Khem Bissessur v. Indiana University Board of Tr

In the

United States Court of Appeals

For the Seventh Circuit

No. 08-3504

K HEM B ISSESSUR,

Plaintiff-Appellant,

v.

T HE INDIANA U NIVERSITY B OARD OF T RUSTEES, ET AL.,

Defendants-Appellees.

Appeal from the United States District Court

for the Southern District of Indiana, Indianapolis Division.

No. 07 CV 01290—Sarah Evans Barker, Judge.

A RGUED F EBRUARY 25, 2009—D ECIDED S EPTEMBER 11, 2009

Before F LAUM, W ILLIAMS, and T INDER, Circuit Judges.

W ILLIAMS, Circuit Judge. Khem Bissessur was expelled

from the Indiana University School of Optometry after

receiving several sub-par grades and failing a clinical

rotation. He alleges that he had a protected property

interest in a continuing education at the University,

which was established in an implied contract between

the parties. It is the University’s violation of his entitle-

ment to a continuing education, he asserts, that forms

2 No. 08-3504

the basis for several constitutional claims against the

University and its employees. His complaint, however,

fails to identify any facts that give the defendants

adequate notice of the basis for these claims. The com-

plaint fails to state that the University made any

promises to Bissessur or how it entered into a contract

with him, implied or otherwise. Therefore, the district

court dismissed his complaint for failure to state a

claim, and we affirm.

I. BACKGROUND

Khem Bissessur is a former graduate student at the

Indiana University School of Optometry. Bissessur

alleges that in December 2004, a professor refused to let

him take an exam, resulting in him receiving a grade of

“incomplete” for the course. That semester, he also re-

ceived two grades of D+ based on allegedly arbitrary

reasons. As a result of these events, the University

refused to allow Bissessur to begin his clinical rotations

the following semester. After he was allowed to begin,

he received a failing grade in one rotation. This failure

led to his dismissal from the University, which caused

Bissessur to file suit against the University’s Board of

Trustees and several of its employees.

Bissessur’s complaint generally alleges that his profes-

sors arbitrarily assigned his grades, that he did not

receive proper feedback from his professors or the Uni-

versity regarding his academic progress, and that the

University dismissed him without proper notice or a

hearing. The complaint contains claims for violations of

No. 08-3504 3

Bissessur’s rights to substantive due process, procedural

due process, and equal protection, as well as a claim

for breach of implied contract. The district court dis-

missed this case for failure to state a claim pursuant to

Federal Rule of Civil Procedure 12(b)(6), and Bissessur

appeals.

II. ANALYSIS

A. Bissessur’s Complaint Fails to Allege Sufficient Facts

The district court dismissed all of Bissessur’s claims

pursuant to the defendants’ Rule 12(b)(6) motion. It

found that the defendants had qualified immunity with

respect to Bissessur’s claims for monetary damages. With

respect to Bissessur’s request for prospective injunctive

relief (reinstatement to the University), the district court

found that Bissessur did not state a claim upon which

relief could be granted. At the heart of its reasoning, the

district court found that all of Bissessur’s claims failed

because he did not establish that he had a cognizable

protected interest in a continuing education at Indiana

University.1

1

The one exception is Bissessur’s equal protection claim,

which the district court properly dismissed because Bissessur,

among other things, failed to: (1) allege that he was a member

of a protected class; or (2) allege that someone similarly

situated was treated differently. See McNabola v. Chi. Transit

Auth., 10 F.3d 501, 513 (7th Cir. 1993) (citation and quotation

omitted).

4 No. 08-3504

A graduate student does not have a federal constitu-

tional right to a continued graduate education. See

Williams v. Wendler, 530 F.3d 584, 589 (7th Cir. 2008). That

said, given that the “basic legal relation between a

student and a private university or college is contractual

in nature,” a student may establish that an implied

contract existed between himself and the university

that entitled the student to a specific right, such as the

right to a continuing education or the right not to be

suspended without good cause. Ross v. Creighton Univ., 957

F.2d 410, 416 (7th Cir. 1992) (citation and quotation omit-

ted). The “catalogues, bulletins, circulars, and regulations

of the institution made available to the matriculant may

become a part of the contract.” Id. A right established by

an implied contract between a student and a university

can be a property interest subject to constitutional pro-

tection, id., but to receive such protection, the student

must first show that the implied contract establishes an

entitlement to a tangible continuing benefit, see Bd. of

Regents of State Colleges v. Roth, 408 U.S. 564, 574 (1972).

In order to establish this type of entitlement, the

student must “point to an identifiable contractual

promise that the [university] failed to honor.” Id.; Gordon

v. Purdue Univ., 862 N.E.2d 1244, 1248 (Ind. App. Ct.

2007). Absent evidence of such a specific promise, the

court will not participate in “second-guessing the profes-

sional judgment of the University faculty on academic

matters.” Ross, 957 F.2d at 415.

The district court correctly concluded that Bissessur

failed to point to any specific promise that the University

made which established that Bissessur might have had

No. 08-3504 5

an entitlement to a continuing education, or any other

such entitlement. So, the court dismissed his claims. On

appeal, Bissessur does not challenge the district court’s

solid analysis. Instead, he argues that the district court

erred by dismissing his claims at the motion to dismiss

stage. He maintains that his complaint contained enough

information to state a claim for breach of implied

contract (which established his property interest in a

continuing education at the University), requiring the

court to allow discovery to commence. He further

alleges that the specific promises establishing his en-

titlement to a continuing education would be unearthed

during discovery in various bulletins and flyers that had

been posted around campus during Bissessur’s tenure

at the University.

Specifically, Bissessur argues that the following passage

of his complaint, under our notice pleading standards, is

enough to allow his claims to survive a motion to dismiss:

Count II: Breach of Implied Contract

36. An implied contract existed between Bissessur

and IU.

37. IU breached the implied contract that existed

between Bissessur and IU.

38. IU’s actions were arbitrary, capricious, and

undertaken in bad faith.

This argument is without merit. Under the standard set

forth in Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) and

affirmed in Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009),

Bissessur’s complaint fails to contain enough informa-

6 No. 08-3504

tion to state a legally cognizable claim. In Twombly, the

Supreme Court held that a complaint stating only “bare

legal conclusions,” even under notice pleading standards,

is not enough to survive a Rule 12(b)(6) motion. Id. at 547.

While a complaint attacked by a Rule 12(b)(6) motion to

dismiss does not need detailed factual allegations, a

plaintiff has the obligation to provide the factual

“grounds” of his entitlement to relief (more than “mere

labels and conclusions”), and a “formulaic recitation of a

cause of action’s elements will not do.” Id. The com-

plaint must contain “enough facts to state a claim to

relief that is plausible on its face” and also must state

sufficient facts to raise a plaintiff’s right to relief above

the speculative level. Id. at 557; Tamayo v. Blagojevich,

526 F.3d 1074, 1084 (7th Cir. 2008). 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.”

Iqbal, 129 S. Ct. at 1949. This said, in examining the

facts and matching them up with the stated legal claims,

we give “the plaintiff the benefit of imagination, so long

as the hypotheses are consistent with the complaint.”

Sanjuan v. Amer. Bd. of Psychiatry and Neurology, Inc., 40

F.3d 247, 251 (7th Cir. 1994) (citations omitted).

Twombly “teaches that a defendant should not be

forced to undergo costly discovery unless the complaint

contains enough detail, factual or argumentative, to

indicate that the plaintiff has a substantial case.” Limestone

Dev. Corp. v. Village of Lemont, 520 F.3d 797, 802-03 (7th

Cir. 2008). In this case, Bissessur’s complaint falls drasti-

cally short of providing the necessary factual details to

No. 08-3504 7

meet the Twombly standard. Aside from “Count II” above,

which does nothing more than state that an implied

contract existed and was breached, the complaint

contains no mention of any entitlements Bissessur had

as a result of his relationship with the University, or

any promises that the University or its officials may

have made to him that might have formed the basis of

a contract, implied or otherwise. Nor does the complaint

state what entitlement Bissessur has as a result of this

purported contract. So, it does not contain sufficient

facts to put the University on notice of the basis for

Bissessur’s implied contract claim. And because

Bissessur’s constitutional claims are derivative of the

rights he alleges were promised to him as part of this

implied contract, the necessary facts to support these

claims are also absent from the complaint. Bissessur’s

argument that the exact details of the contract will

become clear during discovery runs counter to the

holding of Twombly, which dictates that the complaint

itself must contain sufficient factual detail to describe

the parameters of the contract before discovery may

commence. Further, Bissessur’s attempt to supplement

the complaint in his briefing by stating that the details

of the implied contract, which do not appear in his com-

plaint, are contained in various unnamed academic

bulletins is fruitless. See Car Carriers, Inc. v. Ford Motor

Co., 745 F.2d 1101, 1103 (7th Cir. 1984) (holding that a

complaint may not be amended by briefs in opposition

to a motion to dismiss).

Our system operates on a notice pleading standard;

Twombly and its progeny do not change this fact. Cf. Smith

8 No. 08-3504

v. Duffey, No. 08-2804, 2009 WL 2357872, at *4 (7th Cir.

Aug. 3, 2009) (noting courts’ overreliance on Twombly). A

defendant is owed “fair notice of what the . . . claim is

and the grounds upon which it rests.” Conley v. Gibson,

355 U.S. 41, 47 (1957). Under Conley, just as under

Twombly, it is not enough to give a threadbare recitation

of the elements of a claim without factual support. See

Tamayo, 526 F.3d at 1082-83. A plaintiff may not escape

dismissal on a contract claim, for example, by stating

that he had a contract with the defendant, gave the defen-

dant consideration, and the defendant breached the

contract. What was the contract? The promises made? The

consideration? The nature of the breach? Here, Bissessur

wants us to believe that the University implicitly

promised him that he had a right to a continuing educa-

tion, and that he promised the University “something” in

return, establishing an implied contract between the

two parties. This implied contract, he argues, gave him

an entitlement which is the basis for his due process and

other constitutional claims. His complaint, however, fails

to allege any facts that even remotely relate to this the-

ory. It provides no notice for the basis of Bissessur’s

claims aside from a mere recitation of their elements.

Among other things, it contains no facts concerning:

(1) what, if any, promises the University made to

Bissessur; (2) how these promises were communicated;

(3) what Bissessur promised in return; or (4) how these

promises created an implied contract. In sum, it leaves

the University with no notice of what this “implied con-

tact” is or how it supports Bissessur’s constitutional

claims. So, it fails here as it would have failed in 1957.

No. 08-3504 9

Allowing this case to proceed absent factual allegations

that match the bare-bones recitation of the claims’

elements would sanction a fishing expedition costing

both parties, and the court, valuable time and resources.

III. CONCLUSION

For the foregoing reasons, we A FFIRM the judgment of

the district court.

9-11-09