Shah v. University of Toledo

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF OHIO

WESTERN DIVISION

LEENA SHAH, CASE NO. 3:21 CV 581

Plaintiff,

v. JUDGE JAMES R. KNEPP II

UNIVERSITY OF TOLEDO, et al.,

MEMORANDUM OPINION AND

Defendants. ORDER

INTRODUCTION

In this matter, Plaintiff Leena Shah asserts Defendants the University of Toledo (“UT”),

Christopher Cooper, Deepa Mukundan, and Randall G. Worth discriminated against her based on

her race and national origin and violated her procedural due process rights when they dismissed

her from UT’s M.D. program. (Doc. 1). Jurisdiction is proper under 28 U.S.C. § 1331.

Currently pending before the Court is Defendants’ Motion to Dismiss (Doc. 9), which

Plaintiff opposes (Doc. 10), and to which Defendants have replied (Doc. 11). For the reasons

discussed below, the Court grants Defendants’ motion in its entirety.

BACKGROUND

Below are the facts of this case, taken from the Complaint, which must be taken as true

for purposes of the present motion.

Plaintiff, who is of Kashmiri descent, was a student at UT’s College and Medicine and

Life Sciences M.D. program (hereinafter, “the program”) from July 31, 2016 through her

dismissal on November 5, 2019. (Doc. 1, at ¶ 6). Defendants Worth (an Associate Dean for

Student Affairs and Admissions) and Mukundan (Assistant Dean of Academic Affairs) were two

of Plaintiff’s advisors. Id. at ¶ 8-9. Defendant Cooper is Dean of the College of Medicine and

Life Sciences and Executive Vice President for Clinical Affairs. Id. at ¶ 22.

Exam Preparation / Leaves of Absence

During her enrollment, Plaintiff successfully completed the preclinical curriculum

requirements “with the exception of not taking the USMLE (United States Medical Licensing

Examination) Step One.” Id. at ¶ 7.

Under program policy entitled “Medical student, grading, academic promotion, re-

examination, remediation, dismissal, due process, & appeals”:

A Student who does not take or pass Step 1 and makes a decision, with proper

approval and advisement from the Office of Student Affairs, to delay the start of

clinical clerkship, must work with the Office of Student Affairs and Department

of Medical Education to develop a program of accountability and progress

towards Step 1 preparation. A plan of action must include a planned timeline for

completion of Step 1 and milestone markers for continued follow-up (return and

report) to gauge readiness and assess if further intervention is required to provide

meaningful academic support and positive progress.

Id. at ¶ 12.

Plaintiff took an approved leave of absence from August 17, 2018 through April 15, 2019

to prepare for the USMLE Step 1 (hereinafter, “the exam”). Id. at ¶¶ 11, 13. She had monthly

meetings from July 2018 to January 2019 with Mukundan. See id. at ¶ 10. Plaintiff says

Mukundan offered little feedback or help at these meetings despite her requests for guidance;

instead, Mukundan “focused on [Plaintiff] as a person, asserting that [Plaintiff] had character

traits such as being argumentative and anxious” and “aggressively demand[ed]” Plaintiff

schedule the exam regardless of her preparedness. Id.

Plaintiff requested and received a leave of absence extension through August 17, 2019 to

have more exam preparation time. Id. at ¶ 14-15. Her anticipated exam date was on or before

June 10, 2019, but this was later moved to July 31, 2019. Id. at ¶ 15.

In a May 1, 2019 email, Worth told Plaintiff her graduation would be delayed if she did

not take the exam by June 7, 2019. Id. at ¶ 16; Doc. 1-1, at 1 (email).

On June 10, 2019, Plaintiff requested her leave of absence from the program be extended

from August 17, 2019 through April 13, 2020 to prepare for the exam and do research. (Doc. 1,

at ¶ 17). UT neither granted nor denied this request. Id.

Dismissal and Appeal

According to Plaintiff, the program “has a policy that allows for due process prior to a

dismissal decision being made”, which includes a hearing before the Student Promotions

Committee and/or the Medical Student Conduct and Ethics Committee. Id. at ¶ 19.

Worth planned to refer Plaintiff’s case to the Student Promotions Committee, but later

decided not to. Id. at ¶ 20. On July 18, Worth told Plaintiff by email he noticed she was no

longer scheduled to take the exam the following day and asked for an update; the email

concluded “[i]f not, I will forward your academic file to the student promotions committee for

their review.” (Doc. 1-2, at 1). Plaintiff responded that she was not adequately prepared for the

examination, and Worth responded he would forward her file. Id. September 2019 emails

indicate Worth again said he would send her file, but then reversed course. See Doc. 1-3, at 1-2.

On September 30, 2019, Plaintiff was involuntarily dismissed from the program; Worth

informed Plaintiff of this decision. (Doc. 1, at ¶ 18). Plaintiff was not provided an opportunity to

be heard by the Student Promotions Committee or the Medical Student Conduct and Ethics

Committee prior to dismissal. Id. at ¶ 19.

Plaintiff filed a timely appeal of this decision on October 13, 2019. Id. at ¶ 22. Cooper

informed Plaintiff a faculty committee empaneled to hear her appeal would contact her, but she

was never contacted. Id. at ¶ 23.

On November 1, 2019, Cooper requested a meeting with Plaintiff and Worth to consider

his decision; Plaintiff requested Worth not attend. Id. at ¶ 24. Plaintiff and Cooper met four days

later at which time Cooper informed Plaintiff he had spoken with Mukundan who “told Cooper

that [Plaintiff] was not making progress in her preparation for the . . . exam.” Id. at ¶ 25. Cooper

ultimately upheld Plaintiff’s dismissal on November 5, 2019. Id. at ¶ 22.

Other Students

Plaintiff asserts a Caucasian student “who was on a leave of absence preparing for the . . .

exam” was permitted to withdraw in lieu of dismissal from the program. Id. at ¶ 21.

She further asserts Cooper conditionally reinstated a Caucasian student in 2015 who was

previously dismissed for failing to pass the USMLE Step 1 within a calendar year. Id. at ¶ 26.

That student ultimately did not take the exam by the deadline upon which reinstatement was

conditioned; however, the dismissal was changed to a withdrawal. Id.

Dismissal from the program “is a more serious sanction than withdrawal” because with a

withdrawal the student is eligible for readmission to the program, or to apply to another school’s

medical program. Id. at ¶ 21. Plaintiff says she was denied the benefit of a policy permitting

withdrawal from the program in a situation where a leave of absence is not continued. Id.

Plaintiff asserts these actions constitute race and national origin discrimination under

Title VI, 42 U.S.C. § 2000d, et seq., and a procedural due process violation under 42 U.S.C. §

1983. She seeks injunctive relief – including reinstatement – and monetary damages.

STANDARD OF REVIEW

When deciding a motion to dismiss under Federal Civil Rule 12(b)(6), the Court tests the

complaint’s legal sufficiency. “In determining whether to grant a Rule 12(b)(6) motion, the

[C]ourt primarily considers the allegations in the complaint, although matters of public record,

orders, items appearing in the record of the case, and exhibits attached to the complaint, also may

be taken into account.” Amini v. Oberlin Coll., 259 F.3d 493, 502 (6th Cir. 2001). The Court is

required to accept the allegations stated in the complaint as true, while viewing the complaint in

a light most favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984);

Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Westlake v. Lucas, 537 F.2d 857, 858 (6th Cir.

1976); see also Papasan v. Allain, 478 U.S. 265, 286 (1986) (noting that “[a]lthough for the

purposes of this motion to dismiss we must take all the factual allegations in the complaint as

true, we are not bound to accept as true a legal conclusion couched as a factual allegation”).

Although a complaint need not contain “detailed factual allegations,” it requires more

than “labels and conclusions” or “a formulaic recitation of the elements of a cause of action.”

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Thus, a complaint survives a motion to

dismiss if it “contain[s] 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) (internal quotation and citation

omitted). And “[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.” Hensley Mfg. v. ProPride, Inc., 579 F.3d 603, 609 (6th Cir. 2009) (quoting Iqbal, 129

S. Ct. at 1949).

DISCUSSION

Defendants argue Plaintiff’s Complaint must be dismissed in its entirety. Specifically, UT

first contends the Complaint fails to state a Title VI discrimination claim because the Complaint

fails to plausibly allege (1) Plaintiff was qualified to continue in the program or UT treats

similarly situated students more favorably; (2) that UT itself – rather than the individual

Defendants – discriminated; and (3) any intentional discrimination.

Second, Defendants contend Plaintiff’s due process claim must be dismissed because: (1)

the Court lacks subject matter jurisdiction and the Eleventh Amendment bars Plaintiff’s claims

against UT and the individual Defendants in their official capacities; (2) the Complaint does not

adequately allege the individual Defendants’ actions violated Plaintiff’s constitutional rights; and

(3) the individual Defendants are entitled to qualified immunity.1

For the reasons discussed below, the Court grants Defendants’ Motion to Dismiss.

Title VI Discrimination

UT first argues Plaintiff’s discrimination claim must be dismissed. Specifically, it

contends Plaintiff has not adequately alleged she was qualified to proceed in the program and

similarly-situated non-protected students were treated differently (elements of a prima facie

discrimination case). They further assert she has not adequately alleged facts to establish the

discrimination was intentional or that UT itself – the only potentially liable entity – discriminated

against her. The Court finds Defendants’ final argument to be the determinative one.

Title VI of the Civil Rights Act of 1964 prohibits any “program or activity receiving

Federal financial assistance” from discriminating “on the ground of race, color, or national

origin.” 42 U.S.C. § 2000d. It provides a private cause of action for injunctive relief and

damages. Alexander v. Sandoval, 532 U.S. 275, 279 (2001). However, there is no private right of

action for disparate impact; Title VI prohibits only intentional discrimination. Id. at 280.

1. Defendants attached to their motion to dismiss the program’s “Medical Student Grading,

Promotion, Re-examination, Remediation, Dismissal, Due Process, & Appeals” policy. See Doc.

9-1. They assert this document can be considered at this stage because Plaintiff cites and quotes

portions thereof in her Complaint and “to the extent that the COMLS Policy, in its entirety,

rebuts or contradicts what [Plaintiff] alleges in her Complaint, it is because [Plaintiff]

misconstrues the nature and full extent of the COMLS Policy in her Complaint.” (Doc. 9, at 9

n.2). Plaintiff objects – asserting that “[n]owhere in the Complaint does Plaintiff allege that she

was dismissed from the M.D. program pursuant to the policy.” (Doc. 10, at 3). The Court finds it

unnecessary to consider the policy to resolve the issues presented by the pending motion and

therefore finds it unnecessary to reach this dispute.

Individual defendants cannot be sued under Title VI, only the entity receiving federal

funds. See Buchanan v. City of Bolivar, 99 F.3d 1352, 1356 (6th Cir. 1996). Moreover, there is

no vicarious liability under Title VI; the entity cannot be held liable for discrimination solely

because it employs a discriminating employee. Foster v. Michigan, 573 F. App’x 377, 389 (6th

Cir. 2014) (affirming dismissal of Title VI discrimination claims because “there is no vicarious

liability under Title VI” and the complaint lacked “fact-based allegations that either MDOT or

the State of Michigan participated in, or was aware of, or was deliberately indifferent to any

discriminatory acts”). “[A]ctual notice of the alleged discrimination is an essential element of a

deliberate indifference claim.” Doe v. Ohio State Univ., 323 F. Supp. 3d 962, 968 (S.D. Ohio

2018).

Therefore, to state a claim under Title VI, a plaintiff must allege something more than

simply the actions of individuals. Compare Thompson v. Ohio State Univ., 990 F. Supp. 2d 801,

817 (S.D. Ohio 2014) (allowing claim to proceed where “the allegations in the amended

complaint do not establish that Plaintiff is trying to hold the University liable for the allegedly

discriminatory actions of [its employees]” but “allege[d] that OSU was deliberately indifferent to

Plaintiff's complaints of race discrimination by not only failing to properly investigate them but

also by actively taking steps to cover up discrimination”), with Mahdy v. Mason City Sch. Dist.,

2018 WL 1327211, at *8 (S.D. Ohio) (“Count One of the Complaint seeks to hold the Mason

School District liable for the alleged intentional discrimination of the four Individual School

District Defendants when they are the only agents of the Mason School district that the

Complaint alleges knew of the wrongful conduct. . . . Plaintiffs’ attempt fails as a matter of law.

The knowledge of the Individual School District Defendants—the alleged wrongdoers—cannot

be attributed to the Mason School District, regardless of their official titles.”).

Defendants contend Plaintiff’s discrimination allegations are entirely based on the actions

of the individual Defendants and Plaintiff fails to plead facts imputing knowledge of or

deliberate indifference to those actions to UT – the only potentially liable entity under Title VI.

Plaintiff responds that her claims are not based on vicarious liability – contending the

Complaint’s allegation that “UT, through its officials, engaged in intentional discrimination” is

“different than claiming that UT is liable for the individual actions of” Cooper, Mukundan, and

Worth. (Doc. 10, at 8). Plaintiff acknowledges that Title VI liability requires UT to have “actual

notice” of the discriminatory actions, but contends “[u]ltimately discovery and the trial will

untangle the lines of authority and supervisory authority of the officials involved, including but

not necessarily limited to Cooper, Mukundan, and Worth.” Id. at 9.

The Complaint, however, does not contain factual assertions that someone outside of the

individual Defendants in this case had actual notice of and was deliberately indifferent to any

racially discriminatory conduct. Plaintiff asserts Mukundan did not provide her appropriate

support as an advisor, Worth advised Plaintiff of her dismissal from the program, and Cooper

upheld that dismissal. The Complaint does not assert Plaintiff complained to anyone at UT that

any of these actions were racially motivated. See, e.g., Goonewardena v. New York, 475 F. Supp.

2d 310, 329 (S.D.N.Y. 2007) (dismissing plaintiffs Title VI claim where he “fail[ed] to allege

that he reported any incidents of discrimination to [the defendant’s] officials”); Evans v.

Columbia Univ., 2015 WL 1730097, at *3 (S.D.N.Y.) (to state a claim arising under Title VI, the

plaintiff must “allege that the [defendant-entity] had notice of the complained-of

discrimination”); Manolov v. Borough of Manhattan Cmty. Coll., 952 F. Supp. 2d 522, 533–34

(S.D.N.Y. 2013) (“Without a showing that Manolov’s complaints to BMCC officials referenced

alleged racial or sexual discrimination, and not merely generic perceived teaching failures, the

College cannot be charged with notice of an alleged violation of Title VI or IX.”).

To the extent Plaintiff would contend Cooper, as Dean, had notice of the discrimination

because he himself treated a Caucasian student differently, the Supreme Court has expressly

rejected such a contention. See Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 291 (1998)

(“Where a school district’s liability rests on actual notice principles, however, the knowledge of

the wrongdoer himself is not pertinent to the analysis.”).2 Therefore, similar to Mahdy, “Count

One of the Complaint seeks to hold [UT] liable for the alleged intentional discrimination of the

[three] Individual . . . Defendants when they are the only agents of [UT] that the Complaint

alleges knew of the wrongful conduct. Plaintiffs’ attempt fails as a matter of law. The knowledge

of the Individual . . . Defendants—the alleged wrongdoers—cannot be attributed to [UT],

regardless of their official titles.” 2018 WL 1327211, at *8.

In sum, because UT is the only potentially liable entity under Title VI and Plaintiff has

failed to plead “fact-based allegations that” UT as an entity (rather than only the individual

named Defendants) “participated in, or was aware of, or was deliberately indifferent to any

discriminatory acts”. Foster, 573 F. App’x at 389, Count One of her Complaint fails to state a

claim, and Defendants’ Motion to Dismiss is granted as to this claim.

Procedural Due Process

Next, Defendants contend Plaintiff’s procedural due process claim must be dismissed for

failure to state a claim upon which relief can be granted. They argue – as to the claims against

UT and claims against the individual Defendants in their official capacities – that the Eleventh

Amendment bars such claims, and Plaintiff has not adequately alleged a claim for injunctive

2. Gebser is a Title IX case; Title VI and Title IX are construed in pari materia. See, e.g., Shotz

v. City of Plantation, 344 F.3d 1161, 1170 n.12 (11th Cir. 2003).

relief under the Ex Parte Young exception. As to Plaintiff’s claims against Defendants in their

individual capacities, Defendants contend first, Plaintiff has not connected Mukundan to the

alleged violation; second, Plaintiff has not plausibly alleged Worth or Cooper violated her

procedural due process rights; and third, Worth and Cooper are entitled to qualified immunity.

To prevail on a Section 1983 claim, a plaintiff must prove that conduct by a person acting

under color of state law deprived the plaintiff of a right secured by the Constitution or other

federal law. Johnson v. Karnes, 398 F.3d 868, 873 (6th Cir. 2005). As employees of a state

public educational institution, Mukundan, Worth, and Cooper are state actors. See, e.g., Tann v.

Ludwikowski, 393 F. App’x 51, 53 (4th Cir. 2010).

To state a claim for a procedural due process violation, a plaintiff must allege (1) she has

a life, liberty, or property interest protected by the Due Process Clause of the Fourteenth

Amendment; (2) she was deprived of this protected interest within the meaning of the Due

Process Clause; and (3) the school did not afford her adequate procedural rights prior to

depriving her of that protected interest. Gunasekera v. Irwin, 551 F.3d 461, 467 (6th Cir. 2009).

“[T]he inquiry is not whether the University conformed to its own internal grievance procedures,

but rather if [the plaintiff] was afforded the due process guaranteed under the Fourteenth

Amendment.” JiQiang Xu v. Michigan State Univ., 195 F. App’x 452, 457 (6th Cir. 2006); see

also Jaber v. Wayne State Univ. Bd. of Governors, 487 F. App’x 995, 998 (6th Cir. 2012) (“the

failure to follow a state law or procedure does not itself violate due process”). This is because

“[a] state cannot be said to have a federal due process obligation to follow all of its procedures;

such a system would result in the constitutionalizing of every state rule, and would not be

administrable.” Levine v. Torvik, 986 F.2d 1506, 1515 (6th Cir. 1993), overruled in part on other

grounds by Thompson v. Keohane, 516 U.S. 99, 111 (1995).

To prevail on a § 1983 claim for individual liability, a plaintiff must demonstrate “that

each Government-official defendant, through the official’s own individual actions, has violated

the Constitution.” Iqbal, 556 U.S. at 676. That is, a plaintiff must prove “that the violation was

committed personally by the defendant.” Robertson v. Lucas, 753 F.3d 606, 615 (6th Cir. 2014).

At the outset, the Court preliminarily disposes of two less complex arguments. First,

Defendants assert any claim against UT or any monetary claim against the individual Defendants

in their official capacities must be dismissed because the Eleventh Amendment bars claims

against a state, and official capacity damages claims against state officials are considered an

action against the State itself and thus similarly barred. Defendants are correct. See U.S. Const.

Amend. XI; Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71, n.10 (1989); Boler v. Earley,

865 F.3d 391 409-10 (6th Cir. 2017). They further contend any claim for injunctive relief against

the individual Defendants in their official capacities fails to satisfy the Ex Parte Young exception

because, inter alia, there is no constitutional violation. For the reasons discussed below, the

Court agrees that Plaintiff has not plausibly pled a constitutional violation, and thus agrees.3

Second, Defendants assert Plaintiff has not alleged Mukundan played any role in the

alleged procedural due process violation – dismissal from the program. Plaintiff did not

specifically respond to this argument. See Doc. 10. Although the Complaint alleges Mukundan

did not support Plaintiff in preparing for the exam, and “told Cooper that [Plaintiff] was not

making progress” (Doc. 1, at ¶¶ 10, 25), it contains no fact-specific allegations Mukundan had

any involvement in the decision to dismiss Plaintiff from the program, which is the actual basis

for Plaintiff’s procedural due process claim. Thus, the Court dismisses Plaintiff’s procedural due

3. In her opposition brief, Plaintiff states, simply: “Plaintiff will concede that under the present

state of the law, the University and the individual defendants in their official capacities are

immune from suit and thus relief cannot be obtained against them.” (Doc. 10, at 12). She

presents no specific argument regarding the Ex Parte Young injunctive relief exception.

process claim against Mukundan in both her individual and official capacities, dismisses

Plaintiff’s procedural due process claims against UT, and her official capacity claim against

Cooper and Worth.

This leaves Plaintiff’s claims against Cooper and Worth in their individual capacities.

Again, to state a procedural due process claim, plaintiff must identify (1) a life, liberty, or

property interest; (2) a deprivation of that interest; and (3) inadequate procedural rights prior to

the deprivation. Gunasekera, 551 F.3d at 467. Defendants contend Plaintiff’s Compliant must be

dismissed because she has not alleged the third element; they further assert they are entitled to

qualified immunity.

The amount of process due4 to a student prior to dismissal depends on whether such

dismissal is for academic reasons or disciplinary reasons. Endres v. Ne. Ohio Med. Univ., 938

F.3d 281, 297 (6th Cir. 2019) (“The Supreme Court has recognized a critical distinction between

dismissals for disciplinary misconduct and dismissals for academic underperformance.”)

(comparing Goss v. Lopez, 419 U.S. 565 (1975) with Bd. of Curators of Univ. of Mo. v.

Horowitz, 435 U.S. 78 (1978)). “When a school imposes a serious sanction like dismissal to

address a student’s disciplinary misconduct, the student is entitled to more robust process,

including a hearing to ‘present his side of the story.’” Id. (quoting Goss, 419 U.S. at 581). To the

contrary, if a dismissal is for academic reasons, “[t]he university must provide the student with

notice of his unsatisfactory academic performance and deliver a ‘careful and deliberate’ decision

on the student’s fate”; “But the university need not provide a hearing.” Id. (quoting Ku v.

Tennessee, 322 F.3d 431, 436 (6th Cir. 2003) (citing Horowitz, 435 U.S. at 85-86)). This is so

4. Most courts examining the issue in the academic setting assume there is a constitutionally-

protectable interest and look to whether the process provided was adequate. See, e.g., Mbawe v.

Ferris State Univ., 751 F. App’x 832, 841 (6th Cir. 2018).

because “measuring a student’s academic performance ‘by its nature [is] more subjective and

evaluative than the typical factual questions presented in the average disciplinary decision’ and

often requires ‘an expert evaluation of cumulative information.’” Id. (quoting Horowitz, 435 U.S.

at 91). Educators making academic dismissal decisions “exercise their ‘historic judgment’ as

educators to evaluate the student, and their decision is entitled to substantial deference.” Id.

(quoting Horowitz, 435 U.S. at 90); see also Hlavacek v. Boyle, 665 F.3d 823, 826 (7th Cir.

2011) (“It would be difficult to imagine a different standard: how could federal judges second-

guess the judgment of the dental faculty (or the engineering faculty, or the art history faculty, for

that matter) on the question of academic competence?”). “The upshot for students facing

dismissal on academic grounds is that the due process afforded is minimal.” Endres, 938 F.3d at

298 (internal citation and quotation omitted).

Despite Plaintiff’s argument that “it is not clear what the basis of the discharge was in

terms of it being academic or disciplinary” (Doc. 10, at 10), her Complaint can only be read to

assert an academic dismissal.

An academic dismissal is one that involves a school’s consideration of a student’s

personal attributes requiring the “expert evaluation[] . . . and historic judgment of educators”,

and bear “little resemblance to . . . judicial and administrative fact-finding proceedings.” 435

U.S. at 89-90. For this reason, “[w]hen judges are asked to review the substance of a genuinely

academic decision . . . they may not override it unless it is such a substantial departure from

accepted academic norms as to demonstrate that the person or committee responsible did not

actually exercise professional judgment.” Regents of the Univ. of Mich. v. Ewing, 474 U.S. 214,

225 (1985) (citations and footnotes omitted). An academic dismissal is one based on “a student’s

scholarship or conduct reflect[ing] on the personal qualities necessary to succeed in the field in

which he or she is studying and is based on at least partially subjective appraisal of those

qualities.” Allahverdi v. Regents of the Univ. of New Mexico, 2006 WL 1313807, at *13

(D.N.M.) (surveying cases); see also Stevenson v. Owens State Cmty. Coll., 562 F. Supp. 2d 965,

971 (N.D. Ohio 2008) (dismissal is “academic in nature if there is a nexus between the . . .

conduct and the prospects of success in a student’s field of study.”).

By contrast, a disciplinary dismissal involves “the violation by a student of valid rules of

conduct” or “disruptive and insubordinate behavior”. Horowitz, 435 U.S. at 86, 90.

The Complaint contains no allegations that Plaintiff was dismissed from the program for

behavior or the violation of any rule of conduct. Rather, Plaintiff asserts Defendant repeatedly

requested (Doc. 1, at ¶¶ 10, 16) she take an examination she felt unprepared for, but that she

acknowledges was a required part of the preclinical curriculum (Doc. 1, at ¶ 7), and she was

subsequently dismissed after failing to do so. During her meeting with Cooper regarding her

appeal, Cooper told her he spoke with Mukundan who told him “[Plaintiff] was not making

progress in her preparation for the . . . exam.” Id. at ¶ 25. Indeed, Plaintiff requests by way of

relief, inter alia, “[r]emoval and expungement by UT of the academic dismissal and related

documents from all its records and files”. (Doc. 1, at 9, 10) (emphasis added). Therefore, the

Court finds the facts alleged can only be read to assert Plaintiff’s dismissal was academic; to

satisfy the Fourteenth Amendment, she was thus was entitled to “notice of her unsatisfactory

academic performance” and a “careful and deliberate” decision. Endres, 938 F.3d at 297;

Horowitz, 435 U.S. at 85.

Plaintiff’s does not assert she lacked notice of her unsatisfactory academic performance.

The Complaint, in fact, acknowledges Plaintiff had not completed all academic requirements.

See Doc. 1, at ¶ 7 (“During her time as a student in the UT M.D. program, [Plaintiff] successfully

completed the preclinical curriculum with the exception of not taking [the exam].”) (emphasis

added). Plaintiff asserts she was repeatedly instructed and encouraged to take the exam, and told

that failure to take the examination by June or July 2019 would impact her ability to continue in

the program. See id. at ¶ 15 (“[Plaintiff’s] extended leave of absence which began on April 15,

2019 was approved for the period April 15, 2019 through August 17, 2019, with an anticipated

USMLE Step 1 test date of on or before June 10, 2019. The anticipated USMLE Step 1 test date

was later moved to July 31, 2019.”); Doc. 1, at ¶ 16 (“In May 2019 Worth informed [Plaintiff]

that if she did not take the USMLE Step 1 by June 7, 2019, her graduation would be delayed. In

his email to Shah dated May 1, 2019, Worth stated the following: ‘As I stated earlier, as long as

you take Step 1 by June 7, you can begin clerkship on June 10. If you wait any longer, you

should simply take a year off because you won’t be able to graduate on time.’”); see also Doc. 1-

1 (emails). Plaintiff did not take the exam after these instructions, but on June 10, requested an

additional leave of absence. Id. at ¶ 17. On July 18, Plaintiff told Worth by email that she was

not prepared to take the examination the following day, and Worth responded he would forward

her file “to be reviewed by the student promotions committee.” (Doc. 1-2, at 1). Taking

Plaintiff’s allegations as true, therefore, the Court finds Plaintiff has not plausibly alleged lack of

notice of unsatisfactory academic performance.

Next, Plaintiff asserts “Defendants acted arbitrarily and capriciously in dismissing

[Plaintiff], or participating in the dismissal of [Plaintiff], from the . . . program without a hearing

before the Student Promotions Committee and/or the Medical Student Conduct And Ethics

Committee.” (Doc. 1, at ¶ 37).5 Her opposition brief further focuses largely on the failure to

provide a hearing before the Student Promotions Committee and on Worth’s failure to follow

5. Although described as “[a]n example” of the denial of procedural due process, this is the only

procedural due process violation alleged in the Complaint. See Doc. 1, at ¶ 37.

through on his intent to follow that process. (Doc. 10, at 10-11). But, as set forth above, for an

academic dismissal, a hearing is not required. Endres, 938 F.3d at 297; Horowitz, 435 U.S. at 85-

86. And whether UT followed its own policy for a hearing does not change this constitutional

procedural due process analysis. JiQiang Xu, 195 F. App’x at 457; see also Worcester v. Stark

State Coll., 2019 WL 3006429, at *3 (N.D. Ohio) (“[E]ven assuming for the sake of argument

that SSC violated its own policies or procedures, that ‘does not in and of itself implicate

constitutional due process concerns.’”) (quoting Purisch v. Tenn. Tech. Univ., 76 F.3d 1414,

1423 (6th Cir. 1996)).

Rather than allege a violation of University policy, Plaintiff must allege the decision to

dismiss her did not meet the “careful and deliberate” standard established by Horowitz.

Defendants contend she has not done so, citing: (1) the five month gap between when Plaintiff

last indicated she was not ready to take the exam and her final dismissal; and (2) Plaintiff’s

opportunity to appeal her dismissal to Cooper, the Dean of the program. Plaintiff – in her

opposition brief – does not expressly respond to this argument. Rather, she (1) broadly contends

the Complaint “show[s] a complete abrogation of [her] right to due process of law before her

medical career was destroyed by Drs. Worth and Cooper”; (2) as noted above, asserts “it is not

clear” whether her dismissal was academic or disciplinary; then (3) repeats the allegations of her

Complaint – including UT’s failure to respond to her June 2019 request for further leave,

Worth’s seeming change of mind about sending Plaintiff’s case to the Student Promotions

Committee, and UT’s general failure to provide a hearing. (Doc. 10, at 10-13).

The Court finds Plaintiff has not plausibly alleged the decision to dismiss her was not

“careful and deliberate” as that term applies to academic dismissals. Here, by Plaintiff’s own

allegations, she “submitted an internal appeal of her dismissal” and met with Cooper, the Dean,

about that appeal; Cooper ultimately upheld Plaintiff’s dismissal after their meeting wherein

Cooper told her “he had spoken with Mukundan regarding [Plaintiff] and that Mukundan had

told Cooper that [Plaintiff] was not making progress in her preparation for the USMLE Step 1

exam.” (Doc. 1, at ¶¶ 22, 24-25).6 See Yoder, 526 F. App’x at 551 (“Although a post-dismissal

appeal hearing was not constitutionally required, Yoder availed herself of the University appeal

process, where her dismissal was affirmed by the Committee.”); Rogers v. Tenn. Bd. of

Regents, 273 F. App’x 458, 463 (6th Cir. 2008) (decision to dismiss a nursing student was

“careful and deliberate” when student permitted to appeal ); Worcester, 2019 WL 3006429, at *4

(“No post-dismissal hearing was constitutionally required; even so, Worcester was given the

opportunity to discuss her situation with the Dean and the Provost.”). As the Third Circuit

explained, “[w]hen a student is discharged for academic, as opposed to disciplinary, reasons, all

that is required to satisfy procedural due process is ‘an informal faculty evaluation with the

student.’” Kadakia v. Rutgers, 633 F. App’x 83, 88 (3d Cir. 2015) (quoting Mauriello v. Univ. of

Medicine & Dentistry, 781 F.2d 46, 51 (3d Cir. 1986)). Taking all the facts alleged in Plaintiff’s

Complaint as true, her allegations show she has received the process guaranteed by the

Fourteenth Amendment.

Plaintiff has certainly alleged facts establishing Worth and Cooper intended or indicated,

at different points, for Plaintiff’s case to be heard by the Student Promotions Committee (Doc. 1,

at ¶ 20; Doc. 1-2, at 1; Doc. 1-3, at 2) or a faculty committee empaneled to hear the appeal of her

6. In her opposition, Plaintiff argues that before her meeting with Cooper, Cooper “had met with

Dr. Mukundan but apparently not Dr. Worth.” (Doc. 10, at 12). She contends therefore Cooper

could not have known the basis for Worth’s decision to dismiss her from the program and

therefore could not review it. See id. But as Defendants point out, this statement is not supported

by the Complaint’s assertions. See Doc. 1, at ¶¶ 22-25. The Complaint states only that Cooper

told Plaintiff he had spoken to Mukundan (but does not assert he told her he did not speak to

Worth), and asserts Plaintiff asked Cooper that Worth not attend their meeting. See id.

dismissal (Doc. 1, at ¶ 23), and that they did not follow through and neither hearing occurred.

But these facts do not make out a constitutional due process violation because a dismissal for

academic reasons does not require a hearing, and a violation of internal University procedure

does not equate to a violation of constitutional magnitude. Taking as true all of Plaintiff’s

allegations in her complaint, the Court finds she has not plausibly alleged a procedural due

process violation in connection with her academic dismissal from the program.

Qualified Immunity

Defendants further assert entitlement to qualified immunity on Plaintiff’s procedural due

process claim. Although reaching this argument is not necessary in light of the Court’s

conclusion above, the Court addresses this argument in the alternative. That is, for purposes of

this section the Court assumes, arguendo, Plaintiff has pled a constitutional violation.

The defense of qualified immunity shields government officials performing discretionary

functions where their “conduct does not violate clearly established statutory or constitutional

rights which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982). This defense “can be raised at various stages of the litigation including at the pleading

stage in a motion to dismiss.” English v. Dyke, 23 F.3d 1086, 1089 (6th Cir. 1994). However,

although the Sixth Circuit has explained that “insubstantial claims against government officials

should be resolved as early in the litigation as possible, preferably prior to discovery,” Johnson v.

Moseley, 790 F.3d 649, 653 (6th Cir. 2015), it has also “cautioned that ‘it is generally

inappropriate for a district court to grant a 12(b)(6) motion to dismiss on the basis of qualified

immunity.’” Courtright v. City of Battle Creek, 839 F.3d 513, 518 (6th Cir. 2016)

(quoting Wesley v. Campbell, 779 F.3d 421, 433 (6th Cir. 2015)). “Although an [official’s]

entitlement to qualified immunity is a threshold question to be resolved at the earliest possible

point, that point is usually summary judgment and not dismissal under Rule 12.” Wesley, 779

F.3d at 433-34 (internal marks and citations omitted). Nonetheless, dismissal based on qualified

immunity at the pleadings stage may be appropriate under certain circumstances. See Kaminski v.

Coulter, 865 F.3d 339, 344 (6th Cir. 2017); see also Jackson v. Schultz, 429 F.3d 586, 589 (6th

Cir. 2005) (“Despite liberal notice pleading standards, this circuit permits a reviewing court to

dismiss under Fed. R. Civ. P. 12(b)(6) based on qualified immunity.”); see also Peatross v. City

of Memphis, 818 F.3d 233, 240 (6th Cir. 2016) (“Although a motion pursuant to Rule 12(b)(6)

invites an inquiry into the legal sufficiency of the complaint, not an analysis of potential defenses

to the claims set forth therein, dismissal nevertheless is appropriate when the defendant is

entitled to a meritorious affirmative defense such as qualified immunity.”); Duren v. Byrd, 2021

WL 3848105, at *9 (M.D. Tenn.) (“[I]n noting that the defense of qualified immunity is prone to

rejection when asserted as a 12(b)(6) or 12(c) motion, the Sixth Circuit makes clear that the

defense indeed can be asserted in that manner.”) (emphasis added); Endres, 938 F.3d at 302

(upholding dismissal of § 1983 claims on qualified immunity grounds).

The two-part test for qualified immunity asks (1) whether the facts that a plaintiff has

alleged amount to a violation of a constitutional right; and (2) if so, whether the right at issue

was clearly established at the time of the defendants’ alleged misconduct. Pearson v.

Callahan, 555 U.S. 223, 232–33 (2009). As noted, the Court assumes arguendo Plaintiff has pled

a constitutional violation. At the second step, “[t]he relevant, dispositive inquiry in determining

whether a right is clearly established is whether it would be clear to a reasonable [official] that

his conduct was unlawful in the situation he confronted.” Id. at 202. “When the qualified

immunity defense is raised at the pleading stage, the court must determine only whether the

complaint adequately alleges the commission of acts that violated clearly established law.”

Rondigo, L.L.C. v. Twp. of Richmond, 641 F.3d 673, 681 (6th Cir. 2011) ((internal quotation

marks omitted).

Once a defendant properly raises a defense of qualified immunity, the burden shifts to

plaintiff to demonstrate the defendant is not entitled to qualified immunity. Livermore ex rel.

Rohn v. Lubelan, 476 F.3d 397, 403 (6th Cir. 2007). The bald assertion of qualified immunity is

not sufficient to shift the burden, however. “A defendant bears the initial burden of putting

forth facts that suggest that he was acting within the scope of his discretionary authority.”

Stoudemire v. Michigan Dep’t of Corr., 705 F.3d 560, 568 (6th Cir. 2013).

Here, Defendants cite much of the caselaw above regarding academic versus disciplinary

dismissals, the facts as alleged in Plaintiff’s Complaint regarding her repeated requests to delay

the exam, and the emails attached to Plaintiff’s Complaint; they then assert she has not shown it

would have been clear to the individual Defendants their actions violated clearly established

procedural due process law. See Doc. 9, at 26-27. They specifically point out that a hearing is not

required for an academic dismissal, and failure to follow internal policy is not in itself a

constitutional violation. The Court finds the individual Defendants have thus satisfied their initial

burden to properly assert the qualified immunity defense.

Plaintiff does not expressly respond to this argument; in fact, the words “qualified

immunity” or “clearly established” do not appear in her brief in opposition. See Doc. 10.

For many of the same reasons stated above, the Court finds even if Plaintiff had

adequately pled a procedural due process claim, she has not satisfied her burden to show it would

have been clear to Worth or Cooper that their actions were “unlawful in the situation [they]

confronted.” Saucier, 533 U.S. at 202. Combining the clearly established law that academic

dismissals do not require a hearing, but only notice and a “careful and deliberate” decision with

the clearly established law that failure to conform to University policy is not a constitutional

violation, with the allegations of Plaintiff’s Complaint asserting she was repeatedly encouraged

to take the required exam, and that she had an opportunity to appeal and discuss her ultimate

dismissal with Cooper, Plaintiff has not met her burden to show it was objectively unreasonable

for Worth and Cooper to believe they had provided Plaintiff with constitutionally sufficient

process. Therefore, Worth and Cooper are entitled to qualified immunity on Plaintiff’s § 1983

claim for damages.7

CONCLUSION

For the foregoing reasons, good cause appearing, it is

ORDERED that Defendants’ Motion to Dismiss (Doc. 9), be and the same hereby is,

GRANTED.

s/ James R. Knepp II

UNITED STATES DISTRICT JUDGE

7. It is unclear if Plaintiff also seeks injunctive relief from the individual Defendants in their

individual capacities. But even if she so intended, the Sixth Circuit has held that “[j]ust as a

plaintiff cannot sue a defendant in his official capacity for money damages, a plaintiff should not

be able to sue a defendant in his individual capacity for an injunction in situations in which the

injunction relates only to the official's job, i.e., his official capacity.” Cmty. Mental Health Servs.

of Belmont v. Mental Health & Recovery Bd., 150 F. App’x 389, 401 (6th Cir. 2005); see also

Feit v. Ward, 886 F.2d 848, 858 (7th Cir. 1989) (the equitable relief sought by the plaintiff could

be “obtained only from the defendants in their official capacities, not as private individuals”

because the relief sought from the defendants was for violations of a policy that they carried out

in their official capacities); Kuck v. Danaher, 2011 WL 4537976, at *25 (D. Conn.) (“Plaintiffs

cannot obtain prospective injunctive relief from the Defendants sued in their individual

capacities as such Defendants would not have the authority to provide such relief in their

individual capacities.”).