Bonnie Davis v. Michael Rao, No. 13-2493 (4th Cir. 2014)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-2493 BONNIE NEWMAN DAVIS, Plaintiff - Appellant, v. MICHAEL RAO, PhD., individually; L. TERRY OGGEL, PhD., individually; FRED M. HAWKRIDGE, PhD., individually; BEVERLY J. WARREN, PhD., individually; CYNTHIA K. KIRKWOOD, Pharm.D., individually, Defendants - Appellees. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. James R. Spencer, Senior District Judge. (3:13-cv-00239-JRS) Submitted: August 27, 2014 Decided: September 5, 2014 Before NIEMEYER and AGEE, Circuit Judges, and HAMILTON, Senior Circuit Judge. Affirmed by unpublished per curiam opinion. Scott G. Crowley, Sr., CROWLEY & CROWLEY, Glen Allen, Virginia, for Appellant. Mark R. Herring, Attorney General of Virginia, Rhodes B. Ritenour, Deputy Attorney General, Peter R. Messitt, Sydney Edmund Rab, Senior Assistant Attorneys General, Richmond, Virginia, for Appellees. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Bonnie number of N. Davis filed Virginia civil Commonwealth administrators, alleging process in rights a that denying complaint University Defendants her against violated application for a ( VCU ) her due tenure and promotion to the position of associate professor at VCU. Davis appeals the district court s order granting Defendants Fed. R. Civ. P. 12(b)(6) motion to dismiss. We review de novo a district court s ruling on a Rule 12(b)(6) motion, accepting factual allegations in the complaint as true and drawing all reasonable inferences in favor of the nonmoving party. Kensington Volunteer Fire Dep t v. Montgomery Cnty., 684 F.3d 462, 467 (4th Cir. 2012). To survive a Rule 12(b)(6) motion to dismiss, a complaint must contain sufficient facts to state a claim to relief that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). To state a procedural due process claim, Davis must allege that: (1) she had a constitutionally cognizable life, liberty, or property interest; (2) Defendants deprived her of that interest; (3) and the constitutionally inadequate. procedures employed were Sansotta v. Town of Nags Head, 724 F.3d 533, 540 (4th Cir. 2013). Property interests are created and their dimensions are defined by existing rules or understandings that stem from an 2 independent source such as state law. Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577 (1972). To possess a property interest, a claimant must have more than a unilateral expectation of it. [Sh]e must, instead, have a legitimate claim of entitlement to it. Id. On appeal, Davis argues that even in the absence of a protected property interest, she was entitled to a fair review process under Despite Davis protected VCU s Promotion assertions liberty or to and Tenure the contrary, property Review interest demonstrating is a requirement for establishing a Due Process claim. 724 F.3d at 540. Guidelines. a threshold See Sansotta, Moreover, [p]rocess is not an end in itself. Its constitutional purpose is to protect a substantive interest to which the individual has a legitimate claim of entitlement. Olim v. Wakinekona, 461 U.S. 238, 250 (1983). procedures, without property interest. more, do not give rise Tenure review to a protected Siu v. Johnson, 748 F.2d 238, 244 n.11 (4th Cir. 1984) (concluding that such a claim is a circular one and thus conceptually unacceptable ). Because Davis has not alleged any property interest distinguishable from the tenure review procedures provided by VCU, we conclude that she has not demonstrated the threshold requirement that she was deprived of a protected property or liberty interest. 3 Accordingly, we affirm the district court s judgment. We dispense contentions with are oral argument adequately because presented in the facts and the materials legal before this court and argument would not aid the decisional process. AFFIRMED 4
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