Schoppa Family v. Kupersmith

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

m 02-10182

Summary Calendar

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SCHOPPA FAMILY, ETC., ET AL.,

Plaintiffs,

S.E. PODUSLO,

Plaintiff-Appellant,

VERSUS

JOEL KUPERSMITH, M.D.,

DEAN, TEXAS TECH UNIVERSITY HEALTH CENTER SCHOOL OF MEDICINE;

RANDOLPH SCHIFFER, M.D.,

CHAIRMAN, DEPARTMENT OF PSYCHIATRY,

Defendants-Appellees.

_________________________

Appeal from the United States District Court

for the Northern District of Texas

m 5:01-CV-085-C

_________________________

November 26, 2002

Before HIGGINBOTHAM, SMITH, and budget, and be given the title of Director of

CLEMENT, Circuit Judges. Basic Research in the Alzheimer’s Institute

(“Director of Research”). An October 18,

JERRY E. SMITH, Circuit Judge:* 1989, letter from the Dean of the School of

Medicine3 offered Poduslo a tenured position

Shirley Poduslo, a professor at the School with a starting salary of $66,000, plus moving

of Medicine at Texas Tech University Health expenses for personal items and professional

Sciences Center (“TTUHSC”), was removed equipment.

as Director of Basic Research in the Alzhei-

mer’s Institute, was denied access to the re- Poduslo accepted the position and was giv-

search laboratory and lost funding for lab- en laboratory space, a supply budget, and the

oratory supplies and a research technician. title of Director of Research. She kept per-

Along with more than 700 persons who had sonally-owned equipment and supplies of con-

provided their own or deceased family mem- siderable value in the laboratory. As Director

bers’ DNA samples and/or brains to the Alzhei- of Research, she founded TTUHSC’s Alzhei-

mer’s DNA Bank that she ran, Poduslo sued, mer’s DNA Bank, a research repository of

in state court, Robert Schiffer, Chairman of DNA samples and brains from thousands of

the Department of Neuropsychiatry, and Joel Alzheimer’s victims. On January 28, 2000,

Kupersmith, Dean of the School of Medicine, following a series of conflicts,4 Schiffer and

asserting several state law claims and claims Kupersmith removed Poduslo as Director of

under 42 U.S.C. § 1983 for violation of her Research and denied her unsupervised access

First and Fourth Amendment rights and the to the laboratory.

Fourteenth Amendment’s Due Process Clause.

The district court remanded all state law II.

claims and granted summary judgment for de- In their state petition, plaintiffs sought an

fendants on the constitutional claims. We injunction ordering defendants not to destroy

affirm. DNA samples, brains, or medical records as-

sociated with the Alzheimer’s DNA Bank. In

I. the event defendants were unable or unwilling

Poduslo was hired in 1990 as a professor at to allow Poduslo to continue genetic-based re-

TTUHSC. An October 3, 1989, letter from search as Director of Research, plaintiffs

the Chairman of TTUHSC2 noted his recom- sought the return of their DNA samples and

mendation to the dean of the school that Po- their deceased relatives’ DNA samples and/or

duslo be offered a tenured faculty position, be

provided with laboratory space and a supply

3

The letter was from Bernhard Mittemeyer,

then the dean.

*

Pursuant to 5TH CIR. R. 47.5, the court has

4

determined that this opinion should not be pub- The exact nature and cause of the conflicts is

lished and is not precedent except under the limited disputed, though we are bound, for purposes of this

circumstances set forth in 5TH CIR. R. 47.5.4. review, to accept Poduslo’s characterization. It is

undisputed that the conflicts culminated in

2

The letter was from Joseph Green, then a Poduslo’s halting all research two days before she

professor and the chairman of TTUHSC. was dismissed from the DNA Alzheimer’s Bank.

2

brains. concluded that defendants were entitled to

qualified immunity with respect to Poduslo’s

Poduslo argued that defendants, acting un- liberty interest claims, because defendants did

der color of state law, deprived her “of a lib- not deprive her of the right to pursue her

erty interest without due process and violated occupation, the mere change in status did not

her constitutional right of association and her violate her liberty interest in future

First Amendment rights to academic freedom employability, and, in any event, she was

by their actions, all in violation of the First, provided due process through the grievance

Fourth and Fourteenth Amendments.” Podus- procedure.

lo asserted that although she was a tenured full

professor, the defendants removed her as Di- III.

rector of Research, limited her access to the A.

laboratory and to charts, and instructed We review a summary judgment de novo,

laboratory assistants not to talk to her on using the same standard applicable in the dis-

threat of termination. Poduslo sought trict court. Olabisiomotosho v. City of

compensation for the damage to her ability to Houston, 185 F.3d 521, 525 (5th Cir. 1999).

research, the damage to her reputation, and the “After consulting applicable law in order to

mental anguish caused by the defendants’ ascertain the material factual issues, we

actions. consider the evidence bearing on the issues,

viewing the facts and the inferences to be

After filing an answer setting forth the af- drawn therefrom in the light most favorable to

firmative defense of qualified immunity, de- the nonmovant.” Id. “Summary judgment is

fendants removed to federal court, whereupon properly granted if ‘the pleadings, depositions,

plaintiffs moved to remand. After remanding answers to interrogatories, and admissions on

the state claims, the district court ordering Po- file, together with the affidavits, if any, show

duslo to file a reply to the invocation of that there is no genuine issue as to any material

qualified immunity, then granted defendants’ fact and that the moving party is entitled to

motion for summary judgment. judgment as a matter of law.’” Id. (quoting

FED. R. CIV. P. 56(c)).

The district court determined that Poduslo

did not have a property interest in her job as- The doctrine of “[q]ualified immunity pro-

signment as laboratory director, that the tects government officials performing

alleged conversion of her personal property discretionary functions from civil liability if

did not violate her procedural due process their conduct violates no clearly established

rights because adequate state post-deprivation statutory or constitutional right of which a

remedies existed, that the alleged conversion reasonable person would have known.” Evans

did not violate her substantive due process v. Ball, 168 F.3d 856, 860 (5th Cir. 1999).

rights because she had presented no evidence We conduct a bifurcated analysis: “First, a

that the deprivation was arbitrary or court must determine whether the plaintiff has

capricious, and that she had failed to overcome alleged the violation of a constitutional right.”

the qualified immunity defense because she had Glenn v. City of Tyler, 242 F.3d 307, 312 (5th

tendered no evidence that defendants had Cir. 2001). Second, we decide whether “the

acted unreasonably. The court further conduct was objectively reasonable in light of

3

clearly established law at the time that the doctrine is meant to protect the state from

challenged conduct occurred.” Id. “A right is liability for failing to provide predeprivation

‘clearly established’ if its contours are process in situations where it cannot anticipate

‘sufficiently clear that a reasonable official the need for such process (when actions are

would understand that what he is doing random and unauthorized).” Brooks v.

violates that right.’” Cozzo v. Tangipahoa George County, 84 F.3d 157, 165 (5th Cir.

Parish Council-President Gov’t, 279 F.3d 1996). If the state actors allegedly are acting

273, 284 (5th Cir. 2002) (quoting Anderson v. in accord with official policy or customary

Creighton, 483 U.S. 635, 640 (1987)). procedures, the “random and unauthorized”

criteria are not satisfied.6

B.

Poduslo contends that the district court Poduslo does not contend that the

erred in concluding that she has no civil rights defendants were acting in accord with an

remedy for the allegedly intentional and official policy or customary procedure of

malicious seizure of her equipment and converting personal property contained in the

supplies kept in the laboratory.5 She argues laboratory. The state could not have foreseen

that the availability of state court remedies the unusual circumstances that led to

does not bar federal relief, because the defendants’ allegedly intentional deprivation of

conversion was not a random, unauthorized Poduslo’s personal property or the need for

act, but a deliberate exercise of power by predeprivation process. Though the

individuals who had lawful authority to defendants had the authority to control access

exclude her from the premises and separate her to the laboratory, their intentional conversion

from her property. She states that defendants of Poduslo’s private property was not

are not entitled to qualified immunity, because authorized by the state. Because Poduslo has

they acted with deliberate indifference to her available to her an adequate postdeprivation

constitutionally protected interests. remedySSa Texas state tort action for

conversionSSher procedural due process claim

1. was properly dismissed.

The Parratt/Hudson doctrine provides that

when a § 1983 plaintiff alleges he has been de- 2.

prived of property without due process of law Poduslo’s allegations that the conversion of

by a state officer’s random and unauthorized her property was malicious and a flagrant

intentional conduct, rather than by an es- abuse of power also constitute a claim that she

tablished state procedure, there is no was deprived of her property without

infringement of procedural due process rights substantive due process. “This substantive

if there is an adequate state post-deprivation

remedy. See Cozzo, 279 F.3d at 290. “The

6

See Alexander v. Ieyoub, 62 F.3d 709, 713

(5th Cir. 1995) (concluding that the “allegation

5

Poduslo has failed to brief on appeal, and that the Defendants were acting in their customary

therefore has abandoned, her argument that she manner of failing to timely institute a forfeiture

was deprived of her cell lines without due process. proceeding negates the ‘random and unauthorized

See Yohey v. Collins, 985 F.2d 222, 224-25 (5th conduct’ element needed for application of the

Cir. 1993). Parratt/Hudson doctrine”).

4

component of the Fourteenth Amendment’s from TTUHSC; and (3) defendants deprived

Due Process Clause protects individual liberty her of copies of her research notes and

against certain government actions regardless notebooks she had brought from her previous

of the fairness of the procedures used to employment. Taken alone, these allegations

implement them.” McClendon v. City of might set forth a claim for arbitrary

Columbia, 305 F.3d 314, 322 n.5 (5th Cir. deprivation. Poduslo admits, however, that

2002) (en banc) (internal quotation marks and upon her departure from TTUHSC, defendants

citations omitted). allowed her to take laboratory equipment for

which she had serial numbers, and items

Regardless of the theory of liability plainly ancillary to that serial-numbered

that a plaintiff is pursuing, in order to equipment.7

state a viable substantive due process

claim the plaintiff must demonstrate that Defendants’ retention of items for which

the state official acted with culpability Poduslo could not demonstrate ownership was

beyond mere negligence. The Supreme reasonably related to the l egitimate

Court’s discussions of abusive executive governmental interest of protecting state

action have repeatedly emphasized that property. This conduct does not rise to the

only the most egregious official conduct level of egregiousness required by our

can be said to be arbitrary in the consti- jurisprudence. Because Poduslo has failed to

tutional sense. The Court has spoken of create a genuine issue of material fact regard-

the cognizable level of executive abuse ing whether defendants arbitrarily deprived her

of power as that which shocks the of her laboratory equipment and supplies, the

conscience. In elaborating on the district court properly dismissed the

constitutional concept of conscience substantive due process claim.

shocking, the Court has made it clear

that the due process guarantee does not IV.

entail a body of constitutional law Poduslo asserts that the district court erred

imposing liability whenever someone in determining that she was not

cloaked with state authority causes constitutionally injured by the deprivation of

harm. Liability for negligently inflicted her contractual employment rights. Poduslo

harm is categorically beneath the argues that although there may not be

threshold of constitutional due process. economic value in her job title, she lost

economic benefits when she was deprived of

Id. at 326 (internal quotation marks and her supply budget, the support of a laboratory

citations omitted). technician, and access to laboratory space.

She contends that by depriving her of these

Poduslo cites three incidents as evidencing economic benefits of her employment contract,

the arbitrary deprivation of her property: defendants denied her the right to pursue her

(1) Defendants failed to return the property profession as a scientist.

after she had detailed her property interests in

her pleading responding to the qualified

immunity defense; (2) defendants returned

only some of her property upon her departure 7

This admission comes in an affidavit filed with

Polduslo’s summary judgment response.

5

A. linkage becomes between t hose

To prevail on a claim based on denial of understandings and the Due Process

procedural or substantive due process,8 a Clause. See Mangaroo v. Nelson, 864

plaintiff must make a showing that he has been F.2d 1202, 1206-08 (5th Cir. 1989). At

denied a constitutionally protected property some point the linkage is uncertain

interest. See Williams v. Texas Tech Univ. enough to justify qualified immunity for

Health Sciences Ctr., 6 F.3d 290, 294 (5th an official accused of breaking it.

Cir. 1993); Browning v. City of Odessa, 990

F.2d 842, 844 (5th Cir. 1993). To enjoy a Id. at 293-94.

property interest in employment, an employee

must “have a legitimate claim of entitlement,” B.

created and defined by “existing rules or Poduslo entered into evidence the Octo-

understandings that stem from an independent ber 3, 1989, letter from Green stating that he

source such as state law . . . .” Board of had recommended her appointment to a

Regents of State Colleges v. Roth, 408 U.S. professorship, that he understood tenure

564, 577 (1972). would be requested for her, that her salary

would be $66,000, that her moving expenses

Under Texas law, employment is at-will un- would be defrayed, and that she would be

less the employer “unequivocally indicate[s] a furnished a supply budget of $20,000, support

definite intent to be bound not to terminate the for a technician, and renovated space for two

employee except under clearly specified contiguous laboratories. Poduslo also

circumstances.” Montgomery County Hosp. submitted the October 18, 1989, letter from

Dist. v. Brown, 965 S.W.2d 501, 502 (Tex. the dean that offered her a tenured

1998). TTUHSC’s policies expressly provide professorship and stated only that her starting

that the “[t]ermination of employment or salary would be $66,000 and that her moving

dismissal of a tenured faculty member . . . will costs would be paid.

be only for cause.” Because Poduslo was a

tenured professor, she had a property interest The detailed and conditional October 3 let-

in her continued employment with TTUHSC. ter provides only an uncertain link to the Due

See Roth, 408 U.S. at 576-77. Process Clause. Id. at 293. It is apparent that

the letter was tentative and not an actual offer

“An expectation of employment carries of employment. Furthermore, it nowhere indi-

with it some protected expectations as to a cated that the protections of tenure, if

salary.” Williams, 6 F.3d at 293. ultimately granted to Poduslo, would extend to

the supply budget, support for a technician, or

But the more detailed and conditional access to laboratory space.9

the understanding becomes between em-

ployer and employee, the weaker the

9

Poduslo held her position as Director of Re-

search, and received the concomitant supply budget

8

It is uncertain whether Poduslo asserts that she and laboratory space, for more than ten years.

was deprived of a property interest without Even if the October 3 letter were construed as a

procedural due process or without substantive due promise to provide these accouterments, its

process, or both. (continued...)

6

Finally, the loss of her title, supply budget, C.

laboratory space, and support for a technician Poduslo claims she was deprived, without

did not reduce her income.10 Because Poduslo due process, of her liberty interest in pursuing

had no cognizable property interest in the her chosen profession because of the loss of

supply budget, the support for a technician, or her position as Director of Research.12 “A

the access to laboratory space, she has no due person has a liberty interest in pursuing an oc-

process claim.11 cupation.”13 Poduslo, however, does not as-

sert that defendants invoked any regulation to

9

bar her from all other public employment in

(...continued) state universities or somehow deprived her of

promise certainly was fulfilled initially and did not a license to pursue her career as a scientist.

extend indefinitely.

See Roth, 408 U.S. at 573-74; Connelly v.

10

In his affidavit, Kupersmith indicated that Comptroller of the Currency, 876 F.2d 1209,

Poduslo’s salary and stipend did not change as a 1214 (5th Cir. 1989). Her allegations do not

result of her being removed as Director of rise to the level required to implicate a liberty

Research, and that she maintained her position as interest in employment.

a full professor with tenure. Poduslo does not

challenge this assertion on appeal. AFFIRMED.

11

Cf. Kinsey v. Salado Indep. Sch. Dist., 950

F. 2d 988, 997 (5th Cir. 1992) (en banc) (Plaintiff

does not have “a constitutionally protected

property interest in the non-economic benefit of

serving as superintendent.”); Jett v. Dallas Indep.

Sch. Dist., 798 F.2d 748, 754 (5th Cir. 1986),

modified on other grounds, 491 U.S. 701 (1989)

(stating that oral contract that did not address

specific duties did not “create a property interest in 11

(...continued)

the intangible, noneconomic benefits of his administrators could have concluded, without

assignment as coach”); Kelleher v. Flawn, 761 treading on ground plainly protected by the

F.2d 1079, 1087 (5th Cir. 1985) (concluding that Constitution, that Poduslo could be denied these

instructor demonstrated no property interest in employment benefits, defendants would be entitled

teaching specific government classes where there to qualified immunity on this claim.

was no contract guaranteeing the right to teach

those classes and the new assignments were 12

In the district court, Poduslo also based her

commensurate with her position). liberty interest claim on alleged damage to her rep-

utation and stigmatization that hindered her future

Even if a property interest could be shown, it employability. She has not raised this as a basis in

cannot be said, given the uncertainties underlying this appeal. See Yohey, 985 F.2d at 224-25 (noting

this aspect of Poduslo’s employment relationship that claims not asserted on appeal are abandoned).

with TTUHSC, that the law clearly established that

13

she had a constitutionally protected property Phillips v. Vandygriff, 711 F.2d 1217, 1222

interest in the supply budget, support for a (5th Cir. 1983) (citing authorities), modified in

technician, and access to laboratory space. See other part on rehearing, 724 F.2d 490 (5th Cir.

Williams, 6 F.3d at 294. Because reasonable 1984); see also Martin v. Mem. Hosp., 130 F.3d

(continued...) 1143, 1148 (5th Cir. 1997).

7