Khem Bissessur v. Indiana University Board of Tr ( 2009 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-3504
K HEM B ISSESSUR,
Plaintiff-Appellant,
v.
T HE INDIANA U NIVERSITY B OARD OF T RUSTEES, ET AL.,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 07 CV 01290—Sarah Evans Barker, Judge.
A RGUED F EBRUARY 25, 2009—D ECIDED S EPTEMBER 11, 2009
Before F LAUM, W ILLIAMS, and T INDER, Circuit Judges.
W ILLIAMS, Circuit Judge. Khem Bissessur was expelled
from the Indiana University School of Optometry after
receiving several sub-par grades and failing a clinical
rotation. He alleges that he had a protected property
interest in a continuing education at the University,
which was established in an implied contract between
the parties. It is the University’s violation of his entitle-
ment to a continuing education, he asserts, that forms
2 No. 08-3504
the basis for several constitutional claims against the
University and its employees. His complaint, however,
fails to identify any facts that give the defendants
adequate notice of the basis for these claims. The com-
plaint fails to state that the University made any
promises to Bissessur or how it entered into a contract
with him, implied or otherwise. Therefore, the district
court dismissed his complaint for failure to state a
claim, and we affirm.
I. BACKGROUND
Khem Bissessur is a former graduate student at the
Indiana University School of Optometry. Bissessur
alleges that in December 2004, a professor refused to let
him take an exam, resulting in him receiving a grade of
“incomplete” for the course. That semester, he also re-
ceived two grades of D+ based on allegedly arbitrary
reasons. As a result of these events, the University
refused to allow Bissessur to begin his clinical rotations
the following semester. After he was allowed to begin,
he received a failing grade in one rotation. This failure
led to his dismissal from the University, which caused
Bissessur to file suit against the University’s Board of
Trustees and several of its employees.
Bissessur’s complaint generally alleges that his profes-
sors arbitrarily assigned his grades, that he did not
receive proper feedback from his professors or the Uni-
versity regarding his academic progress, and that the
University dismissed him without proper notice or a
hearing. The complaint contains claims for violations of
No. 08-3504 3
Bissessur’s rights to substantive due process, procedural
due process, and equal protection, as well as a claim
for breach of implied contract. The district court dis-
missed this case for failure to state a claim pursuant to
Federal Rule of Civil Procedure 12(b)(6), and Bissessur
appeals.
II. ANALYSIS
A. Bissessur’s Complaint Fails to Allege Sufficient Facts
The district court dismissed all of Bissessur’s claims
pursuant to the defendants’ Rule 12(b)(6) motion. It
found that the defendants had qualified immunity with
respect to Bissessur’s claims for monetary damages. With
respect to Bissessur’s request for prospective injunctive
relief (reinstatement to the University), the district court
found that Bissessur did not state a claim upon which
relief could be granted. At the heart of its reasoning, the
district court found that all of Bissessur’s claims failed
because he did not establish that he had a cognizable
protected interest in a continuing education at Indiana
University.1
1
The one exception is Bissessur’s equal protection claim,
which the district court properly dismissed because Bissessur,
among other things, failed to: (1) allege that he was a member
of a protected class; or (2) allege that someone similarly
situated was treated differently. See McNabola v. Chi. Transit
Auth., 10 F.3d 501, 513 (7th Cir. 1993) (citation and quotation
omitted).
4 No. 08-3504
A graduate student does not have a federal constitu-
tional right to a continued graduate education. See
Williams v. Wendler, 530 F.3d 584, 589 (7th Cir. 2008). That
said, given that the “basic legal relation between a
student and a private university or college is contractual
in nature,” a student may establish that an implied
contract existed between himself and the university
that entitled the student to a specific right, such as the
right to a continuing education or the right not to be
suspended without good cause. Ross v. Creighton Univ., 957
F.2d 410, 416 (7th Cir. 1992) (citation and quotation omit-
ted). The “catalogues, bulletins, circulars, and regulations
of the institution made available to the matriculant may
become a part of the contract.” Id. A right established by
an implied contract between a student and a university
can be a property interest subject to constitutional pro-
tection, id., but to receive such protection, the student
must first show that the implied contract establishes an
entitlement to a tangible continuing benefit, see Bd. of
Regents of State Colleges v. Roth, 408 U.S. 564, 574 (1972).
In order to establish this type of entitlement, the
student must “point to an identifiable contractual
promise that the [university] failed to honor.” Id.; Gordon
v. Purdue Univ., 862 N.E.2d 1244, 1248 (Ind. App. Ct.
2007). Absent evidence of such a specific promise, the
court will not participate in “second-guessing the profes-
sional judgment of the University faculty on academic
matters.” Ross, 957 F.2d at 415.
The district court correctly concluded that Bissessur
failed to point to any specific promise that the University
made which established that Bissessur might have had
No. 08-3504 5
an entitlement to a continuing education, or any other
such entitlement. So, the court dismissed his claims. On
appeal, Bissessur does not challenge the district court’s
solid analysis. Instead, he argues that the district court
erred by dismissing his claims at the motion to dismiss
stage. He maintains that his complaint contained enough
information to state a claim for breach of implied
contract (which established his property interest in a
continuing education at the University), requiring the
court to allow discovery to commence. He further
alleges that the specific promises establishing his en-
titlement to a continuing education would be unearthed
during discovery in various bulletins and flyers that had
been posted around campus during Bissessur’s tenure
at the University.
Specifically, Bissessur argues that the following passage
of his complaint, under our notice pleading standards, is
enough to allow his claims to survive a motion to dismiss:
Count II: Breach of Implied Contract
36. An implied contract existed between Bissessur
and IU.
37. IU breached the implied contract that existed
between Bissessur and IU.
38. IU’s actions were arbitrary, capricious, and
undertaken in bad faith.
This argument is without merit. Under the standard set
forth in Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) and
affirmed in Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009),
Bissessur’s complaint fails to contain enough informa-
6 No. 08-3504
tion to state a legally cognizable claim. In Twombly, the
Supreme Court held that a complaint stating only “bare
legal conclusions,” even under notice pleading standards,
is not enough to survive a Rule 12(b)(6) motion. Id. at 547.
While a complaint attacked by a Rule 12(b)(6) motion to
dismiss does not need detailed factual allegations, a
plaintiff has the obligation to provide the factual
“grounds” of his entitlement to relief (more than “mere
labels and conclusions”), and a “formulaic recitation of a
cause of action’s elements will not do.” Id. The com-
plaint must contain “enough facts to state a claim to
relief that is plausible on its face” and also must state
sufficient facts to raise a plaintiff’s right to relief above
the speculative level. Id. at 557; Tamayo v. Blagojevich,
526 F.3d 1074, 1084 (7th Cir. 2008). A claim has facial
plausibility “when the plaintiff pleads factual content
that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.”
Iqbal, 129 S. Ct. at 1949. This said, in examining the
facts and matching them up with the stated legal claims,
we give “the plaintiff the benefit of imagination, so long
as the hypotheses are consistent with the complaint.”
Sanjuan v. Amer. Bd. of Psychiatry and Neurology, Inc., 40
F.3d 247, 251 (7th Cir. 1994) (citations omitted).
Twombly “teaches that a defendant should not be
forced to undergo costly discovery unless the complaint
contains enough detail, factual or argumentative, to
indicate that the plaintiff has a substantial case.” Limestone
Dev. Corp. v. Village of Lemont, 520 F.3d 797, 802-03 (7th
Cir. 2008). In this case, Bissessur’s complaint falls drasti-
cally short of providing the necessary factual details to
No. 08-3504 7
meet the Twombly standard. Aside from “Count II” above,
which does nothing more than state that an implied
contract existed and was breached, the complaint
contains no mention of any entitlements Bissessur had
as a result of his relationship with the University, or
any promises that the University or its officials may
have made to him that might have formed the basis of
a contract, implied or otherwise. Nor does the complaint
state what entitlement Bissessur has as a result of this
purported contract. So, it does not contain sufficient
facts to put the University on notice of the basis for
Bissessur’s implied contract claim. And because
Bissessur’s constitutional claims are derivative of the
rights he alleges were promised to him as part of this
implied contract, the necessary facts to support these
claims are also absent from the complaint. Bissessur’s
argument that the exact details of the contract will
become clear during discovery runs counter to the
holding of Twombly, which dictates that the complaint
itself must contain sufficient factual detail to describe
the parameters of the contract before discovery may
commence. Further, Bissessur’s attempt to supplement
the complaint in his briefing by stating that the details
of the implied contract, which do not appear in his com-
plaint, are contained in various unnamed academic
bulletins is fruitless. See Car Carriers, Inc. v. Ford Motor
Co., 745 F.2d 1101, 1103 (7th Cir. 1984) (holding that a
complaint may not be amended by briefs in opposition
to a motion to dismiss).
Our system operates on a notice pleading standard;
Twombly and its progeny do not change this fact. Cf. Smith
8 No. 08-3504
v. Duffey, No. 08-2804, 2009 WL 2357872, at *4 (7th Cir.
Aug. 3, 2009) (noting courts’ overreliance on Twombly). A
defendant is owed “fair notice of what the . . . claim is
and the grounds upon which it rests.” Conley v. Gibson,
355 U.S. 41, 47 (1957). Under Conley, just as under
Twombly, it is not enough to give a threadbare recitation
of the elements of a claim without factual support. See
Tamayo, 526 F.3d at 1082-83. A plaintiff may not escape
dismissal on a contract claim, for example, by stating
that he had a contract with the defendant, gave the defen-
dant consideration, and the defendant breached the
contract. What was the contract? The promises made? The
consideration? The nature of the breach? Here, Bissessur
wants us to believe that the University implicitly
promised him that he had a right to a continuing educa-
tion, and that he promised the University “something” in
return, establishing an implied contract between the
two parties. This implied contract, he argues, gave him
an entitlement which is the basis for his due process and
other constitutional claims. His complaint, however, fails
to allege any facts that even remotely relate to this the-
ory. It provides no notice for the basis of Bissessur’s
claims aside from a mere recitation of their elements.
Among other things, it contains no facts concerning:
(1) what, if any, promises the University made to
Bissessur; (2) how these promises were communicated;
(3) what Bissessur promised in return; or (4) how these
promises created an implied contract. In sum, it leaves
the University with no notice of what this “implied con-
tact” is or how it supports Bissessur’s constitutional
claims. So, it fails here as it would have failed in 1957.
No. 08-3504 9
Allowing this case to proceed absent factual allegations
that match the bare-bones recitation of the claims’
elements would sanction a fishing expedition costing
both parties, and the court, valuable time and resources.
III. CONCLUSION
For the foregoing reasons, we A FFIRM the judgment of
the district court.
9-11-09