# Opposition Brief — Ndefru v. Sherwood

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1995
- **Citation:** 513 U.S. 1128

## Text

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 120

of Sheridan County, 850
F.2d 1384 (10th Cir.
£906) 66600550 0 a i OO ae

i

5

~
=
a
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

rAd . eae Ae xy i i ea

. i AT Pee ye hfe DS : i sed a7

wy ca CRY Be : ee wed 5 = é epee
POE HE Tee, 2

1

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

?
*%
_

=
:

: ;
4
a

le ee ; : : ; ;

16

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
y a 1 ;

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386012_0947%3A2. Public record. Not legal advice.