribed by the Eleventh Amendment.”).

Plaintiff also seeks injunctive relief. (Am. Compl. (Doc.

6) at 17.) While is it unclear whether this request for relief

is related to the § 1983 claim specifically, out of an abundance

of caution, the court will treat it as such. Plaintiff’s § 1983

claim, to the extent Plaintiff seeks injunctive relief against

WSSU, is similarly barred, because WSSU is not a “person” within

the meaning of § 1983. See Frew ex rel. Frew v. Hawkins, 540

U.S. 431, 437 (2004) (distinguishing between suits for

injunctive relief brought against states and state officials for

Eleventh Amendment purposes); Green v. Mansour, 474 U.S. 64, 68

(1985) (same).

The court will therefore dismiss Plaintiff’s § 1983 claim

with respect to WSSU under Rule 12(b)(1). See Mann v. Winston

Salem State Univ., No. 1:14CV1054, 2015 WL 5336146, at *4

(M.D.N.C. Sept. 14, 2015) (stating that the Eleventh Amendment

would bar the plaintiff from bringing a § 1983 claim against

WSSU).

2. Monetary Relief Against Individual Defendants in

Their Official Capacities

The United States Supreme Court has held “that neither a

State nor its officials acting in their official capacities are

‘persons’ under § 1983,” where the plaintiff is seeking money

damages. Will, 491 U.S. at 71.

All three Individual Defendants are employed by the UNC

system, which is an agency of the State of North Carolina. See

Huang, 902 F.2d at 1139 n.6. To the extent Plaintiff sues

Individual Defendants in their official capacities, they are

state “officials acting in their official capacities”, and

therefore may not be sued under § 1983 for money damages. See

Will, 491 U.S. at 71. Under Will, therefore, Plaintiff’s § 1983

claim for money damages against the Individual Defendants acting

in their official capacities must be dismissed under Rule

12(b)(1).

B. Individual Defendants in Their Individual Capacities

and Qualified Immunity

Plaintiff sues Defendants Robinson and Berry in their

individual capacities, thus neither the § 1983 official-capacity

prohibition nor the Eleventh Amendment bar Plaintiff’s § 1983

claim. Defendants, however, argue they did not violate

Plaintiff’s constitutional rights, and even if they did, they

argue Defendants Robinson and Berry enjoy qualified immunity.

(Defs.’ Br. (Doc. 14) at 19.) Plaintiff seeks damages and

injunctive relief against “further violations and requiring

compliance with the law.” (Am. Compl. (Doc. 6) at 17.)

1. § 1983 and Qualified Immunity Background

“To state a claim under § 1983, a plaintiff must aver that

a person acting under color of state law deprived him of a

constitutional right or a right conferred by a law of the United

States.” Wahi v. Charleston Area Med. Ctr., Inc., 562 F.3d 599,

615 (4th Cir. 2009).

State officials sued in their individual capacities are

“persons” within the meaning of § 1983 and are not absolutely

immune from suit. Hafer v. Melo, 502 U.S. 21, 31 (1991). A

government official sued in their individual capacity under

§ 1983 may, however, be entitled to qualified immunity. Id. at

25 (“[O]fficials sued in their personal capacities . . . may

assert personal immunity defenses such as objectively reasonable

reliance on existing law.”).

“The doctrine of qualified immunity protects government

officials ‘from liability for civil damages insofar as their

conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have

known.’” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “The protection

of qualified immunity applies regardless of whether the

government official’s error is ‘a mistake of law, a mistake of

fact, or a mistake based on mixed questions of law and fact.’”

Id. (quoting Groh v. Ramirez, 540 U.S. 551, 567 (2004) (Kennedy,

J., dissenting)). Qualified immunity is “an immunity from suit

rather than a mere defense to liability; and like an absolute

immunity, it is effectively lost if a case is erroneously

permitted to go to trial.” Mitchell v. Forsyth, 472 U.S. 511,

526 (1985) (emphasis omitted). Defendant officials have the

burden of pleading and proving qualified immunity. See, e.g.,

Cloaninger ex rel. Estate of Cloaninger v. McDevitt, 555 F.3d

324, 332 n.10 (4th Cir. 2009); Wilson v. Kittoe, 337 F.3d 392,

397 (4th Cir. 2003).

In determining whether qualified immunity applies, courts

must engage in a two-step test “that asks first whether a

constitutional violation occurred and second whether the right

violated was clearly established.” Gregg v. Ham, 678 F.3d 333,

338–39 (4th Cir. 2012) (quoting Henry v. Purnell, 652 F.3d 524,

531 (4th Cir. 2011) (en banc)). “In determining whether a right

is clearly established, courts consider ‘whether it would be

clear to a reasonable officer that his conduct was unlawful in

the situation he confronted.’” Id. at 339 (quoting Henry, 652

F.3d at 534). This test, however, need not proceed in this

sequence; “[t]he judges of the district courts and the courts of

appeals [may] exercise their sound discretion in deciding which

of the two prongs . . . should be addressed first in light of

the circumstances in the particular case at hand.” Pearson, 555

U.S. at 236.

Because Plaintiff must plausibly allege a constitutional

violation and that the constitutional right violated was clearly

established in order to defeat qualified immunity, the court

analyzes Plaintiff’s allegations against Individual Defendants

in their individual capacities under Rule 12(b)(6). See Tobey v.

Jones, 706 F.3d 379, 386–87 (4th Cir. 2013); Ridpath v. Bd. of

Governors Marshall Univ., 447 F.3d 292, 315 (4th Cir. 2006);

Bonnell v. Beach, 401 F. Supp. 3d 663, 672 (E.D. Va. 2019). To

survive a Rule 12(b)(6) motion, “a complaint must contain

sufficient factual matter, accepted as true, to ‘state a claim

to relief that is plausible on its face.’” Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,

550 U.S. 544, 570 (2007)). A claim is plausible on its face if

“the plaintiff pleads factual content that allows the court to

draw the reasonable inference that the defendant is liable” and

demonstrates “more than a sheer possibility that a defendant has

acted unlawfully.” Iqbal, 556 U.S. at 678 (citing Twombly, 550

U.S. at 556–57). When ruling on a motion to dismiss, this court

accepts the complaint’s factual allegations as true. Iqbal, 556

U.S. at 678. Further, this court liberally construes “the

complaint, including all reasonable inferences therefrom, . . .

in plaintiff’s favor.” Estate of Williams-Moore v. All. One

Receivables Mgmt., Inc., 335 F. Supp. 2d 636, 646 (M.D.N.C.

2004) (citation omitted). This court does not, however, accept

legal conclusions as true, and “[t]hreadbare recitals of the

elements of a cause of action, supported by mere conclusory

statements, do not suffice.” Iqbal, 556 U.S. at 678.

2. Plaintiff’s Claims

Plaintiff alleges both substantive and procedural due

process violations. First, regarding substantive due process,

Plaintiff contends he has “suffered disciplinary action as a

result of his exercise of his First Amendment right, thereby

violating his right to substantive due process.” (Am. Compl.

(Doc. 6) ¶ 155.)

Second, Plaintiff alleges that “[t]here is no

administrative remedy for Plaintiff to recover the damages he

has suffered because of the violation of his right to procedural

and substantive due process.” (Id. ¶ 156.)

Third, Plaintiff also alleges WSSU processed his dismissal

“without waiting for a final decision from the Board of

Governors,” which allegedly violated his substantive and

procedural due process rights. (Id. ¶ 154.)

Fourth, regarding procedural due process, Plaintiff

contends that Individual Defendants “did not provide Plaintiff

with adequate notice and a hearing prior to depriving Plaintiff

of his property interest in continuing to teach the summer

courses,” depriving him of his procedural due process right.

(Id. ¶ 148.) He points to the “procedural irregularities” which

“prejudiced” his appeal to the Board of Trustees. (Id. ¶ 149.)

These include the inconsistencies between the three letters

Plaintiff received concerning his appeal to the Board of

Trustees, “procedural changes . . . communicated to Plaintiff in

the middle of the appeals process, thereby providing him with

defective notice regarding the [appeal] procedures,” and that

“no response was received” regarding his objection to the record

on April 23, 2018. (Id. ¶¶ 150–52.)

For each of Plaintiff’s due process claims, the court will

determine whether the facts in the complaint allege a violation

of a constitutional right, then, if the complaint does allege a

violation, the court will determine whether that right was

clearly established at the time of the alleged violation.

The court will address Plaintiff’s substantive due process

allegations first and his procedural due process allegations

second.

a. Plaintiff’s Substantive Due Process

Allegations

Plaintiff alleges both a specific substantive due process

violation of his First Amendment rights, as well as a general

substantive due process violation. (Am. Compl. (Doc. 6) ¶¶ 154–

55.) The court will address each in turn.

i. Plaintiff’s First Amendment Allegations

Plaintiff asserts a substantive due process claim based on

an alleged violation of his First Amendment rights. (Am. Compl.

(Doc. 6) ¶ 155; Pl.’s Br. (Doc. 16) at 17–18.)

Federal substantive due process rights serve as “an

absolute check on certain governmental actions notwithstanding

the fairness of the procedures used to implement those actions.”

Front Royal & Warren Cty. Indus. Park Corp. v. Town of Front

Royal, 135 F.3d 275, 287–88 (4th Cir. 1998) (internal quotation

marks omitted). “[G]overnmental action offends substantive due

process only where the resulting deprivation of life, liberty,

or property is so unjust that no amount of fair procedure can

rectify it.” Id. Because Plaintiff explicitly pleads a First

Amendment violation, “that Amendment, not the more generalized

notion of substantive due process, must be the guide for

analyzing [Plaintiff’s] claim[].” Cty. of Sacramento v. Lewis,

523 U.S. 833, 842 (1998) (quoting Albright v. Oliver, 510 U.S.

266, 273 (1994) (plurality opinion of Rehnquist, C.J.)); see

also Edwards v. City of Goldsboro, 178 F.3d 231, 248 n.11 (4th

Cir. 1999) (explaining that the First Amendment guides the

analysis of the plaintiff’s substantive due process claim, “not

the more generalized notion of substantive due process”). The

court thus looks to First Amendment jurisprudence to guide its

analysis.

In determining whether qualified immunity applies with

respect to this claim, the first issue the court must address is

whether Plaintiff has plausibly alleged a constitutional

deprivation based on the First Amendment.

“It is clearly established that a State may not discharge

an employee on a basis that infringes that employee’s

constitutionally protected interest in freedom of speech.”

Rankin v. McPherson, 483 U.S. 378, 383 (1987); Connick v. Myers,

461 U.S. 138, 142 (1983). Expressive conduct may constitute

speech for purposes of the First Amendment. See, e.g., Texas v.

Johnson, 491 U.S. 397, 404 (1989).

“To establish a free-speech claim under the First

Amendment, plaintiff must establish (1) that the speech or

activity complained of was protected speech or activity, and (2)

that this protected speech or activity was the ‘motivating’ or

‘but for’ cause of the adverse employment action taken against

the plaintiff.” Munn-Goins v. Bd. of Trustees of Bladen Cmty.

Coll., 658 F. Supp. 2d 713, 725 (E.D.N.C. 2009) (citing Wilkie

v. Robbins, 551 U.S. 537, 556 (2007)).

In determining whether a public employer’s action against

an employee violates their First Amendment rights, the court

“must balance the employee’s interest ‘as a citizen, in

commenting upon matters of public concern and the interest of

the State, as an employer, in promoting the efficiency of the

public services it performs through its employees.’” Campbell v.

Galloway, 483 F.3d 258, 266 (4th Cir. 2007) (quoting Connick,

461 U.S. at 142). Indeed, when the government functions “[a]s an

employer, the government is entitled to maintain discipline and

ensure harmony as necessary to the operation and mission of its

agencies.” McVey v. Stacy, 157 F.3d 271, 277 (4th Cir. 1998).

Thus, the court must first determine “whether the speech at

issue may be ‘fairly characterized as constituting speech on a

matter of public concern.’” Campbell, 483 F.3d at 266 (quoting

Connick 461 U.S. at 146). “Speech involves a matter of public

concern when it involves an issue of social, political, or other

interest to a community.” Kirby v. City of Elizabeth City, 388

F.3d 440, 446 (4th Cir. 2004). “Personal grievances, complaints

about conditions of employment, or expressions about other

matters of personal interest do not constitute speech about

matters of public concern that are protected by the First

Amendment, but are matters more immediately concerned with the

self-interest of the speaker as employee.” Stroman v. Colleton

Cty. Sch. Dist., 981 F.2d 152, 156 (4th Cir. 1992). “If the

court determines that the activity or speech does not involve a

matter of public concern, the First Amendment analysis ends and

plaintiff loses.” Munn-Goins, 658 F. Supp. 2d at 726 (citing

Connick, 461 U.S. at 146).

Here, however, the court cannot determine what speech or

expressive conduct Plaintiff alleges caused Defendants to

discipline him that demonstrates “more than a sheer possibility

that a defendant has acted unlawfully.” At no point in the

Amended Complaint does Plaintiff allege any speech or expressive

conduct that resulted in his dismissal; indeed, the Complaint

does not contain facts concerning any statements or expressive

conduct from Plaintiff at all. The only allegation in the

Complaint that comes close to being an allegation of “activity”

on the part of Plaintiff is when Defendant Brown told

Plaintiff’s attorney, “‘there are cameras outside of the

building where the alleged incident occurred, but there are only

a few cameras inside and none on the hall where the

confrontation occurred . . . .’” (Am. Compl. (Doc. 6) ¶ 38.)

This allegation, however, does not contain any “factual content

that allows the court to draw the reasonable inference that the

defendant[s are] liable” nor demonstrates “more than a sheer

possibility that [] defendant[s] ha[ve] acted unlawfully.”

Iqbal, 556 U.S. at 678. Plaintiff includes no factual content

about what this confrontation concerned or what occurred in the

confrontation that could “allow the court to draw the reasonable

inference” that Defendants violated Plaintiff’s First Amendment

rights.

The Dismissal Letter sheds some light on what Plaintiff

allegedly said but still lacks sufficient facts for Plaintiff to

plead a First Amendment violation with any particularity. The

Dismissal Letter states that Plaintiff “sent derogatory and

racially charged communications” to one of his department

chairs. (Dismissal Letter (Doc. 14-1) at 2.) Even taking this as

true and in favor of Plaintiff, the facts contained in the

complaint and the Dismissal Letter are not sufficient to allow

the court to “draw the reasonable inference” that Plaintiff’s

statements addressed matters of public concern. These facts

therefore do not create “more than a sheer possibility that [the

Individual Defendants have] acted unlawfully.” See Campbell, 483

F.3d at 267 (“Personal grievances [and] complaints about

conditions of employment . . . do not constitute speech about

matters of public concern.”)

The court finds that there are insufficient facts to

support a plausible claim for a First Amendment violation. The

court will therefore dismiss Plaintiff’s First Amendment claim

under Rule 12(b)(6).

b. Plaintiff’s Remaining Substantive Due

Process Allegations

Plaintiff also alleges that “WSSU has processed Plaintiff’s

dismissal without waiting for a final decision from the Board of

Governors thereby violating Plaintiff’s right to procedural and

substantive due process.” (Am. Compl. (Doc. 6) ¶ 154.) While

Plaintiff’s § 1983 claim against WSSU is barred, see supra Part

II.A.1, Plaintiff alleges elsewhere in the Amended Complaint

that “Chancellor Robinson . . . remov[ed] Plaintiff from the

WSSU website while he [was] still employed by WSSU; suspend[ed]

Plaintiff; continu[ed] Plaintiff’s suspension even when some

grounds for dismissal were unproven; and direct[ed] that

Plaintiff’s pay be stopped after his appeal to the UNC Board of

Governors,” (Am. Compl. (Doc. 6) ¶ 140), and “Defendants’

decision to deny Plaintiff’s pay [was] arbitrary and

capricious.” (Id. ¶ 120.) Liberally construing all reasonable

inferences in Plaintiff’s favor, the court finds that Plaintiff

attributes the processing of his dismissal to Individual

Defendants in addition to WSSU as an institution.

Plaintiff also points to “several procedural

irregularities” that allegedly prejudiced him during his appeals

to the Board of Trustees and the Board of Governors. (Id.

¶¶ 149–54.)

“[T]he Due Process Clause contains a substantive component

that bars certain arbitrary, wrongful government actions

regardless of the fairness of the procedures used to implement

them.” Zinermon v. Burch, 494 U.S. 113, 125 (1990) (internal

quotation marks omitted). “[O]nly the most egregious official

conduct can be said to be ‘arbitrary in the constitutional

sense.’” Cty. of Sacramento, 523 U.S. at 846 (quoting Collins v.

City of Harker Heights, 503 U.S. 115, 129 (1992)). That is, “a

violation of an individual’s substantive due process rights

exists only when the official action is ‘so egregious, so

outrageous, that it may fairly be said to shock the contemporary

conscience.’” Kerr v. Marshall Univ. Bd. of Governors, 824 F.3d

62, 80 (4th Cir. 2016) (quoting Hawkins v. Freeman, 195 F.3d

732, 738 (4th Cir. 1999)). “And evidence that a decision was

unwise or mistaken cannot establish a substantive due process

claim.” Huang, 902 F.2d at 1142. “The Due Process Clause of the

Fourteenth Amendment is not a guarantee against incorrect or

ill-advised personnel decisions.” Bishop v. Wood, 426 U.S. 341,

350 (1976).

The court cannot find that Defendants Robinson and Berry’s

conduct was arbitrary, capricious, or egregious. The Amended

Complaint does not include allegations that Defendants Robinson

and Berry acted in bad faith or ill will. Plaintiff alleges

these Defendants processed his dismissal without waiting for the

Board of Governor’s final decision, in violation of the WSSU

Faculty Handbook and the Code. (Am. Compl. (Doc. 6) ¶¶ 94, 97,

154.) At most, however, this was an “incorrect or ill-advised

personnel decision[],” against which substantive due process

does not protect. Bishop, 426 U.S. at 349–50 (“We must accept

the harsh fact that numerous individual mistakes are inevitable

in the day-to-day administration of our affairs.”). The court

therefore finds Plaintiff fails to state a claim for a general

violation of substantive due process under Rule 12(b)(6).

c. Plaintiff’s Procedural Due Process

Allegations

Plaintiff also alleges two procedural due process

violations: he first alleges that “Defendants did not provide

Plaintiff with adequate notice and a hearing prior to depriving

Plaintiff of his property interest in continuing to teach the

summer courses,” and second, that Defendants improperly

processed his dismissal before the Board of Governors could

issue its decision. (Am. Compl. (Doc. 6) ¶¶ 140, 148, 154.)

i. Plaintiff’s Property Interest in

Teaching Summer Courses

To state a procedural due process claim, a plaintiff must:

(1) “demonstrate that he had a constitutionally cognizable life,

liberty, or property interest”; (2) “he must show that the

deprivation of that interest was caused by some form of state

action”; and (3) “he must prove that the procedures employed

were constitutionally inadequate.” Sansotta v. Town of Nags

Head, 724 F.3d 533, 540 (4th Cir. 2013) (internal quotation

marks omitted).

“In order to have a protected property interest in his

employment, a person must possess a legitimate claim of

entitlement to it — created, for example, by contract or state

law.” Ridpath, 447 F.3d at 307 n.14 (citing Bd. of Regents of

State Colls. v. Roth, 408 U.S. 564, 577–78 (1972)). A tenured

teacher’s employment rights constitute a sufficient property

interest to warrant due process protection. See Kalme v. W. Va.

Bd. of Regents, 539 F.2d 1346, 1348 (4th Cir. 1976) (citing

Roth, 408 U.S. 564 (1972)); Slochower v. Bd. of Educ., 350 U.S.

551 (1956)) (holding that the rights of a tenured professor

sufficiently constitute a property interest entitled to due

process protection).

Here, however, Plaintiff alleges that he taught summer

courses “under a separate, supplemental, teaching contract.”

(Am. Compl. (Doc. 6) ¶ 22.) Plaintiff alleges this created a

property interest “[d]ue to the substantial longevity of

Plaintiff’s teaching summer courses.” (Id. ¶ 147.) Plaintiff

therefore does not ground his property interest in his rights as

a tenured professor.

While a “property interest in employment can, of course, be

created by ordinance, or by an implied contract,” Bishop v.

Wood, 426 U.S. 341, 344 (1976), the North Carolina Supreme Court

has “repeatedly held that in the absence of a contractual

agreement between an employer and an employee establishing a

definite term of employment, the relationship is presumed to be

terminable at the will of either party without regard to the

quality of performance of either party,” Kurtzman v. Applied

Analytical Indus., Inc., 347 N.C. 329, 331, 493 S.E.2d 420, 422

(1997). Even so, as the Supreme Court has dictated, “the

existence of rules and understandings, promulgated and fostered

by state officials, that may justify [a plaintiff’s] legitimate

claim of entitlement to continued employment absent ‘sufficient

cause.’” Perry v. Sindermann, 408 U.S. 593, 602–03 (1972)

overruled on other grounds by Rust v. Sullivan, 500 U.S. 173

(1991).

Here, Plaintiff fails to submit any facts that his contract

for teaching summer classes “establish[ed] a definite term of

employment,” or that there were “rules and understandings,

promulgated and fostered by state officials,” that could justify

Plaintiff’s alleged property interest in continued employment.

Plaintiff instead bases his property interest allegedly arising

out of this contract in his allegations that that “[b]ased on

prior practice over the years, Plaintiff reasonably believe he

would be able to teach summer courses at WSSU as long as he

remained employed by WSSU,” and that “[d]ue to the substantial

longevity of Plaintiff’s teaching summer courses, Plaintiff is

entitled to adequate procedural protections to safeguard his

property interest in continued employment.” (Am. Compl. (Doc. 6)

¶¶ 109, 147.) These allegations are not sufficient to

demonstrate a protected property interest in continued

employment;7 indeed, Plaintiff’s allegations are essentially

“[t]hreadbare recitals of the elements of a cause of action,

supported by mere conclusory statements, [which] do not

suffice.” Iqbal, 556 U.S. at 678; see also Byerly v. Va.

Polytechnic Inst. & State Univ., Civil Action No. 7:18-cv-16,

2019 WL 1370873, at *5 (W.D. Va. Mar. 25, 2019) (finding that

the plaintiff “has alleged no source rooted in Virginia law or a

policy of Virginia Tech for his claim of entitlement”); but see

Zimmeck v. Marshall Univ. Bd. of Governors, Civil Action No.

3:13-14743, 2014 WL 108668, at *7 (S.D. W. Va. Jan. 10, 2014)

(“Many courts have taken the pragmatic approach of assuming the

existence of a protected property interest at the motion to

dismiss stage.”). Plaintiff therefore cannot state a procedural

due process claim arising out of his contract for summer course

instruction by failing to allege a plausible property interest.

7 The court notes that Plaintiff may have qualified as a

“career State employee” under N.C. Gen. Stat. § 126-35, which

protects an employee who “(1) [i]s in a permanent position with

a permanent appointment; and (2) [h]as been continuously

employed by the State of North Carolina . . . for the immediate

12 preceding months.” N.C. Gen. Stat. § 126–1.1. Plaintiff,

however, makes no allegations that his employment teaching

summer classes would qualify him as a “career State employee”

for the purposes of the statute and the court declines to read

these allegations into the Complaint; to do so would

impermissibly stretch the court’s mandate to liberally construe

“the complaint, including all reasonable inferences therefrom, .

. . in the plaintiff’s favor.” Estate of Williams-Moore, 335 F.

Supp. 2d at 646 (citation omitted).

d. Plaintiff’s Other Procedural Due Process

Allegations

Plaintiff also alleges that “WSSU has processed Plaintiff’s

dismissal without waiting for a final decision from the Board of

Governors thereby violating Plaintiff’s right to procedural and

substantive due process.” (Am. Compl. (Doc. 6) ¶ 154.) For the

same reasons as stated above, the court will construe this

allegation as against Defendants Robinson and Berry as well. See

supra Part II.B.2.b. Plaintiff points to “several procedural

irregularities” that allegedly prejudiced him during his appeals

to the Board of Trustees and the Board of Governors. (Id.

¶¶ 149–54.)

To state a procedural due process claim, a plaintiff must:

(1) “demonstrate that he had a constitutionally cognizable life,

liberty, or property interest”; (2) “he must show that the

deprivation of that interest was caused by some form of state

action”; and (3) “he must prove that the procedures employed

were constitutionally inadequate.” Sansotta, 724 F.3d at 540

(internal quotation marks omitted).

“In order to have a protected property interest in his

employment, a person must possess a legitimate claim of

entitlement to it — created, for example, by contract or state

law.” Ridpath, 447 F.3d at 307 n.14 (citing Roth, 408 U.S. at

577–78). A tenured teacher’s employment rights constitute a

sufficient property interest to warrant due process protection.

See Kalme, 539 F.2d at 1348.

Liberally construing “the complaint, including all

reasonable inferences therefrom, . . . in plaintiff’s favor,” it

appears that Plaintiff alleges an interest arising from his

tenured employment contract, which “specifically incorporates

the ‘rules, regulations and policies’ of the Board of Governors

and Board of Trustees, including Section 603 of the Code.” (Am.

Compl. (Doc. 6) ¶ 105.) Section 603 of the Code provides that

the Board of Trustees’ decision is final except when the faculty

member appeals to the Board of Governors. (Id. ¶ 71a.) Section

603 further provides that a “faculty member who is the

beneficiary of institutional guarantees of tenure,” which

Plaintiff does, “shall enjoy protection against unjust and

arbitrary application of disciplinary penalties.” (Id. ¶ 89.)

Plaintiff therefore properly pleads a property interest based on

his rights as a tenured professor.

Having determined that Plaintiff has a protected property

interest, the court will thus address whether Plaintiff

plausibly pleads a procedural due process violation. To do so,

“courts must consult the entire panoply of predeprivation and

postdeprivation process provided by the state.” Fields v.

Durham, 909 F.2d 94, 97 (4th Cir. 1990). Generally, “the Due

Process Clause normally requires a hearing ‘before the State

deprives a person of liberty or property.’” Id. (quoting

Zinermon 494 U.S. at 984). “The fundamental requirement of due

process is the opportunity to be heard at a meaningful time and

in a meaningful manner.” Mathews v. Eldridge, 424 U.S. 319, 333

(1976) (internal quotation marks omitted). This “pretermination

‘hearing,’ though necessary, need not be elaborate.” Cleveland

Bd. of Educ. v. Loudermill, 470 U.S. 532, 545 (1985). “The

tenured public employee is entitled to oral or written notice of

the charges against him, an explanation of the employer’s

evidence, and an opportunity to present his side of the story.”

Id. at 546.

In order to determine what process was due and when, the

court must first determine when the alleged deprivation

occurred.

The court first notes that Plaintiff cannot state a

deprivation claim for the time he was suspended with pay prior

to the Board’s hearing. The Supreme Court has stated that “in

those situations where the employer perceives a significant

hazard in keeping the employee on the job, it can avoid the

problem by suspending with pay.” Cleveland Bd. of Educ., 470

U.S. at 544-45; see also Mansoor v. Cty. of Albemarle, 124 F.

Supp. 2d 367, 380 (W.D. Va. 2000) (“Under the federal standard

of what process is due, the plaintiff’s suspension with pay did

not violate the Fourteenth Amendment.”). That is precisely what

happened here; Plaintiff was suspended with pay for a year,

while his appeal took its course. (Am. Compl. (Doc. 6) ¶¶ 25,

65.) “To require more than this prior to termination would

intrude to an unwarranted extent on the government’s interest in

quickly removing an unsatisfactory employee.” Cleveland Bd. of

Educ., 470 U.S. at 546. Thus, Plaintiff’s deprivation did not

occur at least until WSSU stopped paying Plaintiff in August

2018; at that point, he was no longer suspended with pay.

At that point, however, Plaintiff had received a copious

amount of process: Plaintiff received the Dismissal Letter and

he submitted his notice of appeal to the Faculty Hearing

Committee, (Am. Compl. (Doc. 6) ¶¶ 26, 34); the Faculty Hearing

Committee held a hearing, and Chancellor Robinson requested the

Faculty Hearing Committee hold another hearing to take evidence

from Plaintiff, during which Plaintiff declined to submit

further evidence, (id. ¶¶ 44, 47–48); Defendant Robinson

overruled the Faculty Hearing Committee, as was his right under

the Faculty Handbook, (id. ¶ 50; Doc. 14-2 at 5–6); Plaintiff

appealed Defendant Robinson’s recommendation to the Board of

Trustees, (id. ¶ 51); Plaintiff received at least two letters

containing instructions about his appeal to the Board of

Trustees, (id. ¶ 52); finally, the Board of Trustees notified

Plaintiff it was upholding Defendant Robinson’s recommendation

“based on ‘the written transcript and the related exhibits,’”

(id. ¶ 54). All of this occurred prior to the end of August

2018, when WSSU stopped paying Plaintiff. All of this would

therefore qualify as “predeprivation” process.

The process Plaintiff received met, and likely exceeded

that which is required: “oral or written notice of the charges

against him, an explanation of the employer’s evidence, and an

opportunity to present his side of the story.” Cleveland Bd. of

Educ., 470 U.S. at 546. Even if Defendants violated the Code or

the WSSU Faculty Handbook, “‘[a]lleged violations of due process

in the deprivation of a protectable interest are to be measured

against a federal standard of what process is due and that

standard is not defined by state-created procedures, even when

those state-created procedures exceed the amount of process

otherwise guaranteed by the Constitution.’” Gray v. Laws, 51

F.3d 426, 438 (4th Cir. 1995) (quoting Riccio v. Cty. Of

Fairfax, 907 F.2d 1459, 1469 (4th Cir. 1990)). Here, Defendants

provided Plaintiff with “the amount of process . . . guaranteed

by the Constitution”; he therefore cannot succeed on his

procedural due process claim. See id. (“‘If state law grants

more procedural rights than the Constitution would otherwise

require,’ as do the North Carolina procedures [the plaintiff]

claims were violated, ‘a state’s failure to abide by that law is

not a federal due process issue.’” (quoting Riccio, 907 F.2d at

1469); see also Cleveland Bd. of Educ., 470 U.S. at 541 (“[O]nce

it is determined that the Due Process Clause applies, ‘the

question remains what process is due.’ The answer to that

question is not to be found in the [state] statute.”).

The procedural deficiencies Plaintiff relies upon to

support his procedural due process claim are not

constitutionally material. For instance, while Plaintiff alleges

the Board of Trustees’ decision was made upon the “‘written

transcript and exhibits’ rather than the whole record,” (Am.

Compl. (Doc. 6) ¶ 153), he nevertheless received “an explanation

of the employer’s evidence.” Cleveland Bd. of Educ., 470 U.S. at

546. Plaintiff does not allege that the Board of Trustees was

required to make its decision based upon the “whole record,” nor

what parts of the “whole record” which were not considered would

have been material in his appeal. Further, while a plaintiff can

make out a separate procedural due process claim based on a

violation in the appeal process itself, see Doe v. Va.

Polytechnic Inst. & State Univ., 400 F. Supp. 3d 479, 502 (W.D.

Va. 2019), such a claim arises when, for example, the original

factfinder’s decision is overturned based on new evidence

submitted on appeal, to which the plaintiff was not given

adequate notice or time to respond, and the defendant did not

give the plaintiff prior notice of the appeal board’s meeting

nor permit him to attend the appeal board’s meeting —

essentially, “a second fact-finding trial [where the plaintiff

is] severely limited [in] his ability to defend himself.” Doe v.

Alger, 175 F. Supp. 3d 646, 661–62 (W.D. Va. 2016). That is not

the case here. Plaintiff does not allege that new evidence was

put forth on appeal. See Va. Polytechnic Inst. & State Univ.,

400 F. Supp. 3d at 502 (dismissing due process violation claim

based on alleged appeal deficiencies when the initial hearing

decisions were upheld and the plaintiffs did not identify any

errors such as new evidence presented without opportunity to

respond).

Regarding notice, Plaintiff alleges procedural

inconsistencies among the three letters he received from the

Board of Trustees concerning his appeal. (Am. Compl. (Doc. 6)

¶ 55.) Specifically, however, he only alleges that he was

informed in one letter that the Grievance Committee would be

reviewing his appeal while another stated that the Appeals

Committee would be making the decision. (Id.) These letters were

sent in April 2018, but the Board of Trustees did not issue its

decision until August 2018. (Id. ¶¶ 52, 55, 57.) Plaintiff

alleges that these letters resulted in defective notice. (Id.

¶¶ 150–51.) This fact alone does not “nudge[] the[] claim[]

across the line from conceivable to plausible.” Twombly, 500

U.S. at 555, 570. In Alger, the court found that “[t]aken

together, these allegations [of new evidence, no notice, and no

opportunity to respond] show that [the defendant] denied Doe a

“meaningful hearing.” Alger, 175 F. Supp. 3d at 662. That

Plaintiff may not have known the precise committee which would

be handling his appeal does not, on its own, support a

procedural due process claim.

Further, Plaintiff also had and has several postdeprivation

state-law remedies. The district court’s analysis in Burch v. NC

Dep’t of Pub. Safety, 158 F. Supp. 3d 449 (E.D.N.C. 2016), is

instructive on this issue. There, a special agent for Alcohol

Law Enforcement brought substantive and procedural due process

claims, among others, when she was forced to take an unpaid

leave of absence in order to have a baby. Id. at 456. The

district court first found that the “plaintiff received pre-

deprivation due process commensurate with the limited nature of

her alleged property and liberty interests.” Id. at 460. The

court then granted the defendant’s motion to dismiss the

plaintiff’s procedural due process claim, stating:

With regard to post-deprivation due process,

plaintiff still has available to her a number of state

law remedies. Plaintiff initially filed this action in

the Superior Court of Carteret County, North Carolina,

and she maintains a number of state law causes of

action. In particular, plaintiff retains claims for

breach of contract and civil conspiracy, as well as

claims under the N.C. Constitution for alleged

violations of her rights to substantive due process,

procedural due process, and equal protection. These

claims demonstrate suitable state law remedies for

plaintiff’s alleged due process deprivation.

Id. at 460. Such is the case here. Plaintiff not only originally

filed his claim in state court, but he also appealed the Board

of Governor’s decision by filing a Petition for Judicial Review

in Forsyth County Superior Court. (Doc. 19 at 1.) Plaintiff,

like the plaintiff in Burch, brings “a number of state law

causes of action,” three of them identical to those in Burch:

breach of contract and two claims under the North Carolina

Constitution for alleged violations of substantive and

procedural due process. (Am. Compl. (Doc. 6) ¶¶ 103–43.)

Plaintiff’s “claims demonstrate suitable state law remedies for

plaintiff’s alleged due process deprivation.” See Burch, 158

F.3d at 460.

Because the court has found that Plaintiff was “afforded

pre-deprivation due process commensurate with the degree of

[his] claimed entitlements, and where []he has available to

h[im] adequate post-deprivation state law remedies,” Plaintiff’s

§ 1983 claim against Individual Defendants to the extent the

claims are brought against them in their individual capacities

must be dismissed. See id.

e. Due Process Conclusion

Because Plaintiff fails to state a § 1983 claim for either

a substantive or procedural due process violation, Individual

Defendants Robinson and Berry have demonstrated that qualified

immunity applies. See Gregg, 678 F.3d at 341 n.7 (“To prevail

under qualified immunity, Ham has to show either that there was

no constitutional violation or that the right violated was not

clearly established.” (emphasis added)). Because qualified

immunity applies here, Plaintiff’s § 1983 claim is barred.

3. Injunctive Relief Against Individual Defendants

Plaintiff also seeks injunctive relief. (Am. Compl. (Doc.

6) at 17.)

Ex parte Young, 209 U.S. 123, 159–60 (1908), provides an

exception to Eleventh Amendment immunity where suit is brought

against state officials in their official capacities and “(1)

the violation for which relief is sought is an ongoing one, and

(2) the relief sought is only prospective.” Republic of Paraguay

v. Allen, 134 F.3d 622, 627 (4th Cir. 1998). However, “the

exception does not permit federal courts to entertain claims

seeking retrospective relief, either compensatory or other, for

completed, not presently ongoing violations of federally

protected rights.” Id.; see also Green, 474 U.S. at 67–68

(“Young also held that the Eleventh Amendment does not prevent

federal courts from granting prospective injunctive relief to

prevent a continuing violation of federal law.” (emphasis

added)). “For purposes of Eleventh Amendment analysis, it is

sufficient to determine that [the plaintiff] alleges facts that,

if proven, would violate federal law and that the requested

relief is prospective.” S.C. Wildlife Fed’n v. Limehouse, 549

F.3d 324, 332 (4th Cir. 2008).

The court has already determined that Plaintiff has not

pled facts sufficient to state a plausible claim for relief

under § 1983. See supra Part II.B.2. Therefore, to the extent

Plaintiff seeks injunctive relief under § 1983 against

Individual Defendants, Plaintiff cannot do so because Plaintiff

has not “allege[d] facts that, if proven, would violate federal

law.” S.C. Wildlife Fed’n, 549 F.3d at 332. Because Plaintiff

fails to state a § 1983 claim for procedural and substantive due

process violation, Plaintiff cannot meet the requirements of Ex

parte Young and it therefore will not apply.

Because Ex parte Young does not apply, Plaintiff’s § 1983

claim for injunctive relief against Individual Defendants in

their official capacities is barred under Rule 12(b)(1).

C. The Court Declines to Exercise Supplemental

Jurisdiction over the Remaining State Law Claims

Because the court has disposed of Plaintiff’s sole federal

law claim, the court has discretion to exercise jurisdiction

over Plaintiff’s remaining seven state-law claims. See 28 U.S.C.

§ 1367. The court will decline to do so. The Supreme Court has

counseled in favor of courts dismissing the remaining state-law

claims if the court dismisses the federal claims: “[I]f the

federal claims are dismissed before trial, even though not

insubstantial in a jurisdictional sense, the state claims should

be dismissed as well.” United Mine Workers of Am. v. Gibbs, 383

U.S. 715, 726 (1966). The Court further counseled that, “if it

appears that the state issues substantially predominate, whether

in terms of proof, of the scope of the issues raised, or of the

comprehensiveness of the remedy sought, the state claims may be

dismissed without prejudice and left for resolution to state

tribunals.” Id. at 726–27. Such is the case here; Plaintiff did

not even add his § 1983 claim until he filed his Amended

Complaint. (Notice of Removal (Doc. 1) at 2.) There are still

seven state-law claims pending, which will be dismissed without

prejudice and “left for resolution to state tribunals.”

III. CONCLUSION

The court will dismiss Plaintiff’s Fifth Claim against

Defendant WSSU and Individual Defendants in their official

capacities under Rule 12(b)(1) without prejudice, and against

Individual Defendants in their individual capacities under Rule

12(b)(6) with prejudice.

IT IS THEREFORE ORDERED that Defendants’ Motion to Dismiss,

(Doc. 13), is GRANTED with respect to Claim Five as to WSSU and

Individual Defendants in their official capacities pursuant to

Rule 12(b)(1) and as to Individual Defendants in their

individual capacities pursuant to Rule 12(b)(6) and Claim Five

is hereby DISMISSED.

IT IS FURTHER ORDERED that the court DECLINES to exercise

supplemental jurisdiction over Plaintiff’s state-law claims and

DISMISSES Plaintiff’s state-law claims WITHOUT PREJUDICE.

A judgment reflecting this Memorandum Opinion and Order

will be entered contemporaneously herewith.

This the 30th day of March, 2020.

*

LS Ai run L. Cahir. .

Wo Oi nin No

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