Sylvia Nofsinger v. VCU, No. 12-1961 (4th Cir. 2013)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-1961 SYLVIA E. NOFSINGER, Plaintiff - Appellant, v. VIRGINIA COMMONWEALTH UNIVERSITY; E. DOUGLAS BOUDINOT, Dean, School of Graduate Studies; CECIL B. DRAIN, Dean, School of Allied Health Professions; THOMAS P. MAYHEW, Chair and Associate Professor, Department of Physical Therapy; U. S. PHYSICAL THERAPY, INC., Defendants - Appellees, and LISA D. SHOAF, Associate Professor, Department of Physical Therapy; EMMA WHEELER, Assistant Professor, Chair of Admissions, Defendants. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. James R. Spencer, District Judge. (3:12-cv-00236-JRS) Submitted: February 28, 2013 Decided: April 2, 2013 Before MOTZ and DUNCAN, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Sylvia E. Nofsinger, Appellant Pro Se. Martha Murphey Parrish, Assistant Attorney General, Catherine Crooks Hill, Christy Monolo, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia; Annemarie DiNardo Cleary, Douglas P. Rucker, Jr., SANDS ANDERSON, PC, Richmond, Virginia, for Appellees. Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: Sylvia E. Nofsinger appeals the district court s order granting Defendants motions to dismiss her complaint pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6). relate to her dismissal from the Nofsinger s claims Virginia Commonwealth University ( VCU ) graduate physical therapy program. Pursuant to Physical an affiliation Therapy, Inc. agreement ( USPT ), between Nofsinger VCU and enrolled U.S. in a required clinical instruction course conducted by a USPT employee. After receiving a failing clinical grade and subsequent dismissal from VCU, Nofsinger filed a complaint against VCU, USPT, and five individual VCU faculty members. For the reasons that follow, we affirm. We review de novo a district court s order dismissing a complaint for failure to state a claim, assuming that all well-pleaded nonconclusory factual allegations in the complaint are true. 2011). Aziz v. Alcolac, Inc., 658 F.3d 388, 391 (4th Cir. A Rule 12(b)(6) motion challenges the legal sufficiency of the complaint. Cir. 2009). Francis v. Giacomelli, 588 F.3d 186, 192 (4th To survive a motion to dismiss pursuant to Rule 12(b)(6), plaintiff s [f]actual allegations must be enough to raise a right to relief above the speculative level, thereby nudg[ing] their claims across 3 the line from conceivable to plausible. Aziz, 658 F.3d at 391 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Nofsinger argues that the district court erred in denying her due process claim. Generally, a due process claim requires whether a two-part analysis: [the plaintiff] was deprived of a protected interest and, if so, what process was his due. Logan v. Zimmerman Brush Co., 455 U.S. 422, 428 (1982). Our review of the record establishes that Nofsinger failed to allege a protected property interest in her continued enrollment in VCU s graduate program and that, in any event, VCU afforded Nofsinger sufficient procedural process. Nofsinger also appeals the district court s denial of her equal protection claim. Fourteenth Amendment The Equal Protection Clause of the requires that situated should be treated alike. all persons similarly City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). To succeed on an equal protection claim, a plaintiff must first demonstrate that he has been treated differently from others with whom he is similarly situated and intentional Garraghty, that or 239 the unequal purposeful F.3d 648, treatment was the discrimination. 654 (4th Cir. 2001). result Morrison of v. Nofsinger reasserts her arguments that VCU treated her differently from several similarly situated students and dismissed her from the graduate program based on personal animus harbored against her 4 by the individual defendants. We conclude that the district court correctly found that Nofsinger failed to specify how the alleged failed students to were establish similarly that any situated and, differential furthermore, treatment was the result of discrimination. Nofsinger also appeals the district court s dismissal of her breach of contract claim against USPT. that she was an intended third party Nofsinger alleges beneficiary of the affiliation agreement between VCU and USPT, asserting that USPT breached several district court provisions correctly of the contract. found that USPT did Because not make the the ultimate decisions to assign Nofsinger a failing grade or to dismiss her from the VCU graduate program, we conclude that the district court correctly dismissed this claim. Finally, Nofsinger asserts breach of contract claims against VCU and the individual defendants. Because Nofsinger did not allege a breach of contract claim against the individual defendants in the district court, we conclude that Nofsinger may not now pursue this claim in this court. Nofsinger also challenges the district court s determination that her contract claims against VCU are barred by the Eleventh Amendment. The existence of sovereign immunity is a question of law reviewed de novo. S.C. Wildlife Fed n v. Limehouse, 549 F.3d 324, 332 (4th Cir. 2008). In the absence of consent a suit in which the 5 State or one of its agencies or departments is named as the defendant is proscribed by the Eleventh Amendment . . . whether the relief sought is legal or equitable. Papasan v. Allain, 478 U.S. 265, 276 (1986) (internal quotation marks and citations omitted). Because VCU did not consent to suit, the district court properly dismissed Nofsinger s contract claims against VCU as barred by the Eleventh Amendment. Accordingly, forma pauperis, dispense with contentions are we oral although affirm the argument adequately we grant leave district because presented in to court s the the facts proceed order. in We and legal materials before this court and argument would not aid the decisional process. AFFIRMED 6