Saurav Pathria v. Philip Serwer

Case: 14-50942 Document: 00512996013 Page: 1 Date Filed: 04/07/2015
REVISED April 7, 2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 14-50942 FILED
Summary Calendar April 3, 2015
Lyle W. Cayce
Clerk
SAURAV PATHRIA,
Plaintiff - Appellant
v.
PHILIP SERWER; STEPHEN C. HARDIES; SUSAN T. WEINTRAUB;
LARRY D. BARNES, Associate Dean of the Graduate School of Biomedical
Sciences; WILLIAM HALDENWANG; NEAL C. ROBINSON, Chairman of
Committee on Graduate Studies, Department of Biochemistry; BRUCE J.
NICHOLSON, Chairman of the Department of Biochemistry; DAVID S.
WEISS, Dean of the Graduate School of Biomedical Sciences; MICHAEL
GARGANO, Vice President for Academic, Faculty and Student Affairs; THE
UNIVERSITY OF TEXAS HEALTH SCIENCE CENTER AT SAN ANTONIO,
Defendants - Appellees
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:14-CV-32
Case: 14-50942 Document: 00512996013 Page: 2 Date Filed: 04/07/2015
No. 14-50942
Before HIGGINBOTHAM, JONES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
Appellant Saurav Pathria was terminated from a biochemistry PhD
program at the University of Texas Health Science Center at San Antonio
(“UTHSCSA”). In his second suit against the institutional defendant, he also
named nine individual defendants and sued for violations of the
14th Amendment, intentional and negligent infliction of emotional distress,
defamation and violation of Title VI of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000d. The district court granted defendants’ motion to dismiss based on
Federal Rules of Civil Procedure 12(b)(1) and (6), and Pathria has appealed.
Finding no reversible error of law or fact, we affirm.
First, Pathria has failed adequately to brief most of his contentions, but
has utterly failed in respect of the tort claims and alleged Title VI violation.
Federal Rule of Appellate Procedure 28(a)(8)(A) and Fifth Circuit Local
Rule 28.3(i) require an appellant to brief his contentions by offering legal
citations and record citations. “A party who inadequately briefs an issue is
considered to have abandoned the claim,” Friou v. Phillips Petroleum Co.,
948 F.2d 972, 974 (5th Cir. 1991), and this rule applies to pro se appellants.
Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993). Pathria’s response to the
court’s reasons for dismissing his tort claims against the defendants and his
Title VI claim lack any supporting legal authority. Consequently, those issues
are waived.
Second, Pathria cannot overcome the district court’s conclusions that his
pleadings were insufficient to state a claim under the Fourteenth Amendment
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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against the individual defendants. The stray remarks allegedly made by the
defendants were isolated, remote in time from his removal and largely
unconnected with the events leading to his dismissal from the PhD program
for failure to propose a dissertation topic. Pathria waives his objection to this
conclusion by failing to brief it on appeal.
The only remark of potential significance in his brief is Vice President
Gargano’s “Tandoori chicken” comment made when Pathria asked him to
change the academic record to reflect that Pathria resigned rather than was
terminated from the program. To allege intentional discrimination for claims
under § 1983 for violation of equal protection, Pathria must allege sufficient
facts to show that Gargano “singled out a particular group for disparate
treatment and selected his course of action at least in part for the purpose of
causing its adverse effect on an identifiable group.” Lavernia v. Lynaugh,
845 F.2d 493, 496 (5th Cir. 1988) (internal quotation marks omitted).
Assuming arguendo that Gargano’s comment was related to Pathria’s
race or national origin, this single instance, standing alone, is insufficient to
plausibly suggest that Gargano’s decision to deny Pathria’s request was
motivated by discriminatory intent, as required for 12(b)(6) purposes. See
Jackson v. Cal-Western Packaging Corp., 602 F.3d 374, 380 (5th Cir. 2010)
(noting that stray remarks are insufficient to establish discrimination absent
evidence that the remarks were related to, or made proximate in time to, the
adverse decision). Pathria’s pleadings establish, to the contrary, that the
decision to deny Pathria’s request was not Gargano’s alone. It was the
members of the graduate committee, including Gargano, who decided not to
change Pathria’s dismissal into a resignation. Additionally, Pathria’s request
came more than a year after he was dismissed in September 2012, which was
six months after he had offered, but not carried through with, the process of
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resigning from the program. The dismissal itself occurred after Pathria had
received an additional six months of pay from UTHSCSA without performing
services. In light of these facts, Gargano’s alleged discriminatory comment
does not move Pathria’s claim of purposeful discrimination “across the line
from conceivable to plausible.” Leal v. McHugh, 731 F.3d 405, 410 (5th Cir.
2013) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
Finally, although Pathria on appeal offers various vague assertions that
non-Indian students were treated more favorably than he was while other
Indian students were discriminated against, none of these assertions appeared
in his district court pleadings and we must disregard them on appeal.
Leverette v. Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir. 1999).
For these reasons, the district court’s judgment of dismissal is
AFFIRMED.
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