Opposition Brief — Ndefru v. Sherwood

FIL ED ini

DEC 2 1 1994

2) OFFIKE Ur THE CLERK

~

NO. 94-1014

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1994

MIKE M. NDEFRU,

Petitioner,

7

DR. PETER M.A. SHERWOOD,

DR. DALE M. HAWLEY,

DR. KENNETH J. KLABUNDE,

DR. MICHAEL J. O’ SHEA,

DEAN TIMOTHY R. DONOGHUE,

DEAN BRADLEY FENWICK,

DEAN ELIZABETH A. UNGER,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI

TO THE TENTH CIRCUIT COURT OF APPEALS

RESPONDENTS’ BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

Cheryl G. Strecker

Counsel of Record for Respondent .

Kansas State University

Office of University Attorney

111 Anderson Hall

Manhattan, Kansas 66506-0115

(913) 532-5730

i

QUESTION PRESENTED

The respondents are dissatisfied

with the petitioner’s presentation of

questions presented. Should the

petition for a writ of certiorari be

granted, the question presented for

review should be the following:

Did the Tenth Circuit correctly

affirm the District. Court’s

dismissal of a complaint

alleging: (1) violation of a ‘

former graduate student’s due

process rights based on his 3

advisory committee’s rejection of ;

his proposed oral examination

topic; and (2) violation of the

former student’s right to be free

Des hath i reeks ti ne <i wa

from unreasonable searches and

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seizures based on allegations

that his major professor looked

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through papers in a shared office

to retrieve documents he had

loaned to the student?

Table of Authorities...........

Question Presented.............

Opinions and Judgments in the

COURGE GAO oe hohe he teeciens

DUE TOLOPS OR CREE es nec eevee

Constitutional Provisions and

Statutes Involved............

Statement of the Case..........

Summary of Argument............

Reasons for Denying the Writ...

A. THE PETITIONER’S COMPLAINT

WAS PROPERLY DISMISSED FOR

FAILURE TO STATE A CLAIM

UPON WHICH RELIEF MAY BE

B. THIS CASE PRESENTS NO

CONFLICT OR UNSETTLED

QUESTION OF LAW

NECESSITATING SUPREME

COURT REVIEW......... haw ee

C.. THE PETITIONER HAS FAILED

TO COMPLY WITH THE

REQUIREMENTS IN SUPREME

COURT RULE 14 REGARDING

THE CONTENT OF A PETITION

FOR A WRIT OF CERTIORARI...

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TABLE OF AUTHORITIES

—__Page

Cases

Board of Curators, University

of Missouri v. Horowitz,

435 U:8i 76 CAO TO Ge aces Be 12

Colleges v. Roth, 408

CO.) S68 taeter.... ck. ee 11

Vv ’

898 F.2d 1443 (10th Cir.

1990) geek PG Ste See Sas 10

Greco v. Guss, 775 F.2d 161

(Fem Cae: 2008). oe 11

, 935 F.2d

1106 (10th Cir. 1991)...... 9

, 798 F.2d 419

(10th Cit. “3966) 600852208. 12

of Sandy City, 998 F.2d

1550 (10th Cir. 1993)...... 10,13

R

Michigan v. Ewing, 474 U.S.

B34 S4GOe ee eke as 12

~ , 487 U.S.

G30. 45989) vei vice cis +> 120

of Sheridan County, 850

F.2d 1384 (10th Cir.

£906) 66600550 0 a i OO ae

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BS:

4.

758 F.Supp. 1430 (D.

Kan. BOGE Ei oc CER div ceive vee ee 11

, 827 F.2d 648

(10th Cir. 1987)........... ll

Zilkha Company Enercy 0.

920 F.2d

1520 (10th Cir. 1990) ....8. 9

Statutes

42 U.S.C. §1983.....-.2eeeeeeeee 10

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OPINIONS AND

JUDGMENTS IN THE COURTS BELOW

Although the petitioner presents

the opinions and judgments in the

courts below as Appendices , me. Dy, C,

and D to his petition, his

reproduction of each contains numerous

inaccuracies. Therefore, the

respondents have attached hereto

accurate reproductions of the opinions

and judgments in the courts below as

Appendices R-A, R-B and R-C.

JURISDICTION

The respondents are dissatisfied

with the jurisdictional grounds stated

by the petitioner. He does not

indicate any statutory provision

believed to confer on this Court

jurisdiction to review the judgment or

decree in question by writ of

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certiorari, as required by Rule

14.1(e) (iv) of the Rules of the

Supreme Court of the United States.

Rather, he states that "(t]his Court’s

jurisdiction is invoked under Rules

10.1(a) and 10.1(c) of the U.S.

Supreme Court." (Petition at 4)

CONSTITUTIONAL PROVISIONS

AND STATUTES INVOLVED

The respondents agree with the

petitioner’s statement of

constitutional and statutory

provisions involved, which he sets

forth in Appendices G and H to the

petition.

STATEMENT OF THE CASE

On June 7, 1993, the petitioner

filed a complaint in the United States

District Court for the District of

3

Kansas, Claiming that the respondents,

who are members of the faculty and

administration of Kansas State

University, deprived him of due

process in rejecting his proposed oral

examination theme in Chemistry. The

petitioner claimed that this action

had the effect of dismissing him from

the University. He also claimed that

one of the defendants, his major

professor, unlawfully searched his

office by looking through a pile of

research papers, in violation of the

Fourth and Fourteenth Amendments to

the United States Constitution. The

petitioner claimed monetary damages in

the amount of $5,612,500.00.

The respondents filed a motion to

dismiss pursuant to Fed.R.Civ-.P.

12(b) (6). On December 29, 1993, the

District Court entered an order

granting the respondents’ motion to

dismiss, ruling that: (1) the

petitioner failed to demonstrate that

he had been deprived of a liberty or

property interest; and (2) the

petitioner failed to allege sufficient

facts to demonstrate that his major

professor was acting as a government

agent when he allegedly searched the

petitioner’s papers. As the District

Court ruled in favor of the

respondents on the foregoing issues,

it did not reach the issue of the

respondents’ entitlement to qualified

immunity. The District Court’s

Judgment and attached Memorandum and

Order granting the respondents’ motion

to dismiss is appended hereto as

Appendix R-B.

The petitioner appealed the

District Court’s decision to the

United States Court of Appeals for the

Tenth Circuit, contending that the

District Court ignored facts,

misstated the issues, demonstrated

absolute disregard for process of any

form, promoted fraudulence, and

advocated dictatorship in granting the

motion to dismiss. On August 4, 1994,

the Tenth Circuit Court of Appeals,

after reviewing the parties’

arguments, the record on appeal, and

the relevant law, affirmed the

judgment of the District Court. The

Tenth Circuit’s Order and Judgment is

appended hereto as Appendix R-A.

The petitioner filed a petition

for rehearing in the Tenth Circuit

Court of Appeals. On September 7,

TO ET SEF hee Ot REAP IE, Hes ke pe er E

6

1994, the Court of Appeals entered an

order denying the petition for

rehearing. That order is appended

hereto as Appendix R-C.

SUMMARY OF ARGUMENT

The District Court properly

dismissed the petitioner's complaint

for failure to state a claim under

Fed.R.Civ.P. 12(b) (6), for the reasons

stated in its Memorandum and Order.

(See Appendix R-B.) The Tenth Circuit

Court of Appeals properly affirmed the

District Court’s dismissal of the

complaint.

The petitioner has failed to

‘present any reason for this Court to

grant review on a writ of certiorari.

He does not raise a conflict of

decisions between courts of appeals or

state courts of last resort, or an

important question of federal law that

has not been, but should be, settled

by this Court, or a federal question

that conflicts with applicable

decisions of this Court. In his

petition, he merely reiterates the

arguments he made in the courts below,

asserting the unfairness of the

respondents’ rejection of his proposed

oral examination topic and_ the

illegality of the alleged search of

his papers by his major professor.

Furthermore, the petitioner has

failed to comply with Rule 14 of the

Rules of the Supreme Court of the

United States, which sets forth the

requirements for the content of a

petition for a writ of certiorari.

CEP Rah Lee Soe ane 7 Mee. Lig eS aN ARP O REET NL OER RUN

8

REASONS FOR DENYING THE WRIT

The petitioner’s statements of

fact and law are confusing and replete

with inaccuracies. Rather than

specifically addressing each

inaccuracy, the respondents adopt and

refer this Court to the statements of

fact and discussion of law set forth

in the District Court’s Memorandum and

Order. (See Appendix R-B at App. 7-

34.)

A. THE PETITIONER'S COMPLAINT WAS

PROPERLY DISMISSED FOR FAILURE TO

STATE A CLAIM UPON WHICH RELIEF MAY BE

GRANTED.

The District Court properly

granted, and the Tenth Circuit

properly affirmed, the dismissal of

the petitioner’s complaint for the

reasons stated in the District Court’s

Memorandum and Order. (See Appendix R-

B at App. 7-34.)

The District Court considered the

motion to dismiss under the proper

standard for review, accepting all

factual allegations of the complaint

as true, and drawing all reasonable

inferences in favor of the petitioner,

citing Zilkha Company Energy Co. v.

Leighton, 920 F.2d 1520, 1523 (10th

Cir. 1990). The District Court took

into consideration the fact that the

petitioner appeared pro se, citing

Hall _v. Bellmon, 935 F.2d 1106, 1110

(10th Cir. 1991). (See Appendix R-B

at App. 10-12.)

Applying the foregoing standard,

the District Court carefully

scrutinized the petitioner’s 253-page

complaint, as well as the arguments

advanced by the petitioner in his 29-

10

page response to the respondents’

motion to dismiss. (See Appendix R-B

at App. 12-19.)

The District Court properly set

forth the elements which a plaintiff

must establish in order to prevail in

an action brought pursuant to 42

U.S.C. §1983; “i1.e., (1). that the

actions complained of were done by a

person acting under color of state

law, and (2) that these actions

deprived the plaintiff of rights,

privileges or immunities secured by

the Constitution or laws of the United

States. The District Court cited

Rendell-Baker _v. Kohn, 457 U.S. 830,

838 (1982); Jensen v. Redevelopment

Agency of Sandy City, 998 F.2d 1550,

1556 (10th Cir. 1993); Dixon v. City

of Lawton, Okl., 898 F.2d 1443, 1447

11

(10th Cir. 1990); Tarabishi v.

McAlester Regional Hospital, 827 F.2d

648, 651 (10th Cir. 1987); and Greco

v._Guss, 775 F.2d 161, 164 (7th Cir.

1985). (See Appendix R-B at App. 19-

i Bie

The District Court properly held

that the protection of procedural due

process is not available until a

plaintiff establishes the existence of

a recognized property or _ liberty

interest, citing Southeast Kansas

Comm. Action Program, Inc. v. Lynd,

758 F.Supp. 1430, 1432 (D.Kan. 1991)

(citing Setliff v. Memorial Hospital

of Sheridan County, 850 F.2d 1384,

1394 (10th Cir. 1988), aff'd, 967 F.2d

1452 (10th Cir. 1992); and Board of

Regents of State Colleges v. Roth, 408

U.S. 564 (1972). (See Appendix R-B at

Donets nk, We ee

12

App. 21-22.)

The District Court noted that the

United States Supreme Court has held

that academic decisions and judgments

about a student, as opposed to

disciplinary decisions, are entitled

to deference by the courts, citing

Regents of University of Michigan v.

Ewing, 474 U.S. 214 (1985); Board of

Curators, University of Missouri v.

Horowitz, 435 U.S. 78 (1978); and

Harris v. Blake, 798 F.2d 419, 423

(10th Cir. 1986). (See Appendix R-B

at App. 22-24.)

Analyzing the petitioner’s

complaint under applicable law, the

District Court properly found that the

petitioner did not have a property or

a liberty interest in having a

proposed topic of oral examination

13

approved by his teachers and academic

advisors. While acknowledging the

petitioner’s assertion that the

respondents’ actions ultimately led to

his dismissal from the University, the

District Court properly found that

allegation not to be factually

supported by a fair reading of the

entire complaint. Additionally,

citing Jensen, 998 F.2d at 1559, the

District Court properly held that the

petitioner’s claim that he has been

deprived of liberty interests in his

good name and reputation and ability

to pursue a career in chemistry fails

because: (1) there is no allegation

that any of the unfavorable

information about the petitioner has

been disseminated to the public; (2)

from the allegations made by the

as

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Seed Peed oy rine a a ar ee, me

14

petitioner, it does not appear that

the respondents’ actions and

statements concerning his competency

are stigmatizing; and (3) damage to

prospective employment opportunities

is too intangible to constitute

deprivation of a liberty interest.

(See Appendix R-B at App. 24-31.)

The District Court properly held

that the petitioner’s Fourth Amendment

Claims fail because the protections of

the Fourth Amendment apply only to

governmental action and, assuming

arguendo that the petitioner had a

reasonable expectation of privacy in

the pile of papers which his major

professor searched, and assuming

arguendo that the search was

unreasonable under the circumstances,

the petitioner failed to allege

sufficient facts to demonstrate that

the professor was acting as a

government agent. (See Appendix R-B

at App. 31-34.)

B. THIS CASE PRESENTS NO CONFLICT OR

UNSETTLED QUESTION OF LAW

NECESSITATING SUPREME COURT REVIEW.

Rule 10 of the Rules of the

Supreme Court of the United States

provides that a petition for writ of

certiorari will be granted "only when

there are special and important

reasons therefor." S.Ct.R. 10.1. Rule

10 indicates the character of reasons

that will be considered by this Court

in deciding whether to grant a review

on writ of certiorari. The petitioner

has failed to present any such reason

for this Court to grant review in this

case. He does not raise a conflict of

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decisions between courts of appeals or

state courts of last resort, or an

important question of federal law that

has not been, but should be, settled

by this Court, or a federal question

that conflicts with applicable

decisions of this Court. In his

petition, he merely reiterates the

arguments he made in the courts below,

asserting the unfairness of the

respondents’ rejection of his proposed

oral examination topic and the

illegality of the alleged search of

his papers by his major professor.

In addition to the petitioner’s

failure to assert any of the reasons

set forth in Rule 10 or any other

valid reason for this Court to grant

review of this case, the respondents

are not aware of the existence of any

such reason.

Cc. THE PETITIONER HAS FAILED TO

COMPLY WITH THE REQUIREMENTS IN

SUPREME COURT RULE 14 REGARDING THE

CONTENT OF A PETITION FOR A WRIT OF

CERTIORARI.

The petition does not contain a

direct and concise argument amplifying

the reasons relied on for allowing the

writ. The petitioner has failed to

present with accuracy, brevity, or

clearness whatever is essential to a

ready and adequate understanding of

the points requiring consideration by

this Court. For the foregoing

reasons, the petitioner has failed to

comply with Rule 14 of the Rules of

the Supreme Court of the United

States, which sets forth the

requirements for the content of a

petition for writ of certiorari.

ae ee ee ee oa eee

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For all of the above reasons, the

petition for writ of certiorari should

be denied.

Respectfully submitted,

C4 do

Cheryl G. Strecker

Assistant University Attorney

111 Anderson Hall

Kansas State University

Manhattan, Kansas 66506-0115

(913) 532-5730

App. 1

APPENDIX R-A

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

No. 94-3021

(D.C. No. 93-CV-4127)

(D. Kan.)

MIKE M. NDEFRU,

Plaintiff-Appellant

Vv.

DR. PETER M.A. SHERWOOD; DR. DALE M.

HAWLEY; DR. KENNETH J. KLABUNDE;

DR. MICHAEL J. O’SHEA; TIMOTHY R.

DONOGHUE, Dean; BRADLEY FENWICK, Dean;

ELIZABETH A. UNGER, Dean,

Defendants-Appellees.

ORDER AND JUDGMENT*

Before MOORE and KELLY, Circuit

Judges, and BABCOCK,** District Judge.

**Honorable Lewis T. Babcock, District

Judge, United States District Court

for the District of Colorado, sitting

by designation.

After examining the briefs and

Ee ate NC On Se a Oe Oe ty tee one, SNe gn Ep Le perks yan ne

RN ING Ge Cae OE, hm AE Ts ae: Rae

ne. * gin a aie af

App. 2

appellate record, this panel has

determined unanimously that oral

argument would not materially assist

the determination of this appeal. See

Fed. R. App. P. 34(a); 10th Cir. R.

34.1.9. The case is therefore ordered

submitted without oral argument.

Plaintiff Mike M. Ndefru filed

this action under 42 U.S.C. § 1983

alleging deprivation of due process in

connection with the decision of

members of the Chemistry Department at

Kansas State University to reject his

propositional oral examination theme.

Plaintiff further contended that this

decision defamed him and ultimately

resulted in his dismissal from the

University, and that his belongings

were unlawfully searched by defendant

Sherwood. A grievance hearing held by

App. 3

the University has earlier found

against plaintiff on all issues he

raised.

The district court granted

defendants’ motion to dismiss for

failure to state a claim under Fed. R.

Civ. P. 12(b) (6). After careful

review of the parties’ arguments, the

record on appeal, and the relevant

law, we affirm the judgment of the

district court for substantially the

reasons stated by that court.

The judgment of the United States

District Court for the District of

Kansas is AFFIRMED. The mandate shall

issue forthwith.

Entered for the Court

Paul J. Kelly, dr.

Circuit Judge

This order and judgment is not

EF op Bomce ne except under the

FNS es hab etme ee an

App. 4

doctrines of law of the case, res

judicata, and collateral estoppel.

The court generally disfavors the

citation of orders and judgments;

nevertheless, an order and

may be cited under the terms and

conditions of the court’s General

Order filed November 29, 1993. 151

F.R.D. 470.

App. 5

APPENDIX R-B

UNITED STATES DISTRICT COURT

DISTRICT OF KANSAS

JUDGMENT IN A CIVIL CASE

CASE NUMBER: 93-4127-SAC

MIKE M. NDEFRU,

Vv.

Plaintiff,

DR. PETER M.A. SHERWOOD,

DR. DALE M. HAWLEY,

DR.

KENNETH J. KLABUNDE,

DR. MICHAEL J. O'SHEA,

DEAN TIMOTHY R. DONOGHUE,

DEAN BRADLEY FENWICK,

DEAN ELIZABETH A. UNGER,

xX

Defendants.

Jury Verdict. This action came

before the Court for a trial by

jury. The issues have been tried

and the jury has rendered its

verdict.

Decision by Court. This action

came before the Court. The issues

have been considered and a

decision has been rendered.

IT IS ORDERED AND ADJUDGED that

defendants’ motion to dismiss is

granted. IT IS FURTHER ORDERED that

App. 6

plaintiff take nothing, that’ the

action be dismissed on the merits, and

that defendants Dr. Peter M.A.

Sherwood, Dr. Dale M. Hawley, Dr.

Kenneth J. Klabunde, Dr. Michael J.

O’Shea, Dean Timothy R. Donoghue, Dean

Bradley Fenwick, and Dean Elizabeth A.

Unger recover of the plaintiff Mike M.

Ndefru, their costs of action.

ENTERED ON THE DOCKET: 12/29/93

December 29, 1993

Date Clerk

—Lsl

(By) Deputy Clerk

App. 7

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS

Case No. 93-4127-SAC

MIKE M. NDEFRU,

Plaintiff,

Vs.

DR. PETER M.A. SHERWOOD,

DR. DALE M. HAWLEY,

DR. KENNETH J. KLABUNDE,

DR. MICHAEL J. O’ SHEA,

DEAN TIMOTHY R. DONOGHUE,

DEAN BRADLEY FENWICK,

DEAN ELIZABETH A. UNGER,

Defendants.

MEMORANDUM AND ORDER

On June 7, 1993, the plaintiff,

Mike M. Ndefru, filed a 253-page

complaint alleging claims under 42

U.S.C. § 1983. Ndefru, in substantial

detail, claims that the defendants

have deprived him of due process in

the rejection of his propositional

oral examination theme in Chemistry at

App. 8

Kansas State University (KSU). Ndefru

contends that this action ultimately

resulted in his dismissal from KSU.

Ndefru also claims that Dr. Sherwood

unlawfully searched his belongings.

Ndefru claims that this search of his

belongings violated his rights as

guaranteed by the Fourth Amendment and

Fourteenth Amendments. Ndefru claims

total damages in the amount of

$5,612,000.

This case comes before the court

upon the defendants’ motion to dismiss

pursuant to Fed. R. Civ. P. 12(b) (6).

The defendants argue that the

plaintiff has not been deprived of a

liberty or property interest. The

defendants also argue that even if the

plaintiff was deprived of a liberty or

property interest, the plaintiff has

App. 9

plead insufficient facts to indicate

that | they acted arbitrarily,

capriciously or in bad faith in

depriving the plaintiff of such an

interest. The defendants argue that

plaintiff‘s Fourth Amendment claims

must fail as Dr. Sherwood’s actions

did not deprive the plaintiff of his

right to be free from unreasonable

searches and seizures by the

government. The defendants also

contend that they are entitled to

qualified immunity.

Ndefru has filed a 29-page

response to the defendants’ motion to

dismiss. In that response, Ndefru

challenges the defendants’ factual

summation of his complaint. Ndefru

argues that the defendants cannot

redraft his complaint so as to ignore

ere ee ee a

App. 10

the specific facts alleged. Ndefru

contends that it is clear ‘that his

claims should survive the defendants’

motion to dismiss.

The court, having carefully

considered the briefs of the parties,

the plaintiff‘s voluminous complaint,

and the applicable law, is now

prepared to rule.

Standards for Granting a Motion to

Dismiss

In considering a motion for

dismissal under Fed. R. Civ. P. 12 (b)

(6), the court must

accept all factual allegations of

the complaint as true, and draw

all reasonable inferences in

favor of the plaintiff." Zilkha

| . 920 F.2d

1520, 1523 (10th Cir. 1990).

Dismissal of a case : to

Ped, Ri: Civic - Be eee 8)

requires the legal determination

thet the plaintiff can prove no

set of facts in support of his

claim to entitle him to relief.

App. 11

(citations omitted).

Hospice of Metro Denver v. Group

Health Ins., 944 F.2d 752, 753 (10th

Cir. 1991); see Thatcher Enterprises

v. Cache County Corp., 902 F.2d 1472

(10th Cir. 1990).

In analyzing the plaintiff's

complaint, the court has taken into

consideration the fact that he appears

pro se. "A pro se litigant’s pleadings

are to be construed liberally and held

to a less stringent standard than

formal pleadings drafted by lawyers."

Hall v. Bellmon, 935 F.2d 1106, 1110

(10th Cir. 1991). "At the same time,

we do not believe it is the proper

function of the district court to

assume the role of advocate for the

pro se litigant." Id. See Drake v.

City of Fort Collins, 927 F.2d 1156,

Si Yall d= is Dh OBIS Sy Note Te ee

App. 12

1159: (10th. Cas. 1988) ("Despite

liberal construction afforded pro se

pleadings, the court will not

construct arguments or theories for

ce

the plaintiff in the absence of any

discussion of those issues.").

Overview’

a The court notes that the

plaintiff's complaint is neither short

‘nor plain as required by Fed. R. Civ.

Pi 8 The plaintiff’s complaint is

often redundant and is extremely

difficult to follow. Nevertheless,

the court has attempted to distill the

essential aspects of the plaintiff's

complaint into an accurate, albeit

truncated, summation of the alleged

facts. By summarizing the basic facts

alleged in the plaintiff’s complaint,

the court has simply endeavored to

reduce the operative facts to a

manageable level. The court has

carefully scrutinized the plaintiff's

complaint. In considering the

plaintiff’s response to each of the

defendant’s arguments, the court has

also carefully considered the

arguments advanced by the plaintiff,

as well as the portions of his

complaint as referenced in his

response to the defendants’ motion.

ER a, TR. 2 PE) yr ee TSA te ee as OE ae Pde Be gree oP, 9t Shieh, Se

We Rane Ot MOL RS Cot STE OMA RY Pc POS eee ae i ae Sea wen oe .

App. 13

Ndefru, apparently not a United

State citizen, is studying in the

United States on a student visa.

While at Eastern Kentucky University,

Ndefru earned a bachelors degree in

Chemistry, a bachelors degree in

Biology, a masters degree in

Chemistry, and a masters degree in

Biology. Ndefru apparently had very

good grades while at Eastern Kentucky

University. Following his studies at

Eastern Kentucky University, Ndefru

was admitted to four esteueedtiinn to

pursue a Ph.D. degree in Chemistry.

In short, while the court has

considered all of the arguments of the

parties and has scrupulously reviewed

the plaintiff's complaint in its

entirety, this memorandum and order

will not attempt to repeat in full the

substance of the arguments of the

parties, nor will the court endeavor

to discuss in exacting detail all 253

pages of the plaintiff’s complaint.

z

Pe OSs ey A Ne a re

App. 14

Ndefru chose KSU.

During the events relevant to

this case, Ndefru was a graduate

student in the Chemistry Department at

KSU. Ndefru was a member of a

research group composed of graduate

students in the Chemistry Department.

The head of the group was Dr. Peter

Sherwood, who was also Ndefru’s major

research advisor.

Ndefru’s proposed topic for his

propositional oral examination dealt

with the analysis of chlorinated

hydrocarbons using gas sensor.

Although Ndefru believed his proposed

oral examination theme to be superior

to the topics proposed by other

students, the supervisory committée

rejected the plaintiff’s propositional

oral examination theme. Instead, the

App. 15

committee attempted to persuade Ndefru

to work on an alternative proposal,

the "Surface Science" proposal. Ndefru

claims that the supervisory

committee’s proposals were inferior to

his proposed topic.? Ndefru’s

complaint states that "(t]he committee

wanted, through the Surface Science

project, the plaintiff to milk a

rock." Ndefru claims that’ the

committee members, each of which were

closely tied to Dr. Sherwood for

financial and other reasons, rejected

2

The committee essentially indicated

that the value of Ndefru’s proposal

was "minimal" as vastly superior

technology to conduct the same

analysis which the gas sensor would

perform had already existed for thirty

years. Ndefru contends that the gas

sensor can provide analysis superior

to analysis of available instruments

at a fraction of the cost.

App. 16

Ndefru’s proposal primarily because

Dr. Sherwood was actively opposed to

st.

Ndefru complains that KSU and the

Chemistry Department policies and

regulations were not followed in

rejecting his proposal. Ndefru also

complains that he was not provided

access to copies of the other

student’s proposals.

At some point, Dr. Sherwood

removed Ndefru from the Surface

Science research group. Ndefru filed

a formal complaint with the Graduate

School and the Chemistry Department.

On June 18, 1992, Ndefru was

informed that a grievance hearing was

scheduled for June 22, 1992. Ndefru’s

request for additional time to prepare

was denied. Ndefru claims that

App. 17

allowing him only "“one-working-day’s"

notice violated his grievance rights.

In addition, Ndefru’s request for

copies of the other student's

proposals which had been approved was

denied. The rules governing the

grievance committee did not allow for

cross-examination of the witnesses by

Ndefru. Ndefru complains that certain

witnesses were unavailable to appear

at the grievance hearing. Ndefru also

contends that members of the

grievance committee either lacked the

requisite skills and knowledge

necessary to evaluate his proposal or

that they were biased against him.

The grievance committee

ultimately concluded that the

Chemistry Department and Dr. Sherwood

has treated Ndefru fairly and found

App. 18

against Ndefru on all of the issues he

had raised. The grievance committee

report, which Ndefru claims’ was

untimely prepared, was reviewed and

approved by Dean Donoghue, Dean of the

Graduate School. Although Dean

Donoghue indicated that KSU would

arrange for Ndefru to become a member

of another research group, Ndefru

apparently rejected that offer.

Because that Surface Science group was

the only Surface Science Group at KSU,

Ndefru claims that his dismissal from

the group essentially had the effect

of dismissing him from KSU. Ndefru

basically claims that these acts have

destroyed his professional reputation.

Ndefru also claims that on May 9,

1992, Dr. Sherwood was going through

his belongings which were in an area

App. 19

shared by Ndefru and another student

which served as an office for the two

students. Ndefru’s "office" area was

apparently located in Dr. Sherwood’s

research laboratory. Dr. Sherwood was

apparently looking for papers

concerning nickel which he had

previously loaned to Ndefru. Dr.

Sherwood was looking through a pile of

papers on Ndefru’s desk when Ndefru

entered the room. Ndefru objected to

Dr. Sherwood’s search for the papers,

and now claims this search by Dr.

Sherwood violated his constitutional

rights.

42 U.S.C. § 1983

42 U.S.C. § 1983 provides in

pertinent part:

Every person who, under color of

any statute, ordinance,

regulation, custom, or usage, of

any State or Territory of the

App. 20

District of Columbia, subjects,

or causes to be subjected, any

citizen of the United States or

other person within the

jurisdiction thereof to’ the

deprivation of any rights,

privileges, or immunities secured

by the Constitution and laws,

shall be liable to the party

injured in an action at law, suit

in equity, or other proper

proceeding for redress.

Section 1983 does not create any

substantive rights. Dixon v. City of

Lawton, Okl., 898 F.2d 1443, 1447

(10th Cir. 1990). A § 1983 claims

generally described a _ substantive

violation of a right secured by the

Constitution or law. Id.

Under 42 U.S.C. § 1983, the

plaintiff must establish (1) that the

actions complained of were done by a

person acting under color of state

law, and (2) that these actions

deprived the plaintiffs of rights,

privileges or immunities secured by

App. 21

the Constitution or laws of the United

States. See Jensen v. Redevelopment

Agency of Sandy City, 998 F.2d 1550,

1556 (10th Cir. 1993); Greco v. Guss,

775 F.2d 161, 164 (7th Cir. 1985); See

Dixon, 898 F.2d at 1447. Whether a

person is subject to a § 1983 suit

turns upon the ultimate question of

whether the alleged infringement of

federal rights is fairly attributable

to the state. Rendell-Baker v. Kohn,

457 U.S. 830, 838 (1982); Tarabishi v.

McAlester Regional Hosp., 827 F.2d

648, 651 (10th Cir. 1987).

Due Process

"The protection of procedural due

process is not available until the

plaintiff establishes the existence of

a recognized property or liberty

interest." Southeast Kansas. Comm.

App. 22

Action Program, Inc. v. Lyng, 758 F.

Supp. 1430, 1432 (D. Kan. 1991)

(citing Setliff v. Memorial Hosp. of

Sheridan County, 850 F.2d 1384, 1394

(10th Cir. 1988)), aff'd, 967 F.2d

1452 (10th Cir. 1992). "The range of

interests protected by procedural due

process is not infinite." Board of

Regents of State Colleges v. Roth, 408

U.S. 564 (1972).

"The very nature of due process

negates any concept of inflexible

procedures universally applicable to

every imaginable situation."

Cafeteria Workers Union, Local 473 v.

McElroy, 367 U.S. 886, 895 (1961).

The Supreme Court has held that

academic decisions and judgments about

a student, as opposed to disciplinary

decisions, are entitled to deference

App. 23

by the courts. See Regents of

U.S. 214 (1985); Board of Curators,

Univ. of Mo. v. Horowitz, 435 U.S. 78

(1978) ("Courts are particularly ill-

equipped to evaluate academic

performance."); Harris v. Blake, 798

F.2d 419, 423 (10th Cir. 1986) ("The

Supreme Court has emphasized that less

stringent procedural requirements

attach when a school makes an academic

judgment about a student than when it

takes disciplinary action."), cert.

denied, 479 U.S. 1033 (1987).

In Horowitz, a medical student

challenged her dismissal by the

University of Missouri-Kansas City

Medical School. The student argued

that the medical school had not

provided her with procedural due

App. 24

process prior to her dismissal. The

Supreme Court disagreed and held that

the student had received procedural

due process as she had received notice

of her impending dismissal and that

the decision to dismiss her was

careful and deliberate. 435 U.S. at

85.

Property Interest

"To have a property interest in a

benefit, a person clearly must have

more than an abstract need or desire

So¥ 30. He must have more than a

unilateral expectation of it. He

must, instead, have legitimate claim

of entitlement to it." Id. 408 U.S.

at S77. "The hallmark of property,

the Court has emphasized, is an

individual entitlement grounded in

state law, which cannot be removed

App. 25

except ‘for cause.’" Logan __v.

Zimmerman Brush Co., 455 U.S. 422, 430

(1982).

Liberty Interest

In Southeast Kansas Comm. Action

Program, this court summarized the law

concerning a cause of action based

upon a deprivation of a liberty

interest:

Notwithstanding the absence

of a property interest, a

procedural due process hearing

may still be necessary if a

liberty interest is implicated.

735 ¥.4aG 1226, i226 (10th Cir.

1984). In Paul _v. Davis, 424

U.8.. 693, 96. B.SC... 24359, 47 i.

Ed. 2d 405 (1976), the Supreme

Court considered the issue of

whether the plaintiff who was

allegedly defamed by a flier

circulated by the police

department bearing his name and

photograph which supposedly

depicting "active shoplifters"

stated a claim for relief under

42 UV.S.C. § 1983 and_ the

Fourteenth Amendment. The Court

concluded that injury alone to

reputation does not violate the

App. 26

liberty or property interests of

the due process clause. The

Court stated that there is "no

constitutional doctrine

converting every defamation by a

public official into a

deprivation of liberty within the

meaning of the Due Process Clause

of the Fifth oor Fourteenth

Amendment." Id. at 702. The

proper remedy for such an injury

is through a state tort action

for defamation. Id. at 697-699.

In Paul, the Court concluded that

the plaintiff had suffered no

constitutional injury because he

could not "assert denial of any

right vouchsafed to him by the

State and thereby protected under

the Fourteenth Amendment." Id.

at. Tae

Thus, in order to present a

viable liberty deprivation claim,

the plaintiff must demonstrate

more than a mere injury to

reputation; due process

requirements are not triggered

unless the injury to reputation

is entangled with the loss of a

more tangible interest. See

Setliff, 850 F.2d at 1396. The

plaintiff is also required to

demonstrate that the publication

of information was false and

stigmatizing. See Derstein v.

,. S38 3.26 ©1410

(10th Cir 1990) ;

Smith, 853 F.2d 789, 794 (10th

Cir 1988); Sipes v. United

App. 27

States, 744 F.2d 1418, 1421 (10th

Cir. 1984).

A statement is not

stigmatizing if it merely alleges

incompetence, negligence, low

productivity and dereliction.

See i Vv , 808 F.2d

737 TES COCR: Car. 1987}. In

order for a statement to be

stigmatizing, a statement must

allege dishonesty, stealing or

some other allegation that gives

rise to a ‘badge of infamy,’

public scorn, or the like; See

W Vv j

Digg: F367. 2G 246,236 un. iI6

(Sth Cir. 1984); Bailey v. Kirk,

77? Pca. SG, SOG,;) B.- 38 ‘fa0th

Cir. 1985)

758 F. Supp. at 1433-1434; see Jensen,

998 F.2d at 1558-1559.

Analysis

Due Process Claim

As the defendants suggest, Ndefru

has failed to demonstrate that he has

been deprived of a liberty or property

interest. Essentially, the

plaintiff's case boils down to whether

Prost ee

we

App. 28

a university student has a property or

liberty interest in having a proposed

oral topic approved by his teachers

and academic advisors. Simply put,

Ndefru does not have a property or

liberty interest in having his

proposed topic on a gas _ sensor

approved, irrespective of the fact

that he may regard his proposed topic

to be superior to topics approved for

other students, and irrespective of

his self-appraisal of the relative

merits of his topical proposal and his

academic advisors’ recommended or

required course of study. The

plaintiff’s disappointed expectations

of researching a preferred topic are

not a basis of any cognizable liberty

or property interest. Nor does the

fact that Ndefru’s subsequent efforts

App. 29

to overrule the decision of his

academic advisors regarding his

topical proposal were unsuccessful

implicate a liberty or property

interest.? In short, the plaintiff's

complaint does not allege a sufficient

factual basis to demonstrate that the

defendants’ actions have deprived him

Ndefru’s complaint on _ several

occasions challenges the defendant’s

adherence to the applicable rules and

regulations in considering his

proposed topical area and in

addressing his subsequent grievance.

The court simply notes that’ the

defendants’ failure to rigidly adhere

to the University’s rules and

regulations would not, in and of

itself, serve as a basis for a § 1983

claim. See Newman v. Burgin, 930 F.2d

955, 960 (lst Cir. 1991) ("The Due

Process Clause of the Constitution...

does not require the University to

follow any specific set of detailed

procedures as long as the procedures

the University actually follows are

basically fair ones...").

App. 30

of any liberty or property interest.‘

Ndefru’s claim that he has been

deprived of liberty interests in his

good name and reputation and his

ability to pursue a career in

chemistry fails for at least two

reasons. First, there is no

allegation that any of the unfavorable

information about Ndefru has been

disseminated to the public; the intra-

university dissemination of this

information cannot serve as basis for

4

The plaintiff makes the blanket

assertion that the defendants’ actions

ultimately lead to his dismissal from

KSU. While such allegations might

implicate a property oor liberty

interest, that allegation is not

factually supported by a fair reading

of the entire complaint. In fact, it

appears that once the grievance

committee’s decision was reached,

Ndefru was encouraged to find a new

major professor to complete his

studies at K.S.U.

App. 31

this claim. Harris, 798 F.2d at 422-

23 n. 2. Second, from the allegations

found in Ndefru’s complaint and the

arguments made in his response to the

defendants’ motion, it does not appear

that the defendants’ actions and

statements concerning his competency

are stigmatizing. Moreover, "[d] amage

to prospective employment

opportunities is too intangible to

constitute deprivation of a liberty

interest," Jengen, 998 F.2d at 1559.

In sum, Ndefru’s due process

Claims are dismissed for failure to

state a claim upon which relief may be

granted.

Fourth Amendment Claim

The Fourth Amendment to the

United States Constitution protects a

person’s right to be secure from

SAME RANTS EN eee arcane

App. 32

unreasonable searches and seizures.

United States v. Walsh, 791 F.2d 811,

814 (10th Cir. 1986). The Fourth

Amendment to the Constitution is

applicable to the states through the

Fourteenth Amendment. Mapp v. OQOhig,

367 U.S. 643 (1961). "The protections

of the fourth amendment, however,

apply only to governmental action; a

search or seizure, even if

unreasonable, performed by a private

person not acting as a government

agent or in concert with a government

official is not within the scope of

the fourth amendment." Walsh, 791

F.2d at 814 (citing United States v.

Jacobsen, 466 U.S. 109, 113 (1984)).

"The test for determining whether one

is acting as a government agent is

whether 1) the government knew of the

App. 33

acquiesced in the intrusive conduct;

and 2) the party performing the search

intended to assist law enforcement

efforts or further his own ends."

United States v. Lowe, 999 F.2d 448,

450 n. 4 (10th Cir. 1993) (citing

Pleasant v. Lovell, 876 F.2d 787, 797

(10th Cir. 1989)).

Assuming, arguendo, that Ndefru

has a reasonable expectation of

privacy in the pile of papers which

Dr. Sherwood searched, and assuming,

arguende, that Dr. Sherwood’s search

was unreasonable under the

circumstances, Ndefru has failed to

allege sufficient facts to demonstrate

that Dr. Sherwood was acting as a

government agent at the time he

searched for the "nickel" papers.

Therefore, Ndefru’s Fourth Amendment

App. 34

claims necessarily fail.

IT IS THEREFORE ORDERED that the

defendants’ motion to dismiss (Dk. 12)

is granted.

Dated this 29th day of December,

1993, Topeka, Kansas.

/s/ Sam A. Crow

U.S. District Judge

App. 35

APPENDIX R-C

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

No. 94-3021

MIKE M. NDEFRU,

Plaintiff-Appellant

2

DR. PETER M.A. SHERWOOD; DR. DALE M.

HAWLEY; DR. KENNETH J. KLABUNDE;

DR. MICHAEL J. O’SHEA; TIMOTHY R.

DONOGHUE, Dean; BRADLEY FENWICK, Dean;

ELIZABETH A. UNGER, Dean,

Defendants-Appellees.

ORDER

Entered September 7, 1994

Before MOORE and_ KELLY, Circuit

Judges, and BABCOCK, District Judge.

*Honorable Lewis T. Babcock, District

Judge, United States District Judge

for the District of Colorado, sitting

by designation.

This matter comes on for

consideration of appellant’s petition

for rehearing.

App. 36

Upon consideration whereof, the

petition for rehearing is denied by

the panel that rendered the decision.

Entered for the Court

PATRICK FISHER, Chief Deputy Clerk

By /s/ Jim Powers

Deputy Clerk

CERTIFICATE OF SERVICE

I, Cheryl G. Strecker, hereby

certify that I served three copies of

the foregoing Respondents’ Brief In

Opposition by depositing the same in

the U.S. mail, postage prepaid, this

Zist day of _ Dec. , 1994, addressed

to:

Mike M. Ndefru

P.O. Box 234

Manhattan, KS 66502-0002

lidE, Joe

Cheryl G. Strecker

Assistant University Attorney

Kansas State University

111 Anderson Hall

Manhattan, KS 66506-0115

(913) 532-5730