Gentilello v. Rege

Case: 09-11216 Document: 00511308829 Page: 1 Date Filed: 12/01/2010

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

December 1, 2010

No. 09-11216 Lyle W. Cayce

Clerk

LARRY M. GENTILELLO, MD,

Plaintiff–Appellant

v.

ROBERT V. REGE, MD; ALFRED G. GILMAN, MD, Ph D,

Defendants–Appellees

Appeal from the United States District Court for the

Northern District of Texas, Dallas Division

Before KING, GARWOOD, and DAVIS, Circuit Judges.

KING, Circuit Judge:

Larry M. Gentilello, M.D., a tenured professor at the University of Texas

Southwestern Medical Center, brought suit under 42 U.S.C. § 1983 against his

supervisors, alleging that he was wrongfully demoted without due process of law

in violation of the Fourteenth Amendment. The district court granted the

Defendants’ motion for judgment on the pleadings and denied Gentilello leave

to file an amended or supplemental complaint. Because we agree with the

district court that Gentilello has failed to allege sufficient facts to state a claim

for the deprivation of a protected property interest without due process of law,

we affirm.

Case: 09-11216 Document: 00511308829 Page: 2 Date Filed: 12/01/2010

No. 09-11216

I. BACKGROUND

Appellant Gentilello was at all relevant times a tenured professor of

surgery at the University of Texas Southwestern Medical Center at Dallas (“UT

Southwestern”). Until March 2007, Gentilello also held the positions of Chair

of the Division of Burns, Trauma and Critical Care and the Distinguished C.

James Carrico, M.D. Chair in Trauma (the “Chair Positions”). Gentilello alleged

that Robert V. Rege, M.D., Chairman of the Department of Surgery at UT

Southwestern, and Alfred G. Gilman, M.D., Ph.D., Dean of the UT Southwestern

Medical School, wrongfully removed him from the Chair Positions. According

to Gentilello, the demotion occurred after Gentilello voiced his concerns to Rege

about what he considered to be substandard patient care at Parkland Hospital,

a hospital served by UT Southwestern. Gentilello alleged that Rege and Gilman

demoted him in retaliation for speaking out about the “improper and illegal”

practices at Parkland Hospital.

Gentilello filed a complaint on September 13, 2007, against Rege and

Gilman (the “Defendants”), seeking damages under 42 U.S.C. § 1983 for two

claims of alleged civil rights violations in connection with his demotion.

Gentilello claimed that the Defendants retaliated against him for exercising his

right to free speech in violation of the First Amendment, and that the

Defendants deprived him of his constitutionally-protected property interest in

the Chair Positions without due process of law in violation of the Fourteenth

Amendment. In response to the Defendants’ pre-answer motion to dismiss

pursuant to Federal Rule of Civil Procedure 12(b)(6), Gentilello filed an

Amended Complaint on October 22, 2007. The district court granted the

2

Case: 09-11216 Document: 00511308829 Page: 3 Date Filed: 12/01/2010

No. 09-11216

Defendants’ motion to dismiss Gentilello’s First Amendment retaliation claim,

but denied it as to his due process claim, stating that Gentilello’s allegations

sufficed to establish that he had been denied due process in connection with his

demotion. Subsequently, on August 29, 2008, the Defendants filed an Answer

in which they asserted, inter alia, a qualified immunity defense. On March 20,

2009, after the deadline for amendment of the pleadings in the district court’s

scheduling order, but before the deadline for dispositive motions, the Defendants

moved for judgment on the pleadings pursuant to Rule 12(c). The Defendants

contended that Gentilello had failed to allege sufficient facts to establish that he

had a constitutionally-protected property interest in the Chair Positions, and,

therefore, he had failed to allege that the Defendants violated a clearly

established right as required to overcome their qualified immunity defense.

Before the district court ruled on this motion, Gentilello moved for leave

to supplement the pleadings. In his proposed Supplemental Complaint,

Gentilello asserted a separate claim for damages under § 1983 against

Defendants Rege and Gilman for wrongfully removing Gentilello from trauma

call rotation at Parkland Hospital on July 29, 2008. Gentilello alleged that his

removal was retaliatory, “arbitrary and capricious,” and resulted in further

deprivation of his property rights without due process of law in violation of the

Fourteenth Amendment.

On November 13, 2009, the district court entered an order granting the

Defendants’ motion for judgment on the pleadings and dismissing Gentilello’s

claims with prejudice. The district court held that “Plaintiff has not plead the

existence of an employment contract, nor has Plaintiff even plead facts that the

employment at-will relationship was altered in any manner.” Therefore,

3

Case: 09-11216 Document: 00511308829 Page: 4 Date Filed: 12/01/2010

No. 09-11216

Gentilello had not sufficiently plead the existence of a constitutionally-protected

property interest to state a due process violation and the Defendants were

entitled to qualified immunity. The district court also denied Gentilello leave to

amend his complaint to cure the deficiencies in his pleadings, stating that it was

“unwilling to allow an amendment more than a year after Plaintiff initially

amended his complaint.” The district court also denied Gentilello’s motion for

leave to file a supplemental pleading to assert a claim in connection with his

removal from trauma call rotation at Parkland Hospital, finding the motion

untimely. Gentilello appeals.

II. DISCUSSION

We review a district court’s ruling on a Rule 12(c) motion for judgment on

the pleadings de novo. Great Plains Trust Co. v. Morgan Stanley Dean Witter &

Co., 313 F.3d 305, 312 (5th Cir. 2002) (citing Hughes v. Tobacco Inst., Inc., 278

F.3d 417, 420 (5th Cir. 2001)). We evaluate a motion under Rule 12(c) for

judgment on the pleadings using the same standard as a motion to dismiss

under Rule 12(b)(6) for failure to state a claim. Doe v. MySpace, Inc., 528 F.3d

413, 418 (5th Cir. 2008). “ ‘[T]he central issue is whether, in the light most

favorable to the plaintiff, the complaint states a valid claim for relief.’ ” Id.

(quoting Hughes, 278 F.3d at 420). To avoid dismissal, a plaintiff must plead

sufficient facts to “ ‘state a claim to relief that is plausible on its face.’ ” Ashcroft

v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550

U.S. 554, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads

factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Id. “We do not accept as true

conclusory allegations, unwarranted factual inferences, or legal conclusions.”

4

Case: 09-11216 Document: 00511308829 Page: 5 Date Filed: 12/01/2010

No. 09-11216

Plotkin v. IP Axess Inc., 407 F.3d 690, 696 (5th Cir. 2005); see also Iqbal, 129 S.

Ct. at 1950 (“While legal conclusions can provide the framework of a complaint,

they must be supported by factual allegations.”).

A public official performing a discretionary function is entitled to qualified

immunity in a civil action for damages, provided his conduct does not “violate

clearly established federal statutory or constitutional rights of which a

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

(1982). In determining whether a defendant is entitled to qualified immunity,

we decide whether facts alleged or shown by the plaintiff make out a violation

of a constitutional right, and whether that right was “clearly established” at the

time of the defendant’s alleged misconduct. Pasco ex rel. Pasco v. Knoblauch,

566 F.3d 572, 579 (5th Cir. 2009). The district court held that the defendants

were entitled to qualified immunity because Gentilello had not alleged sufficient

facts to state a constitutional violation. We agree. See Johnson v. Johnson, 385

F.3d 503, 525 (5th Cir. 2004) (“Of course, the defendant’s conduct cannot

constitute a violation of clearly established law if, on the plaintiff’s version of the

facts, there is no violation at all.”).

To state a Fourteenth Amendment due process claim under § 1983, “a

plaintiff must first identify a protected life, liberty or property interest and then

prove that governmental action resulted in a deprivation of that interest.”

Baldwin v. Daniels, 250 F.3d 943, 946 (5th Cir. 2001). To enjoy a property

interest in employment, an employee must “have a legitimate claim of

entitlement” created and defined “by existing rules or understandings that stem

from an independent source such as state law . . . .” Bd. of Regents v. Roth, 408

U.S. 564, 577 (1972). In Texas, there exists a presumption that employment is

5

Case: 09-11216 Document: 00511308829 Page: 6 Date Filed: 12/01/2010

No. 09-11216

at-will, unless that relationship has been expressly altered by contract or by

express rules or policies limiting the conditions under which an employee may

be terminated. Muncy v. City of Dallas, 335 F.3d 394, 398 (5th Cir. 2003)

(citations omitted). “[A]bsent a specific agreement to the contrary, employment

may be terminated by the employer or the employee at will, for good cause, bad

cause, or no cause at all.” Montgomery Cnty. Hosp. Dist. v. Brown, 965 S.W.2d

501, 502 (Tex. 1998).

Here, it is not disputed that Gentilello, as a tenured professor, had a

protected property interest in his continued employment at UT Southwestern.

See Roth, 408 U.S. at 576–77. However, the due process clause does not protect

Gentilello’s specific job duties or responsibilities absent a statute, rule, or

express agreement reflecting an understanding that he had a unique property

interest in those duties or responsibilities. See DePree v. Saunders, 588 F.3d

282, 289–90 (5th Cir. 2009); Kelleher v. Flawn, 761 F.2d 1079, 1087 (5th Cir.

1985) (rejecting a public employee’s claim of entitlement to specific duties, where

neither state law nor the employee’s contract supplied a basis for a claim of

entitlement to those duties). Therefore, to establish a due process claim in

connection with his demotion, Gentilello was required to point to some state or

local law, contract, or understanding that created a property interest in the

Chair Positions. “Absent a property interest, there is nothing subject to due

process protections and our inquiry ends.” Cabrol v. Town of Youngsville, 106

F.3d 101, 105 (5th Cir. 1997).

Nowhere in Gentilello’s Complaint, filed September 13, 2007, his Amended

Complaint, filed October 22, 2007, or his proposed Supplemental Complaint,

filed April 21, 2009, did Gentilello plead the factual basis for his alleged property

6

Case: 09-11216 Document: 00511308829 Page: 7 Date Filed: 12/01/2010

No. 09-11216

interest in the Chair Positions. In his Amended Complaint, Gentilello alleged

the bare legal conclusion that the Defendants “wrongfully removed Plaintiff from

his [Chair Positions], positions in which Plaintiff had a constitutionally protected

property interest in occupying for a previously-determined period of time.” He

further alleged that “Defendants’ conduct caused Plaintiff to be deprived of his

vested, constitutionally protected property right in his [Chair Positions],” and as

a result, that he “was not merely deprived of duties and responsibilities, but

rather, was deprived of the economic interests in and benefits associated with

such positions.” Gentilello did not substantiate these allegations by pointing to

any ordinance, official policy, state or local law, contract, or other enforceable

agreement to support his claim of entitlement to the Chair Positions. Therefore,

his pleadings fail to state a due process claim. See Blackburn v. City of

Marshall, 42 F.3d 925, 940 (5th Cir. 1995) (“Because [plaintiff] does not allege

that his property interest . . . stems from a state statute or regulatory scheme,

a contract, or any other independent source, we find that [plaintiff] has failed to

allege a property interest protected by the Due Process Clause of the Fourteenth

Amendment.”).

Nor did Gentilello alert the district court to the factual basis for his claim

of entitlement to the Chair Positions in his extensive briefing in opposition to

Defendants’ motion for judgment on the pleadings. At best, Gentilello asserted

that he had a property interest in the Chair Positions “based upon letters from

Defendants,” the contents of which he has not disclosed to the district court or

even (when we made inquiry at oral argument) to this court. Apparently as a

result of these letters, Gentilello asserted that he had a contract with UT

Southwestern “which was subject to certain rules and regulations”—which

7

Case: 09-11216 Document: 00511308829 Page: 8 Date Filed: 12/01/2010

No. 09-11216

Gentilello has not identified—“that required ‘good cause’ before his chaired

positions could be terminated.” Contrary to Gentilello’s contentions, these

“[t]hreadbare recitals of the elements of a cause of action, supported by mere

conclusory statements, do not suffice” to state a due process claim. Iqbal, 129

S.Ct. at 1949 (citing Twombly, 550 U.S. at 555).

Gentilello also contends that the district court erred in denying leave to

amend his pleadings as an alternative to dismissal. In response to the

Defendants’ motion for judgment on the pleadings, Gentilello averred that, if the

district court found his pleadings deficient, he could submit “additional evidence

to show a constitutionally-protected right to his position because he may only be

terminated from this position for cause.” Accordingly, Gentilello asserted that

good cause exists to allow him to amend his complaint. We review the district

court’s denial of leave to amend for abuse of discretion. Torch Liquidating Trust

ex rel. Bridge Assocs. L.L.C. v. Stockstill, 561 F.3d 377, 390 (5th Cir. 2009).

Where, as here, the movant seeks leave to amend after the pleadings deadline

in the district court’s scheduling order, the movant must demonstrate good

cause. S & W Enters., L.L.C. v. SouthTrust Bank of Ala., 315 F.3d 533, 535–36

(5th Cir. 2003).

The district court was “unwilling to allow an amendment more than a year

after Plaintiff initially amended his complaint,” citing Jacquez v. Procunier, 801

F.2d 789, 792 (5th Cir. 1986) (“[I]f the protections afforded public officials are not

to ring hollow, plaintiffs cannot be allowed to continue to amend or supplement

their pleadings until they stumble upon a formula that carries them over the

threshold.”). Gentilello argues that, because the district court initially found his

pleadings sufficient to state a claim, he had no reason to amend to assert

8

Case: 09-11216 Document: 00511308829 Page: 9 Date Filed: 12/01/2010

No. 09-11216

additional facts regarding his property interest in the Chair Positions until the

Defendants moved for judgment on the pleadings. Nonetheless, we find that the

district court did not abuse its discretion in denying Gentilello leave to amend.

Throughout his briefing in opposition to the Rule 12(c) motion, Gentilello

contended that his pleadings sufficed to state a due process claim, adamantly

asserted that he was not required to plead additional facts to support his claim

of entitlement to the Chair Positions, and failed to apprise the district court of

the facts that he would plead in an amended complaint, if necessary, to cure any

deficiencies in his pleadings. Moreover, Gentilello failed to tender a proposed

Amended Complaint setting forth these facts. Gentilello’s counsel professed at

oral argument before this court that evidence purportedly establishing a

property interest in the Chair Positions was in Gentilello’s possession. Gentilello

had ample opportunity to present this evidence to the district court prior to

dismissal, but he refused to do so. In similar circumstances, we have had little

difficulty affirming a district court’s denial of leave to amend. See, e.g., Goldstein

v. MCI WorldCom, 340 F.3d 238, 254–55 (5th Cir. 2003); McKinney v. Irving

Indep. School Dist., 309 F.3d 308, 315 (5th Cir. 2002). “At some point a court

must decide that a plaintiff has had a fair opportunity to make his case; if, after

that time, a cause of action has not been established, the court should finally

dismiss the suit.” Jacquez, 801 F.2d at 792. Accordingly, we decline to remand

to allow Gentilello further opportunity to state his claim.

Finally, we find that the district court did not err in denying Gentilello’s

request for leave to supplement his pleadings. The decision to grant or deny

leave to supplement is within the sound discretion of the district court. Burns

v. Exxon Corp., 158 F.3d 336, 343 (5th Cir. 1998) (“the court may permit a

9

Case: 09-11216 Document: 00511308829 Page: 10 Date Filed: 12/01/2010

No. 09-11216

supplemental pleading”) (emphasis in original). Gentilello did not move for leave

to file his proposed Supplemental Complaint until April 21, 2009, almost nine

months after he was removed from the trauma call list at Parkland Hospital, the

action giving rise to his new claim, and nearly four months after the pleadings

deadline in the district court’s scheduling order. He has provided no justification

for the delay. The district court reasonably concluded that Gentilello’s motion

was untimely. See Lewis v. Knutson, 699 F.2d 230, 239–40 (5th Cir. 1983)

(district court did not abuse its discretion in denying leave to supplement where,

inter alia, plaintiff moved to supplement five months after the occurrence giving

rise to the proposed supplemental claim).

III. CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of the district court.

10