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REPLY filed by Samer Zaid Kaylani re: 23 MOTION to Dismiss Plaintiff's Amended Complaint (Miracchi, David)

Grodman v. Texas Tech University Health Sciences Center, No. 5:23-cv-00210 (N.D. Tex.) · Dkt. 28 · 2024-03-28 · PDF

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

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
LUBBOCK DIVISION
SCHYLER Z. GRODMAN, M.D.,

§
§
Plaintiff,
§
§
§
v.
§ CIVIL ACTION NO. 5:23-cv-00210-H
TEXAS TECH UNIVERSITY
§
HEALTH SCIENCES CENTER and
§
DR. SAMER ZAID-KAYLANI,
§
§
Defendants.
§
§
________________________________________________________________________
REPLY IN SUPPORT OF DEFENDANT DR. SAMER ZAID KAYLANI’S
MOTION TO DISMISS PLAINTIFF’S AMENDED COMPLAINT
________________________________________________________________________
TO THE HONORABLE JUDGE JAMES WESLEY HENDRIX:
Defendant Dr. Samer Zaid Kaylani (“Dr. Zaid Kaylani” or “Defendant”) files
this reply to Plaintiff’s Response to Defendant’s Motion to Dismiss Plaintiff’s
Amended Complaint. Dkt. 27 (“Grodman’s Response”).1 Because nothing in
Grodman’s Response shows a legally viably claim against Dr. Zaid Kaylani, this court
should dismiss Grodman’s sole claim against him.

Grodman’s Response is incorrectly entitled “Plaintiff’s Response to Defendant’s Partial Motion to Dismiss
Plaintiff’s Amended Complaint.” Dkt. 27 (emphasis added). Defendant Dr. Zaid Kaylani’s motion to dismiss is not
partial: it seeks complete dismissal of the only claim against Dr. Zaid Kaylani.
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I.

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Grodman has failed to state a viable claim against Dr. Zaid
Kaylani.
A. Grodman cannot obtain any of the relief he seeks from Dr. Zaid
Kaylani.
Plaintiff Schyler Z. Grodman, M.D., (“Grodman” or “Plaintiff”) seeks only

injunctive relief, and Dr. Samer Zaid Kaylani cannot provide any of the relief
Grodman seeks. Grodman seeks only injunctive relief in the following forms:
reinstatement, expungement of probation, further alterations of his records, and the
release of his academic records. Dkt. 21 at ¶¶ 98-100; Dkt. 21 at p. 31 (“Prayer”). In
Grodman’s Response, Grodman acknowledges that he only seeks injunctive relief.
Dkt. 27 at 3. Furthermore, Grodman sues Dr. Zaid Kaylani “solely in his individual
capacity.” Dkt. 21 ¶ 6.
Grodman does not dispute that Dr. Zaid Kaylani is no longer employed by
Texas Tech University Health Sciences Center (“TTUHSC”). Dkt. 21 at ¶ 13
(acknowledging that Dr. Zaid Kaylani is the “former director” of the program); see
generally Dkt. 27. Dr. Zaid Kaylani has no authority in his individual capacity (nor
in any official capacity) to carry out any of the injunctive relief Grodman seeks: Dr.
Zaid Kaylani has no authority to reinstate Grodman, no authority to expunge
Grodman’s probation or alter any of his records held by TTUHSC, and no authority
to release any of his academic records held by TTUHSC, including any evaluation
that Dr. Zaid Kaylani wrote during the course of his employment as director of
TTUHSC’s Pediatrics Residency Program, as any such academic records are in the
exclusive custody and control of TTUHSC.
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Because Dr. Zaid Kaylani has no authority to carry out any of the injunctive
relief Grodman seeks, Grodman’s sole claim against Dr. Zaid Kaylani should be
dismissed for failure to state a claim. See Scott v. Flowers, 910 F.2d 201, 213 (5th Cir.
1990).
In his Response, Grodman makes two irrelevant arguments. He asserts that
he sufficiently alleged Dr. Zaid Kaylani’s individual involvement in the alleged
constitutional deprivations. Dkt. 27 at 7-9. But Dr. Zaid Kaylani’s alleged individual
involvement does not change the fact that Grodman has not stated a viable claim
against Dr. Zaid Kaylani because Dr. Zaid Kaylani cannot provide any of the relief
Grodman seeks. Grodman’s Response also asserts that sovereign immunity does not
bar Grodman’s claim against Dr. Zaid Kaylani. Dkt. 27 at 5-6. But in his Motion to
Dismiss, Dr. Zaid Kaylani does not argue that sovereign immunity bars Grodman’s
claim. Dr. Zaid Kaylani’s Motion to Dismiss only argues that Grodman’s claim should
be dismissed for two reasons: (1) Grodman cannot obtain any of the relief he seeks
from Dr. Zaid Kaylani; and (2) Grodman’s claim is barred by qualified immunity. Dkt.
23 at 3. Therefore, Grodman’s discussions of individual involvement and sovereign
immunity are irrelevant to Dr. Zaid Kaylani’s Motion to Dismiss.
B. Grodman does not seek monetary damages.
Grodman does not seek any monetary damages. Instead, he only seeks
injunctive relief. Dkt. 21 at ¶¶ 98-100; Dkt. 21 at p. 31 (“Prayer”). In Grodman’s
Response, Grodman acknowledges that he only seeks injunctive relief. Dkt. 27 at 3.
Dr. Zaid Kaylani cannot provide any of the relief Grodman seeks, see supra.
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Therefore, Grodman’s sole claim against Dr. Zaid Kaylani can and should be
dismissed without any additional analysis.
C. Monetary damages against Dr. Zaid Kaylani are barred by
qualified immunity.
Even if Grodman were to amend his pleading to seek monetary damages
against Dr. Zaid Kaylani, such an amendment would be futile, because Grodman’s
claim against Dr. Zaid Kaylani would be barred by qualified immunity.
In his Response, Grodman argues that he had a constitutionally protected
interest in his continued enrollment in the TTUHSC residency program, and the
process Grodman received was constitutionally insufficient. Dkt. 27 at 4. These
unsupported assertions do not overcome Dr. Zaid Kaylani’s qualified immunity. To
overcome Dr. Zaid Kaylani’s qualified immunity, Grodman would need to (1) cite
binding case law holding that medical residents have a property or liberty interest in
their continued enrollment in a residency program; and (2) cite binding case law
holding that procedures akin to those Grodman received during his termination were
constitutionally insufficient. See Atteberry v. Nocona Gen. Hosp., 430 F.3d 245, 257
(5th Cir. 2005). Grodman has done neither, so even if he were to amend his pleading
to seek monetary damages against Dr. Zaid Kaylani, his claim against Dr. Zaid
Kaylani would be barred by qualified immunity.
Grodman’s Response does not cite a single case showing that Dr. Zaid Kaylani
violated any “clearly established” right. Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011).
Instead, Grodman’s Response cites three cases, and admits that in all three cases,
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the Courts did not hold that medical residents have a property or liberty interest in
their continued enrollment in a residency program. Dkt. 27 at 6 (citing Board of
Curators of University of Missouri v. Horowitz, 435 U.S. 78 (1978); Shaboon v.
Duncan, 252 F.3d 722, 730 (5th Cir. 2001); Davis v. Mann, 882 F.2d 967, 973 (5th Cir.
1989)). Instead, the Courts held that even if such a protected interest were to exist,
terminated residents are not entitled to as much procedural protection as traditional
employees, and the process the residents received was not constitutionally deficient.
Horowitz, 435 U.S. at 90; Mann, 882 F.2d at 974; Shaboon, 252 F.3d at 731.
Because there is no binding case law holding that medical residents have a
property or liberty interest in their continued enrollment in a residency program,
Grodman has not plausibly alleged that his termination from the residency program
violated any “clearly established” right, so the analysis can stop there: his claim
against Dr. Zaid Kaylani is barred by qualified immunity. Al-Kidd, 563 U.S. at 735.
Grodman has also not plausibly alleged that his termination from the
residency program violated any “clearly established” right because Grodman has not
been able to cite any binding case law holding that procedures akin to those Grodman
received during his termination were constitutionally insufficient.
1. Qualified immunity bars a claim for monetary damages
against Dr. Zaid Kaylani regardless of whether Grodman was
dismissed for academic or disciplinary reasons.
In his Response, Grodman argues that he plausibly alleged his due process
claim against Grodman because Grodman was dismissed for disciplinary rather than
academic reasons. Grodman’s claim is nevertheless barred by qualified immunity for
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at least two reasons. First, Grodman’s Response cites portions of his live pleading
that show Grodman was indeed terminated for academic reasons. Dkt. 27 at 7-8.
Specifically, Grodman alleges that his probation letter “stated the major elements
that Grodman needed to improve were test scores.” Dkt 7 at 8 (citing Dkt. 21 at ¶ 37).
Low test scores are plainly an academic concern. Grodman’s Response further states
that his live pleading alleges the termination decision was based in part on a “prior
period of observation [which] was based solely on his disabilities and academic
performance.” Dkt 7 at 8 (emphasis added).
But even if Grodman had alleged that he was dismissed for disciplinary
reasons, he has still not viably pled a due process claim that can overcome Dr. Zaid
Kaylani’s qualified immunity. As the Fifth Circuit stated in a similar case involving
a medical student named Shaboon who sued over her termination from a medical
residency program:
Nevertheless, Shaboon received sufficient procedural protection even if
her dismissal was solely for disciplinary reasons. “All that Goss required
[for disciplinary actions] was an ‘informal give-and-take’ between the
student and the administrative body dismissing [her] that would, at
least, give the student ‘the opportunity to characterize [her] conduct and
put it in what [she] deems the proper context.’ ” Horowitz, 435 U.S. at
85–86, 98 S.Ct. 953 (quoting Goss, 419 U.S. at 584, 95 S.Ct. 729).
Shaboon, 252 F.3d at 731. Here, Grodman alleges that he received such an informal
give-and-take with TTUHSC and had the opportunity to characterize and
contextualize his conduct: he received a probation letter on December 17, 2021, was
suspended on December 23, 2021, was recommended for dismissal on January 7,
2022, and his recommendation for dismissal was reviewed by an Appeal Review
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Subcommittee at an appeal hearing in February 2022 that Grodman requested before
any final determination was made by TTUCHSC. Dkt 21, ¶¶ 19, 36-37, 55; Dkt. 21,
Ex. J, K, M. To overcome Dr. Zaid Kaylani’s qualified immunity, Grodman would need
to show binding case law clearly establishing that the process Grodman received was
constitutionally insufficient: he cannot as there is no such case. Grodman has also
not shown any binding case law clearly establishing that Grodman’s hearing was
constitutionally insufficient because it was allegedly a “hearing in name only after
already determining the outcome.” Dkt. 27 at 9. The Fifth Circuit case law instead
shows that Grodman received all the process he was due, if any. Shaboon, 252 F.3d
at 731; Horowitz, 435 U.S. at 90; Mann, 882 F.2d at 974.
In short, even if Grodman were to amend his pleading to seek monetary
damages against Dr. Zaid Kaylani, Grodman’s claim against Dr. Zaid Kaylani would
still be barred by qualified immunity because Grodman cannot show that TTUHSC
violated any clearly established right.
CONCLUSION AND PRAYER
For all the foregoing reasons, Dr. Samer Zaid Kaylani respectfully requests
that this Court dismiss Plaintiff’s sole claim against him.
DATED:

March 28, 2024

Respectfully submitted.
KEN PAXTON
Attorney General of Texas
BRENT WEBSTER
First Assistant Attorney General

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JAMES LLOYD
Deputy Attorney General for Civil Litigation
KIMBERLY GDULA
Chief for General Litigation Division
/s/ David Miracchi
DAVID MIRACCHI
Attorney-in-Charge
Texas Bar No. 24113693
Assistant Attorney General
General Litigation Division
Office of the Attorney General
P.O. Box 12548, Capitol Station
Austin, Texas 78711-2548
(512) 463-2120 | FAX: (512) 320-0667
David.Miracchi@oag.texas.gov
COUNSEL FOR DR. ZAID KAYLANI

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CERTIFICATE OF FILING AND SERVICE
On March 28, 2024, the undersigned attorney filed the foregoing document
with the Clerk of the Court for the Northern District of Texas and served a true and
correct copy of the foregoing to all counsel of record in compliance with the Federal
Rules of Civil Procedure.
Jeffrey M. Tillotson
Enrique Ramirez-Martinez
TILLOTSON JOHNSON & PATTON
1201 Main Street, Suite 1300
Dallas, Texas 75202
Ph: (214) 382-3041
Fax: (214) 292-6564
jtillotson@tillotsonlaw.com
Eramirez@tillotsonlaw.com
COUNSEL FOR PLAINTIFF

/s/ David Miracchi
DAVID MIRACCHI
Assistant Attorney General

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