Garrett v. Tomas

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

ASHEVILLE DIVISION

1:21-cv-00110-MR-WCM

DONNA GARRETT )

)

Plaintiff, )

)

v. )

)

DR. DON TOMAS, in his personal )

and official capacity as President )

of Southwestern Community )

College; DR. THOM BROOKS, in ) MEMORANDUM AND

his personal capacity and official ) RECOMMENDATION

capacity as Executive Vice )

President of Instruction and )

Student Services of Southwestern )

Community College; DR. MITCH )

FISCHER in his personal capacity )

and official capacity as Dean of )

Health Science of Southwestern )

Community College; WENDY )

BUCHANAN, in her personal )

capacity and official capacity )

as Director of the Nursing Program )

of Southwestern Community )

College; and THE TRUSTEES OF )

SOUTHWESTERN COMMUNITY )

COLLEGE, )

)

Defendants. )

___________________________ )

This matter is before the Court on Defendants’ Motion to Dismiss (Doc.

3), which has been referred to the undersigned pursuant to 28 U.S.C. § 636 for

the entry of a recommendation. The Motion is fully briefed and is ripe for

ruling.

I. Relevant Procedural History

On March 1, 2021, Plaintiff Donna Garrett (“Plaintiff”) filed her

Complaint in the Superior Court of Haywood County, North Carolina. Doc. 1-

2.

On April 21, 2021, Defendants removed the case based on federal

question jurisdiction. Doc. 1.

The next day, Defendants filed the Motion to Dismiss along with a

supporting memorandum. Docs. 3, 4. Plaintiff responded, and Defendants

replied. Docs. 5, 7.

On June 30, 2021, the undersigned directed the parties to file

supplemental briefing on two topics. Doc. 8.

The parties’ supplemental briefs were submitted on July 16, 2021. Docs.

9, 11.

II. Plaintiff’s Allegations

Plaintiff’s Complaint alleges as follows:

In the Fall of 2018, Plaintiff was in her second year of the nursing

program (“Program”) at Southwestern Community College (“SCC”). Doc. 1-2 at

¶ 1.

At the time, nursing students were required to pass a math test to

remain in the Program. Specifically, students were required to score no less

than 90% and could take the test no more than twice; a student who failed to

pass the test on the second attempt was dismissed from the Program. Id. at

¶ 2.

Plaintiff took the test on August 23, 2018 and again on September 13,

2018, scoring 80% each time.

On or about October 16, 2018, Plaintiff was dismissed from the Program

by Dr. Thom Brooks, the Executive Vice President of Instruction and Student

Services at SCC. Id. at ¶¶ 3, 5.

Plaintiff alleges that nursing education programs in North Carolina are

regulated by the North Carolina Board of Nursing (“Board of Nursing”) and

that a North Carolina administrative code regulation prohibits nursing

programs from using standardized external exams to measure the ability of

nursing students to progress toward graduation in a program leading to an

initial nursing license. Id. at ¶ 5.

Plaintiff alleges that SCC used an external service, called ATI, that

provided standardized questions for the tests in SCC’s curriculum. Id. at ¶ 4.

After Plaintiff became aware of the Board of Nursing’s prohibition on

using standardized external examinations, Plaintiff corresponded with ATI,

whose representatives confirmed that exam questions pulled from ATI’s test

bank are considered “standardized” and cannot be customized. Accordingly,

Plaintiff contends that SCC was prohibited from using ATI’s standardized test

questions to create the math test that Plaintiff took. Id. at ¶¶ 6, 7, 8.

Plaintiff appealed her dismissal from the Program through SCC’s

internal appeals process. In November 2018, and while Plaintiff’s appeal was

pending, a team from the Board of Nursing visited SCC to review complaints

about the Program’s curriculum and testing practices. Id. at ¶ 9.

Plaintiff is informed and believes that the review team met with Dr.

Brooks, Dr. Mitch Fischer, who was the Dean of Health Science at SCC, and

Wendy Buchanan, who was the director of the Program, as well as with other

persons. Id. at ¶ 10.

Almost immediately after that visit, SCC changed the Program’s

“Progression Policy” so that the math test was no longer determinative of

progression toward graduation. This policy change was implemented, Plaintiff

alleges, “at least one full month prior to the conclusion of Plaintiff’s internal

appeals process in January 2019.” Id. at ¶ 11.

At each step in her internal appeal, Plaintiff raised the issue of using

standardized external examinations with Dr. Fisher, Dr. Brooks, and Dr. Don

Tomas, who is the President of SCC and who Plaintiff alleges knew that this

practice “was illegal.” Id. at ¶ 12.

Nonetheless, Dr. Fisher, Dr. Brooks, and Dr. Tomas affirmed Plaintiff’s

dismissal from the Program, which became final in January 2019. Id. at ¶ 14.

Plaintiff also alleges that she brought SCC’s attention to another

problem with the math test – namely, that the stated answer to one of the test

questions was incorrect – and that Plaintiff had supplied the correct answer.

SCC, however, did not address this issue during Plaintiff’s internal appeal

either, though had Plaintiff been properly credited with providing the correct

answer to the question, she would have scored a 90% on the math test (and

presumably would have passed it). Id. at ¶¶ 15, 16.

Finally, Plaintiff filed a Post-Secondary Education Complaint on or

about September 1, 2020. Her complaint was received by the University of

North Carolina System Office in Chapel Hill and was referred to the North

Carolina Community College System Office in Raleigh for review and

determination. Id. at ¶ 17.

On November 2, 2020, Dr. John Evans of the Community College System

Office informed Plaintiff that “her external administrative appeal was not

sustained” and that, in his view, SCC had followed its internal appeal

procedures. He concluded his message, which was delivered by email, by

stating that there was no further action for the Community College System to

take in Plaintiff’s case. Id. at ¶ 18.

During and after her dismissal from the Program, Plaintiff requested a

letter of recommendation that would have allowed her to transfer immediately

into a nursing program at another school. However, the Director of the

Program refused to provide such a letter, which caused Plaintiff to miss that

year’s enrollment window at other schools. Id. at ¶ 19. Though Plaintiff did

eventually enroll in another nursing program, the credits she had accumulated

at SCC had become stale and she was not able to transfer them to the other

program, a situation that forced Plaintiff to incur additional time and expense

to retake those courses at the other institution. Id. at ¶ 20.

Plaintiff alleges that she continued to investigate SCC’s practices and

discovered numerous other incidents involving similarly situated students

“who did not achieve a passing score on an end of semester grade and should

have been dismissed pursuant to SCC’s policies.” Id. at ¶ 21. Plaintiff is

informed and believes, however, that those students were allowed to remain in

the Program. Id. at ¶ 22.

In addition, Plaintiff is informed and believes that four (4) students, who

enrolled the year following Plaintiff’s dismissal, were caught cheating on

assignments and were allowed to continue in the Program. Id. at ¶ 22.

The Complaint asserts the following claims:

1. Violation of the North Carolina and the United States Constitutions –

Due Process;

2. Violation of the North Carolina and the United States Constitutions –

Equal Protection; and

3. Injunction.

Defendants have moved to dismiss all claims.

III. Legal Standard

When considering a motion made pursuant to Rule 12(b)(6), the court,

accepting the allegations in the complaint as true and construing them in the

light most favorable to the plaintiff, determines “whether the complaint on its

face states plausible claims upon which relief can be granted.” Francis v.

Giacomelli, 588 F.3d 186, 189, 192 (4th Cir. 2009); accord Nemet Chevrolet,

Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 253 (4th Cir. 2009).

The court, however, is not required to accept “legal conclusions, elements

of a cause of action, and bare assertions devoid of further factual

enhancement.” Consumeraffairs.com, 591 F.3d at 255; see Giacomelli, 588 F.3d

at 192. That is, while “detailed factual allegations” are not required, the

complaint must contain “enough facts to state a claim to relief that is plausible

on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007); accord

Consumeraffairs.com, 591 F.3d at 255. “A claim has facial plausibility when

the plaintiff pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009); accord Consumeraffairs.com, 591 F.3d at 255.

In short, the well-pled factual allegations must move a plaintiff’s claim from

conceivable to plausible. Twombly, 550 U.S. at 570; Consumeraffairs.com, 591

F.3d at 256.1

IV. Discussion

A. Constitutional Claims

Plaintiff’s Complaint indicates that her due process and equal protection

claims are being asserted under both the United States Constitution and the

North Carolina Constitution.

“Article I, Section 19 of the North Carolina Constitution guarantees

both due process rights and equal protection under the law by providing that

no person shall be ‘deprived of his life, liberty, or property, but by

the law of the land’ and that ‘no person shall be denied the equal protection of

the laws.’” Rhyne v. K-Mart Corp., 358 N.C. 160, 180, 594 S.E.2d 1, 15 (2004)

(quoting N.C. Const. art. I, § 19). This provision “has been interpreted as being

similar to the due process clause of the Fourteenth Amendment to the Federal

Constitution.” Doe v. Charlotte-Mecklenburg Bd. of Educ., 222 N.C. App. 359,

1 Though the Motion to Dismiss references dismissal under Rules 12(b)(1), 12(b)(2),

and 12(b)(6) of the Federal Rules of Civil Procedure, Defendants’ arguments appear

to be made primarily pursuant to Rule 12(b)(6).

371, 731 S.E.2d 245, 253 (2012) (citing Rhyne v. K-Mart Corp., 358 N.C. 160,

180, 594 S.E.2d 1, 15 (2004)).

Therefore, this memorandum references federal law in analyzing

Plaintiff’s constitutional claims.

1. Due Process

a. Procedural Due Process

To state a claim for a procedural due process violation, a plaintiff “must

show ‘(1) a cognizable liberty or property interest; (2) the deprivation of that

interest by some form of state action; and (3) that the procedures employed

were constitutionally inadequate.’” Kendall v. Balcerzak, 650 F.3d 515, 528

(4th Cir. 2011) (citation omitted).

i. Property Interest

Defendants argue that Plaintiff has failed to demonstrate the existence

of a property right. Specifically, Defendants contend that it is “uncertain if

plaintiff has a constitutional property interest in remaining in SCC’s nursing

program,” that Plaintiff bears the burden of establishing the existence of such

a right, and that Plaintiff has made only an unsupported and conclusory

allegation of a property interest. Doc. 4 at 5.

In response, Plaintiff argues that the United States Supreme Court “has

assumed, without deciding, that university students possess a ‘constitutionally

protectable property right’ in their continued enrollment in a university,” Doc.

5 at 7, and therefore her pleading satisfies the first element of the due process

analysis. Id. at 8.

In certain cases, the Supreme Court and the Fourth Circuit have

assumed the existence of a property right to continued enrollment in the

context of higher education. However, those assumptions have been made in

cases where other considerations were dispositive of the claims at issue. See

Regents of Univ. of Mich. v. Ewing, 474 U.S. 214, 223 (1985) (“even if Ewing’s

assumed property interest gave rise to a substantive right under the Due

Process Clause to continued enrollment free from arbitrary state action, the

facts of record disclose no such action”); see also Sheppard v. Visitors of Va.

State Univ., 993 F.3d 230, 239 (4th Cir. 2021) (citations omitted) (explaining

that “[t]he Supreme Court has [only] assumed, without actually deciding, that

university students possess a constitutionally protectible property right in

their continued enrollment in a university” and that the Fourth Circuit has

followed the same approach) (quoting Tigrett v. Rector & Visitors of Univ. of

Va., 290 F.3d 620, 627 (4th Cir. 2002) (modification of language in Sheppard).

In this case, as described below, Plaintiff has made sufficient factual

allegations to overcome the Motion to Dismiss for purposes of the second and

third elements of the procedural due process analysis. Therefore, the question

of whether a property right to continued enrollment has been properly alleged

must be addressed directly. See Doe v. Alger, 175 F.Supp.3d 646, 656 (W.D.

Va. 2016) (noting that the Supreme Court and the Fourth Circuit have

assumed a liberty or property interest exists “and then gone on to find that the

process at issue was constitutionally adequate” but that the court could not

take that approach because the plaintiff had “alleged sufficient facts to state

that the process he received was inadequate” and concluding that the court

must decide “whether the amended complaint sufficiently alleges a property or

liberty interest (or both)”).

“Because the Constitution protects rather than creates property

interests, the existence of a property interest is determined by reference to

‘existing rules or understandings that stem from an independent source such

as state law.’” Phillips v. Wash. Legal Found., 524 U.S. 156, 164 (1998)

(quoting Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577 (1972)); see

also Equity in Athletics, Inc. v. Dep’t of Educ., 639 F.3d 91, 109 (4th Cir. 2011)

(“A protected property interest cannot be created by the Fourteenth

Amendment itself, but rather must be created or defined by an independent

source”).

In her Complaint, Plaintiff alleges that she “enjoyed a property interest

in continuing her enrollment at SCC through graduation.” Doc. 1-2 at 9.

Plaintiff also cites 21 N.C.A.C. §36.0321(p), which states:

(p) External standardized examinations shall not be

used to determine a student’s progression or

graduation in a nursing education program preparing

students for initial nurse licensure.

21 N.C. Admin. Code 36.0321.

Finally, Plaintiff alleges that she “discovered numerous other incidents

involving similarly situated nursing students who did not achieve a passing

score on an end of semester grade and should have been dismissed

….” Doc. 1-2 at ¶ 21 (emphasis added).

State administrative regulations are among the types of provisions that

can create property rights. See Bowens v. N.C. Dep't of Hum. Res., 710 F.2d

1015, 1017 (4th Cir. 1983) (“The Supreme Court has ruled that property rights

can be created by administrative regulations and that the ‘sufficiency of the

claim of entitlement must be decided by reference to state law’”) (quoting

Bishop v. Wood, 426 U.S. 341, 344 (1976)). However, while Plaintiff has

21 N.C.A.C. §36.0321(p), she has not why it should be interpreted as

creating a property interest that would be protected by the due process

guarantees of the United States Constitution and the North Carolina

Constitution. Cf. Bowens, 710 F.2d at 1018 (concluding that regulations which

contained procedural and substantive guarantees expressly limiting the

reasons for and means by which a provider may be terminated from the North

Carolina medicaid program created a property interest in provider’s continued

participation in the program unless terminated for cause).2

Further, although one district court within the Fourth Circuit has found

that allegations regarding a school’s policies were sufficient to allege the

existence of a property right at the motion to dismiss stage, see Doe v. Alger,

175 F.Supp.3d 646, 656-57 (W.D. Va. 2016), Plaintiff’s generalized allegation

is distinguishable. In Alger, the plaintiff alleged, based on a university’s

policies and practices, as well as a student rights policy, that the university

had “a system of expelling, suspending, or dismissing students only after a

finding of cause.” Id. at 658. Here, Plaintiff’s allegation that nursing students

who did not have a passing “end of semester grade” were allowed to remain in

the Program does not describe regular and routine conduct by SCC—such as

the systemic conduct in Alger—that could be interpreted as creating a property

interest for Plaintiff. See Doe v. Va. Polytechnic Inst. & State Univ., 400

F.Supp.3d 479, 500 (W.D. Va. 2019) (comparing Alger, in which the Plaintiff

alleged his university had a “system of expelling, suspending, or dismissing

students only after a finding of cause” and pointed to a student rights policy

2 Plaintiff did not amend her Complaint as a matter of course upon the filing of the

Motion to Dismiss and has not subsequently requested leave to amend.

indicating as much, and explaining that where “even those sparse allegations”

were missing, plaintiff failed to allege a property interest adequately).3

Therefore, even taking the factual allegations in the light most favorable

to Plaintiff, Plaintiff has not sufficiently pled the existence of a property right.

See Sheppard v. Visitors of Va. State Univ., 993 F.3d 230, 239 (4th Cir. 2021)

(citations omitted) (“Sheppard must show ‘a state created property interest in

continued enrollment at a public education institution exists in Virginia’”).

ii. Deprivation Without Due Process

To prevail on a procedural due process claim, a plaintiff must also

demonstrate that she has been deprived of her property or liberty interest

without due process of law. Kendall, 650 F.3d at 528; see also Prieto v. Clarke,

780 F.3d 245, 248 (4th Cir. 2015) (“To state a procedural due process violation,

a plaintiff must (1) identify a protected liberty or property interest and (2)

demonstrate deprivation of that interest without due process of law”).

As Plaintiff has not successfully alleged a property right, it is not

necessary to reach the question of whether the process she received was

sufficient. See e.g., Prieto, 780 F.3d at 248 (“Because we conclude that Prieto

cannot establish a protected liberty interest, we need not consider the

3 In her Complaint, Plaintiff also alleges that SCC maintained an improper policy of

using standardized exam questions. That is, she argues that the school’s policy was

to use the standardized exam questions and that such policy violated her rights.

However, she does not contend that the policy itself created any property rights.

sufficiency-of-process requirement”). Nonetheless, this memorandum

addresses this additional issue in the alternative.

Defendants argue briefly that even if Plaintiff had a property interest,

her claim should still fail since she admits that she utilized and exhausted both

the internal and external appeals processes. Doc. 4 at 6.

“‘The fundamental requisite of due process of law is the opportunity to

be heard.’” Goss v. Lopez, 419 U.S. 565, 579 (1975) (quoting Grannis v. Ordean,

234 U.S. 385, 394 (1914)). However, determining the process required in each

case is not a task that can be accomplished with simple reference to universally

applicable procedures. Bd. of Curators of Univ. of Mo. v. Horowitz, 435 U.S. 78,

86 (1978) (quoting Cafeteria & Rest. Workers Union, Local 473 v. McElroy, 367

U.S. 886, 895 (1961) (internal quotes omitted) (“The very nature of due process

negates any concept of inflexible procedures universally applicable to every

imaginable situation”).

The Supreme Court has noted that this “need for flexibility is well

illustrated by the significant difference between the failure of a student to meet

academic standards and the violation by a student of valid rules of conduct”

and that “[t]his difference calls for far less stringent procedural requirements

in the case of an academic dismissal.” Id.; see also id. at 89 (“Academic

evaluations of a student, in contrast to disciplinary determinations, bear little

resemblance to the judicial and administrative fact-finding proceedings to

which we have traditionally attached a full-hearing requirement”).

Here, to the extent Plaintiff had a property interest in continued

enrollment, Plaintiff was afforded some process in connection with her

dismissal from the Program; she participated in SCC’s internal appeals process

and filed an external administrative appeal with the Community College

System.

However, Plaintiff has alleged that her dismissal from the Program was

based solely on her failure to achieve an 80% score on the math test which itself

utilized standardized questions in violation of the Board of Nursing’s

requirements and, significantly, that Plaintiff’s appeal was rejected and she

was dismissed from the Program even though SCC personnel were made aware

of these issues while Plaintiff’s appeal was pending.

The undersigned is persuaded that these allegations are sufficient to

overcome Defendant’s Motion to Dismiss with respect to the requirements of

the second and third elements of a procedural due process claim.

b. Substantive Due Process

A successful substantive due process claim must demonstrate “(1) that

[Plaintiff] had property or a property interest; (2) that the state deprived

[Plaintiff] of this property or property interest; and (3) that the state’s action

falls so far beyond the outer limits of legitimate governmental action that no

process could cure the deficiency.” Tri Cnty Paving, Inc. v. Ashe Cnty., 281 F.3d

430, 440 (4th Cir. 2002).

“Substantive due process is a far narrower concept than procedural; it is

an absolute check on certain governmental actions notwithstanding ‘the

fairness of the procedures used to implement them.’” Love v. Pepersack 47

F.3d 120, 122 (4th Cir. 1995) (citations omitted). A substantive due process

violation has occurred only when the state action at issue is “so arbitrary and

irrational, so unjustified by any circumstance or governmental interest, as to

be literally incapable of avoidance by any pre-deprivation procedural

protections or of adequate rectification by any post-deprivation state

remedies.” Rucker v. Harford Cnty., 946 F.2d 278, 281 (4th Cir. 1991), cert.

denied, 502 U.S. 1097, 112 S.Ct. 1175, 117 L.Ed.2d 420 (1992).

Here, Plaintiff’s Complaint contains a single claim for violations of “due

process,” though it does mention both substantive due process and procedural

due process briefly. See Doc. 1-2 at ¶ 28 (referencing “lack of rational-decision-

making necessary to protect Garrett’s procedural due process rights”) and ¶ 29

(referencing harm to Plaintiff’s substantive due process rights).

In briefing the Motion to Dismiss, both sides reference substantive due

process, though neither side develops arguments about that claim. See Doc. 4

at 6 and Doc. 5 at 10-11.

Given the brevity of the parties’ written submissions on this topic, the

undersigned will recommend that any substantive due process claim be treated

similarly to Plaintiff’s procedural due process claim. See Davis v. George

Mason Univ., 395 F. Supp. 2d 331, 336 (E.D. Va. 2005), aff'd, 193 F. App'x 248

(4th Cir. 2006) (Without an underlying state created property interest,

“Plaintiff does not state a claim for violations of procedural or substantive due

process”).

2. Equal Protection

“The Equal Protection Clause of the Fourteenth Amendment requires

‘that all persons similarly situated should be treated alike.’” Nofsinger v. Va.

Commonwealth Univ., 523 Fed. Appx. 204, 205 (4th Cir. 2013) (quoting City of

Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985)).

“To succeed on an equal protection claim, a plaintiff must first

demonstrate that he has been treated differently from others with whom he is

similarly situated and that the unequal treatment was the result of intentional

or purposeful discrimination. Once this showing is made, the court proceeds to

determine whether the disparity in treatment can be justified under the

requisite level of scrutiny.” Morrison v. Garraghty, 239 F. 3d 648, 654 (4th Cir.

2001)(citations omitted).

In this case, Plaintiff alleges that she has discovered numerous other

incidents in which students “who did not achieve a passing score on an end of

semester grade and should have been dismissed pursuant to SCC’s policies”

were allowed to remain in the Program. Doc. 1-2 at ¶ 21. In her briefing,

Plaintiff argues that she has alleged “she was dismissed from Defendants’

nursing program for failing to achieve a passing grade on a math test when

other similarly situated nursing students, enrolled at the same time and in the

same program, also allegedly violated the same academic progression policy

but were not dismissed.” Doc. 5 at 13.

These allegations, however, do not sufficiently demonstrate that Plaintiff

and these other students were “similarly situated.” Plaintiff clearly articulates

that she was dismissed for failing a math test that she contends was improper,

but she does not state that the other students were allowed to remain in the

Program despite failing the same math test. Rather, Plaintiff alleges that the

other students “did not achieve a passing score on an end of semester grade”

(which presumably could have been associated with any academic class) or

“violated the same academic progression policy” (though she does not define

the “progression policy” as applying solely to the math test).

In addition, even if Plaintiff is presumed to argue that both she and the

other students failed the math test and that only she was dismissed from the

Program, her equal protection claim remains deficient as she does not allege

that Defendants intentionally and purposefully discriminated between

Plaintiff and the other students. See Stewart v. Bland, 2:07cv512, 2007 WL

5787613 (E.D. Va. Dec. 7, 2007) (dismissing equal protection claim for failure

to state a claim because plaintiff “cannot base an equal protection claim solely

on a personal belief that he was a victim of discrimination”).

Accordingly, the undersigned will recommend that Plaintiff’s equal

protection claim be dismissed.

3. Qualified Immunity

Defendants also argue that they are entitled to qualified immunity from

suit in their personal capacities.

A plaintiff’s claims will survive a qualified immunity challenge if (1) a

constitutionally protected right was violated and (2) “the right violated was

clearly established.” Tobey v. Jones, 706 F.3d 379, 385 (4th Cir. 2011). Courts

may evaluate the two factors in either order. Pearson v. Callahan, 555 U.S.

223, 236 (2009).

In this case, even if it is assumed that Plaintiff has sufficiently pled that

she has a property right to her continued enrollment in the Program, she has

not sufficiently alleged that such a right was “clearly established.” See

Sheppard v. Visitors of Va. State Univ., 993 F.3d 230, 240 (4th Cir. 2021)

(noting that the Supreme Court had only assumed, without actually deciding,

that university students possess a constitutionally protected property right in

their continued enrollment and stating that “[t]he Supreme Court and this

Court’s assumptions, without express recognition, hardly amount to a clearly

established right”).

Therefore, the undersigned will recommend that Plaintiff's claims

against Defendants in their personal capacities be dismissed as barred by

qualified immunity.

B. Other Remedies

Plaintiff also requests injunctive relief as well as punitive damages.

Considering the recommended disposition of Plaintiff's constitutional claims,

the undersigned will recommend that Plaintiff's requests for these additional

remedies also be denied.

V. Recommendation

For the reasons set forth herein, the undersigned respectfully

RECOMMENDS that the Motion to Dismiss (Doc. 3) be GRANTED and

Plaintiffs claims be DISMISSED.

Signed: October 14, 2021

Ca 4

W. Carleton Metcalf hy

United States Magistrate Judge eA

21

Time for Objections

The parties are hereby advised that, pursuant to Title 28, United States

Code, Section 636, and Federal Rule of Civil Procedure 72(b)(2), written

objections to the findings of fact, conclusions of law, and recommendation

contained herein must be filed within fourteen (14) days of service of same.

Responses to the objections must be filed within fourteen (14) days of service

of the objections. Failure to file objections to this Memorandum and

Recommendation with the presiding District Judge will preclude the parties

from raising such objections on appeal. See Thomas v. Arn, 474 U.S. 140, 140

(1985); United States v. Schronce, 727 F.2d 91, 94 (4th Cir. 1984).