Brief/Memorandum in Support filed by Duane Jones, William Pasewark, Robert Ricketts, Texas Tech University, Brittany Todd re 9 MOTION to Dismiss (Attachments: # 1¶

Patel v. Texas Tech University et al, No. 5:17-cv-00174-C (N.D. Tex.) · Dkt. 10 · 2017-09-01 · PDF

Text extracted from the PDF; scanned pages were read by OCR. The PDF is the authoritative copy.

Case 5:17-cv-00174-C

Document 10

Filed 09/01/17

Page 1 of 21

PageID 83

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
LUBBOCK DIVISION
RAJIN PATEL,
§
§
Plaintiff,
§
v.
§
§
TEXAS TECH UNIVERSITY; DUANE §
JONES, individually and in his official §
capacity as adjunct professor; WILLIAM §
PASEWARK, INDIVIDUALLY and in his §
official capacity as TTU Rawls College of §
CIVIL ACTION NO. 5:17-cv-174-C
Business Associate Dean of Graduate §
Programs and Research; ROBERT §
RICKETTS, individually and in his §
official capacity as Area Coordinator in §
Accounting; and BRITTANY TODD, §
individually and in her individual capacity §
as Associate Director of the Office of §
§
Student Conduct;
§
Defendants.

DEFENDANTS’ BRIEF IN SUPPORT OF MOTION TO DISMISS

KEN PAXTON
Attorney General of Texas
JEFFREY C. MATEER
First Assistant Attorney General
BRANTLEY STARR
Deputy First Assistant Attorney General
JAMES E. DAVIS
Deputy Attorney General for Civil
Litigation

ROLA DAABOUL
Assistant Attorney General
Texas Bar No. 24068473
Office of the Attorney General
General Litigation Division
P.O. Box 12548, Capitol Station
Austin, Texas 78711-2548
(512) 836-1322
(512) 320-0667 (FAX)
rola.daaboul@oag.texas.gov
ATTORNEYS FOR DEFENDANTS

ANGELA V. COLMENERO
Chief, General Litigation Division

i

Case 5:17-cv-00174-C

Document 10

Filed 09/01/17

Page 2 of 21

PageID 84

TABLE OF CONTENTS

TABLE OF CONTENTS ................................................................................................................ ii
TABLE OF AUTHORITIES ......................................................................................................... iii
I.

SUMMARY OF THE ARGUMENT ..................................................................................... 1

II.

BACKGROUND .................................................................................................................... 3
A. Six of Plaintiff’s closed-material final exam essay answers are discovered to be nearly 90%
word-for-word from the test bank answers. ................................................................................ 3
B. TTU’s Office of Student Conduct conducts a thorough investigation into complaint that
Plaintiff cheated on his final exam and plagiarized his answers. ............................................... 5

III.

ARGUMENT AND AUTHORITIES .................................................................................. 6

A. Motion to Dismiss Standard.................................................................................................. 6
B. Plaintiff’s claims against TTU and the Individual Defendants in their official capacities are
barred by sovereign immunity. ................................................................................................... 7
1. The § 1983 claims against TTU and the Individual Defendants in their official
capacities are barred. ............................................................................................................... 7
2. The breach of contract claim against TTU is barred. ....................................................... 8
C. Plaintiff’s claims against the Individual Defendants fail as a matter of law. ........................ 9
1. Plaintiff has failed to bring a valid § 1983 claim against the Individual Defendants in
their individual capacities. .................................................................................................... 10
2. Plaintiff fails to establish a substantive due process violation. ...................................... 11
D. Plaintiff fails to state a viable Equal Protection claim. ....................................................... 14
E. The Complaint fails to state a claim for injunctive relief. ................................................... 15
F. Plaintiff’s claim for compensatory damages against TTU and the Individual Defendants in
their official capacities is barred. .............................................................................................. 15
IV.

PRAYER ............................................................................................................................ 16

CERTIFICATE OF SERVICE ..................................................................................................... 17

ii

Case 5:17-cv-00174-C

Document 10

Filed 09/01/17

Page 3 of 21

PageID 85

TABLE OF AUTHORITIES
Cases
Aragona v. Berry, No. 3:10-CV-1610-G, 2012 WL 467069 (N.D. Tex. Feb. 14, 2012) ............. 12
Ashcroft v. al-Kidd, 563 U.S. 731 (2011) ..................................................................................... 11
Ashcroft v. Iqbal, 556 U.S.129 (2009) .......................................................................................... 10
Backe v. LeBlanc, 691 F.3d 645 (5th Cir. 2012)............................................................................. 9
Bell Atlantic Corporation v. Twombly, 550 U.S. 544 (2007) ......................................................... 7
Coury v. Prot, 85 F.3d 244 (5th Cir. 1996)..................................................................................... 6
DePree v. Saunders, 588 F.3d 282 (5th Cir. 2009)......................................................................... 9
Ewing, 474 U.S. 214 (1985).......................................................................................................... 11
Fernandez-Montes v. Allied Pilots Ass’n, 987 F.2d 278 (5th Cir. 1993)........................................ 7
Gen. Servs. Comm’n v. Little-Tex Insulation Co., 39 S.W.3d 591 (Tex. 2001) ............................. 8
Harlow v. Fitzgerald, 457 U.S. 800 (1982) .................................................................................... 9
Home Builders Ass’n of Miss, Inc. v. Madison, 143 F.3d 1006 (5th Cir. 1998) ............................. 6
Howery v. Allstate Ins. Co., 243 F.3d 912 (5th Cir. 2001) ............................................................. 6
In re Katrina Canal Breaches Litigation, 495 F.3d 191 (5th Cir. 2007) ........................................ 7
Johnson v. Johnson, 385 F.3d 505 (5th Cir. 2004) ....................................................................... 10
Lewis v. Univ. of Tex. Med. Branch at Galveston, 665 F.3d 625 (5th Cir. 2011) ........................ 12
Lieu v. Jackson, No. 4:09-CV-415-A, 2010 WL 342251 (N.D. Tex. Jan. 29, 2010) ..................... 9
Marco Outdoor Adver., Inc. v. Reg’l Transit Auth., 489 F.3d 669 (5th Cir. 2007) ...................... 12
McClendon v. City of Columbia, 305 F.3d 314 (5th Cir. 2002) ..................................................... 9
Mitchell v. Forsyth, 472 U.S. 511 (1985) ....................................................................................... 9
Moran v. Kingdom of Saudi Arabia, 27 F.3d 169 (5th Cir. 1994) .................................................. 6
Morgan v. Swanson, 610 F.3d 877 (5th Cir. 2010)......................................................................... 9
Nunez v. Simms, 341 F.3d 385 (5th Cir. 2003) ............................................................................. 10
Pearson v. Callahan, 555 U.S. 223 (2009) ..................................................................................... 9
Ramming v. United States, 281 F.3d 158 (5th Cir. 2001) ........................................................... 6, 7
Saltz v. Tenn. Dept. of Emp’t Sec., 976 F.2d 966 (5th Cir. 1992)................................................. 15
Smith v. Texas Tech University, 398 Fed. Appx. 953 (5th Cir. 2010) ............................................ 8
Stockman v. Fed. Election Comm’n, 138 F.3d 144 (5th Cir. 1998) ................................................ 6
Stotter v. University of Texas at San Antonio, 508 F.3d 812 (5th Cir. 2007) ............................. 7, 8
Tex. v. Walker, 142 F.3d 813 (5th Cir.1998) ................................................................................ 12
iii

Case 5:17-cv-00174-C

Document 10

Filed 09/01/17

Page 4 of 21

PageID 86

Vill. Of Willowbrook v. Olech, 528 U.S. 562 S. Ct. 1073 (2000) ................................................. 14
Villanueva v. Texas Tech University, No. 5:10-CV-186-C, 2010 WL 11465139 (N. D. Tex. Dec.
17, 2010 ...................................................................................................................................... 8
Voluntary Purchasing Groups, Inc. v. Reilly, 889 F.2d 1380 (5th Cir. 1989) ................................ 6
Wheeler v. Miller, 168 F.3d 241 (5th Cir. 1999) .................................................................... 11, 13
Will v. Michigan Dept. of State Police, 491 U.S. 58 (1989) ................................................. 7, 8, 15
Woods v. Edwards, 51 F.3d 577 (5th Cir. 1995)........................................................................... 10
Zarnow v. City of Wichita Falls, 500 F.3d 401 (5th Cir. 2007) .............................................. 10, 11
Zinermon v. Burch, 494 U.S. 113 (1990)...................................................................................... 12
Statutes
42 U.S.C. § 1983 ............................................................................................................................. 7
Rules
FED. R. CIV. P. 12(b)(1) .............................................................................................................. 1, 6
FED. R. CIV. P.12(b)(6) ................................................................................................................... 1

iv

Case 5:17-cv-00174-C

Document 10

Filed 09/01/17

Page 5 of 21

PageID 87

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
LUBBOCK DIVISION
RAJIN PATEL,
§
§
Plaintiff,
§
v.
§
§
TEXAS TECH UNIVERSITY; DUANE §
JONES, individually and in his official §
capacity as adjunct professor; WILLIAM §
PASEWARK, INDIVIDUALLY and in his §
official capacity as TTU Rawls College of §
CIVIL ACTION NO. 5:17-cv-174-C
Business Associate Dean of Graduate §
Programs and Research; ROBERT §
RICKETTS, individually and in his §
official capacity as Area Coordinator in §
Accounting; and BRITTANY TODD, §
individually and in her individual capacity §
as Associate Director of the Office of §
§
Student Conduct;
§
Defendants.

DEFENDANTS’ BRIEF IN SUPPORT OF MOTION TO DISMISS
TO THE HONORABLE JUDGE SAMUEL RAY CUMMINGS:
Pursuant to FED. R. CIV. P. 12(b)(1) and FED. R. CIV. P.12(b)(6), Defendants Texas Tech
University (“TTU”), and Duane Jones, William Pasewark, Robert Ricketts, and Brittany Todd
(collectively, the “Individual Defendants”), file this Brief in Support of Motion to Dismiss against
Plaintiff Rajin Patel (“Plaintiff”).
I.
1.

SUMMARY OF THE ARGUMENT

This is a substantive due process, equal protection, and breach of contract case filed

by a student at TTU who was disciplined for cheating and plagiarizing answers on a final exam
after six of his answers were found to be over 90% word-for-word from the test bank answers.
TTU’s Office of Student Conduct investigated and substantiated the cheating and plagiarism

1

Case 5:17-cv-00174-C

Document 10

Filed 09/01/17

Page 6 of 21

PageID 88

allegations against the Plaintiff and, in accordance with the Student Handbook and other TTU
policies, provided Plaintiff with written notice and a hearing. Plaintiff had a full and meaningful
opportunity to challenge the allegations at his February 10, 2017 panel hearing, during which a
panel of two faculty members and one graduate student from the TTU Office of Student Conduct
considered Plaintiff’s submissions in addition to the Office of Student Conduct’s investigative
report. After considering all of the evidence, the panel found Plaintiff guilty of cheating and
plagiarism, and placed Plaintiff on deferred suspension in addition to other penalties. After finding
no procedural or substantive errors and no new information, Plaintiff’s subsequent appeal was
denied. Instead of taking responsibility for his actions, Plaintiff now attempts to place the blame
on everyone but himself—inconsistently asserting that he did not cheat or plagiarize while arguing
that his actions should not be considered cheating or plagiarism because another exam session was
allegedly allowed to use unpermitted materials.
2.

Plaintiff asserts a § 1983 substantive due process claim against TTU and the

Individual Defendants (who he claims were connected to the “bias” hearing) in their official
capacities, a § 1983 substantive due process claim against the Individual Defendants in their
individual capacities, a § 1983 equal protection claim against all Defendants in their individual
and official capacities, and a breach of contract claim against TTU.
3.

The § 1983 substantive due process and equal protection claims against TTU and

the Individual Defendants in their official capacities, and the breach of contract claim against TTU,
are plainly barred by sovereign immunity. The § 1983 claims against the Individual Defendants
in their individual capacities are barred because Plaintiff’s allegations do not meet the “heightened
pleading” requirements for overcoming qualified immunity. Moreover, Plaintiff’s own pleadings
show that he received all the process to which he was entitled, and thus wholly fails to state a

2

Case 5:17-cv-00174-C

Document 10

Filed 09/01/17

Page 7 of 21

PageID 89

claim. Further, Plaintiff’s failure to identify the Defendants from whom injunctive relief is sought
or the capacity (official vs. individual) of the Defendants results in the failure to state a claim upon
which relief can be granted.
II.

BACKGROUND

A. Six of Plaintiff’s closed-material final exam essay answers are discovered to be nearly
90% word-for-word from the test bank answers.
4.

Plaintiff is a student at TTU’s Rawls College of Business who is pursuing his

Master of Science degree in accounting. Doc. # 1 at ¶ 14. During the fall 2016-2017 term, Plaintiff
was enrolled in the graduate school course BLAW 5392 Advanced Business Law (“BLAW”). Id.
at ¶ 18. Plaintiff admits in his complaint (the “Complaint”) that the BLAW final examination,
which he took on December 12, 2016, “followed the structure of past exams and quizzes and was
administered electronically to the 100 enrolled students in small groups”, and that students “were
instructed to bring their own laptops to take the exam and were advised in the syllabus it was a
closed-book exam.” Id. at ¶ 19. Further, although Plaintiff alleges that there were “irregularities
between exam sessions”, he concedes that the students in his exam session were not allowed to
use open books or e-notes. Id. at ¶ 25.
5.

Plaintiff’s professor, Defendant Duane Jones (“Jones”), noted that there were no

discrepancies in the exam process that day. Id. at ¶ 22. However, while grading Plaintiff’s exam,
Jones realized that a number of Plaintiff’s test answers were highly plagiarized. Id. at ¶ 24. In
fact, as Plaintiff asserts in the Complaint, Jones discovered that six of Plaintiff’s essay answers
were nearly 90% word-for-word from the answers given in the test bank. Id. at ¶44. Jones filed
an academic incident report against Plaintiff on December 21, 2016 in which his “chief complaint
was that [Plaintiff’s] test answer to question 8 was ‘almost verbatim’ to the textbook test bank
answers.” Id. at ¶ 29. In addition, Jones “complained that, because of the similarity, ‘the bigger
3

Case 5:17-cv-00174-C

Document 10

Filed 09/01/17

Page 8 of 21

PageID 90

issue is opening test bank copy (books/notes/internet) during a closed book/closed note exam.’”
Id. After Jones informed Plaintiff that his plagiarized answers had been discovered, Plaintiff
visited with TTU Rawls College of Business Associate Dean, Defendant Dr. William Pasewark
(“Pasewark”), with two of his classmates against whom Jones had also asserted allegations of
cheating. Id. at ¶ 25. Although Jones also alleged cheating against two other students, it was later
determined that there was not enough evidence to bring a case against them because the witnesses
who initially accused them of cheating later recanted their story. Id. at ¶¶ 27-28.
6.

Critically, although recognizing that he knew the course syllabus mandated the

exam to be closed-book (Id. at ¶¶ 19-20), Plaintiff admits that “a cursory review of the textbook
used for the class demonstrates the answer to question 8 can be found almost verbatim in the
textbook chapter, as an answer to the review question, on online study guides….” Id. at ¶ 30.
Plaintiff also admits that his answer to question 8 was similar to the test bank answers. Id. Further,
Plaintiff admits that “[t]he textbook and study materials provided many of the answers that
appeared on the exam, word for word.” Id. at ¶ 45. Even more curious is the fact that, although
Plaintiff recognizes that students were not allowed to use any outside sources on the exam and
asserts that he did not cheat or plagiarize his answers (Id. at ¶¶ 19, 21, 25), he attempts to argue
that his actions should not be considered cheating or plagiarism because students in an earlier
testing session were “permitted to use their e-text, notes and the internet to complete the exam.”
Id. at ¶¶ 20, 25, 28. 1

1

For purposes of a Motion to Dismiss, only Plaintiff’s side of the story as alleged in the Complaint is presented, but
should this case proceed further into discovery, the Court will see there are several facts Plaintiff notably
misrepresented and/or omitted.

4

Case 5:17-cv-00174-C

Document 10

Filed 09/01/17

Page 9 of 21

PageID 91

B. TTU’s Office of Student Conduct conducts a thorough investigation into complaint that
Plaintiff cheated on his final exam and plagiarized his answers.
7.

Defendant Brittany Todd (“Todd”), former associate director with the TTU Office

of Student Conduct, investigated the allegations against Plaintiff. Id. at ¶¶ 31-32. Plaintiff admits
that the report generated by the Turnitin plagiarism software used by Todd revealed that his exam
answers were “similar, in places, to several other exams turned into the software data mine
program”. Id. at ¶ 37. Todd emailed Plaintiff a copy of her final investigation report and gave
him sufficient time to provide additional, contradictory information and to choose between a panel
hearing or administrative hearing. Id. at ¶ 39. Plaintiff quickly provided Todd with a list
addressing information and alleged deficiencies contained in the final investigation report. Id. at
¶ 39.
8.

Plaintiff’s panel hearing took place on February 10, 2017 in front of a panel of two

faculty members and one graduate student from the Student Conduct Office. Id. at ¶ 45. After
considering the “available documentation, evidence, reports received from a faculty member, and
[Plaintiff’s] statement”, in addition to Plaintiff’s own testimony, the Student Conduct Office found
Plaintiff guilty of cheating and plagiarism. Id. at ¶¶ 46, 48. Plaintiff was dismissed from the TTU
Rawls College of Business graduate accounting program, placed on deferred suspension in his
TTU undergraduate classes until January 2018, and received an F in BLAW. Id. at ¶ 49. In
addition, the Student Conduct Office “further mandated that [Plaintiff] must pay a penalty related
to the plagiarism…and must enroll in an Academic Integrity BlackBoard course about plagiarism.”
Id.
9.

Plaintiff appealed the panel’s decision. Id. at ¶ 50. After finding there were no

procedural or substantive errors with Plaintiff’s hearing and no new information to consider,
Plaintiff’s appeal was denied on March 7, 2017. Id. To date, Plaintiff has failed and refused to
5

Case 5:17-cv-00174-C

Document 10

Filed 09/01/17

Page 10 of 21

PageID 92

comply with the Student Conduct Office’s penalty. Id. at ¶¶ 51-53. Instead of taking responsibility
for his actions, he now files this lawsuit and seeks injunctive relief in an effort to place the blame
on the Defendants and to skirt the penalties that resulted from his cheating and plagiarism. Id. at
¶ 44.
III.

ARGUMENT AND AUTHORITIES

A. Motion to Dismiss Standard
10.

Federal Rule of Civil Procedure 12(b)(1) authorizes a federal court to dismiss a

claim for lack of subject matter jurisdiction. FED. R. CIV. P. 12(b)(1). “Federal courts are courts
of limited jurisdiction, and absent jurisdiction conferred by statute, lack the power to adjudicate
claims.” Stockman v. Fed. Election Comm’n, 138 F.3d 144, 151 (5th Cir. 1998). Accordingly,
“[a] case is properly dismissed for lack of subject matter jurisdiction when the court lacks statutory
or constitutional power to adjudicate the case.” Home Builders Ass’n of Miss, Inc. v. Madison,
143 F.3d 1006, 1010 (5th Cir. 1998) (citation omitted).
11.

The party seeking to invoke jurisdiction bears the burden of demonstrating its

existence. See Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001); Howery v. Allstate
Ins. Co., 243 F.3d 912, 916 (5th Cir. 2001). “[T]here is a presumption against subject matter
jurisdiction that must be rebutted by the party bringing an action to federal court.” Coury v. Prot,
85 F.3d 244, 248 (5th Cir. 1996). An action may be dismissed for lack of subject matter
jurisdiction pursuant to Rule 12(b)(1) on any of three separate grounds: (1) the complaint standing
alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the
complaint, the undisputed facts, and the court’s resolution of disputed facts. Voluntary Purchasing
Groups, Inc. v. Reilly, 889 F.2d 1380, 1384 (5th Cir. 1989). The court may consider affidavits and
other evidence in resolving factual issues relating to jurisdictional questions. Moran v. Kingdom

6

Case 5:17-cv-00174-C

Document 10

Filed 09/01/17

Page 11 of 21

PageID 93

of Saudi Arabia, 27 F.3d 169, 172 (5th Cir. 1994). When a Rule 12(b)(1) motion is filed in
conjunction with other Rule 12 motions, the court should consider the Rule 12(b)(1) motion before
addressing any motion as to the merits. Ramming, 281 F.3d at 161.
12.

Additionally, “[t]o survive a Rule 12(b)(6) motion, the plaintiff must plead ‘enough

facts to state a claim to relief that is plausible on its face.’” In re Katrina Canal Breaches
Litigation, 495 F.3d 191, 205 (5th Cir. 2007) (quoting Bell Atlantic Corporation v. Twombly, 550
U.S. 544 (2007)). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need
detailed factual allegations, a plaintiff’s obligation to provide the grounds of his entitlement to
relief requires more than labels and conclusions, and a formulaic recitation of the elements of a
cause of action will not do.” Twombly, 550 U.S. at 555 (citations, quotations, and brackets
omitted). “Factual allegations must be enough to raise a right to relief above the speculative level,
on the assumption that all the allegations in the complaint are true (even if doubtful in fact).”
Katrina Canal, 495 F.3d at 205 (quoting Twombly, 550 U.S. at 555). The Court is not required to
conjure up unpled allegations in order to save a complaint, and conclusory allegations or legal
conclusions masquerading as factual conclusions will not suffice . . . .” Fernandez-Montes v.
Allied Pilots Ass’n, 987 F.2d 278, 284 (5th Cir. 1993).
B. Plaintiff’s claims against TTU and the Individual Defendants in their official capacities
are barred by sovereign immunity.
1. The § 1983 claims against TTU and the Individual Defendants in their official
capacities are barred.
13.

Section 1983 provides a private right of action or damages to individuals who are

deprived of “any rights, privileges, or immunities” protected by the Constitution or federal law by
any “person” acting under the color of state law. Stotter v. University of Texas at San Antonio,
508 F.3d 812, 821 (5th Cir. 2007) (citing 42 U.S.C. § 1983). It is well settled that neither a State

7

Case 5:17-cv-00174-C

Document 10

Filed 09/01/17

Page 12 of 21

PageID 94

nor its officials acting in their official capacities are “persons” under § 1983. Will v. Michigan
Dept. of State Police, 491 U.S. 58, 71 (1989). The Fifth Circuit has specifically recognized that
state universities, as arms of the state, are not “persons” under § 1983. Stotter, 508 F.3d at 821
(citations omitted).
14.

TTU is a Texas state entity that is entitled to sovereign immunity. See Smith v.

Texas Tech University, 398 Fed. Appx. 953 (5th Cir. 2010) (“This Court has noted that Texas Tech
University is a state institution that is cloaked with sovereign immunity under the Eleventh
Amendment”). Further, Plaintiff’s claims against the Individual Defendants in their official
capacities are also considered a suit against the state itself and, accordingly, are also barred by
Eleventh Amendment immunity. See Villanueva v. Texas Tech University, No. 5:10-CV-186-C,
2010 WL 11465139, at *2 (N. D. Tex. Dec. 17, 2010) (citing Will v. Mich. Dep’t of St. Police, 491
U.S. 58, 71 (1989)) (suit against state official in his or her official capacity is also considered suit
against the state itself). This immunity has not been waived by either Congress or Texas for claims
brought under § 1983. Thus, Plaintiff’s § 1983 claims against TTU and the Individual Defendants
in their official capacity are invalid and should be dismissed for lack of subject matter jurisdiction.
See Stotter, 508 F.3d at 821.
2. The breach of contract claim against TTU is barred.
15.

In the event the Court finds that there is a valid, binding contract between TTU and

Plaintiff (which TTU denies), Plaintiff’s breach of contract claim against TTU is barred. The
Texas Supreme Court has explained that the Texas Legislature has not waived immunity to breach
of contract suits. Gen. Servs. Comm’n v. Little-Tex Insulation Co., 39 S.W.3d 591, 594 (Tex.
2001) (“the State does not waive immunity from suit simply by contracting with a private
person…Legislative consent to sue is still necessary.”). Accordingly, unless Plaintiff can show

8

Case 5:17-cv-00174-C

Document 10

Filed 09/01/17

Page 13 of 21

PageID 95

legislative consent to his lawsuit, his breach of contract claim should be dismissed as barred by
sovereign immunity. See Lieu v. Jackson, No. 4:09-CV-415-A, 2010 WL 342251, at *3 (N.D.
Tex. Jan 29, 2010).
C. Plaintiff’s claims against the Individual Defendants fail as a matter of law.
16.

Government officials who perform “discretionary functions” are entitled to the

defense of qualified immunity from suits in their individual capacity. Harlow v. Fitzgerald, 457
U.S. 800, 801 (1982). The doctrine of qualified immunity protects government officials sued
pursuant to § 1983 “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.”
Pearson v. Callahan, 555 U.S. 223, 231 (2009). Indeed, “Qualified immunity is immunity from
suit under § 1983 rather than a mere defense to liability.” Backe v. LeBlanc, 691 F.3d 645, 648
(5th Cir. 2012) (quoting Pearson v. Callahan, 555 U.S. 223, 237 (2009)). Defendants may raise
the defense of Qualified Immunity in a 12(b) motion, and when they do so, they are “entitled to
dismissal before the commencement of discovery,” unless the plaintiff sufficiently alleges a
violation of established law. See Morgan v. Swanson, 610 F.3d 877, 882 (5th Cir. 2010, rev’d on
other grounds, 628 F.3d 705) (citing Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)).
17.

“The protection of qualified immunity applies regardless of whether the

government official’s error is a mistake of law, a mistake of fact, or a mistake based on mixed
questions of law and fact.” Id (internal quotations omitted). The Fifth Circuit has emphasized the
broad protections of qualified immunity, stating that it “gives ample room for mistaken judgments
by protecting all but the plainly incompetent or those who knowingly violate the law.” DePree v.
Saunders, 588 F.3d 282, 288 (5th Cir. 2009). Following an invocation of qualified immunity, “the
burden is on the plaintiff to demonstrate the inapplicability of the defense.” McClendon v. City of

9

Case 5:17-cv-00174-C

Document 10

Filed 09/01/17

Page 14 of 21

PageID 96

Columbia, 305 F.3d 314, 323 (5th Cir. 2002). “Of course, the defendant’s conduct cannot
constitute a violation of clearly established law if, on the plaintiff’s version of the facts, there is no
violation at all.” Johnson v. Johnson, 385 F.3d 505, 525 (5th Cir. 2004).
18.

“Heightened pleading in qualified immunity cases requires that plaintiffs rest their

complaint on more than conclusions alone and plead their case with precision and factual
specificity.” Nunez v. Simms, 341 F.3d 385, 388 (5th Cir. 2003). “Because vicarious liability is
inapplicable to ... § 1983 suits, a plaintiff must plead that each Government-official defendant,
through the official’s own individual actions, has violated the Constitution.” Ashcroft v. Iqbal,
556 U.S.129, 129 S. Ct 1937, 1940 (2009).

“If reasonable public officials could differ as to

whether the defendants’ actions were lawful, the defendants are entitled to immunity.” Zarnow v.
City of Wichita Falls, 500 F.3d 401, 407-08 (5th Cir. 2007).
1. Plaintiff has failed to bring a valid § 1983 claim against the Individual
Defendants in their individual capacities.
19.

To state a cause of action under § 1983, the plaintiff “must identify defendants who

were either personally involved in the constitutional violation or whose acts are causally connected
to the constitutional violation alleged.” Woods v. Edwards, 51 F.3d 577, 583 (5th Cir. 1995).
Here, Plaintiff has made no factual allegations of what, if any, connection Defendants Jones,
Pasewark, or Ricketts had to the February 10, 2017 panel hearing, panel decision, or to Plaintiff’s
subsequent appeal. See Doc. #1. Plaintiff does not assert any facts showing Defendants Jones,
Pasewark, or Rickets participated in the panel hearing or the appeal. In addition, with respect to
Defendant Todd, Plaintiff merely asserts conclusory, unsubstantiated allegations that Todd
“presented her ‘Final Investigation Report,’” to the panel “leaving out all of the information
[Plaintiff] provided and other pertinent information supporting his defense.” Id. at ¶ 45. However,
Plaintiff’s conclusory misrepresentation that Todd somehow prevented the panel from considering
10

Case 5:17-cv-00174-C

Document 10

Filed 09/01/17

Page 15 of 21

PageID 97

information supporting his defense is wholly contradicted by Plaintiff’s own assertion that “the
Student Conduct Office found [Plaintiff] guilty by a preponderance of the evidence standard on
February 15, 2017, after considering the…available documentation, evidence, reports received
from a faculty member, and [Plaintiff’s] statement.’” Id. at ¶48. Critically, Plaintiff also admits
that he was afforded the opportunity to present data that allegedly contradicted Todd’s report
during the panel hearing. Id. at ¶ 46.
20.

Moreover, Plaintiff has made no allegation that any Individual Defendant violated

“clearly established law” such that every “reasonable official would have understood that what he
is doing violates that right.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011). As a result, it is clear
that reasonable public officials could agree that the Individual Defendants’ actions were lawful;
therefore, the Individual Defendants are entitled to immunity. See Zarnow, 500 F.3d at 407-08.
2. Plaintiff fails to establish a substantive due process violation.
21.

Plaintiff’s claim that the Individual Defendants deprived him of substantive due

process likewise fails. In Regents of University of Michigan v. Ewing, the Supreme Court held
that decisions in the academic setting are subject to “a narrow avenue for judicial review” under a
substantive due process standard. Ewing, 474 U.S. 214, 227 (1985). Under this narrow standard,
“[w]hen judges are asked to review the substance of a genuinely academic decision . . . they should
show great respect for the faculty’s professional judgment … [and] … they may not override it
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.” Relying on
Ewing, the Fifth Circuit in Wheeler established that when an academic decision is not beyond
the pale of reasoned academic decision-making, it must be accepted. Wheeler v. Miller, 168
F.3d 241, 249-250 (5th Cir. 1999) (emphasis added).

11

Case 5:17-cv-00174-C

22.

Document 10

Filed 09/01/17

Page 16 of 21

PageID 98

Based on the allegations in Plaintiff’s Complaint, even when viewed in the light

most favorable to him, Plaintiff has failed to establish a substantive due process violation.
“Substantive due process ‘bars certain arbitrary, wrongful government actions regardless of the
fairness of the procedures used to implement them.’” Marco Outdoor Adver., Inc. v. Reg’l Transit
Auth., 489 F.3d 669, n.3 (5th Cir. 2007) (quoting Zinermon v. Burch, 494 U.S. 113, 125 (1990)).
“[It] requires only that public officials exercise professional judgment, in a nonarbitrary and
capricious manner, when depriving an individual of a protected [life, liberty, or] property interest.”
Lewis v. Univ. of Tex. Med. Branch at Galveston, 665 F.3d 625, 631 (5th Cir. 2011) (citing Tex. v.
Walker, 142 F.3d 813, 819 (5th Cir.1998)). Accordingly, “[t]o establish a violation of substantive
due process, ‘a plaintiff must prove that (1) he was deprived of a life, liberty, or property interest
(2) in an arbitrary or capricious manner.’” Aragona v. Berry, No. 3:10-CV-1610-G, 2012 WL
467069, at *7 (N.D. Tex. Feb. 14, 2012) (internal citations omitted).
23.

In support of his substantive due process claims, Plaintiff asserts conclusory,

unsubstantiated allegations that “Defendants knew that their actions in the conduct of perpetuating
a biased investigation and unfair hearing to expel [Plaintiff] denied [Plaintiff] of his constitutional
right to substantive due process.” Doc. #1 at ¶ 69. However, Plaintiff has provided no facts in
support of such bare accusations. Among other things, the Complaint contains no facts indicating
the Individual Defendants’ intent or otherwise showing the Individual Defendants’ conduct was
not within the course and scope of their employment obligations. See, generally, id. Nor does the
Complaint allege that any of the Individual Defendants other than Ms. Todd were involved in the
February 10, 2017 panel hearing. Id. Further, nothing in the Complaint mentions or otherwise
shows that any of the Individual Defendants were involved in the panel’s final decision or the
Plaintiff’s March 7, 2017 appeal. Id.

12

Case 5:17-cv-00174-C

24.

Document 10

Filed 09/01/17

Page 17 of 21

PageID 99

Plaintiff has failed to set forth any factual allegations in his Complaint that

Defendants Jones, Pasewark, or Ricketts were either personally involved in, or took actions
causally connected to, the alleged substantive due process violation for which they could be
individually liable under § 1983. Id. Specifically, Plaintiff has not shown that Jones, Pasewark or
Ricketts took part in the February 10, 2017 panel hearing or in Plaintiff’s subsequent appeal. Id.
Additionally, Plaintiff’s own allegations regarding the deferred suspension show that he was
afforded two opportunities to contest the allegations against him, both of which he exercised – the
first being the Student Conduct Office panel hearing, during which the panel fully considered his
submissions and all of the evidence before it in addition to Plaintiff’s own testimony, and the
second was Plaintiff’s appeal of the panel’s decision. Id. at ¶¶46, 48. The panel’s decision was a
failing grade, dismissal from the Master of Science Accounting Program, payment of $50,
completion of an Academic Integrity BlackBoard course about plagiarism, and deferred
suspension which, as Plaintiff admits in the Complaint, is the standard penalty for first-time
offenses. Id. at ¶¶ 16, 49. Importantly, the fact that the panel’s decision was upheld after Plaintiff
appealed clearly shows that the decision against Plaintiff was not arbitrary or capricious, but rather
that the panel exercised its professional judgment in reaching its decision to suspend Plaintiff based
on consideration of all the information presented, including Plaintiff’s own participation at the
hearing. Id. at ¶¶ 46, 48. Despite Plaintiff’s proffered explanations to the student panel for his
actions, the ultimate decision to suspend Plaintiff for academic misconduct cannot be viewed as
“beyond the pale of reasoned academic decision-making,”; accordingly, his substantive due
process claim must be dismissed. See Wheeler v. Miller, 168 F.3d at 250 (when an academic
decision is not beyond the pale of reasoned academic decision-making, it must be accepted).

13

Case 5:17-cv-00174-C

Document 10

Filed 09/01/17

Page 18 of 21

PageID 100

D. Plaintiff fails to state a viable Equal Protection claim.
25.

Plaintiff fails to properly state a claim for violation of his equal protection rights.

An equal protection claim may be “brought by a ‘class of one,’ where the plaintiff alleges that he
has been intentionally treated differently from others similarly situated and that there is no rational
basis for the difference in treatment.” Vill. Of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.
Ct. 1073 (2000).
26.

For the same reasons set forth in paragraphs 14-15 above, Plaintiff’s § 1983 claim

for violation of his Equal Protection rights against TTU and the Individual Defendants in their
official capacities is barred.
27.

In support of his Equal Protection claim, Plaintiff alleges that he was “singled out

and discriminated against compared to similarly situated individuals” because “Defendants chose
not to formalize charges of misuse of materials against two other students in the BLAW final exam
despite actually having an eyewitness report their cheating but who later recanted.” Doc. #1, at
¶ 79 (emphasis added). Plaintiff also admits in the Complaint that it was determined that there
“was solid evidence to suggest one of the individuals [Plaintiff] was cheating and not enough
evidence to bring a case against the other two.” Id. at ¶ 27 (emphasis added). Accordingly,
Plaintiff essentially admits in his Complaint that there was in fact a rational basis for the difference
in treatment between him and the other two students who were also accused of cheating – unlike
Plaintiff, for whom there was solid evidence of cheating and plagiarism – there was not enough
evidence to bring a case for cheating or plagiarism against the other two students because the
eyewitness who first reported the other two students’ cheating later recanted their story. Id. at ¶¶
27, 79. As a result, Plaintiff’s claim for violation of his Equal Protection rights against the
Individual Defendants in their individual capacities must also be dismissed.

14

Case 5:17-cv-00174-C

Document 10

Filed 09/01/17

Page 19 of 21

PageID 101

E. The Complaint fails to state a claim for injunctive relief.
28.

While Plaintiff’s Complaint mentions that he is seeking injunctive relief, the only

sentence explaining the relief sought merely provides: “Injunctive Relief to reinstate [Plaintiff] as
a student in good standing” at TTU. Doc. #1 at p. 26. The lack of specificity prevents both the
Court and Defendants from determining whether the injunctive relief sought falls within the Ex
Parte Young exception to Eleventh Amendment immunity. Saltz v. Tenn. Dept. of Emp’t Sec., 976
F.2d 966, 968 (5th Cir. 1992) (The Ex Parte Young doctrine carves out an exception to Eleventh
Amendment immunity given to state actors acting in their official capacity for suits seeking
prospective relief.). In order to meet the exception, “a suit must be brought against individual
persons in their official capacities as agents of the state and the relief sought must be declaratory
or injunctive in nature and prospective in effect.” Id. Plaintiff’s failure to identify the Defendants
from whom injunctive relief and the capacity (official vs. individual) of the Defendants results in
the failure to state a claim upon which relief can be granted.
29.

Additionally, in light of the analysis set forth above demonstrating that the

Individual Defendants are entitled to qualified immunity, even if Plaintiff had set forth permissible
forms of prospective injunctive relief under Ex Parte Young, his claim for injunctive relief has no
merit and should properly be dismissed.
F. Plaintiff’s claim for compensatory damages against TTU and the Individual Defendants
in their official capacities is barred.
30.

To the extent Plaintiff seeks compensatory damages from TTU and the Individual

Defendants in their official capacities, such claim is barred. It is black-letter law that a plaintiff
cannot sue the State of Texas, its agencies, or agents under § 1983 for monetary damages. See
Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989).

15

Case 5:17-cv-00174-C

Document 10

IV.

Filed 09/01/17

Page 20 of 21

PageID 102

PRAYER

WHEREFORE, PREMISES CONSIDERED, Defendants Texas Tech University, Duane
Jones, William Pasewark, Robert Ricketts, and Brittany Todd respectfully request that this Court
grant their Motion to Dismiss thereby dismissing with prejudice all claims asserted by Plaintiff
against them. Defendants further request all other relief to which they are justly entitled.
Respectfully submitted,
KEN PAXTON
Attorney General of Texas
JEFFREY C. MATEER
First Assistant Attorney General
BRANTLEY STARR
Deputy First Assistant Attorney General
JAMES E. DAVIS
Deputy Attorney General for Civil Litigation
ANGELA V. COLMENERO
Chief - General Litigation Division

/s/ Rola Daaboul_____________
Rola Daaboul
Texas Bar No. 24068473
Assistant Attorney General
General Litigation Division
P.O. Box 12548, Capitol Station
Austin, Texas 78711-2548
(512) 936-1322
FAX: (512) 320-0667
e-mail: rola.daaboul@oag.texas.gov
ATTORNEYS FOR DEFENDANTS

16

Case 5:17-cv-00174-C

Document 10

Filed 09/01/17

Page 21 of 21

PageID 103

CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing instrument has been served
electronically through the electronic-filing manager on this the 1st day of September, 2017, to:
Jason J. Bach
The Bach Law Group, LLC
2802 Flintrock Trace, Suite 255
Austin, Texas 78738

/s/ Rola Daaboul_____________
Rola Daaboul
Assistant Attorney General

17