# Doe v. Univ of N TX Hlth Sci Ctr

> Court of Appeals for the Fifth Circuit · July 16, 2024

URL: https://www.frixlaw.com/law-library/cases/10471415

## Case

- **Court:** Court of Appeals for the Fifth Circuit
- **Decided:** July 16, 2024
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Nature of suit:** Civil Rights
- **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/10471415

## How later opinions describe it (automated extraction)

- affirming dismissal of procedural due process claims when a medical resident did not receive a hearing but was informed that her residence was in jeopardy and of her deficient performance

## Opinion text

Case: 23-10764 Document: 73-1 Page: 1 Date Filed: 07/16/2024

United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit

No. 23-10764
FILED
July 16, 2024
____________
Lyle W. Cayce
John Doe, Clerk

Plaintiff—Appellant,

versus

University of North Texas Health Science Center;
Doctor Frank Filipetto, in his official capacity and in his
individual/personal capacity; Doctor Emily Mire, in her official
capacity and in her individual/personal capacity; Doctor Thomas
Moorman, in his official capacity in his individual/personal capacity,

Defendants—Appellees.
______________________________

Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:21-CV-658
______________________________

Before Jolly, Smith, and Haynes, Circuit Judges.
Per Curiam: *
John Doe enrolled in the Texas College of Osteopathic Medicine
(“TCOM”) with the hope of becoming a doctor. Three years into his
studies, he took a medical leave of absence. When he failed to satisfy the

_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 23-10764 Document: 73-1 Page: 2 Date Filed: 07/16/2024

No. 23-10764

conditions for his return, TCOM dismissed him from the program. Doe
subsequently filed three lawsuits—two in Texas state court and this one in
federal court—related to his dismissal from TCOM. In this suit, Doe
asserted claims against the University of North Texas Health Science Center
(“UNTHSC” or the “University”), 1 Dr. Frank Filipetto, Dr. Emily Mire,
and Dr. Thomas Moorman, both in their respective official capacities (the
“official capacity defendants”) and in their individual capacities (the
“individual capacity defendants”). The district court dismissed his claims
against the University and the official capacity defendants because the claims
are barred by res judicata. Then, the district court granted summary
judgment in favor of the individual capacity defendants and dismissed Doe’s
complaint. We AFFIRM.
I.
John Doe enrolled in TCOM in the fall of 2013. He completed his first
three years of medical school without issue. But then, in his fourth year, Doe
developed insomnia from sleep apnea and became exhausted, depressed, and
apathetic towards school. Doe stopped responding to emails and apparently
experienced difficulties with administration completing his paperwork to
complete required rotations. TCOM initiated a “CARE Team referral
report” to Dr. Emily Mire about Doe’s mental health and well-being, and Dr.
Mire met with Doe to discuss the issues.
Because Doe was missing critical deadlines and not responding to
emails, he was required to meet with TCOM’s Student Performance
Committee (“SPC”). In preparation for the SPC meeting, Doe submitted a
written statement to the committee. The SPC meeting was held in early

_____________________
1
TCOM is part of the University.

2
Case: 23-10764 Document: 73-1 Page: 3 Date Filed: 07/16/2024

No. 23-10764

November 2016, and Doe attended the meeting and read his statement to the
committee.
At the meeting, the SPC granted Doe’s request for a medical leave of
absence. After the meeting, Dr. Mire—a nonvoting member of the
committee—informed Doe of the SPC’s approval and gave him the
paperwork for his medical leave of absence. On the form for his medical leave
of absence, Doe provided his personal email address, and the UNTHSC
Registrar’s Office emailed him at that email address to confirm his medical
leave of absence.
The SPC committee also required that Doe must comply with the
following requirements by May 1, 2017, in order to return: (1) notify the
Registrar’s Office of his intent to return; (2) submit documentation that his
medical issues are resolved and that he is fit to resume the program; (3) have
a passing score on COMLEX2CE exam; and (4) discontinue the
unprofessional behavior. Senior Associate Dean Frank Filipetto prepared a
letter outlining the SPC’s decision and the conditions that Doe needed to
meet in order to return in the Fall (the “Filipetto Letter”). The Filipetto
Letter contained all of the requirements that Doe must meet to return to
school in July 2017. Dr. Filipetto met with Doe on November 3, 2016, and
allegedly hand-delivered the letter to him. Doe does not contest meeting with
Dr. Filipetto, but he denies ever receiving this letter.
Doe’s leave of absence was effective immediately following the SPC
meeting. During this time, Doe was treated for sleep apnea. But Doe did not
comply with the May 1, 2017, deadlines. Instead, Doe waited until June 2017
to register for the COMLEX2CE exam. Doe had also received verbal
clearance from his doctor but was still waiting to receive written clearance
before informing the school of his decision to return. Additionally, Doe was

3
Case: 23-10764 Document: 73-1 Page: 4 Date Filed: 07/16/2024

No. 23-10764

still checking his official university email account during the leave. But by
July 2017, he had stopped checking it.
On July 10, 2017, Dr. Filipetto emailed Doe—at his university email
address—to inform him that because he failed to meet the May 1, 2017,
deadlines, action would be taken at the next SPC meeting (the “July 10
Notice”). Then, on July 17, 2017, the SPC emailed Doe to inform him that
he was scheduled to appear at the SPC meeting on July 25 (the “July 17
Notice”). The notice informed Doe that he failed to meet the requirements
set forth in the SPC letter dated November 1, 2016, (the Filipetto Letter) and
requested a written statement from him. Doe did not submit a written
statement nor did he attend the SPC meeting on July 25.
At the July 25 meeting, the SPC unanimously voted to dismiss Doe
from the program. The SPC drafted a letter dated July 25, 2017, that
informed Doe of the SPC’s decision to dismiss him and his options for filing
an appeal (the “July 25 Notice”). Following the meeting, Dr. Mire called
Doe to discuss his failure to appear at the meeting and to set up a meeting
with Doe and Dr. Thomas Moorman, former UNTHSC Vice President for
Student Affairs. Dr. Moorman met with Doe to hand deliver the July 25
Notice.
Doe appealed the SPC’s decision. On July 31, 2017, he submitted a
written appeal to Dr. Filipetto. In the appeal, Doe never claimed that he did
not receive the Filipetto Letter, but he did explain that he was waiting for a
passing score on his COMLEX2CE before informing the school of his intent
to return. Dr. Filipetto met with Doe the next day to discuss his appeal.
Then, on August 3, 2017, Dr. Filipetto emailed to Doe to inform him that his
appeal was denied.
Following his dismissal from TCOM, Doe filed two lawsuits in Texas
state court alleging that UNTHSC and Dr. Filipetto deprived him of due

4
Case: 23-10764 Document: 73-1 Page: 5 Date Filed: 07/16/2024

No. 23-10764

process when they dismissed him from TCOM. His first state court lawsuit
was non-suited on September 10, 2018. Doe then filed a second state court
lawsuit that proceeded to a decision on the merits. Doe v. Univ. of N. Tex.
Health Sci. Ctr., No. 02-19-00321-CV, 2020 WL 1646750 (Tex. App. Apr. 2,
2020), review denied (Apr. 16, 2021), pet. for reh’g denied (July 23, 2021) (“Doe
I”). During discovery in this state lawsuit, defendants produced the Filipetto
Letter, which Doe maintains is the first time he saw the letter. The 153rd
Judicial District Court dismissed the claim, the Second District Court of
Appeals affirmed, and the Supreme Court of Texas denied Doe’s petition for
review and petition for rehearing. Id. at *1.
Following the dismissal of his state court suit, Doe filed the present
lawsuit on May 14, 2021. In this suit, he alleged that the individual capacity
defendants (Drs. Filipetto, Mire, and Moorman) conspired to have him
expelled from TCOM. Doe asserted several claims: a “regarded as disabled”
claim and an intentional disability discrimination claim under the
Rehabilitation Act of 1973; an equal protection claim under the Fourteenth
Amendment; a due process claim under the Fifth and Fourteenth
Amendments; a disability discrimination claim under the Americans with
Disabilities Act; and a fraud claim.
Defendants responded with a motion to dismiss under Fed. R. Civ.
P. 12(b)(6) for failure to state a claim. In ruling on that motion, the district
court dismissed Doe’s claims against UNTHSC and the official capacity
defendants because those claims were barred by res judicata. The district
court, however, declined to dismiss Doe’s constitutional claims against the
individual capacity defendants, finding that Doe pled enough facts to state a
claim for relief and overcome qualified immunity. The district court
nonetheless dismissed Doe’s fraud claims against the individual capacity
defendants because the individual capacity defendants have immunity under
the Texas Tort Claims Act, Tex. Civ. Prac. & Rem. Code §

5
Case: 23-10764 Document: 73-1 Page: 6 Date Filed: 07/16/2024

No. 23-10764

101.106(f). After the district court issued this ruling, all that remained were
Doe’s constitutional claims against the individual capacity defendants.
The lawsuit proceeded to discovery on the remaining claims.
Following discovery, the individual capacity defendants moved for summary
judgment. The district court granted the motion for summary judgment,
finding that Doe failed to establish a genuine dispute of material fact as to
whether the individual capacity defendants violated Doe’s constitutional
rights to due process and equal protection. Doe filed a motion to alter or
amend the judgment, which the district court denied. This appeal timely
followed.
II.
As we have noted, the district court dismissed Doe’s claims against
UNTHSC and the official capacity defendants pursuant to Fed. R. Civ.
P. 12(b)(6). We review dismissals under Rule 12(b)(6) de novo. See Test
Masters Educ. Servs., Inc. v. Singh, 428 F.3d 559, 570–71 (5th Cir. 2005).
Although res judicata generally must be raised as an affirmative defense,
“dismissal under Rule 12(b)(6) is appropriate if the res judicata bar is
apparent from the complaint and judicially noticed facts and the plaintiff fails
to challenge the defendant’s failure to plead it as an affirmative defense.”
Anderson v. Wells Fargo Bank, N.A., 953 F.3d 311, 314 (5th Cir. 2020)
(quoting Singh, 428 F.3d at 570 n. 2 (internal quotations omitted)). “The res
judicata effect of a prior judgment is a question of law that this court reviews
de novo.” Singh, 428 F.3d at 571.
The district court granted summary judgment in favor of the
individual capacity defendants pursuant to Fed. R. Civ. P. 56. We review
a district court’s grant of summary judgment de novo. Sims v. City of
Madisonville, 894 F.3d 632, 637 (5th Cir. 2018). Summary judgment is
appropriate when “there is no genuine dispute as to any material fact and the

6
Case: 23-10764 Document: 73-1 Page: 7 Date Filed: 07/16/2024

No. 23-10764

movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
“A genuine dispute of material fact exists when the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Sims, 894
F.3d at 637 (internal quotations and citation omitted).
III.
On appeal, Doe challenges the dismissal of his claims against the
University and the official capacity defendants and the subsequent dismissal
of his claims against the individual capacity defendants. Taking each ruling
in turn, we conclude that the district court properly dismissed Doe’s
complaint.
A.
Doe first challenges the district court’s dismissal of his claims against
UNTHSC and the official capacity defendants. The district court
determined these claims are barred by res judicata. Res judicata—or claim
preclusion—bars “the litigation of claims that either have been litigated or
should have been raised in an earlier suit.” Singh, 428 F.3d at 571 (citing
Petro-Hunt, L.L.C. v. United States, 365 F.3d 385, 395 (5th Cir. 2004)). “A
federal court must give to a state-court judgment the same preclusive effect
as would be given that judgment under the law of the State in which the
judgment was rendered.” Migra v. Warren City Sch. Dist. Bd. of Educ., 465
U.S. 75, 81 (1984). Because Doe filed the first suit in a Texas state court,
Texas claim preclusion law applies to the federal action. See Harmon v.
Dallas County, 927 F.3d 884, 890 (5th Cir. 2019).
Under Texas law, res judicata requires “(1) a prior final judgment on
the merits by a court of competent jurisdiction; (2) identity of the parties or
those in privity with them; and (3) a second action based on the same claims
as were raised or could have been raised in the first action.” Amstadt v. U.S.

7
Case: 23-10764 Document: 73-1 Page: 8 Date Filed: 07/16/2024

No. 23-10764

Brass Corp., 919 S.W.2d 644, 652 (Tex. 1996); see also Sims 894 F.3d at 644.
Doe only challenges the final element (the “same claim” element) on appeal.
To determine whether the same claim element is met, Texas has
adopted a transactional test, which mirrors its federal counterpart. See
Weaver v. Tex. Cap. Bank N.A., 660 F.3d 900, 907 (5th Cir. 2011). The Texas
Supreme Court has stated that, “[u]nder this approach, a judgment in an
earlier suit ‘precludes a second action by the parties and their privies not only
on matters actually litigated, but also on causes of action or defenses which
arise out of the same subject matter and which might have been litigated in
the first suit.’” Getty Oil Co. v. Ins. Co. of N. Am., 845 S.W.2d 794, 798 (Tex.
1992) (quoting Barr v. Resolution Trust Corp., 837 S.W.2d 627, 630 (Tex.
1992)). In determining whether facts constitute a single “transaction,”
several factors are weighed: “their relatedness in time, space, origin, or
motivation, and whether, taken together, they form a convenient unit for trial
purposes.” Id. (quoting Restatement (Second) of Judgments § 24 cmt. b).
Doe maintains that his claims in Doe I do not arise from the same
nucleus of operative facts because the facts underlying the current lawsuit
have a different origin or motivation. Doe argues that his claims in Doe I only
related to the 2017 SPC proceedings and that his claims in the current lawsuit
are based on discriminatory conduct that he discovered during Doe I. But this
argument is unpersuasive.
Doe is merely asserting different theories of recovery based on the
same operative facts. Doe I reflects a state court final judgment on the merits
related to his dismissal from medical school. Doe now seeks to assert
different theories of recovery based on the same facts, i.e., the series of events
that led to his dismissal from TCOM. As our precedent makes clear,
“[d]ifferent theories of recovery based on the same operative facts do not
generate different causes of action.” Sims, 894 F.3d at 645 (citing Hogue v.

8
Case: 23-10764 Document: 73-1 Page: 9 Date Filed: 07/16/2024

No. 23-10764

Royse City, 939 F.2d 1249, 1253–54 (5th Cir. 1991)). Accordingly, Doe’s
claims are clearly barred by res judicata, and dismissal of the claims against
UNTHSC and Drs. Filipetto, Mire, and Moorman in their official capacities
was proper.
B.
Next, we turn to the district court’s dismissal of Doe’s claims against
the Drs. Filipetto, Mire, and Moorman in their individual capacities. Doe
argues that the individual capacity defendants violated his constitutional
rights to due process and equal protection.
1.
Doe alleged in his complaint that the individual capacity defendants
violated his right to procedural due process of law. “Procedural due process
imposes constraints on governmental decisions which deprive individuals of
‘liberty’ or ‘property’ interests within the meaning of the Due Process
Clause of the Fifth or Fourteenth Amendment.” Mathews v. Eldridge, 424
U.S. 319, 332 (1976).
To show a violation of his procedural due process rights, Doe must
first show that he has a protected interest in higher education. The district
court assumed that Doe had a liberty or property interest at stake. See Bd. of
Curators of Univ. of Missouri v. Horowitz, 435 U.S. 78, 85 (1978) (assuming
that a medical student had been deprived of liberty or property interest when
she was dismissed from medical school). Defendants did not challenge this
finding before us, so we will assume, as the district court did, that Doe has a
protected interest in higher education.
“The fundamental requirement of due process is the opportunity to
be heard ‘at a meaningful time and in a meaningful manner.’” Mathews, 424
U.S. at 333 (quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)). In cases

9
Case: 23-10764 Document: 73-1 Page: 10 Date Filed: 07/16/2024

No. 23-10764

of academic dismissals, the school must afford the student “meaningful
notice and an opportunity to respond.” Davis v. Mann, 882 F.2d 967, 975
(5th Cir. 1989) (citing Mathews, 424 U.S. at 333); see also Shah v. Univ. of
Texas Sw. Med. Sch., 129 F. Supp 3d 480, 497–98 (N.D. Tex. 2015), aff’d, 668
F. App’x 88 (5th Cir. 2015). “[A] student has received all the procedural due
process where the school fully informed him of the faculty’s dissatisfaction
with his clinical progress and the danger that this posed to timely graduation
and continued enrollment.” Shah, 129 F. Supp. 3d at 500 (quoting Horowitz,
435 U.S. at 85) (cleaned up).
In this case, Doe received all the due process protections to which he
was entitled. Doe does not dispute that he received three separate notices
regarding his academic dismissal: the July 10 Notice, the July 17 Notice, and
the July 25 Notice. These notices informed Doe of the faculty’s
dissatisfactions with his performance and informed him of the next steps in
the process and how he could be heard on the matter. Then, even after Doe
was informed of the SPC’s decision to dismiss him, he was given an
opportunity to appeal his decision.
Doe contends, however, that these notices did not meet due process
protections because the school should have known that he was not checking
his student email address during his leave of absence. But, to the extent there
may be merit in such an argument, the record shows that Doe was, on
occasions, checking his student email account during his leave of absence.
Furthermore, Doe has cited no authority to support his theory that notice
was improper because it was sent to his official university email address.
We have, however, routinely affirmed academic dismissals when the
student is given multiple notices and the opportunity to appeal a dismissal.
See, e.g., Shah, 129 F. Supp. 3d at 500 (dismissing procedural due process
claims when the medical student was given multiple notices and appealed a

10
Case: 23-10764 Document: 73-1 Page: 11 Date Filed: 07/16/2024

No. 23-10764

committee’s decision to dismiss him); Shaboon v. Duncan, 252 F.3d 722, 731
(5th Cir. 2001) (affirming dismissal of procedural due process claims when a
medical resident did not receive a hearing but was informed that her
residence was in jeopardy and of her deficient performance); Perez v. Texas
A&M Univ. at Corpus Christi, 589 F. App’x 244, 250 (5th Cir. 2014) (per
curiam) (unpublished) (affirming dismissal of nursing student’s procedural
due process claims when the student received multiple written warnings and
had the opportunity to apply for reinstatement). Accordingly, we reject
Doe’s assertion that the individual capacity defendants violated his
procedural due process rights. The claims were properly dismissed.
2.
Doe also contends that the individual capacity defendants violated his
right to equal protection because they believed him to be bipolar. The Equal
Protection Clause provides that “[n]o State shall . . . deny to any person
within its jurisdiction the equal protection of the laws.” U.S. Const.
amend. XIV, § 1. Essentially, the Equal Protection Clause assures that “all
persons similarly situated should be treated alike.” Stoneburner v. Sec’y of the
Army, 152 F.3d 485, 491 (5th Cir. 1998) (internal citation omitted).
Individuals are similarly situated when they are alike in all relevant respects
except for their membership in the protected class. See Nordlinger v. Hahn,
505 U.S. 1, 10 (1992).
To successfully state a claim under the Equal Protection Clause, Doe
must show that “a state actor intentionally discriminated against [him]
because of [his] membership in a protected class.” Williams v. Bramer, 180
F.3d 699, 705 (5th Cir. 1999) (quoting Johnson v. Morel, 876 F.2d 477, 479
(5th Cir. 1989)) (internal quotation marks omitted). The Equal Protection
Clause “requires only that the classification rationally further a legitimate
state interest,” unless the classification warrants “some form of heightened

11
Case: 23-10764 Document: 73-1 Page: 12 Date Filed: 07/16/2024

No. 23-10764

review.” Nordlinger, 505 U.S. at 10. Classification based on mental illness
does not warrant heightened review. See City of Cleburne, Tex. v. Cleburne
Living Ctr., 473 U.S. 432, 442 (1985).
Doe’s equal protection claim cannot succeed because he failed to
show evidence that the individual capacity defendants intentionally
discriminated against him because of his membership in a protected class. In
other words, Doe failed to show that he was treated differently than students
similarly situated to him. Specifically, Doe failed to show evidence of
similarly situated students who, (1) were granted a medical leave of absence,
(2) failed to satisfy the conditions of their return to the academic program,
(3) ignored multiple notices about this failure sent to their university email
address, and (4) failed to appear before the SPC or to provide a written
statement to explain the situation, were ultimately treated any differently by
the individual capacity defendants. Because Doe has failed to identify any
similarly situated students, he cannot show that the individual capacity
defendants intentionally discriminated against him because of his perceived
mental disability. Thus, the district court properly dismissed this claim.
IV.
In sum, the district court properly dismissed Doe’s claims.
Accordingly, the judgment of the district court is, in all respects,
AFFIRMED.

12

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10471415. Public record. Not legal advice.