Bonnie Davis v. Michael Rao , 583 F. App'x 113 ( 2014 )

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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 N. Davis filed a civil complaint against a
number of Virginia Commonwealth University (“VCU”)
administrators, alleging that Defendants violated her due
process rights in denying her application for 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 procedures employed were
constitutionally inadequate.” 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 independent source such as
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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 VCU’s Promotion and Tenure Review Guidelines.
Despite Davis’ assertions to the contrary, demonstrating a
protected liberty or property interest is a threshold
requirement for establishing a Due Process claim. See Sansotta,
724 F.3d at 540. 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). Tenure review
procedures, without more, do not give rise to a protected
property interest. 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.
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Accordingly, we affirm the district court’s judgment.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before
this court and argument would not aid the decisional process.
AFFIRMED
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