SINGH v. UNIVERSITY OF NORTH CAROLINA AT CHAPEL HILL

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

HARSHARAN KAUR SINGH, M.D. )

and VOLKER REINHOLD AUGUST )

NICKELEIT, M.D., )

)

Plaintiffs, )

)

v. )

)

UNIVERSITY OF NORTH CAROLINA )

AT CHAPEL HILL, UNIVERSITY )

OF NORTH CAROLINA HEALTH CARE )

SYSTEM d/b/a UNC HEALTH CARE, )

UNIVERSITY OF NORTH CAROLINA )

SCHOOL OF MEDICINE, ) 1:22-cv-294

JANET HADAR, MSN, in her )

official capacity, THOMAS )

S. IVESTER, M.D., individually )

and in his official capacity, )

RUSSELL BROADDUS, M.D., )

individually and in his )

official capacity, LISA VOSS, )

individually and in her )

official capacity, DEREK V. )

HOAR, individually and in his )

official capacity, and HARVEY )

L. LINEBERRY, PhD., )

individually and in his )

official capacity, )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

OSTEEN, JR., District Judge

Before this court is a Motion to Dismiss pursuant to

Federal Rule of Civil Procedure 12(b)(1) filed by Defendants the

University of North Carolina at Chapel Hill (“UNC-CH”), the

University of North Carolina Health Care System d/b/a UNC Health

Care (“UNC-Health”), the University of North Carolina School of

Medicine (“UNC-SOM”), (collectively “University Defendants”),

Janet Hadar, MSN, Thomas S. Ivester, M.D., Russell Broaddus,

M.D., Lisa Voss, Derek V. Hoar, and Harvey L. Lineberry, Ph.D.

(collectively “Individual Defendants”). (Doc. 16.) For the

reasons provided herein, this court will grant Defendants’

Motion to Dismiss.

I. FACTUAL BACKGROUND

The facts, as stated in this court’s prior Memorandum

Opinion and Order and supplemented where necessary, are as

follows. (See Mem. Op. and Order (Doc. 36) at 4–7.)1 UNC-CH is a

public university in North Carolina. (See Compl. (Doc. 1) ¶ 14.)

UNC-CH is comprised of various institutions of higher education,

including UNC-SOM. (Id.) Dr. Lineberry is the Associate Dean of

Human Resources at UNC-SOM. (Id. ¶ 22.) Hoar and Voss are human

resources employees at UNC-SOM. (Id. ¶¶ 20–21.) Dr. Broaddus is

Chair of the Pathology and Laboratory Medicine Department at

UNC-SOM. (Id. ¶ 19.)

1 All citations in this Memorandum Opinion and Order to

documents filed with the court refer to the page numbers located

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

on CM/ECF.

UNC-Health is an integrated health care system owned by

North Carolina and administered as an affiliate enterprise of

UNC-CH. (Id. ¶ 15.) It consists of UNC Hospitals and its

provider network, the clinical program of the UNC-SOM, and

affiliate hospitals throughout the state. (Id.) Hadar is the

President of UNC Hospitals, and Dr. Ivester is the Chief Medical

Officer at UNC Hospitals. (Id. ¶¶ 17–18.)

Plaintiffs are tenured professors of pathology at UNC-CH.

(See id. ¶¶ 12–13.)

In the fall of 2020, UNC-SOM’s Human Resources Office

received complaints about Plaintiffs. (Id. ¶ 52.) The Human

Resources Office engaged in a lengthy investigation into the

allegations, including interviewing Plaintiffs. (See Ex. C, HR

Report Singh (“Singh HR Report”) (Doc. 3–3) at 2–3; Ex. D, HR

Report Nickeleit (“Nickeleit HR Report”) (Doc. 3-4) at 2–3;

Compl. (Doc. 1) ¶¶ 61, 63–66.)2 The Human Resources Office

2 Normally, when considering a motion to dismiss, a court

cannot look to matters beyond the complaint without converting

the motion into one for summary judgment. Fed. R. Civ. P. 12(d).

However, “a court may consider official public records,

documents central to plaintiff’s claim, and documents

sufficiently referred to in the complaint so long as the

authenticity of these documents is not disputed.” Witthohn v.

Fed. Ins., 164 F. App’x 395, 396 (4th Cir. 2006). Here, this

court may consider official documents outlining institutional

policies, reports generated during Defendants’ investigations,

and exchanges between the parties, which are expressly referred

to in the complaint. (See Compl. (Doc. 1) ¶¶ 52–95, 98–102.)

finished its investigation on January 21, 2022, and sent out the

report (the “HR Report”). (Compl. (Doc. 1) ¶ 55.) Dr. Ivester

and Dr. Broaddus both received the HR Report. (See Doc. 18-2.)

According to the HR Report, many individuals interviewed were

concerned about retaliation by Plaintiffs, and some chose not to

participate for that reason. (Singh HR Report (Doc. 3-3) at 3–4;

Nickeleit HR Report (Doc. 3–4) at 3–4.)

Subsequently, UNC Hospital/SOM’s Professional Executive

Committee requested that corrective action be taken by the

Medical Staff Executive Committee (“MSEC”). (Compl. (Doc. 1)

¶ 68.) MSEC formed an Ad Hoc Committee to investigate based on

the HR Report. (Id. ¶ 70; Decl. of Thomas S. Ivester, MD

(“Ivester Decl.”) (Doc. 18) ¶¶ 4–5, 7.) Plaintiffs met with the

Ad Hoc Committee on February 10, 2022. (Compl. (Doc. 1) ¶ 76.)

The Ad Hoc Committee submitted its report and recommendation to

MSEC on March 3, 2022. (Id. ¶ 85; Ivester Decl. (Doc. 18) ¶ 10;

Doc. 3-5; Doc. 3-6.) MSEC then scheduled a special meeting for

March 7, 2022. (Compl. (Doc. 1) ¶ 85–86.) Plaintiffs were given

notice of the meeting and the opportunity to attend and speak or

provide written statements. (Docs. 18-7, 18-8.) Plaintiffs

provided written statements. (Ivester Decl. (Doc. 18) ¶ 12; Doc.

18-9; Doc. 18-10; Doc. 18-11.)

At the March 7 meeting, MSEC voted to recommend the Board

of Directors revoke Plaintiffs’ clinical privileges, and also to

immediately revoke their privileges pending final decision by

the Board of Directors upon conclusion of the hearing and

appeals process. (See Ex. 14, 8 March 2022 Email to Nickeleit w/

Attachments (“March 2022 Email to Nickeleit”) (Doc. 18-14); (Ex.

16, 8 March 2022 Email to Singh w/ Attachments (“March 2022

Email to Singh”) (Doc. 18–16).) The immediate, interim

revocation was issued by MSEC allegedly due to concerns about

potential impact on other individuals. (Ivester Decl. (Doc. 18)

¶¶ 13, 15; (March 2022 Email to Nickeleit (Doc. 18-14); March

2022 Email to Singh (Doc. 18–16).) The next day, Dr. Ivester

sent Plaintiffs letters providing formal notice of corrective

action. (March 2022 Email to Nickeleit (Doc. 18-14); March 2022

Email to Singh (Doc. 18–16).) The letters stated that

“[p]ursuant to Article VI, Section 1(l) of the UNC Hospitals’

Bylaws of the Medical Staff (‘Bylaws’),” MSEC “voted to

recommend rescinding your appointment to the UNC Hospitals

Medical Staff and revoking your clinical privileges at UNC

Hospitals.” (E.g., March 2022 Email to Nickeleit (Doc. 18-14) at

3.) The letter further stated that “[p]ursuant to Article I,

Section 1(m),” the revocation of privileges “should become

effective immediately after determining that a failure to act

may result in imminent danger to the health of individuals.”

(E.g., id.) Dr. Ivester advised Plaintiffs of their “right to

request a Hearing” “pursuant to Article VII, Section 3 of the

Bylaws.” (E.g., id.) He also included relevant portions of the

Bylaws. (E.g., id. at 4–12.)

On March 11, 2022, Plaintiffs each emailed Dr. Ivester

requesting a hearing. (Compl. (Doc. 1) ¶¶ 94, 96; Ivester Decl.

(Doc. 18) ¶ 17.) Additionally, on March 16, 2022, Defendants

reported the revocation of Plaintiffs’ clinical privileges to

the National Practitioner Data Bank (“NPDB”). (Compl. (Doc. 1)

¶ 89; see also Ex. I, NPDB Singh (“Singh NPDB Report”) (Doc. 3-

9); Ex. J, NPDB Nickeleit (“Nickeleit NPDB Report”) (Doc. 3-

10).) The report indicated the revocation was permanent. (See

Singh NPDB Report (Doc. 3-9) at 3; Nickeleit NPDB Report (Doc.

3-10) at 3.)

This court subsequently held a hearing in which UNC-Health

Defendants “represented . . . that the communication to the NPDB

was an error.” (Mem. Op. and Order (Doc. 36) at 26.) Defendants

later notified this court they “submitted a correction report to

the NPDB changing the entry in the ‘Length of Action’ field from

‘Permanent’ to ‘Indefinite.’” (Notice Regarding Amendment of

NPDB Reports (“NPDB Amendment Notice”) (Doc. 31) at 2.)

Dr. Ivester contends that since the time Plaintiffs

requested individual hearings, UNC Hospitals personnel have been

working diligently to identify six individuals appropriate to

serve on the two hearing panels. (Ivester Decl. (Doc. 18) ¶ 21.)

Those individuals have now been identified, and Plaintiffs have

been contacted regarding the scheduling of their hearings. (Id.

¶¶ 21–22; see also Doc. 23-3.)

II. PROCEDURAL HISTORY

Plaintiffs filed their complaint on April 13, 2022 alleging

a Fourteenth Amendment Due Process claim against Defendants.

(Compl. (Doc. 1) ¶¶ 110–33.) On the same day, Plaintiffs also

filed a motion for a temporary restraining order (“TRO”), (Doc.

2), which this court subsequently denied, (Mem. Op. and Order

(Doc. 36)).

Defendants filed a motion to dismiss, (Defs.’ Mot. to

Dismiss Pursuant to Rule 12(b)(1) (“Defs.’ MTD”) (Doc. 16)), and

a brief in support, (Defs.’ Br. in Supp. of Mot. to Dismiss

(“Defs.’ MTD Br.”) (Doc. 17)). Plaintiffs responded. (Pls.’ Br.

in Opp’n to Defs.’ Mot. to Dismiss (“Pls.’ MTD Resp.”) (Doc.

22).) Defendants replied. (Defs.’ Reply Br. in Supp. of Mot. to

Dismiss (“Defs.’ MTD Reply”) (Doc. 28).) This motion is now ripe

for adjudication.

III. STANDARD OF REVIEW

Defendants move to dismiss the complaint for lack of

subject matter jurisdiction. (Doc. 16.) Under Rule 12(b)(1), a

party may seek dismissal based on the court’s “lack of subject-

matter jurisdiction.” Fed. R. Civ. P. 12(b)(1). Subject-matter

jurisdiction is a threshold issue that relates to the court’s

power to hear a case and must be decided before a determination

on the merits of the case. Constantine v. Rectors & Visitors of

Geo. Mason Univ., 411 F.3d 474, 479–80 (4th Cir. 2005). A motion

under Rule 12(b)(1) raises the question of “whether [the

plaintiff] has a right to be in the district court at all and

whether the court has the power to hear and dispose of [the]

claim.” Holloway v. Pagan River Dockside Seafood, Inc., 669 F.3d

448, 452 (4th Cir. 2012). The burden of proving subject matter

jurisdiction rests with the plaintiff. McNutt v. Gen. Motors

Acceptance Corp. of Ind., 298 U.S. 178, 189 (1936); Adams v.

Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). When evaluating a

Rule 12(b)(1) motion to dismiss, a court should grant the motion

“only if the material jurisdictional facts are not in dispute

and the moving party is entitled to prevail as a matter of law.”

Richmond, Fredericksburg & Potomac R.R. Co. v. United States,

945 F.2d 765, 768 (4th Cir. 1991).

IV. ANALYSIS

A. University Defendants

Defendants contend UNC-CH, UNC-SOM, and UNC-Health are

immune from suit based on sovereign immunity. (Defs.’ MTD Br.

(Doc. 17) at 11–13.) Plaintiffs concede UNC-CH and UNC-SOM are

immune from suit. (Pls.’ MTD Resp. (Doc. 22) at 9.) Accordingly,

Defendants’ motion to dismiss will be granted as to UNC-CH and

UNC-SOM.

Additionally, this court concluded that UNC-Health is a

subdivision of the state entitled to Eleventh Amendment Immunity

under the Ram Ditta factors when it ruled on Plaintiffs’ motion

for a TRO. (See Mem. Op. and Order (Doc. 36) at 11–20.) No new

evidence has been presented to this court undermining that

analysis. Therefore, this court will grant the motion to dismiss

as to UNC-Health for the same reasons set forth previously and

restated in full herein as follows.3

Plaintiffs argue UNC-Health is not an arm or alter ego of

the State of North Carolina and therefore not immune from suit.

(Pls.’ MTD Resp. (Doc. 22) at 21–24.) The Eleventh Amendment to

the Constitution “bars federal courts from exercising

jurisdiction over suits against nonconsenting states or state

3 For ease of reference, this court chooses to restate the

applicable analysis rather than incorporate by reference from

another order.

entities.” Kadel v. N.C. State Health Plan for Teachers & State

Emps., 12 F.4th 422, 428 (4th Cir. 2021). North Carolina has not

consented to being sued under § 1983 and therefore has not

waived sovereign immunity in that context. Cf. Huang v. Bd. of

Governors of Univ. of N.C., 902 F.2d 1134, 1139 (4th Cir. 1990)

(finding that the State has not waived immunity as it applies to

the state university system). Nor has Congress overridden North

Carolina’s sovereign immunity in that context. See Jennings v.

Univ. of N.C. at Chapel Hill, 240 F. Supp. 2d 492, 498 (M.D.N.C.

2002) (“Congress has not overridden [sovereign] immunity in any

relevant area save for Title VII.”).

State sovereign immunity bars suit not only against a

state, but also against an instrumentality of a state, such as a

state agency, often referred to as an “arm of the State.” See

Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100, 124

(1984) (“It is clear, of course, that in the absence of consent

a suit in which the State or one of its agencies or departments

is named as the defendant is proscribed by the Eleventh

Amendment.”). Sovereign immunity applies to a state subdivision

when “the governmental entity is so connected to the State that

the legal action against the entity would . . . amount to the

‘indignity of subjecting a State to the coercive process of

judicial tribunals at the instance of private parties.’” Cash v.

Granville Cnty. Bd. of Educ., 242 F.3d 219, 224 (4th Cir. 2001)

(internal quotation marks omitted) (quoting Seminole Tribe of

Fla. v. Florida, 517 U.S. 44, 58 (1996)). On the other hand,

sovereign immunity “does not immunize political subdivisions of

the state, such as municipalities and counties, even though such

entities might exercise a ‘slice of state power.’” Ram Ditta v.

Md. Nat. Cap. Park & Plan. Comm’n, 822 F.2d 456, 457 (4th Cir.

1987) (quoting Lake Country Estates, Inc. v. Tahoe Reg’l Plan.

Agency, 440 U.S. 391, 401 (1979)).

To determine whether a state subdivision is entitled to

Eleventh Amendment immunity, the Fourth Circuit examines four

factors:

(1) whether the state treasury will be responsible for

paying any judgment that might be awarded; (2) whether

the entity exercises a significant degree of autonomy

from the state; (3) whether it is involved with local

versus statewide concerns; and (4) how the entity is

treated as a matter of state law.

Ristow v. S.C. Ports Auth., 58 F.3d 1051, 1052 n.3 (4th Cir.

1995) (citing Ram Ditta, 822 F.2d at 457–58); see also U.S. ex

rel. Oberg v. Pa. Higher Educ. Assistance Agency, 745 F.3d 131,

136–38 (4th Cir. 2014) (identifying and applying the “four

nonexclusive factors”).

The first Ram Ditta factor has been described as the most

important. See, e.g., Hess v. Port Auth. Trans-Hudson Corp., 513

U.S. 30, 49 (1994) (remarking that “the state treasury factor is

the most important factor to be considered”); Hutto v. S.C. Ret.

Sys., 773 F.3d 536, 543 (4th Cir. 2014) (same). The Supreme

Court has observed that the first factor is “generally accorded

. . . dispositive weight.” Hess, 513 U.S. at 49 (internal

quotation marks omitted). However, even when a court has

determined the first factor suggests the entity is an arm of the

state, courts often continue in analyzing the other factors.

See, e.g., McAdoo v. Univ. of N.C. at Chapel Hill, 248 F. Supp.

3d 705, 713–19 (M.D.N.C. 2017).

Plaintiffs assert “[t]here is no evidence that any judgment

against UNC-Health would be paid out of the State treasury.”

(Pls.’ MTD Resp. (Doc. 22) at 23.) Defendants “acknowledge[]

that [UNC-Health] currently does not receive an annual

appropriation from the General Assembly,” but contends that

“[a]lthough a judgment against UNC Health would not directly

impact the state treasury, it is possible . . . that if a

judgment exceeded the available funds on hand, UNC Health could

look to the state for financial support.” (Defs.’ MTD Reply

(Doc. 28) at 5.) Because it is not obvious North Carolina would

pay any judgment against UNC-Health, this “first factor strongly

suggests that [UNC-Health] is not an arm of the state.” See

Hammons v. Univ. of Md. Med. Sys. Corp., 551 F. Supp. 3d 567,

586 (D. Md. 2021).

The second factor considers the degree of autonomy UNC-

Health exercises, including who appoints UNC-Health’s directors

or officers, who funds UNC-Health, and whether North Carolina

retains a veto over UNC-Health’s actions. See U.S. ex rel. Oberg

v. Pa. Higher Educ. Assistance Agency, 804 F.3d 646, 668 (4th

Cir. 2015). Also relevant is whether UNC “has the ability to

contract, sue and be sued, and purchase and sell property, and

whether it is represented in legal matters by the state attorney

general.” Id. “An entity may retain some operational

independence in its day-to-day activities, yet still be

considered an arm of the state.” McAdoo, 248 F. Supp. 3d at 716

(citing Md. Stadium Auth. v. Ellerbe Becket Inc., 407 F.3d 255,

264 (4th Cir. 2005)).

Although UNC-Health retains autonomy in some parts of its

operations, the state retains significant participation in and

control of UNC-Health’s operations, both directly and

indirectly. For one, the Board of Governors is significantly

involved in and has authority over UNC-Health’s affairs.4 Twelve

of the at-large members of UNC-Health’s Board of Directors are

appointed by the Board of Governors after consultation with the

President of UNC-CH. N.C. Gen. Stat. § 116-37(b)(1)(b).

4 The Board of Governors is an arm of the state responsible

for planning and developing a coordinated system of higher

education in North Carolina. N.C. Gen. Stat. § 116-11(1).

Additionally, appeals from the Board of Directors’ actions are

heard by the Board of Governors. See id. § 116-37(b)(4).

The state is also involved in overseeing decisions

concerning UNC-Health’s officers and employees. UNC-Health’s

Board of Directors must submit candidates for Chief Executive

Officer of UNC-Health “to the President of The University of

North Carolina, who if satisfied with the quality of one or more

of the candidates, will nominate one as Chief Executive Officer,

subject to selection by the Board of Governors.” Id. § 116-

37(c)(1).5 While UNC-Health’s Board of Directors determines

initial employee classifications and pay plans, it must submit

those classifications and pay plans to the Office of State Human

Resources for review. Id. § 116-37(d).

Although UNC-Health has some discretion in purchasing and

entering into contracts, UNC-Health is “subject to the

provisions of the State Budget Act.” Id. § 116-37(e); see also

id. § 116-37(i) (requiring UNC-Health to submit all policies and

regulations regarding acquiring and disposing of real property

to the State Property Office for review). UNC-Health must submit

annual reports to the Joint Legislative Commission on Government

5 The President of the University of North Carolina is a

state employee. Cf. N.C. Gen. Stat. § 116-14.

Operations, which must include actions taken by the Board of

Directors. Id. § 116-37(g).

This non-exhaustive list makes clear that although UNC-

Health may function similarly to an independent corporate

medical system in some respects, “it is nevertheless tethered to

State government and subject to State oversight in important

ways.” Hammons, 551 F. Supp. 3d at 587; see also McAdoo, 248 F.

Supp. 3d at 718 (“Despite exercising some level of autonomy in

carrying out day-to-day operations, UNC and its constituent

institutions remain subject to the control and veto power of the

General Assembly.”). Therefore, this court concludes that UNC-

Health is not autonomous from the State of North Carolina, and

the second factor weighs in favor of finding that UNC-Health is

an arm or alter ego of the State of North Carolina.

The third factor examines whether the entity is involved

with state concerns as distinct from non-state concerns,

including local concerns. The North Carolina General Assembly

declared that UNC-Health was created “to provide patient care,

facilitate the education of physicians and other health care

providers, conduct research collaboratively with the health

sciences schools of [UNC-CH], and render other services designed

to promote the health and well-being of the citizens of North

Carolina.” N.C. Gen. Stat. § 116-37(a)(1). This language

reflects involvement with statewide concerns, rather than local

ones, and thus this factor weighs in favor of finding that UNC-

Health is an arm or alter ego of the State of North Carolina.

See Hammons, 551 F. Supp. 3d at 586–87 (determining the third

Ram Ditta factor weighed in favor of finding University of

Maryland’s state-run hospital system was an arm of the state

where “[t]he Maryland General Assembly declared that [the

system] was created to ‘provide medical care . . . for the

citizens of the State and region,’ and that such care ‘extend[s]

to all citizens of the State . . . .’” (internal citation

omitted) (quoting Md. Code Educ. § 13-302(1)-(2))).

The fourth factor, which requires consideration of the

treatment of UNC-Health under North Carolina law, points in the

same direction. “Although the question of whether an entity is

an alter ego of the state is a question of federal, not state,

law, the manner in which state law addresses the entity remains

‘important, and potentially controlling.’” Md. Stadium Auth.,

407 F.3d at 265 (quoting Hall v. Med. Coll. Of Ohio at Toledo,

742 F.2d 299, 304 (6th Cir. 1984)).

This court finds North Carolina law treats UNC-Health as a

state agency. The State legislature designated UNC-Health “as an

affiliated enterprise of the University of North Carolina.” N.C.

Gen. Stat. § 116-37(a)(1). Additionally, under North Carolina

law, UNC-Health employees are state employees, id. § 116-37(d),

and UNC-Health is entitled to representation by the Attorney

General of North Carolina, cf. id. § 114-4.2B.

Although North Carolina courts have not ruled on whether

UNC-Health is an agency of the state, federal courts have held

UNC-Health is an arm of the state. See, e.g., Thomas v. North

Carolina, Civil Action No. 3:12-CV-00038-FDW-DCK, 2013 WL

566481, at *7 (W.D.N.C. Feb. 13, 2013) (“Defendants are all

agencies of the State of North Carolina created pursuant to

statute and, therefore, entitled to Eleventh Amendment

immunity.”); Solomon v. UNC Healthcare, 5:16-CV-24-FL, 2016 WL

6768920, at *4 (E.D.N.C. Oct. 19, 2016), report and

recommendation adopted, 2016 WL 6683470 (E.D.N.C. Nov. 14,

2016). Although these courts did not specifically address the

Ram Ditta factors, this court is persuaded by these decisions,

especially when considering North Carolina statutes characterize

UNC-Health’s employees as state employees and provide for

representation by the Attorney General. Therefore, this court

finds the fourth factor weighs in favor of finding UNC-Health is

an arm of the State of North Carolina.

Plaintiffs argue UNC-Health is like the Maryland National

Capital Park and Planning Commission that the Fourth Circuit in

Ram Ditta determined was not an arm of the state. (Pls.’ MTD

Resp. (Doc. 22) at 22–24.) However, UNC-Health is different from

the Commission in notable ways. For example, while “it [was]

apparent that a judgment against the Commission would not be

paid from the state treasury,” Ram Ditta, 822 F.2d at 458, it is

not so apparent that a judgment against UNC-Health would not be

paid from North Carolina’s treasury. Counsel for UNC-Health

Defendants represented at the hearing that if UNC-Health did not

have sufficient funds to cover a judgment, it was his view the

state would cover any remaining amount. Even assuming counsel is

mistaken, UNC-Health also differs from the Commission because

the Commission was operating parks in two of Maryland’s

counties, id. at 459, whereas UNC-Health is a state-wide medical

system, see N.C. Gen. Stat. § 116-37(a), concerned with

providing medical care to all North Carolinians. Because UNC-

Health differs from the Commission — indeed, the Fourth Circuit

held none of the Ram Ditta factors weighed in favor of the

Commission — this court finds Plaintiffs’ argument unavailing.

Under the foregoing analysis, UNC, UNC-SOM, and UNC-Health

are all subject to sovereign immunity. The motion to dismiss

will be granted as to these Defendants.

B. Individual Defendants

Plaintiffs assert one Section 1983 claim against all

Defendants. (Compl. (Doc. 1) ¶¶ 110–33.) The claim seeks relief

against the Individual Defendants in their official and

individual capacities. (See, e.g, Compl. (Doc. 1) ¶¶ 120–22.)

Plaintiffs claim they have been injured by: (1) a reduction

in their salaries, (2) revocation of their clinical privileges,

and (3) reporting of their revocations to the NPDB. (See Pls.’

MTD Resp. (Doc. 22) at 20.

Defendants contend Plaintiffs’ claim against the Individual

Defendants should be dismissed because it is not ripe, the

official capacity claims do not seek prospective relief, and the

individual capacity claims are barred by qualified immunity.

This court finds that Plaintiffs’ claim fails for several

reasons. First, Plaintiffs’ lack a constitutionally protected

interest in their salaries so their salary reductions cannot

support a Section 1983 claim. Second, this court evaluates the

remaining claims under the ripeness doctrine and determines that

the portion of Plaintiffs’ claim regarding revocation of their

clinical privileges is not ripe, but the portion concerning

reporting to the NPDB is ripe. Third, the claims against

Individual Defendants in their official capacities fail because

Plaintiffs do not state a claim for prospective relief. Finally,

the individual capacity claims fail on qualified immunity

grounds because the Individual Defendants did not violate a

clearly established constitutional right. Therefore, this court

will grant Defendants’ motion to dismiss as to the Individual

Defendants.

1. Plaintiffs’ Salaries

Defendants argue that Plaintiffs lack a constitutionally

protected interest in their administrative titles or full

salaries. (Defs.’ MTD Br. (Doc. 17) at 20–22.) Plaintiffs do not

directly respond to this argument but contend they have been

“harmed by the reduction in salary and benefits.” (Pls.’ MTD

Resp. (Doc. 22) at 25.)

This court finds that Plaintiffs do not have a

constitutionally protected interest in their administrative

titles or their previous salaries, so the deprivation of these

benefits cannot support a due process claim under Section 1983.

The Sixth Circuit recognized in Crosby v. University of

Kentucky that “tenured university professors do not have a

constitutionally protected property interest in administrative

posts.” 863 F.3d 545, 552 (6th Cir. 2017) (cleaned up). A

district court in this circuit has also recognized that “intra-

departmental demotions . . . do not implicate property interests

subject to the protections of the Due Process Clause.” Cominelli

v. The Rector & Visitors of The Univ. of Va., 589 F. Supp. 2d

706, 713–14 (W.D. Va. 2008).

Additionally, Plaintiffs have no cognizable interest in

their previous salaries. In Henry-Davenport v. School District

of Fairfield County, the plaintiff was demoted from the position

of Deputy Superintendent of Human Resources to Director of Food

Services and received a corresponding salary reduction. 832 F.

Supp. 2d 602, 603 (D.S.C. 2011). The district court granted a

motion to dismiss the plaintiff’s § 1983 procedural due process

claim, finding that the “[p]laintiff ha[d] no legal entitlement

to the administrative position or salary of Deputy

Superintendent . . . . [That] the School District reduced

[p]laintiff’s administrative salary without affording her a

hearing did not violate the Fourteenth Amendment.” Id. at 612.

Here, applicable policies reflect the administrative titles

and corresponding salaries are not tied to Plaintiffs’ tenure,

and support reducing Plaintiffs’ salaries once they no longer

held those administrative roles. (See Doc. 16-1 at 5–6; Doc. 16-

3 at 3.)

2. Ripeness

Defendants argue Plaintiffs have suffered no injury in fact

because the permanent loss of their clinical privileges cannot

happen until the conclusion of the administrative appeals

process. (Defs.’ MTD Br. (Doc. 17) at 17–18.) Defendants further

argue Plaintiffs’ injury is neither fairly traceable to nor

redressable by Individual Defendants because “Plaintiffs can

point to no Individual Defendant and say they alone caused their

pending privileges revocation. It is also not clear that any

Individual Defendant could redress Plaintiffs’ claimed injury.”

(Id. at 18.)6 Defendants additionally argue this case is not ripe

because “the facts alleged present a prime example of a claimed

injury that has not yet occurred and remains contingent upon

unknown, future events.” (Defs.’ MTD Br. (Doc. 17) at 18.)

Plaintiffs argue they have suffered an injury in fact —

divesture “of a legally cognizable liberty right” in “their

clinical privileges, compensation and benefits, and good name

and professional reputation.” (Pls.’ MTD Resp. (Doc. 22) at 20.)

Plaintiffs further argue their injury is traceable to the

Individual Defendants and redressable. (Id. at 21.)

Additionally, Plaintiffs argue this case is ripe for review

because Plaintiffs have alleged they were deprived of their

liberty interest when Defendants revoked their privileges

without a hearing and published that revocation to the NPDB.

(Id. at 19.)

6 Because Defendants argue, correctly, that University

Defendants should be dismissed based on sovereign immunity, (see

infra Section IV.A), this court will not address whether

Plaintiffs’ injuries are redressable by those entities. Standing

and ripeness are analyzed only as to the Individual Defendants.

Article III of the United States Constitution limits

federal courts’ jurisdiction “to ‘Cases’ and ‘Controversies.’”

Lujan v. Defs. of Wildlife, 504 U.S. 555, 559 (1992). The

doctrine of standing delineates “disputes which are

appropriately resolved through the judicial process.” Id. at 560

(internal quotation mark omitted) (quoting Whitmore v. Arkansas,

495 U.S. 149, 155 (1990)). “[T]he core component of standing is

an essential and unchanging part of the case-or-controversy

requirement of Article III.” Id.

Standing has three requirements: “First, the plaintiff must

have suffered an ‘injury in fact’—an invasion of a legally

protected interest which is (a) concrete and particularized, and

(b) ‘actual or imminent, not conjectural or hypothetical.’” Id.

(internal citations omitted) (quoting Whitmore, 495 U.S. at

155). “A ‘concrete’ injury must be ‘de facto’; that is, it must

actually exist.” The adjective “concrete” in this context,

“convey[s] the usual meaning of the term—‘real,’ and not

‘abstract.’” Spokeo, Inc. v. Robins, 578 U.S. 330, 340 (2016)

(internal citation omitted). Second, the injury must be fairly

traceable to the defendant’s actions, rather than the result of

independent action of a third party not before the court. Lujan,

495 U.S. at 560. “Third, it must be ‘likely,’ as opposed to

merely ‘speculative,’ that the injury will be ‘redressed by a

favorable decision.’” Id. at 561 (quoting Simon v. E. Ky.

Welfare Rights Org., 426 U.S. 26, 38 (1976)).

Like standing, “[t]he doctrine of ripeness prevents

judicial consideration of issues until a controversy is

presented in ‘clean-cut and concrete form.’” Miller v. Brown,

462 F.3d 312, 318–19 (4th Cir. 2006) (quoting Rescue Army v.

Mun. Court of L.A., 331 U.S. 549, 584 (1947)). The plaintiff

bears the burden of proving ripeness. Id. at 319.

To determine whether the case is ripe, courts “balance ‘the

fitness of the issues for judicial decision and the hardship to

the parties of withholding court consideration.’” Franks v.

Ross, 313 F.3d 184, 194 (4th Cir. 2002) (quoting Ohio Forestry

Ass’n v. Sierra Club, 523 U.S. 726, 733 (1998)). A case is fit

for judicial decision when the issues are purely legal and when

the action in controversy is final and not dependent on future

uncertainties. See Charter Fed. Sav. Bank v. Office of Thrift

Supervision, 976 F.2d 203, 208 (4th Cir. 1992). “The hardship

prong is measured by the immediacy of the threat and the burden

imposed on the [plaintiffs] who would be compelled to act under

threat of enforcement of the challenged law.” Id. at 208–09.

When considering hardship, courts may consider the cost to the

parties of delaying judicial review. Fort Sumter Tours, Inc. v.

Andrus, 564 F.2d 1119, 1124 (4th Cir. 1977).

a. Plaintiffs’ Property Interest in Their

Clinical Privileges

As to the revocation of clinical privileges, Defendants

contend Plaintiffs’ privileges have not been permanently revoked

but only suspended pending final action of the Board of

Directors following the hearings Plaintiffs requested. (Defs.’

MTD Br. (Doc. 17) at 17–18.) Thus, according to Defendants,

Plaintiffs have not been injured because the Board of Directors

has not issued its final decision.

Defendants’ position on the events as a recommendation of

revocation of clinical privileges with an immediate temporary

suspension pending final decision accords with the Bylaws and

what has transpired in this case. Article VI, Section 1(k)

states that “[t]he MSEC may adopt, reject, or modify the

recommendations of the Ad Hoc [C]ommittee. . . .” (Bylaws of the

Medical Staff University of North Carolina Hospitals (“Bylaws”)

(Doc. 18-1) at 30.) If MSEC recommends reduction, suspension, or

revocation of clinical privileges, “the Medical Staff member is

entitled to the rights set forth in Article VII.” (Id.) If the

member does not choose to exercise those rights, “MSEC’s

recommendation will go to the Board of Directors for final

action.” (Id.) The Bylaws also provide that “[a]ny

recommendation by MSEC for the reduction, suspension, or

revocation of clinical privileges . . . may become effective

immediately if MSEC determines that the failure to act may

result in imminent danger to the health of any individual,

subject to the reversal by the Board of Directors through the

Hearing and Appellate Procedure set forth in Article VII.” (Id.

(emphasis added).)

It appears Defendants followed the Bylaws. MSEC recommended

revocation of Plaintiffs’ clinical privileges. (Compl. (Doc. 1)

¶¶ 86–87; March 2022 Email to Nickeleit (Doc. 18-14) at 3; March

2022 Email to Singh (Doc. 18–16) at 3.) That revocation was

immediate due to concerns about the health of others. (See March

2022 Email to Nickeleit (Doc. 18-14) at 3; March 2022 Email to

Singh (Doc. 18–16) at 3.) However, that revocation is not

permanent because it is subject to reversal by the Board of

Directors. (Bylaws (Doc. 18-1) at 30.) Final action of the Board

of Directors has not yet occurred because the parties are

involved in Article VII’s Hearing and Appellate Procedure since

Plaintiffs’ have requested a hearing in accord with their rights

under Article VII. (Doc. 18-19; Doc. 18-20; Compl. (Doc. 1) ¶

94.)

Moreover, while the NPDB reports originally submitted to

this court with Plaintiffs’ request for a TRO identified the

revocations of clinical privileges as permanent, (see Singh NPDB

Report (Doc. 3-9) at 3; Nickeleit NPDB Report (Doc. 3-10) at 3),

Defendants represented to this court in a hearing that “the

communication to the NPDB was an error,” (Mem. Op. and Order

(Doc. 36) at 26), and submitted a notice that they have filed a

correction report with the NPDB changing the Length of Action

Field on the form to “Indefinite.” (NPDB Amendment Notice (Doc.

31) at 2.) Based on this evidence, this court finds that the

revocation of Plaintiffs’ clinical privileges is temporary.

Thus, Plaintiffs cannot demonstrate an injury-in-fact when the

complained of injury — permanent revocation of clinical

privileges — has not occurred.

Additionally, it appears the injuries that Plaintiffs

complain of are not redressable by the Individual Defendants

named in this action. Redressability is “problematic when third

persons not party to the litigation must act in order for an

injury to arise or be cured.” Doe v. Va. Dep’t of State Police,

713 F.3d 745, 755 (4th Cir. 2013); see also Disability Rights

S.C. v. McMaster, 24 F.4th 893, 903 (4th Cir. 2022) (noting that

an order enjoining the defendants’ enforcement of the mask

mandate would not redress the plaintiffs’ injuries because the

defendants were not responsible for enforcing the mask mandate,

“so such an order would have no effect on [the defendants’]

conduct,” and dismissing the action for lack of standing).

An order directing the Individual Defendants to reinstate

Plaintiffs’ clinical privileges would not redress Plaintiffs’

claimed injuries because the Individual Defendants are not

authorized to reinstate those privileges. Instead, according to

the Bylaws, that power rests with the Board of Directors. (See

Bylaws (Doc. 18-1) at 30.) While MSEC can recommend “reduction,

suspension, or revocation of clinical privileges,” (id.), only

the Board of Directors makes a final decision, (id. at 36).

Plaintiffs argue that Dr. Ivester and Dr. Broaddus have the

authority to take immediate action under the Bylaws, (see Pls.’

MTD Resp. (Doc. 22) at 11); thus, they should also have the

power to undo such actions, (id. at 11 n.4). However, MSEC, not

Dr. Ivester or Dr. Broaddus, recommended the revocation of

Plaintiffs’ clinical privileges. (See March 2022 Email to

Nickeleit (Doc. 18-14); March 2022 Email to Singh (Doc. 18–16).)

A power MSEC holds pursuant to the Bylaws. (See Bylaws (Doc. 18-

1) at 30.) It is not evident to this court that Dr. Ivester or

Dr. Broaddus would have the authority to override MSEC’s

decision, particularly where the Bylaws state a decision to

revoke clinical privileges by MSEC is only “subject to reversal

by the Board of Directors through the Hearing and Appellate

Procedure set forth in Article VII.” (Bylaws (Doc. 18-1) at 30.)7

Regardless of whether Dr. Broaddus or Dr. Ivester could

reinstate Plaintiffs’ clinical privileges, this court finds

Plaintiffs’ claim is not ripe because the “controversy is not

final” and is “dependent on future uncertainties.” Charter Fed.

Sav. Bank, 976 F.2d at 208. The hearing process is ongoing, (see

Ivester Decl. (Doc. 18) ¶¶ 21–22), and the only way Plaintiffs’

privileges can be permanently revoked such that they have a

legally cognizable injury is through a final decision of the

7 Plaintiffs’ Response states: “Defendants seemingly argue

that all Board of Directors and MSEC members (more than 50

individuals) must be named in this suit to accomplish

reinstatement of clinical privileges. Plaintiffs request that

this Court allow leave to commence a suit against these

individuals.” (Pls.’ MTD Resp. (Doc. 22) at 10.) The question of

whether the injury in question would be traceable if all members

of MSEC and the Board of Directors were named in this suit is

not before the court and this court expresses no opinion on it.

However, to the extent Plaintiffs’ statement is a request to

amend, it fails to comply with the provisions of Local Rule 7.3

which governs motion practice and will be denied. See L.R.

7.3(a) (“Each motion shall be set out in a separate pleading.”);

see also L.R. 7.3(j) (“a motion . . . to amend the pleadings . .

. must state good cause therefor and cite any applicable rule,

statute, or other authority justifying the relief sought. These

motions must be accompanied by a proposed order.”)

Board of Directors following the Article VII Hearing and

Appellate Procedure, which has not yet occurred.8

b. Plaintiffs’ Liberty Interest in Their

Professional Reputations

Plaintiffs do allege an injury-in-fact for the alleged

damage to their professional reputations caused by Defendants’

disclosure to NPDB. Plaintiffs assert Defendants violated their

right to procedural due process under the Fourteenth Amendment

by reporting to the NPDB that their clinical privileges were

permanently revoked without first affording them a procedure by

which to challenge this reporting. (See Pls.’ MTD Resp.

(Doc. 22) at 19.) Unlike the actual revocation of Plaintiffs’

privileges, which has not been completed, the original NPDB

report reflected that their privileges had been permanently

revoked, (see Singh NPDB Report (Doc. 3-9) at 3; Nickeleit NPDB

Report (Doc. 3-10) at 3), and Plaintiffs argue they were not

afforded process before that was reported. Though Defendants

8 Plaintiffs also argue Individual Defendants have violated

their rights by refusing to disclose the identities of

complaining witnesses. (See Pls.’ MTD Resp. (Doc. 22) at 29.)

This court finds this claim is not ripe. Plaintiffs have

proffered no case law, and this court is aware of none, that

holds the identities of witnesses must be disclosed prior to a

temporary revocation of clinical privileges. To the extent those

witnesses’ identities may be necessary for Plaintiffs to

adequately defend their cases in their final revocation hearing,

that issue is not yet ripe as Plaintiffs’ clinical privileges

have not been permanently revoked.

appear to have modified the disclosure from permanent to

indefinite, (see NPDB Amendment Notice (Doc. 31) at 2), the

statements were still published to the NPDB without providing

Plaintiffs’ an opportunity to contest their accuracy.

The injury to Plaintiffs’ professional reputations is thus

not hypothetical, and it is sufficiently concrete for a federal

court to address. See Doe, 713 F.3d at 757 (holding the

plaintiff had demonstrated an injury where the defendant had

reclassified her as a sex offender and published that status to

a national registry without affording the plaintiff any

process).

Further, Plaintiffs can demonstrate traceability and

redressability. Plaintiffs allege “[t]he Defendants reported the

immediate termination of privileges to the [NPDB] . . . on March

16, 2022.” (Compl. (Doc. 1) ¶ 89.) Thus, Plaintiffs’

reputational injury is directly traceable to the Defendants who

reported to the NPDB. Although it is unclear which Individual

Defendants reported the revocation to the NPDB, (see Compl.

(Doc. 1) ¶ 102 (“Defendants, individually and collectively,

report[ed] to [the NPDB]”)), Defendants have not challenged that

the permanent revocation was reported. Because “the injury

complained of is the [NPDB disclosure] itself,” Plaintiffs

“meet[] the requirements of traceability and redressability,

because [they] have already been reclassified and [are] afforded

no procedure by which to challenge [their] reclassification.”

Doe, 713 F.3d at 757.

Additionally, Plaintiffs’ procedural due process claim as

to their liberty interest is ripe. Plaintiffs have already been

classified with the NPDB as having their privileges permanently

revoked and that classification has been publicized on the NPDB.

Accordingly, “the injury [they] allege[] has already occurred

and is not merely speculative.” Doe, 713 F.3d at 759.

In sum, Plaintiffs’ procedural due process claim as to

their property interest in their clinical privileges is not yet

ripe for judicial review, but their claim regarding their

liberty interest in their reputation is ripe.

3. Official Capacity Claims

Defendants also argue that the claims against the

Individual Defendants in their official capacities should be

dismissed because they fail to state a claim for prospective

relief from an ongoing violation. (Defs.’ MTD Br. (Doc. 17) at

14–16.) Plaintiffs’ contend a “due process violation is ongoing”

because they are “still licensed physicians and tenured

professors at UNC-SOM but cannot perform any clinical work. . .

.” (Pls.’ MTD Resp. (Doc. 22) at 25.) This court agrees with

Defendants that Plaintiffs have failed to state a claim for

prospective relief.

The Supreme Court has held “that neither a State nor its

officials acting in their official capacities are ‘persons’

under § 1983,” where the plaintiff seeks monetary damages. Will

v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989). Under

Will, the claim for monetary damages against the Individual

Defendants acting in their official capacities must be

dismissed.

But when a plaintiff seeks injunctive relief, then the

state official acting in an official capacity is a person under

§ 1983, Will, 491 U.S. at 71 n.10, and “official-capacity

actions for prospective relief are not treated as actions

against the State,” Kentucky v. Graham, 473 U.S. 159, 167 n.14

(1985) (citing Ex parte Young, 209 U.S. 123 (1908)). “Under Ex

parte Young, private citizens may sue state officials in their

official capacities in federal court to obtain prospective

relief from ongoing violations of federal law.” Allen v. Cooper,

895 F.3d 337, 354 (4th Cir. 2018). The plaintiff bears the

burden “to establish an ongoing violation of federal law to

qualify for relief under Ex parte Young.” Id. at 355. The Fourth

Circuit “has held that this exception ‘does not apply when the

alleged violation of federal law occurred entirely in the

past.’” Wicomico Nursing Home v. Padilla, 910 F.3d 739, 747 (4th

Cir. 2018) (quoting DeBauche v. Trani, 191 F.3d 499, 505 (4th

Cir. 1999)).

Put another way, the Ex parte Young exception applies if

“(1) the violation for which relief is sought is an ongoing one,

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

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

determining whether the doctrine of Ex parte Young avoids an

Eleventh Amendment bar to suit, a court need only conduct a

‘straightforward inquiry into whether [the] complaint alleges an

ongoing violation of federal law and seeks relief properly

characterized as prospective.” Verizon Md., Inc. v. Pub. Serv.

Comm’n of Md., 535 U.S. 635, 645 (2002) (quoting Idaho v. Couer

d’Alene Tribe of Ida., 521 U.S. 261, 296 (1977)).

Plaintiffs claim they “seek prospective relief against all

Defendants in the form of reinstatement and an injunction

against Defendants making further statements or taking further

action to injure their reputations.” (Compl. (Doc. 1) ¶ 120.)

Put another way, they seek prospective relief that would

(1) reverse the permanent revocation of their clinical

privileges and (2) prevent Defendants from making disclosures to

the NPDB. (See id.) However, neither of these arguments properly

state a claim for prospective relief.

The question of whether this court should reverse the

permanent revocation of Plaintiffs’ clinical privileges is not

ripe, as Plaintiffs’ clinical privileges have not been

permanently revoked. (See supra Section IV.B.2.a.) Additionally,

this court has previously addressed why Plaintiffs’ request that

Defendants be enjoined from further publication to the NPDB

fails under an Ex parte Young analysis. (See Mem. Op. and Order

(Doc. 36) at 23–26.) No new evidence or argument has been

presented to this court that would undermine its prior analysis.

This court will therefore restate why Plaintiffs have not made a

proper request for relief from an ongoing violation of federal

rights.9

Plaintiffs have alleged their procedural due process rights

were violated when Defendants reported to the NPDB that

Plaintiffs’ clinical privileges were permanently revoked. (See

Compl. (Doc. 1) ¶ 130.) However, following the hearing before

9 The following analysis is limited to UNC-Health employees

Dr. Ivester and Hadar. Defendants separately conceded “that

Defendants Voss, Hoar and Lineberry do not have sufficient

authority to reinstate Plaintiffs clinical privileges and do not

oppose the dismissal of suit against Defendants Voss, Hoar and

Lineberry in their official capacities.” (Pls.’ MTD Resp. (Doc.

22) at 27 n.12.) This leaves the claim against Dr. Broaddus

unresolved. However, as Dr. Broaddus is employed by UNC-SOM, not

UNC-Health, (see Compl. (Doc. 1) ¶ 2), there is no evidence he

has control over reporting to the NPDB and therefore the claim

of prospective relief to prevent future communications from

Dr. Broaddus to the NPDB cannot be maintained.

this court, during which UNC-Health Defendants’ counsel advised

this court that the communication to the NPDB was erroneous in

that it communicated that Plaintiffs’ privileges had been

permanently revoked when that had not occurred, UNC-Health

Defendants filed a Notice informing this court that “[o]n May

10, 2022, UNC Hospitals submitted a correction report to the

NPDB changing the entry in the ‘Length of Action’ field from

‘Permanent’ to ‘Indefinite.’” (NPDB Amendment Notice (Doc. 31)

at 3.)

Plaintiffs responded to the Notice, (see Pls.’ Resp. to

Notice (Doc. 32)), and argue that “Defendants’ change in ‘Length

of Action’ is insufficient to remedy the due process violation

that triggered this lawsuit,” (id. ¶ 1). Plaintiffs contend the

“use of the term ‘revocation’ conflicts with [Defendants’]

position during oral argument.” (Id. ¶ 3.) Additionally,

Plaintiffs take issue with the representation on the NPDB report

“that the alleged misconduct affected ‘clinical care.’” (Id. ¶

4.)

This court finds Plaintiffs’ argument unpersuasive.

Regardless of whether the status of Plaintiffs’ clinical

privileges is labeled a revocation or suspension, the status is

not permanent until the Board of Directors meets and makes a

final determination. (See Bylaws (Doc. 18-1) at 30–31.) Under

the Bylaws, only the Board of Directors can make a permanent

change to Plaintiffs’ clinical privileges. (Id.)

This court further finds that the fact the NPDB report

indicates Plaintiffs’ alleged conduct affected clinical care is

not “expressly refut[ed]” by Defendants’ HR investigation,

contrary to Plaintiffs’ argument. (See Pls.’ Resp. to Notice

(Doc. 32) ¶ 4.) For one, the term “clinical care” is broad and

by its ordinary meaning encompasses more than just patient care.

Dr. Ivester’s letters to Plaintiffs explaining MSEC’s

recommendation said that the HR Report and MSEC’s Ad Hoc

committee report “document patterns of unprofessional conduct

deemed to be detrimental to patient care and disruptive to the

care environment.” (See, e.g., Doc. 18-14 at 2 (emphasis

added).) More importantly, Plaintiffs have failed to explain why

it was inappropriate for MSEC to consider the allegations

related to patient care. Plaintiffs quibble with the semantics

of the report to the NPDB but have failed to explain how it

contains patently false information.

As a result of UNC-Health’s voluntary actions in amending

the notice to the NPDB, Plaintiffs’ liberty interest claim,

which was initially ripe, is now moot. Like the defendants in

Allen, UNC-Health Defendants have provided reasonable assurances

to this court that it will not communicate erroneous information

in the future to the NPDB. This court has considered whether the

voluntary cessation exception to mootness applies, and under

these circumstances, it does not appear to this court that the

exception applies. Having represented to this court that the

communication to the NPDB was an error when Plaintiffs’

privileges have not yet been permanently revoked, it is

difficult to conceive UNC-Health Defendants would repeat that

conduct in the future. See Allen, 895 F.3d at 355 (reasoning

that it was the plaintiffs’ burden to establish an ongoing

violation of federal law to qualify for relief under Ex parte

Young, and because the ongoing challenged actions had ended, the

plaintiffs could not sue the defendants in their official

capacities). As a result, Defendants’ motion to dismiss will be

granted as to the Individual Defendants.

4. Individual Capacity Claims

Plaintiffs assert the Individual Defendants are liable in

their individual capacities for permanently revoking Plaintiffs’

clinical privileges without a hearing and publishing erroneous

information harmful to Plaintiffs’ professional reputations

without providing Plaintiffs’ a pre-publication hearing. (Pls.’

MTD Resp. (Doc. 22) at 27–29.)

“Qualified immunity shields officials from civil liability

so long as their conduct does not violate clearly established

statutory or constitutional rights of which a reasonable person

would have known.” Allen, 895 F.3d at 456 (cleaned up).

A clearly established right is one that is

sufficiently clear that every reasonable official

would have understood that what he [or she] is doing

violates that right. In other words, existing

precedent must have placed the statutory or

constitutional question beyond debate. . . .

. . . .

. . . The Supreme Court has repeatedly told courts

. . . not to define clearly established law at a high

level of generality. Thus, we consider whether a right

is clearly established in light of the specific

context of the case, not as a broad general

proposition.

Adams v. Ferguson, 884 F.3d 219, 226–27 (4th Cir. 2018)

(quotation marks and citations omitted). The “qualified immunity

analysis typically involves two inquiries: (1) whether the

plaintiff has established the violation of a constitutional

right, and (2) whether that right was clearly established at the

time of the alleged violation.” Raub v. Campbell, 785 F.3d 876,

881 (4th Cir. 2015).

A clearly established right is one that is “sufficiently

clear [such] that every reasonable official would [have

understood] that what he is doing violates that right.” Reichle

v. Howards, 566 U.S. 658, 664 (2012) (cleaned up). Importantly,

the “clearly established” inquiry “must be undertaken in light

of the specific context of the case, not as a broad general

proposition.” Mullenix v. Luna, 577 U.S. 7, 12 (2015) (citation

and internal quotation marks omitted); see also Ashcroft v. al–

Kidd, 563 U.S. 731, 742 (2011) (stating that courts must not

“define clearly established law at a high level of generality”).

There need not be a case “directly on point” in order for an

official to know that his or her conduct violates a clearly

established right, “but existing precedent must have placed the

statutory or constitutional question beyond debate.” Crouse v.

Town of Moncks Corner, 848 F.3d 576, 583 (4th Cir. 2017)

(quoting al–Kidd, 563 U.S. at 741); see also Anderson v.

Creighton, 483 U.S. 635, 640 (1987) (“This is not to say that an

official action is protected by qualified immunity unless the

very action in question has previously been held unlawful, but

it is to say that in the light of pre-existing law the

unlawfulness must be apparent.” (citation omitted)).

a. Right to a Hearing Before Temporary

Revocation of Clinical Privileges

This court has already concluded that the revocation of

Plaintiffs’ clinical privileges is temporary and not permanent

pending a final decision by the Board of Directors. (See supra

Section IV.B.2.a.) Additionally, Defendants are entitled to

qualified immunity on this claim because Plaintiffs cannot

establish the temporary revocation of their clinical privileges

violates a clearly established constitutional right.

Defendants argue that, assuming Plaintiffs have established

a right to a hearing before temporary suspension of Plaintiffs’

clinical privileges, that right is not clearly established.

(Defs.’ MTD Br. (Doc. 17) at 24.) Defendants also contend they

“acted reasonably in following UNC-CH’s policies when reducing

Plaintiffs’ salaries and revoking their titles.” (Id. (citing

Mullenix, 577 U.S. at 11).) Plaintiffs, on the other hand, argue

the right to a hearing before terminating a physician’s hospital

privileges is a clearly established right such that Individual

Defendants are not immune from suit in their individual

capacities. (Pls.’ MTD Resp. (Doc. 22) at 28.)

Case law supports Defendants’ argument that Plaintiffs do

not have a procedural due process right in a hearing before

temporary suspension of their clinical privileges. In Moore v.

Williamsburg Regional Hospital, the plaintiff-doctor’s medical

privileges were immediately suspended based on allegations of

sexual abuse of a minor child. 560 F.3d 166, 169 (4th Cir.

2009). The plaintiff was provided a notice similar to the notice

provided to Plaintiffs in this case:

In a letter dated September 13, 2004, Juberg notified

plaintiff that his privileges were summarily suspended

pursuant to the hospital’s Medical Staff Bylaws

provisions for corrective action. Juberg explained

that “[b]ased upon serious allegations of sexual

misconduct of a minor child . . . the Medical Staff

and [WRH] believe that the best interest of patient

care and welfare is served by an immediate summary

suspension of your clinical staff privileges.” Juberg

also notified plaintiff that the MEC would review his

summary suspension that evening and invited him to

present his case, although he would not be allowed to

vote on the matter.

Id. The MEC voted to continue the plaintiff’s suspension and

“inform[ed] plaintiff of his right to have the decision reviewed

in a hearing with representation by counsel pursuant to Article

VIII of the hospital’s bylaws.” Id. While the plaintiff was

eventually provided with notice of the charges against him,

ample opportunity to present evidence, and the ability to call

and cross-examine witnesses before his privileges were

permanently revoked, he received minimal process before his

privileges were temporarily revoked — it appears he was merely

given a letter saying the decision had been made. See id. at

169, 180. The Fourth Circuit held that the plaintiff’s

procedural due process claim failed because the procedures

afford to the plaintiff “exceed the constitutional threshold

established by Matthews v. Eldridge, 424 U.S. 319 (1976).” Id.

at 180; see also Everett v. Franciscan Sisters Healthcare, Inc.,

882 F.2d 1383, 1387 (8th Cir. 1989) (“Case law supports summary

suspension without hearing when adequate standards exist in the

bylaws, those standards are met and a post suspension hearing is

afforded.”) (emphasis in original).

The facts of Moore resemble the facts of the instant case.

Like the doctor in Moore, Plaintiffs’ clinical privileges were

immediately suspended pending a formal hearing. (March 2022

Email to Nickeleit (Doc. 18-14); March 2022 Email to Singh (Doc.

18–16).) Plaintiffs have also elected to have hearings like the

plaintiff in Moore. (Docs. 18-25, 18-26.)

This court need not resolve whether Defendants’ temporary

suspension before a hearing on final revocation violates

procedural due process to resolve the issue of qualified

immunity. See Pearson v. Callahan, 555 U.S. 223, 231 (2009)

(“Qualified immunity is applicable unless the official’s conduct

violated a clearly established constitutional right.”) All that

must be determined is whether reasonable officials would have

understood beyond debate they were violating Plaintiffs’

procedural due process rights. Reichle, 566 U.S. at 664. In this

case, reasonable officials would not have understood beyond

debate that they were violating Plaintiffs’ procedural due

process rights in temporarily suspending their clinical

privileges because the Bylaws expressly allowed that to occur.

(Bylaws (Doc. 18-1) at 30.) Further, Fourth Circuit case law,

like Moore, indicates Plaintiffs do not have a “clearly

established” right in a pre-suspension hearing. Because

reasonable officials in Defendants’ position would not have

understood beyond debate that their actions violated Plaintiffs’

procedural due process rights, a clearly established right was

not violated. See Allen, 895 F.3d at 357 (holding that qualified

immunity prevented suing the defendants in their individual

capacities where it was not understood beyond debate that the

defendant’s publication of the material violated the plaintiff’s

rights under the Copyright Act).

b. Right to a Hearing Before Disseminating

Information to NPDB

Plaintiffs argue that it is clearly established that

disclosing information concerning their suspension without a

hearing violates the Due Process Clause. (Pls.’ MTD Resp.

(Doc. 22) at 27 (citing Cannon v. Village of Bald Head Island

N.C., 891 F.3d 489, 506 (4th Cir. 2018)).) This court disagrees.

When a person’s name, reputation, honor, or integrity is in

jeopardy because of action taken by the government, due process

is imperative. See Cannon, 891 F.3d at 501 (quoting Sciolino v.

City of Newport News, 480 F.3d 642, 646 (4th Cir. 2007)).

“Accordingly, as to public employees, a Fourteenth Amendment

liberty interest is implicated by public announcement of reasons

for an employee’s discharge.” Id. (internal quotation marks

omitted) (quoting Sciolino, 480 F.3d at 645–46).

However, where the announcement at issue is a disclosure to

the NPDB, courts have found that an employee is not deprived of

a constitutionally protected liberty interest where that report

harms their reputation. Randall v. United States, 30 F.3d 518,

522 (4th Cir. 1994); see also Brown v. Med. Coll. of Ohio, 79 F.

Supp. 2d 840, 846 (N.D. Ohio 1999) (“Every court to have

addressed the issue has held that a wrongful report to the NPDB

does not constitute a deprivation of a liberty or property

interest that is protected by federal law.”); Draghi v. Cnty. of

Cook, 991 F. Supp. 1055, 1059 (N.D. Ill. 1998) (holding that a

report to the NPDB concerning termination of the plaintiff’s

employment and hospital privileges did not constitute a

deprivation of a constitutionally protected right).

In Randall, the Fourth Circuit held that a former Army

physician was not deprived of a liberty interest when her former

employer made an adverse action report with the NPDB. 30 F.3d at

518. The court held this failed to “rise to the level of a

constitutional deprivation.” (Id.)

Again, this court need not resolve whether Defendants’

report to the NPDB violates procedural due process to resolve

the issue of qualified immunity. See Pearson v. Callahan, 555

U.S. 223, 231 (2009). All that must be determined is whether

reasonable officials would have understood beyond debate they

were violating Plaintiffs’ procedural due process rights by

making a report to the NPDB without first giving Plaintiffs an

opportunity to be heard regarding the disclosure. In this case,

reasonable officials would not have understood beyond debate

they were violating Plaintiffs’ procedural due process rights by

reporting adverse information to the NPDB because the Fourth

Circuit has held such reports do not implicate constitutionally

protected rights. See Randall, 30 F.3d 518. Because reasonable

officials in Defendants’ position would not have understood

beyond debate that their actions violated Plaintiffs’ procedural

due process rights, a clearly established right was not

violated.

Therefore, Defendants are entitled to qualified immunity on

Plaintiffs’ property interest claim in their clinical privileges

and their liberty interest claim in the report to the NPDB. The

claim against the Individual Defendants in their individual

capacities shall be dismissed.

V. CONCLUSION

This court finds that the University Defendants UNC-CH, UNC-

SOM, and UNC-Health are immune from suit based on sovereign

immunity, therefore the motion to dismiss should be granted as to

them. Additionally, the claims against the Individual Defendants

fail because, inter alia: (1) Plaintiffs’ lack a legally

cognizable interest in their salaries, (2) Plaintiffs’ claim

regarding the temporary suspension of their clinical privileges

is not ripe, (3) Plaintiffs’ fail to state a claim for

prospective relief regarding the temporary suspension of their

clinical privileges, and (3) Defendants are entitled to qualified

immunity for the suspension of Plaintiffs’ clinical privileges

and the reporting to the NPDB.

For the foregoing reasons,

IT IS THEREFORE ORDERED that Defendants’ Motion to Dismiss

Pursuant to Rule 12(b) (1), (Doc. 16), is GRANTED, and this action

is hereby DISMISSED WITHOUT PREJUDICE.

This the 2nd day of March, 2023.

Wnt. Golan

United States District J e

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