Roberts v. Barnes

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

ALEXIS ROBERTS,

Plaintiff,

v. CIVIL ACTION NO. 1:22CV65

(KLEEH)

EMILY BARNES, LAURIE MARINO,

TARA HULSEY, CARRIE SHOWALTER,

and KARI SAND-JECKLIN,

in their individual

and official capacities,

Defendants.

MEMORANDUM OPINION AND ORDER GRANTING

MOTION TO DISMISS [ECF NO. 8]

On August 12, 2022, the plaintiff, Alexis Roberts

(“Roberts”), commenced this action alleging that she had been

disciplined and removed from West Virginia University’s Master of

Science in Nursing program without fair notice or appropriate

process [ECF No. 1]. She brings several claims against the

defendants, Emily Barnes, Laurie Marino, Tara Hulsey, Carrie

Showalter, and Kari Sand-Jecklin (collectively, “the Defendants”),

in their individual and official capacities. In particular, she

seeks reinstatement and monetary relief. On November 23, 2022,

the Defendants moved to dismiss Roberts’s complaint pursuant to

Federal Rule of Civil Procedure 12(b)(6) [ECF No. 8]. The Court

heard argument on May 18, 2023. For the reasons discussed on the

MEMORANDUM OPINION AND ORDER GRANTING

MOTION TO DISMISS [ECF NO. 8]

record and herein, the Court GRANTS the Defendants’ motion and

DISMISSES Roberts’s claims against them.

I. BACKGROUND

A. The Parties

Roberts is a licensed nurse who enrolled in West Virginia

University’s (“WVU”) Master of Science in Nursing program on the

Family Nurse Practitioner track in April 2020 [ECF No. 1 at ¶ 14].

Each of the defendants is affiliated with WVU or the West Virginia

University School Of Nursing (“WVUSON”). Emily Barnes (“Defendant

Barnes”) is an Associate Dean of the WVUSON [ECF No. 1 at ¶ 7].

Laurie Marino (“Defendant Marino”) is a WVUSON faculty member.

Id. at ¶ 8. Tara Hulsey (“Defendant Hulsey”) is the Dean of the

WVUSON. Id. at ¶ 10. Kari Sand-Jecklin (“Defendant Sand-Jecklin”)

is a WVU professor and a member of the WVUSON’s Committee for

Academic and Professional Standards. Id. at ¶ 11. Carrie

Showalter (“Defendant Showalter”) is WVU’s Executive Director for

Student Conduct. Id. at ¶ 12.

B. Factual Allegations

During the fall 2021 semester, Roberts enrolled in NSG 714:

Primary Care of Families 2, a course co-taught by Defendants Barnes

and Marino. Id. at ¶ 15. The purpose of this course was to

facilitate “knowledge and skills basic to the health maintenance,

diagnosis, treatment, evaluation, and revision of care of

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MOTION TO DISMISS [ECF NO. 8]

individuals as members of family units in the primary care

setting.” Id. at ¶ 16. The course syllabus noted that students

would be evaluated in several different ways, including exams and

two “Shadow Health” assessments. Id. at ¶¶ 17-19. Shadow Health

is a virtual reality simulation in which students practice

evaluating patients’ health complaints. Id. at ¶ 19. Students

had only one opportunity to complete the Shadow Health exams. Id.

Roberts alleges that, while completing the first Shadow

Health exam in October 2021, she experienced technical

difficulties which prevented her from hearing the simulated

patient’s heart and lung sounds. Id. at ¶¶ 23-25. Defendants

Barnes and Marino did not consider these technical issues in

grading the assessment. Id. at ¶ 26. Another student then advised

Roberts that “the audio deficiencies in the Shadow Health

assignments could be addressed through the use of Quizlet.” Id.

at ¶ 27. Roberts again experienced technical difficulties during

the second Shadow Health exam in November 2021 and “used Quizlet

to help overcome the experienced audio deficiencies.” Id. at ¶ 31.

Thereafter, on November 22, 2021, Roberts and Defendant

Barnes met via videoconference to discuss her second Shadow Health

exam. Id. at ¶ 34. During this meeting, Roberts reported that

she learned she could use Quizlet to complete the exam from another

student. Id. at ¶ 36. Defendant Barnes reported Roberts for

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MOTION TO DISMISS [ECF NO. 8]

academic misconduct for using an unauthorized external resource.

Id. at ¶¶ 35, 41.

Although the syllabus explicitly stated that course exams

were to be taken “close book/closed note” and using a lockdown

browser, it contained no similar warning about the Shadow Health

exams. Id. at ¶¶ 18, 21. Neither of the instructors stated that

external resources could not be used to complete the Shadow Health

exams or that “the use of Quizlet could in any way be considered

misconduct or use of unauthorized resources.” Id. at ¶ 21, 28.

On December 3, 2021, Roberts met with Justine Burnett,1 WVU’s

Assistant Director of the Office of Academic Integrity and Student

Conduct, to discuss the academic misconduct charge that Defendant

Barnes had made against her. Id. at ¶¶ 9, 42. Roberts reported

that she learned of Quizlet through another student. Id. at ¶ 43.

Burnette informed Roberts that Defendant Barnes had requested that

she receive a failing grade for NSG 714. Id. at ¶ 45. Shortly

thereafter, Burnett issued a notice letter to Roberts indicating

that she had been found responsible for academic misconduct and

would receive a failing grade for the second Shadow Health exam

and for the course. Id. at ¶ 46.

1 Roberts initially named Burnett as a defendant in this action but voluntarily

dismissed all claims against her on December 28, 2022 [ECF No. 15].

MEMORANDUM OPINION AND ORDER GRANTING

MOTION TO DISMISS [ECF NO. 8]

Roberts appealed the decision to Defendant Hulsey, the Dean

of the WVUSON. Id. at ¶ 48. She asserted that while other students

had also used Quizlet, she was the only student being punished.

Id. at ¶ 51. She also objected to Burnette’s insinuation that

Roberts had refused to provide information about the other student

using Quizlet. Id. at ¶¶ 48-51. She asserted that she had

provided this information, but Burnette had failed to investigate.

Id.

On December 22, 2022, the WVUSON notified Roberts that she

was being dismissed from the MSN program due to her failing grade

in NSG 714. Id. at ¶ 52. It also referred Roberts to the three-

level appeal process established by the MSN Student Handbook. Id.

at ¶ 53. Roberts initiated an appeal of her dismissal and the

WVUSON allowed her to remain enrolled while she pursued her appeal.

Id. at ¶ 60.

Defendant Sand-Jecklin, on behalf of the WVUSON Committee for

Academic and Professional Standards, denied Roberts’s Level 1

appeal on January 13, 2022. Id. at ¶ 54. On January 24, 2022,

Defendant Hulsey denied Roberts’s Level 2 appeal and the WVUSON

removed her from the MSN program. Id. at ¶ 55. Three days later,

the WVUSON sent an email to all MSN students stating that the

“unauthorized use of resources, such as Quizlet (or similar tools),

MEMORANDUM OPINION AND ORDER GRANTING

MOTION TO DISMISS [ECF NO. 8]

for assignments or tests is considered academic dishonesty.” Id.

at ¶ 64.

Roberts filed a Level 3 appeal with Richard Thomas, Associate

Provost for the MSN program, who referred the matter to the Office

of Student Conduct for an evidentiary hearing. Id. at ¶¶ 57-58.

She alleges that this process did not provide a meaningful review

of her dismissal and that the evidentiary hearing failed to

consider the fact that she did not have prior notice that Quizlet

was an unauthorized resource for the Shadow Health exams and that

the WVUSON failed to sanction any other student for the same

conduct. Id. at ¶¶ 58-59.

Based on these allegations, Roberts asserts five causes of

action. In Count One, Roberts seeks a declaratory judgment finding

the applicable policies unconstitutionally vague. Id. at ¶¶ 94-

107. In Counts Two and Four, she alleges that the Defendants

violated her right to procedural due process and 42 U.S.C. § 1983,

in their official and individual capacities. Id. at ¶¶ 108-114,

124-30. In Counts Three and Five, she alleges that the Defendants

violated her right to equal protection under the law and 42 U.S.C.

§ 1983, in their official and individual capacities. Id. at

¶¶ 115-23, 131-39.

Roberts alleges that she has suffered economic loss,

diminished earning capacity, lost career and business

MEMORANDUM OPINION AND ORDER GRANTING

MOTION TO DISMISS [ECF NO. 8]

opportunities, reputational harm, mental and emotional damages,

and litigation expenses. Id. at ¶ 112. She seeks several forms

of relief, including (1) a declaration that the WVU Policy on

Student Academic Integrity as applied violates federal due process

protections (Count One); (2) injunctive relief – reinstatement,

prohibition of further disciplinary action or retaliation related

to this incident, and prevention of reporting to outside parties

(Counts Two and Three); and (3) monetary relief – nominal,

compensatory, and punitive damages (Counts Four and Five).

II. DISCUSSION

On November 23, 2022, the Defendants moved to dismiss

Roberts’s complaint pursuant to Federal Rule of Civil Procedure

12(b)(6) [ECF No. 8]. They contend that (1) Roberts has failed to

state a claim upon which relief may be granted, (2) they are

entitled to qualified immunity on claims against them in their

individual capacities, (3) they are immune from claims for monetary

damages in their official capacities, and (4) Roberts cannot

collect punitive damages because she failed to allege that the

Defendants acted maliciously.

The Defendants attached six exhibits to their motion to

dismiss. The facts established by these exhibits contradict

several of the allegations in Roberts’s complaint and show that

Roberts received additional process that she did not describe.

MEMORANDUM OPINION AND ORDER GRANTING

MOTION TO DISMISS [ECF NO. 8]

Before addressing the merits of the motion to dismiss, the Court

must determine which, if any, of these exhibits it can consider in

ruling on the Defendants’ motion.

A. Consideration of the Defendants’ Exhibits

According to the Defendants, the Court can consider all of

their supporting exhibits because Roberts had actual notice of

each and relied upon each in framing her complaint [ECF No. 17 at

2-3]. Roberts contends that the Court should not consider any of

the supporting exhibits because none carries independent legal

significance or gives rise to her claims [ECF No. 13 at 8-9].

Generally, when a defendant moves to dismiss under Rule

12(b)(6), courts are limited to considering the sufficiency of

allegations set forth in the complaint and the “documents attached

or incorporated into the complaint.” E.I. du Pont de Nemours & Co.

v. Kolon Indus., Inc., 637 F.3d 435, 448 (4th Cir. 2011). If, on

a motion under Rule 12(b)(6) . . ., matters outside the pleadings

are presented to and not excluded by the court, the motion must be

treated as one for summary judgment under Rule 56. Nevertheless,

courts may consider documents attached to a motion to dismiss

without converting it to a motion for summary judgment if the

documents are “integral to and explicitly relied on in the

complaint,” and “the plaintiffs do not challenge [the documents’]

MEMORANDUM OPINION AND ORDER GRANTING

MOTION TO DISMISS [ECF NO. 8]

authenticity.” Zak v. Chelsea Therapeutics Intern., Ltd., 780

F.3d 597, 606-07 (4th Cir. 2015).

Upon careful review, the Court concludes that it properly can

consider each of the Defendants’ supporting exhibits without

converting their motion to dismiss into one for summary judgment.

i. The Defendants’ exhibits are integral to the complaint.

A document is “integral” to a complaint if it is quoted,

relied upon, or incorporated by reference in the complaint. Gasner

v. Cnty. of Dinwiddie, 162 F.R.D. 280, 282 (E.D. Va. 1995). An

integral document also is “central or integral to the claim in the

sense that its very existence, and not the mere information it

contains, gives rise to the legal rights asserted.” Johnson v. W.

Va. Univ. Bd. of Governors, 2022 WL 908496, at *5 (S.D.W. Va. Mar.

28, 2022); see also Walker v. S.W.I.F.T. SCRL, 517 F. Supp. 2d

801, 806 (E.D. Va. 2007). The Defendants’ exhibits meet this

standard because Roberts’s claims arise out of their supporting

documents and she quoted, relied upon, or incorporated by reference

each in the complaint.

1. Exhibit A

Exhibit A is a video recording of the meeting between Roberts

and Defendant Barnes on November 22, 2021 [ECF No. 9-1]. In her

complaint, Roberts explicitly references this meeting and alleges

MEMORANDUM OPINION AND ORDER GRANTING

MOTION TO DISMISS [ECF NO. 8]

that she received inadequate process and unequal treatment during

and after. Roberts alleges that, during this meeting, she was

accused of academic misconduct by Defendant Barnes and reported

similar misconduct of other students to Defendant Barnes, who

failed to follow up investigate. Further, she contends that it

was Defendant Barnes who determined that she should receive a

failing grade in NSG 714 and that no other individual in the

student conduct process could override her decision. Accordingly,

Exhibit A is integral to Roberts’s complaint and is undoubtedly

relevant to her claims. The fact that it is a video does not alter

the Court’s analysis. See Zsigray v. Cnty. Comm’n of Lewis Cnty.,

W. Va., 709 F. App’x 178, 179 (4th Cir. 2018).

Notably, as demonstrated by Exhibit A, Roberts made several

statements and admissions during the November 22nd-meeting that

directly contradict her allegations in the complaint. For example,

Roberts alleges that she used Quizlet only to compensate for audio

issues which she had previously brought to her instructors’

attention and that she did not have prior notice, based on the

applicable policies and syllabus, that using Quizlet in this manner

would be considered academic dishonesty. But, during the meeting,

Roberts admitted that she used Quizlet to cheat on the second

Shadow Health exam. Defendant Barnes prompted Roberts to explain

why her answers were nearly identical to the model answers.

MEMORANDUM OPINION AND ORDER GRANTING

MOTION TO DISMISS [ECF NO. 8]

Roberts responded that, after another student told her that the

exam questions could be found on Quizlet, she located them and

copied and pasted the answers into her assessment, changing a few

statements into her own words. She did not mention experiencing

any audio issues on the first or second Shadow Health exams.

Instead, she admitted that using Quizlet had been wrong but that

she had done so because she needed to pass the exam in a single

attempt. Specifically, Roberts stated:

I know it’s definitely not something that I should have

been doing but I think it was just the one attempt made

me nervous. I did try and change somethings. . . .

. . .

I’m very sorry. It’s definitely something that was my

fault, so I take full responsibility for it. But I don’t

cheat on any other assignments, it’s just, it was the

one attempt that made me nervous, I guess.

[ECF No. 9-1]. Thus, not only is Exhibit A integral to Roberts’s

complaint but her admissions therein are also dispositive of at

least one of her claims.

2. Exhibits B and C

Exhibit B is a letter to Roberts from the WVU Office of

Student Conduct dated May 24, 2022, titled “Notice of Outcome –

Determination of Responsibility” [ECF No. 9-2]. Exhibit C is a

second letter to Roberts from the WVU Office of Student Conduct

MEMORANDUM OPINION AND ORDER GRANTING

MOTION TO DISMISS [ECF NO. 8]

dated June 13, 2022, titled “Notice of Sanctions” [ECF No. 9-3].

Both are integral to Roberts’s complaint.

Roberts alleges that the provost referred her appeal to the

Office of Student Conduct for an evidentiary hearing and that this

evidentiary hearing failed to provide adequate process and a

meaningful review of the allegations against her. Id. at ¶¶ 57-

59. Roberts fails to explain, however, that she chose not to

participate in the evidentiary hearing. She also fails to include

that a neutral adjudicator found her responsible for cheating after

conducting two evidentiary hearings. Exhibit B is a letter from

the neutral adjudicator following the first evidentiary hearing,

outlining how the allegations against Roberts proceeded through

the WVUSON and finding her responsible for violating the WVU Policy

on Student Academic Integrity. It also notifies Roberts of a

second hearing on sanctions and gives her an opportunity to submit

evidence for consideration. Exhibit C is a letter from the neutral

adjudicator following the second hearing, finding the previously

imposed sanctions - a failing grade in NSG 714 and dismissal from

the MSN program – appropriate in light of Roberts’s misconduct.

Thus, Exhibits B and C describe the process Roberts received

surrounding her dismissal.

Roberts attacks the process afforded to her during these

evidentiary hearings while simultaneously arguing that the Court

MEMORANDUM OPINION AND ORDER GRANTING

MOTION TO DISMISS [ECF NO. 8]

cannot consider the record from those hearings. She cannot have

it both ways and selectively describe the process she received.

Further, Exhibits B and C represent WVU’s final decision to dismiss

her from the MSN program and, in seeking reinstatement, she asks

the Court to order the Defendants to rescind these exhibits. They

are clearly integral to her complaint.

3. Exhibits D and E

Exhibit D is a copy of the WVU Policy on Student Academic

Integrity [ECF No. 9-4]. Exhibit E is a copy of the MSN Student

Handbook for the 2021-2022 academic year [ECF No. 9-5]. All of

Roberts’s claims turn on the Court’s interpretation of these

policies. She asks the Court to enter a declaratory judgment

finding the policies unconstitutionally vague. She contends that

the policies deprive her of procedural due process because they

failed to adequately define “cheating” and notify her that using

Quizlet to complete the Shadow Health exam would be considered

cheating. She alleges that the Defendants failed to fulfill their

obligations under these policies and applied these policies to her

unequally. Exhibits D and E therefore are integral to Roberts’s

complaint. It is inappropriate for Roberts to seek relief from

these policies, and selectively quote these policies, while asking

the Court not to consider the policies themselves.

MEMORANDUM OPINION AND ORDER GRANTING

MOTION TO DISMISS [ECF NO. 8]

4. Exhibit F

Finally, Exhibit F is a copy of the course syllabus for NSG

714 for the Fall 2021 semester [ECF No. 9-6]. Again, Roberts’s

claims arise out of her violation of the syllabus. She cites to

and characterizes the syllabus throughout her complaint, arguing

that it did not provide sufficient notice regarding the

unauthorized use of external resources on the second Shadow Health

exam. It is therefore integral to and explicitly relied on in

Roberts’s complaint.

ii. Roberts raises no credible challenge to the authenticity

of the Defendants’ exhibits.

The court must also consider whether Roberts can, in good

faith, challenge the documents’ authenticity. Zak, 780 F.3d at

606-07. Federal Rule of Evidence 901 requires that a proponent of

evidence produce sufficient evidence to support a finding that the

evidence is what the proponent claims it to be. This is a light

burden. See United States v. Summers, 666 F.3d 192, 201 (4th Cir.

2011) (“The district court’s role is merely to act as a gatekeeper

for the jury, and the proponent of the evidence need only make a

prima facie showing of its authenticity.”) (citation omitted).

The Court finds that the threshold burden was satisfied here.

Although Roberts would not stipulate to the authenticity of

the Defendants’ exhibits, she could not articulate any credible

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MOTION TO DISMISS [ECF NO. 8]

challenge. A litigant must have a good faith basis for an

authenticity objection; they “cannot challenge or deny the

authenticity of a written agreement that [she] knows to be

authentic.” Six v. Generations Fed. Credit Union, 891 F.3d 508,

519 (4th Cir. 2018). Roberts does not deny that she participated

in the meeting depicted in Exhibit A. Nor does she contend that

Exhibits B and C are not the letters she received following the

student conduct evidentiary hearings or that Exhibits D, E, and F

were the policies in place during the Fall 2021 semester.

Accordingly, there is no good faith basis for an authenticity

objection.

Moreover, “[w]here plaintiff has actual notice of all the

information in the movant’s papers and has relied upon these

documents in framing the complaint, the necessity of translating

a Rule 12(b)(6) motion into one under Rule 56 is largely

dissipated.” Jackson v. W. Va. Univ. Hosps., Inc., 2011 WL

1485991, at *5 (N.D.W. Va. Apr. 19, 2011) (quoting Cortec Indus.,

Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir. 1991)); see

also Am. Chiropractic Ass’n v. Trigon Healthcare, Inc., 367 F.3d

212, 234 (4th Cir. 2004) (quoting In re Burlington Coat Factory

Secs. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997)). Particularly,

when plaintiffs fail “to include matters of which as pleaders they

had notice and which were integral to their claim,” such a failure

MEMORANDUM OPINION AND ORDER GRANTING

MOTION TO DISMISS [ECF NO. 8]

“may not serve as a means of forestalling the district court’s

decision on the motion.” Lucas v. United Parcel Serv., Inc., 2022

WL 4533787, at *4 (D.S.C. Sept. 2, 2022). If a court were to

forego consideration of a relied upon but not explicitly included

document, “a plaintiff with a legally deficient claim could survive

a motion to dismiss simply by failing to attach a dispositive

document on which it relied.” Id. (citing Pension Ben. Guar. Corp.

v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993)).

Here, Roberts had notice of each document attached to the

Defendants’ motion to dismiss and, so, the need to convert their

motion into one for summary judgement is dissipated. This is

especially so given that Roberts’s claims are premised on these

documents. She cannot avoid dismissal by failing to attach

exhibits that are central to her claims and that she had notice of

and relied upon in framing her complaint.

For the reasons discussed, the Court will consider all of the

Defendants’ supporting exhibits without converting the motion to

dismiss into one for summary judgment.

B. The Defendants’ Motion to Dismiss

The Court next turns to address the merits of the Defendants’

motion to dismiss.

MEMORANDUM OPINION AND ORDER GRANTING

MOTION TO DISMISS [ECF NO. 8]

i. Roberts has failed to state a claim for the violation of

her procedural due process rights.

The Defendants first assert that Roberts has failed to

sufficiently allege that her dismissal from the MSN program

violated her constitutional right to procedural due process.

“The Fourteenth Amendment forbids the State to deprive any

person of life, liberty, or property without due process of law.”

Goss v. Lopez, 419 U.S. 565, 572 (1975). Property interests are

created and defined by state law. Bd. of Regents of State Colls.

v. Roth, 408 U.S. 564, 577 (1972). Under West Virginia law,

procedural due process protects students “against summary

expulsion from a State-supported university, since expulsion

deprives [her] of protected interests in property and liberty.”

Syl. Pt. 1, North v. W. Va. Bd. of Regents, 233 S.E.2d 411, 413

(W. Va. 1977).

[Her] interest in obtaining a higher education with its

concomitant economic opportunities, coupled with the

obvious monetary expenditure in attaining such

education, gives rise to a sufficient property interest

to require procedural due process on a removal. From a

liberty standard there can be little question that an

expulsion from college damages the student's good name,

reputation and integrity, even more so than an expulsion

from high school. The higher the level of achievement,

the greater the loss on removal.

Id. at 415.

Roberts contends she suffered two distinct deprivations of

due process: (1) that she was dismissed from the MSN program for

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MOTION TO DISMISS [ECF NO. 8]

violating unconstitutionally vague policies, and (2) that the

Defendants failed to provide a meaningful opportunity for her to

be heard and to review the decisions leading to her dismissal.

The Defendants argue that neither theory supports Roberts’s due

process claims.

1. The WVUSON policies are not unconstitutionally

vague.

It is Roberts’s position that WVU’s academic integrity

policies are unconstitutionally vague because they failed to put

her on notice that using Quizlet to complete the Shadow Health

exams would be considered academic dishonesty. The relevant

policies are the WVU Policy on Student Academic Integrity, the MSN

Student Handbook, and the NSG 714 syllabus.

The WVU Policy on Student Academic Integrity § 2.1 provides

as follows:

2.1 Academic Dishonesty: means Plagiarism; Cheating;

Fabrication or Falsification; Other Prohibited Academic

Conduct; and Facilitation as it relates to academic or

educational matters.

2.1.2 Cheating: means reliance on unauthorized

resources, in connection with examinations or Academic

Assignments. It includes but is not limited to: (a)

collaboration with peers beyond that authorized by the

instructor in the completion of an examination or

Academic Assignment; (b) cheating on an examination or

Academic Assignment, by either (i) utilizing

unauthorized physical or technological resources (e.g.,

cheat sheets, online resources), or (ii) receiving

unauthorized personal assistance (e.g., copying from

another student); or (c) the acquisition or use, without

MEMORANDUM OPINION AND ORDER GRANTING

MOTION TO DISMISS [ECF NO. 8]

permission, of examinations or other academic material

belonging to a member of the University faculty or staff.

[ECF No. 9-4 at 3-4]. Section 6 of this policy outlines the

disciplinary process and notes that dismissal is a potential

sanction for academic dishonesty. Id. at 6-8.

Likewise, the MSN Student Handbook notifies students that:

All forms of academic dishonesty are prohibited.

Nursing students are expected to act with integrity and

honesty in all didactic and clinical settings,

regardless of the nature of the assignment or activity

or percentage weight toward course grade. For example,

the SON places as high an expectation on academic

integrity for quizzes and short discussion board writing

submissions as it does for exams or end-of-semester

papers.

[ECF No. 9-5 at 33 (emphasis in original)]. It references the WVU

Policy on Student Academic Integrity and provides examples of

academic dishonesty including, but not limited to:

•

engaging in any act which may give an unearned advantage in

a student’s evaluation or performance,

•

accessing potential test questions by any means or

discussing tested or evaluated materials with others, and

•

using unauthorized resources to complete assigned work.

Id. The MSN Student Handbook emphasizes that students are

“strongly encouraged to ask a faculty member or administrator if

they are unsure if a practice would be considered academic

dishonesty prior to engaging in that practice.” Id.

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MOTION TO DISMISS [ECF NO. 8]

Finally, the NSG 714 syllabus contains its own statement on

academic integrity [ECF No. 9-6 at 12-14]. It also cites the WVU

Policy on Student Academic Integrity and restates most of the MSN

Student Handbook policy on academic integrity, including the

examples of academic dishonesty. Id. But, as noted by Roberts,

the syllabus specifically indicates that the course exams are to

be “closed-book/closed note” and taken in a lockdown browser but

does not contain the same directive for the two Shadow Health

exams. Id. at 8.

Roberts alleges that the WVU Policy on Student Academic

Integrity is unconstitutionally vague because, although it forbids

the use of “unauthorized physical or technological resources,” it

does specify which resources are unauthorized [ECF No. 1 at ¶¶ 82-

83]. She further alleges that the NSG 714 syllabus does not

indicate that Quizlet was an unauthorized resource for the second

Shadow Health exam. Id. at ¶¶ 84-85. The Defendants contend that

this claim must fail because the applicable policies “make clear

that a student should not use any resource that an instructor has

not advised may be used to their advantage; thus, Plaintiff’s

conduct was prohibited.” [ECF No. 9 at 15].

The void for vagueness doctrine is rooted in the due process

clause of the Fifth and Fourteenth Amendments. Manning v. Caldwell

for City of Roanoke, 930 F.3d 264, 272 (4th Cir. 2019). The

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MOTION TO DISMISS [ECF NO. 8]

primary issue raised by the doctrine is whether the particular

statute is sufficiently definite to give fair notice to one who

would avoid its sanctions. Williams v. W. Va. Univ. Bd. of

Governors, 782 F. Supp. 2d 219, 226 (N.D.W. Va. 2011), amended in

part, 2011 WL 13308737 (N.D.W. Va. May 19, 2011).

“To survive a vagueness challenge, a statute must give a

person of ordinary intelligence adequate notice of what conduct is

prohibited and must include sufficient standards to prevent

arbitrary and discriminatory enforcement.” Manning, 930 F.3d at

272. The degree of vagueness tolerated depends in part on the

type of statute. Id. “Given the school’s need to be able to

impose disciplinary sanctions for a wide range of unanticipated

conduct disruptive of the educational process, the school

disciplinary rules need not be as detailed as a criminal code which

imposes criminal sanctions.” Bethel Sch. Dist. No. 403 v. Fraser,

478 U.S. 675, 686 (1986). Courts in this district have found that

the disciplinary rules of a state-supported university violate the

due process clause only if they are “so vague that [ persons] of

common intelligence must necessarily guess at its meaning and

differ as to its application.” Williams, 782 F. Supp. 2d at 226.

Here, the Court finds that the applicable academic integrity

policies are not unconstitutionally vague because they provide

sufficient guidance to WVU students and officials as to what

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MOTION TO DISMISS [ECF NO. 8]

constitutes cheating. The WVU Policy on Student Academic Integrity

clearly states that cheating includes using any unauthorized

resource, i.e., any resource that the instructor has not permitted

[ECF No. 9-4 at 3-4]. The MSN Student Handbook and the NSG 714

syllabus further define cheating by providing specific examples,

including gaining any unearned advantage, using any resource that

has not been authorized, accessing exam questions, and committing

plagiarism [ECF Nos. 9-5 at 33; 9-6 at 12-14]. These policies

also specify that if a student is unsure whether they can use a

particular resource, they should consult a faculty member before

using that resource. Id.

As applied to Roberts, the WVU academic integrity policies

are more than clear that accessing exam questions on Quizlet, a

resource not authorized by her instructor, and passing them off as

her own would be considered cheating. And if, as she contends,

Roberts was unsure whether the second Shadow Health exam was to be

completed “closed book/closed note” she bore the burden of seeking

clarification prior to using external resources.

Despite her contentions otherwise, schools are not required

to preemptively list every possible mechanism for cheating to avoid

a vagueness challenge. Schools must be given wide latitude to

address a variety of conduct and respond to emerging trends; thus,

their policies need only provide fair notice to students who would

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MOTION TO DISMISS [ECF NO. 8]

want to avoid sanctions. Roberts’s claims here must fail because

the relevant policies meet this standard. They are sufficiently

definite to advise students of common intelligence that they cannot

use resources that their instructors have not authorized.

The Court reaches this conclusion despite the fact that the

WVUSON sent a “formal warning” to students in February 2022 stating

it considered Quizlet to be an unauthorized resource. That,

through Roberts’s misconduct, the WVUSON learned that a specific

resource could be used to cheat on the Shadow Health assignments

and warned students against using this resource in the future,

does not change the fact that the WVUSON was not required to

preemptively produce a laundry list of unauthorized resources.

Importantly, Roberts’s admissions during her November 22nd-

meeting with Defendant Barnes demonstrate that the WVU academic

integrity policies provided sufficient notice to students of

common intelligence that using external resources on the Shadow

Health exams would be considered cheating and refute the

allegations in her complaint. Because she was worried that she

would not pass the Shadow Health exam on her first attempt, she

copied the model answers from Quizlet. Her instructor did not

authorize the use of any external resources and so Roberts’s use

of Quizlet was prohibited. When first confronted about her

conduct, she admitted to cheating and to knowing that her use of

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MOTION TO DISMISS [ECF NO. 8]

Quizlet had been wrong. Thus, the applicable policies put her on

actual notice that copying and pasting answers from a third-party

website into her graded assessment would be considered cheating.

But now, after learning the consequences of her actions, she

contends that she only used Quizlet to compensate for audio issues

and that she did not know that using the model answers from an

external resource would be considered cheating.

For these reasons, Roberts has failed to state a claim for a

violation of her right to procedural due process and the Court

grants the Defendants’ motion to dismiss on this issue.

2. Roberts has failed to allege that she was denied

meaningful process.

As to Roberts’s second theory, that she was not afforded a

meaningful review of the allegations against her and the decisions

leading to her dismissal, the Court must consider whether she

received the due process protections required by state law:

Before a student can be permanently expelled from a

State-supported university, [she] is entitled to the

following due process rights: a formal written notice of

charges; sufficient opportunity to prepare to rebut the

charges; opportunity to have retained counsel at any

hearings on the charges, to confront [her] accusers, and

to present evidence on [her] own behalf; an unbiased

hearing tribunal; and an adequate record of the

proceedings.

Syl. Pt. 3, North, 233 S.E.2d at 413.

MEMORANDUM OPINION AND ORDER GRANTING

MOTION TO DISMISS [ECF NO. 8]

Roberts has failed to allege any violation of these

protections. According to the complaint, the WVUSON promptly

notified Roberts of the academic integrity charges against her.

It also provided an opportunity for her to respond to these charges

during a meeting with Defendant Burnett, the Assistant Director of

the Office of Academic Integrity, in December 2021. Shortly

thereafter, she was informed that she had been found responsible

for cheating; that she would receive a failing grade on the second

Shadow Health exam and a failing grade in NSG 714; and that she

could appeal this decision.

The WVUSON then notified Roberts, via letter, that her failing

grade in NSG 714 triggered her dismissal from the MSN program.

Again, she was given an opportunity to appeal, an option of which

she took advantage. Her Level 3 appeal resulted in an evidentiary

hearing before a neutral adjudicator.

The Defendants’ supporting exhibits also show that Roberts

was informed of the hearing and given sufficient opportunity to

prepare a defense and retain counsel. She was provided a copy of

the evidence to be presented against her in advance of the hearing.

Nevertheless, Roberts and her counsel chose not to participate in

the evidentiary hearing.

During the hearing on May 11, 2022, a neutral adjudicator

heard the testimony of Defendant Barnes and reviewed evidence

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MOTION TO DISMISS [ECF NO. 8]

submitted by the Defendants, including the model answers to the

Shadow Health exam, Roberts’s answers to the Shadow Health exam,

the NSG 714 syllabus, the recording of the November 22nd-meeting

between Roberts and Defendant Barnes, and the letters denying

Roberts’s various appeals. After weighing this evidence, the

neutral adjudicator found that, based upon the preponderance of

the evidence, “[Roberts’s] admitted use of Quizlet violated

Section 2.1.2 and 2.1.2(b)(i) of the WVU Policy on Student Academic

Integrity by engaging in acts of academic dishonesty and cheating

on an examination or Academic Assignment, by utilizing

unauthorized physical or technological resources (e.g., cheat

sheets, online resources)” [ECF No. 9-2 at 10].

Roberts received notice of this outcome and of a second

evidentiary hearing on sanctions. Again, Roberts and her counsel

chose not to submit any evidence or participate in the sanctions

hearing. At this hearing, the neutral adjudicator found failure

of NSG 714 and dismissal from the MSN program to be the appropriate

sanctions for Roberts’s misconduct.

Given this history, Roberts’s has failed to allege that she

was deprived the procedural due process required by North. She

was permanently dismissed from the MSN program only after having

received formal written notice of the charges against her; having

sufficient opportunity to prepare and retain counsel; and having

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MOTION TO DISMISS [ECF NO. 8]

an opportunity to confront her accuser, present evidence, and

create a record before an unbiased hearing tribunal. Despite this

process, she maintains that the evidentiary hearing did not provide

meaningful review.

Roberts first contends that none of the decision makers in

the appellate process had the authority to overturn Defendant

Barnes’s decision to impose sanctions in the form of a failing

grade on the second Shadow Health exam and in NSG 714. The record

from the evidentiary hearings, however, demonstrates that the

neutral adjudicator had the authority to determine, independent of

any recommendation from Defendant Barnes, whether Roberts was

responsible for cheating and, if so, to determine the appropriate

sanction.

Roberts also takes issue with the fact that the neutral

adjudicator did not consider certain facts, including that she did

not have notice that using Quizlet was prohibited and that other

students who used Quizlet were not disciplined. But Roberts had

an opportunity to participate in the evidentiary hearing and

present these facts and other evidence. That she chose not to do

so does not result a deprivation of due process.2

2 Roberts further contends that she did not have an opportunity to challenge

the Defendants’ assertions that she would not disclose the identity of any other

student who used Quizlet on the second Shadow Health exam. Again, she had an

opportunity to raise this issue. Nevertheless, that is not a reason for

dismissal cited by the neutral adjudicator.

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MOTION TO DISMISS [ECF NO. 8]

Finally, Roberts asserts that because she was unenrolled from

the Spring 2022 semester at the conclusion of her Level 2 appeal,

the evidentiary hearing was a post-deprivation proceeding which

cannot remedy a due process violation (citing Clarke v. W. Va. Bd.

of Regents, 279 S.E.2d 169, 181 n.6 (W. Va. 1981) (holding that

generally, “due process requires that the government accord

individuals a pre-deprivation review.”)). Roberts fails to

mention, however, that she was permitted to remain enrolled in the

MSN program while she exhausted her appellate rights and that a

final unappealable decision was not rendered until June 2022, after

two evidentiary hearings.

For these reasons, Roberts has failed to allege that the

Defendants denied her a meaningful review of the charges against

her and the Court grants the Defendants’ motion on this issue.

3. Summary

In sum, the WVU academic integrity policies are not

unconstitutionally vague and put Roberts on actual notice that

copying and pasting model answers from Quizlet to complete her

second Shadow Health exam would be considered cheating. Roberts

also received adequate process related to the academic dishonesty

charges against her. Because Roberts has failed to state a claim

for a deprivation of due process, she is not entitled to a

declaration finding the WVU Policy on Student Academic Integrity

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MOTION TO DISMISS [ECF NO. 8]

unconstitutionally vague and the due process claims against the

Defendants in their individual and official capacities must fail.

Accordingly, the Court grants the Defendants’ motion on these

issues and dismisses Counts One, Two, and Four.

ii. Roberts has failed to allege that she was denied equal

protection under the law.

Next, Roberts brings a class of one equal protection claim,

alleging that the Defendants “dismissed her for use of a particular

resource in class assignments but failed to sanction or even

investigate other students who used the exact same resource on the

exact same assignment” [ECF No. 13 at 2]. The Defendants contend

that Roberts has failed to state a claim upon which relief may be

granted because she cannot allege that she was treated differently

than any similarly situated student or that the Defendants

intentionally discriminated against her.

The equal protection clause of the Fourteenth Amendment

“secure[s] every person within the State’s jurisdiction against

intentional and arbitrary discrimination.” Village of Willowbrook

v. Olech, 528 U.S. 562, 564 (2000) (quotation marks and alteration

omitted). “To succeed on an equal protection claim, a plaintiff

must first demonstrate that [s]he has been treated differently

from others with whom [s]he is similarly situated and that the

unequal treatment was the result of intentional or purposeful

MEMORANDUM OPINION AND ORDER GRANTING

MOTION TO DISMISS [ECF NO. 8]

discrimination.” Morrison v. Garraghty, 239 F.3d 648, 654 (4th

Cir. 2001). The court then considers “whether the disparity in

treatment can be justified under the requisite level of scrutiny.”

King v. Rubenstein, 825 F.3d 206, 220 (4th Cir. 2016). A plaintiff

may bring a “class of one” equal protection claim by alleging “that

she has been intentionally treated differently from others

similarly situated and that there is no rational basis for the

difference in treatment.” Willis v. Town of Marshall, N.C., 426

F.3d 251, 263 (4th Cir. 2005) (quoting Olech, 528 U.S. at 564);

see also Sansotta v. Town of Nags Head, 724 F.3d 533, 542–44 &

n.13 (4th Cir. 2013).

To succeed on her equal protection claim, Roberts must allege

that the Defendants, without a rational basis, intentionally

treated her differently from other students who used Quizlet to

cheat on the second Shadow Health exam. Willis, 426 F.3d at 263.

She has failed to do so for two reasons.

First, Roberts has not alleged that there was any other

similarly situated student. The crux of her equal protection claim

would be that of all the MSN students who used Quizlet to cheat on

the second Shadow Health exam only she was disciplined. But, in

her complaint, Roberts states only that another student knew that

the exam questions could be found on Quizlet and that Quizlet

possibly could be used to compensate for audio issues. She does

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MOTION TO DISMISS [ECF NO. 8]

not allege that the Defendants knew that any other student had

copied and pasted the model answers from Quizlet to complete the

exam and admitted that they had done so to their instructor.

Therefore, she has not sufficiently pleaded that there is any other

similarly situated student treated differently by the Defendants.

Second, even if she could allege that others were similarly

situated, Roberts’s complaint lacks factual allegations to

indicate that the Defendants intentionally or purposefully

discriminated against her. She alleges only that the Defendants

failed to act on information she reported and should have

“investigated other NSG 714 students in fall 2021 for using

Quizlet” [ECF No. 1 at ¶ 51]. But, again, she has not alleged

that any other student passed off Quizlet’s model answers as their

own. At most, in asserting that the course instructors should

have more thoroughly investigated possible cheating, Roberts has

alleged negligent disparate treatment, which cannot sustain an

equal protection claim. C & H Co. v. Richardson, 78 F. App’x 894,

902 (4th Cir. 2003) (“[A] plaintiff alleging an Equal Protection

violation actionable under § 1983 must establish that the

differential treatment it was afforded was intentional, not the

result of mere negligence.”).

Roberts therefore has failed to plausibly plead a deprivation

of her right to equal protection under the law. The Court grants

ROBERTS V. BARNES ET AL. 1:22CV65

MEMORANDUM OPINION AND ORDER GRANTING

MOTION TO DISMISS [ECF NO. 8]

the Defendants’ motion on these issues and dismisses Counts Three

and Five for failure to state a claim upon which relief can be

granted.

iii. The Court denies as moot the remainder of the Defendants’

motion.

In addition to asserting that Roberts’s claims are

insufficiently pleaded and lack merit, the Defendants contend that

(1) qualified immunity shields them from Roberts’s claims against

them in their individual capacities; (2) the Eleventh Amendment

bars Roberts’s claims for monetary relief against them in their

official capacity; and (3) Roberts has not pleaded a malicious

deprivation of her rights that might entitle her to punitive

damages. Based on its rulings herein, the Court DENIES AS MOOT

the remainder of these arguments.

III. CONCLUSION

For the reasons discussed, the Court GRANTS the Defendants’

motion [ECF No. 8] and DISMISSES Roberts’s claims against them.

It is so ORDERED.

The Clerk shall transmit copies of this Order to counsel of

record by electronic means.

DATED: May 24, 2023

Ton 8 Kla-

THOMAS §&. KLEEH, CHIEF JUDGE

NORTHERN DISTRICT OF WEST VIRGINIA