# MITCHELL v. WINSTON SALEM STATE UNIVERSITY

> District Court, M.D. North Carolina · March 30, 2020

URL: https://www.frixlaw.com/law-library/cases/10253413

## Case

- **Court:** District Court, M.D. North Carolina
- **Decided:** March 30, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10253413

## How later opinions describe it (automated extraction)

- 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”
- 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
- 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”

## Opinion text

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

- A7J -

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10253413. Public record. Not legal advice.