# SINGH v. UNIVERSITY OF NORTH CAROLINA AT CHAPEL HILL

> District Court, M.D. North Carolina · March 2, 2023

URL: https://www.frixlaw.com/law-library/cases/10653674

## Case

- **Court:** District Court, M.D. North Carolina
- **Decided:** March 2, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## How later opinions describe it (automated extraction)

- 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

## Opinion text

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10653674. Public record. Not legal advice.