Todd Monroe v. AR State Univ., etc.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 06-3519

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Todd Monroe, *

*

Plaintiff – Appellee, *

* Appeal from the United States

v. * District Court for the

* Eastern District of Arkansas.

Arkansas State University, Department *

of Nursing; Susan Hanrahan, Dean of *

College of Nursing and Health *

Professionals, Arkansas State *

University; Sue Campbell, Program *

Director, Arkansas State University, *

*

Defendants – Appellants. *

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Submitted: May 18, 2007

Filed: July 26, 2007

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Before WOLLMAN, BRIGHT, and JOHN R. GIBSON, Circuit Judges.

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BRIGHT, Circuit Judge.

Arkansas State University dismissed Todd Monroe from the University’s nurse

anesthesia program after he took a medical leave of absence and received an

“incomplete” grade in his clinical course. Monroe filed suit against the University,

as well as Susan Hanrahan and Sue Campbell (Dean of the College of Nursing and

Program Director, respectively) in their individual capacities, alleging breach of

contract and damages under 42 U.S.C. § 1983. The district court dismissed the claim

for money damages against the University on the basis of sovereign immunity, but

permitted Monroe to proceed against the University for injunctive relief and against

the individual defendants for damages. The University and the individual defendants,

Hanrahan and Campbell, appeal.

We reverse the district court’s (1) partial denial of the University’s motion for

summary judgment on the basis of sovereign immunity and (2) denial of Hanrahan’s

and Campbell’s motion for summary judgment on the basis of qualified immunity and

direct dismissal of the action.

Background

Monroe alleges that, in Spring 2003, he enrolled in the University’s nurse

anesthesia program. Shortly before completing the program, in April 2005, Monroe

voluntarily took a medical leave of absence to receive treatment for chemical

dependency. During this time, Monroe entered into a consent agreement with the

Arkansas State Board of Nursing (BON). Under this agreement, Monroe was placed

on probation for three years. After consulting Hanrahan and Campbell, he informed

them of his decision to take medical leave.

Monroe claims that he then attempted without success to speak with Hanrahan

and Campbell regarding how he might complete his clinical course work and receive

his degree. Finally, at a meeting in September 2005, Hanrahan informed him that he

had received an “I” or “incomplete” grade in his unfinished clinical program.

Hanrahan also advised him that his “I” would turn into an “F” within a year and that

he was dismissed from the program. Monroe states that he requested to complete his

clinical course and receive his diploma, but Hanrahan told him that he could not do

so until his nursing license was “unencumbered.”

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Monroe filed this lawsuit against the University, Campbell, and Hanrahan on

March 6, 2006. He contends that these facts amount to an unconstitutional deprivation

of property without due process because the University deprived him of his earning

potential, anesthetist certification, and public education without a hearing or any form

of due process.

The University, as well as Hanrahan and Campbell, responded to Monroe’s

allegations with their own version of facts. Essentially, they explain that Monroe

agreed to receive an incomplete grade, knew of the “incomplete” grade via the

school’s electronic grade posting, and never took advantage of the University’s

avenues for filing a grievance. They also maintain that they did not officially dismiss

Monroe until August 2006 when his “I” became an “F,” in accordance with school

policy that an incomplete grade will revert to an “F” if not completed within one year.

The University submitted to the district court its formal letter of dismissal dated

August 15, 2006, not long after it sent the letter to Monroe (and during pendency of

the motions we now review). The University filed a motion to dismiss arguing that

it was entitled to immunity from suit under the Eleventh Amendment. Hanrahan and

Campbell likewise urged the district court to dismiss Monroe’s claims against them

on the basis of qualified immunity.

The court received affidavits and other supporting documentation and construed

the motion to dismiss as a motion for summary judgment. See Fed. R. Civ. P. 12(b).

The court concluded the Eleventh Amendment barred Monroe’s suit for damages

against the University, but permitted Monroe to pursue prospective injunctive relief.

In addition, the court determined that Hanrahan and Campbell were not entitled to

qualified immunity because “there are facts in dispute as to whether defendants denied

plaintiff’s right to procedural due process.”

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The University appeals the district court’s order permitting the injunctive action

to proceed, contending that it is entitled to sovereign immunity even as to prospective

injunctive relief. The individuals appeal the order denying them qualified immunity.

Jurisdiction

The University properly raises the claim of its sovereign immunity on

interlocutory appeal. See P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506

U.S. 139, 141 (1993) (district court order denying a state or a state entity Eleventh

Amendment immunity from suit in federal court may be appealed under the collateral

order doctrine); see also Williams v. Missouri, 973 F.2d 599, 599 (8th Cir. 1992)

(“Interlocutory review of the district court’s order on the Eleventh Amendment

immunity issue is appropriate because ‘[i]mmunity from suit is effectively lost if the

party claiming it is erroneously forced to stand trial.’” (quoting Barnes v. Missouri,

960 F.2d 63, 64 (8th Cir. 1992) (per curiam)). Likewise, the individual defendants

properly raise the issue of their qualified immunity. See Herts v. Smith, 345 F.3d 581,

585 (8th Cir. 2003) (“The Supreme Court [ ] has carved out an exception to th[e] rule

of finality for cases involving the defense of qualified immunity.”) This court’s

review of these issues is de novo.

Discussion

1. Sovereign Immunity for Arkansas State University

The University argues the Eleventh Amendment bars suit against the University

for any kind of relief, not merely monetary damages. We agree. While under the

doctrine set forth in Ex Parte Young, 209 U.S. 123 (1908), state officials may be sued

in their official capacities for prospective injunctive relief without violating the

Eleventh Amendment, the same doctrine does not extend to states or state agencies.

See Pediatric Specialty Care, Inc. v. Ark. Dep’t of Human Servs., 443 F.3d 1005,

1017 (8th Cir. 2006), vacated on other grounds, 2007 WL 1802012 (2007)

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(recognizing that only state officials, as opposed to state agencies, can be sued for

prospective injunctive relief and dismissing claims against state agency); see also

Kentucky v. Graham, 473 U.S. 159, 167 n.14 (1985); Alabama v. Pugh, 438 U.S. 781,

781-82 (1978). Accordingly, the district court erred by permitting Monroe to proceed

against the University for injunctive relief. We remand to the district court for entry

of an order dismissing the University.

2. Qualified Immunity for Hanrahan and Campbell

The district court denied Hanrahan’s and Campbell’s motion for summary

judgment, rejecting their argument that they are entitled to qualified immunity. We

review de novo the district court’s denial of summary judgment on grounds of

qualified immunity, see Sparr v. Ward, 306 F.3d 589, 593 (8th Cir. 2002), taking as

true those facts asserted by Monroe that are properly supported by the record. Wilson

v. Lawrence County, Mo., 260 F.3d 946, 951 (8th Cir. 2001).

“[G]overnment officials performing discretionary functions generally are

shielded from liability for civil damages insofar as their conduct does not violate

clearly established statutory or constitutional rights of which a reasonable person

would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The district

court must consider whether (i) Monroe has alleged the violation of a constitutional

right by Hanrahan and Campbell and (ii) that right was clearly established at the time

such that a reasonable person would have known that his conduct violated the law.

See Wilson, 260 F.3d at 951; see also Herts v. Smith, 345 F.3d 581, 585 (8th Cir.

2003) (“The determination of whether qualified immunity [applies] is one of

‘objective reasonableness.’”). Although the defendant bears the burden of proof for

this affirmative defense, the plaintiff must demonstrate that the law was clearly

established. Sparr, 306 F.3d at 593.

Monroe alleged that Hanrahan and Campbell violated his right to procedural

due process, specifically his right to notice and a hearing. For our analysis of his

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claim, we assume without deciding that Monroe’s interest in pursuing his education

constitutes a constitutionally protected interest. See Regents of the Univ. of Mich. v.

Ewing, 474 U.S. 214, 222-23 (1985) (assuming without deciding the existence of

protected property interest in pursuit of combined undergraduate/graduate degree at

public university); Bd. of Curators of the Univ. of Mo. v. Horowitz, 435 U.S. 78, 84-

85 (1978) (assuming without deciding the existence of protected interest in medical

degree at public university).

In support of his proposition that he is entitled to notice and a hearing, Monroe

compares his case to Goss v. Lopez, 419 U.S. 565 (1975). Goss dealt exclusively with

public high school suspension for disciplinary reasons; Monroe, by contrast, was

enrolled in a graduate program at the University and was dismissed for failing to

complete his course work, an academic decision. Although we recognize that

Monroe’s conduct in this case might have permitted a disciplinary dismissal, it is

undisputed that the University dismissed Monroe for failure to complete his course

work, not his drug use. Monroe admitted his drug use to the University. Had he

denied the allegations of drug use, then the University’s decision to dismiss him for

his alleged, but not conceded drug use, might constitute a disciplinary dismissal.

Moreover, courts have considered dismissals “academic” in similar scenarios when

the student’s deficiencies, while arguably warranting disciplinary action, also bear on

academic performance. See, e.g., Horowitz, 435 U.S. at 91 n.6 (personal hygiene and

timeliness affecting academic aptitude of medical student); Richmond v. Fowlkes, 228

F.3d 854, 858 (8th Cir. 2000) (inappropriate behavior in class, tardiness, and

inappropriate interaction with instructors contributing to academic deficiencies).

Monroe’s claim of a violation of his constitutional rights, therefore, does not fit within

the contours of Goss.

The Supreme Court, however, has explained the contours of due process in the

case of an academic dismissal. In Horowitz, the Court rejected the notion that a

medical student dismissed from a graduate program because of poor academic

performance required a full hearing. See 435 U.S. at 89-90. The Court distinguished

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between the necessary “give and take” between student and administrative body

required in disciplinary proceedings and academic decisions. See id. at 89-90. This

court has distilled from Horowitz a notice requirement and a “careful and deliberate”

standard for academic dismissals. See, e.g., Richmond v. Fowlkes, 228 F.3d 854, 857

(8th Cir. 2000). Further, the Supreme Court has also explained that judges may not

override the professional judgment of faculty unless it is “such a substantial departure

from accepted academic norms as to demonstrate that the person or committee

responsible did not actually exercise professional judgment.” Ewing, 474 U.S. at 225.

Viewing the facts in the light most favorable to Monroe, where supported by

the record, we conclude that he has not alleged a violation of due process. First, we

note that Campbell and Hanrahan gave Monroe an “I” or “incomplete” grade when he

failed to complete his course work. They could have failed Monroe immediately,

which would have likewise resulted in his dismissal. Monroe has not explained to this

court how he was disadvantaged by receiving an “I” or how it represented anything

other than the administrators’ caution and, indeed, grace.

Monroe alleges that Hanrahan and Campbell failed to notify him of his “I”

grade after it was awarded. Even if Monroe first learned of his incomplete grade in

September 2005, the record demonstrates that he had almost an entire year from that

“notice” before his “I” would turn into an “F.” Monroe again fails to point to how he

was prejudiced in any way by this arguably late notice. Cf. Ross v. United States

Postal Serv., 664 F.2d 191, 193 (8th Cir. 1981) (delay in administrative decision not

in violation of due process because no prejudice shown).

The same analysis applies with respect to notice of Monroe’s dismissal.

Monroe received notice of his potential or actual dismissal, at the earliest, in

September 2005 at a meeting with Hanrahan. Although he seems to argue he should

have received notice prior to this meeting, he has failed to explain how the actual

timing of the notice given has harmed him in any way. Indeed, during the litigation

proceedings in the district court until August 2006, the University repeatedly

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maintained that Monroe had not yet been dismissed from the program and had every

opportunity to seek a waiver of academic requirements to prevent his dismissal.

Monroe only received a letter of dismissal in August 2006, almost a full year after he

received “notice” of his potential dismissal in September 2005.1

We are also not persuaded that Monroe was either entitled to or denied a

hearing. In Horowitz, the Court “declin[ed] to ignore the historic judgment of

educators and thereby formalize the academic dismissal process by requiring a

hearing.” 435 U.S. at 90. Even if Monroe were entitled to a hearing, he received one.

A hearing need not be formal, but can consist of conversations and interviews. See

Goss, 419 U.S. at 582 (explaining that hearings in disciplinary settings need only be

an informal discussion). Monroe claims that Hanrahan and Campbell ignored his

questions about how he could proceed to complete his course work. However, the

record does not support this allegation. The individuals and Monroe each submitted

e-mail correspondence showing Hanrahan’s various responses to Monroe’s inquiries

and demonstrating her willingness to meet with him to discuss his options. Monroe

claims that her responses are insufficient inasmuch as she pointed out that “there is not

an immediate solution.” But Monroe’s disappointment in the outcome or potential

outcome of process does not amount to a denial of it.

In this instance, Hanrahan and Campbell did not dismiss Monroe arbitrarily or

rashly. Their first act was to give Monroe an “I” grade, thereby preventing him from

being dismissed immediately. The record shows that they communicated with

Monroe, his health care facility, and others about his situation. They agreed to meet

with him, at least once rescheduling a meeting for Monroe’s convenience, and they

1

Further, in July, 2005, in e-mail correspondence between Monroe and

Hanrahan, Hanrahan communicated to Monroe the problem created by the restrictions

on his ability to practice in an environment with drugs for one year and his still

outstanding clinical work. Given the circumstances, this e-mail may also have been

sufficient to provide Monroe with notice of the University’s dissatisfaction and

potential dismissal.

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frankly conveyed to him the intractable situation created by his leave of absence and

the restrictions placed on his ability to work around the drugs to which he was

addicted. They met with him in September and informed him of the situation and his

actual or likely dismissal. Even during this litigation they encouraged Monroe to

appeal, grieve, or seek a waiver through the University’s various avenues for redress.2

Given these facts, even in the light most favorable to Monroe, we cannot say that

Hanrahan’s and Campbell’s actions were such a substantial departure from accepted

academic norms as to demonstrate that the person or committee responsible did not

actually exercise professional judgment.

For the foregoing reasons, we reverse the decision of the district court and order

that Monroe’s action against the University and Hanrahan and Campbell be dismissed.

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2

Because this appeal is limited on interlocutory review to the question of

qualified immunity, we cannot revisit the district court’s conclusion that Monroe has

failed to exhaust his administrative remedies. We note, however, that Monroe might

have received more process had he elected to take advantage of any of those

opportunities available to him.

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