Holt v. Medical College ( 1996 )


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  • UNPUBLISHED
    UNITED STATES COURT OF APPEALS
    FOR THE FOURTH CIRCUIT
    CURTIS HOLT, JR.,
    Plaintiff-Appellant,
    v.
    MEDICAL COLLEGE OF VIRGINIA/
    VIRGINIA COMMONWEALTH
    UNIVERSITY; JOHN DOE, Individually
    and in his official capacity as
    Professor; JANE DOE, Individually
    and in her official capacity as
    Professor; BOARD OF VISITORS,
    VIRGINIA COMMONWEALTH UNIVERSITY
    (VCU), Individually and in their
    official capacity as members of the
    Board of Visitors; EUGENE TRANI,
    Individually and in his official
    No. 95-2009
    capacity as President MCV/VCU;
    GAYLEN BRADLEY; MARGARET BIBER,
    Individually and in her official
    capacity as Chairperson Department
    of Physiology; PHYLISS PETRIE,
    Individually and in her official
    capacity as Auditor for VCU;
    RICHARD BUNCE, Individually and in
    his official capacity as Executive
    Director of Internal Audit and
    Management Services for VCU;
    MOHAMMED KALIMI, Individually and
    in his official capacity as Professor;
    JAMES POLAND, Individually and in
    his official capacity as Director
    Graduate Programs and Professor;
    LINDA COREY, Individually and in
    her official capacity as Convenor,
    MCV Graduate Committee;
    RAPHAEL WITORSCHE, Individually
    and in his official capacity as
    Professor; CAPTAIN PALUMBO,
    Individually and in his official
    capacity as Captain VCU Campus
    Police Department; ROBERT
    MCNAMARA, Individually and in his
    official capacity as Detective
    Richmond City Narcotics; CHARLES
    WATLINGTON, Individually and in his
    official capacity as Professor;
    JENNIFER STEWART, Individually and
    in her official capacity as Professor,
    Defendants-Appellees.
    Appeal from the United States District Court
    for the Eastern District of Virginia, at Richmond.
    Robert E. Payne, District Judge.
    (CA-94-361)
    Submitted: October 31, 1995
    Decided: March 25, 1996
    Before WILKINSON, Chief Judge, and WILKINS and
    NIEMEYER, Circuit Judges.
    _________________________________________________________________
    Affirmed as modified by unpublished per curiam opinion.
    _________________________________________________________________
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    COUNSEL
    Curtis Holt, Jr., Appellant Pro Se. Jean Freeman Reed, David Lee
    Ross, VIRGINIA COMMONWEALTH UNIVERSITY, Richmond,
    Virginia; Calvin Tabor Cronk, OFFICE OF THE ATTORNEY GEN-
    ERAL OF VIRGINIA, Richmond, Virginia, for Appellees.
    _________________________________________________________________
    Unpublished opinions are not binding precedent in this circuit. See
    Local Rule 36(c).
    _________________________________________________________________
    OPINION
    PER CURIAM:
    Curtis Holt, Jr., appeals from district court orders dismissing his 
    42 U.S.C.A. §§ 1981
    , 1983, 1985 (West 1994) claims. We affirm with
    one modification.
    Holt brought several claims in his complaint (adjudicated by an
    interim order) and his second amended complaint (adjudicated by the
    district court's final order). He raises several issues on appeal; in
    addition to addressing Holt's claims on appeal, we have reviewed the
    record for other issues and have found no other nonfrivolous grounds
    for appeal.
    The underlying facts in this case involve the involuntary termina-
    tion of Holt's pursuit of a doctoral degree and his subsequent impris-
    onment that occurred during and as a result of academic problems and
    criminal charges of embezzlement and drug distribution. Holt's
    § 1983 action was directed at school professors who cooperated in the
    investigation of Holt, the Richmond officer in charge of the investiga-
    tion, and the state university and its officers. The complaints included
    counts of malicious prosecution, conspiracy to violate Fourth Amend-
    ment rights, breach of contract, and other counts.
    Holt first complains that he did not receive proper notice of a hear-
    ing on defense motions for protective orders. Holt confuses the notice
    3
    required by Roseboro v. Garrison, 
    528 F.2d 309
     (4th Cir. 1975), and
    Eastern District of Virginia Rule 11(M) promulgated pursuant to
    Roseboro with the notice required to advise a party of a motion hear-
    ing. Holt conceded that he received notice of a hearing on the pre-trial
    motions. His citation to E.D. Va. R. 11(M) is off the mark. It does not
    apply to such hearings. Further, while Holt also alleges that he read
    the notice to state an indefinite date for the hearing, it did state a defi-
    nite date for the hearing and simply left the time indefinite, as such
    notices do because of the nature of motion hearings. Thus, we find no
    error in the notice given. Further, even were there error in the notice,
    there was no harm to Holt. The district court did not hear argument
    during the hearing, and, rather than deciding the motions presented
    for the hearing, the district court simply announced its findings
    regarding a ripe motion to dismiss. Holt suffered nothing adverse by
    not being present at the hearing.
    Holt next complains that the interim district court order was
    improper because it was sua sponte. The record clearly refutes this
    assertion. The court and Holt received a defense motion to dismiss the
    complaint, Holt responded, there was a reply, and Holt submitted a
    surreply. The motion to dismiss was ripe, and Holt has no basis on
    which to allege the order was procedurally improper.
    Holt further complains that the dismissal order was substantively
    improper with regard to the dismissal of a conspiracy claim--alleging
    an agreement to violate Holt's Fourth Amendment rights--and with
    regard to the dismissal of a malicious prosecution claim. We find the
    dismissal order supported by the record but modify the dismissal of
    the conspiracy claim to one without prejudice. Holt's allegations that
    a university professor and a department chair conspired with a local
    police officer to search and seize property illegally are conclusory and
    insufficient to state claims for relief under § 1983 or § 1985(3).
    Phillips v. Mashburn, 
    746 F.2d 782
    , 785 (11th Cir. 1984); see also
    Simmons v. Poe, 
    47 F.3d 1370
    , 1377 (4th Cir. 1995). However, the
    claim should have been dismissed without prejudice. Phillips, 
    746 F.2d at 785
    . Thus, we so modify the dismissal order.
    Holt's claim of malicious prosecution was also properly dismissed.
    He alleged no more than a due process claim in the district court,
    which is not cognizable on the facts alleged. Albright v. Oliver, ___
    4
    U.S. ___, ___, 
    62 U.S.L.W. 4078
    , 4078-80 (U.S. Jan. 24, 1994) (No.
    92-833) (Rehnquist, C.J., plurality opinion); see also, 62 U.S.L.W. at
    4082-84 (Kennedy, J., concurring). While he now attempts to raise a
    Fourth Amendment violation on these facts, this was not presented
    below and will not be considered here. Albright , 62 U.S.L.W. at 4080.
    Further, to the extent that the complaint raised a wrongful arrest claim
    against the police officer, it was frivolous because the arrest was
    made on a facially valid arrest warrant. Mitchell v. Aluisi, 
    872 F.2d 577
    , 579 (4th Cir. 1989).
    Thus, we affirm the district court order but modify the dismissal of
    the conspiracy claim to one without prejudice. We dispense with oral
    argument because the facts and legal contentions are adequately pres-
    ented in the materials before the court and argument would not aid the
    decisional process.
    AFFIRMED AS MODIFIED
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