Pham v. Univ. of La. at Monroe, CIVIL ACTION NO. 16-00467

194 F.Supp.3d 534

Dung Quoc PHAM

v.UNIVERSITY OF LOUISIANA AT MONROE, et al.

CIVIL ACTION NO. 16-00467

United States District Court, W.D. Louisiana, Monroe Division .

Signed July 13, 2016

Daniel Clay Wirtz, Law Office of Daniel Clay Wirtz, Monroe, LA, for Dung Quoc Pham.

Linda Law Clark, Winston G. Decuir, Jr., Decuir Clark & Adams, Baton Rouge, LA, for University of Louisiana at Monroe, et al.

RULING

ROBERT G. JAMES, UNITED STATES DISTRICT JUDGE

Plaintiff Dung Quoc Pham ("Pham") brings this suit against Defendants the University of Louisiana System Board of Supervisors ("ULM"); Dean Benny Blaylock, individually and in his official capacity as Dean of ULM's College of Pharmacy ("Dean Blaylock"); Dr. Keith Jackson, individually and in his official capacity as Faculty Chairperson of the Board of Ethics of ULM's College of Pharmacy ("Dr. Jackson"); Dr. Tibb Jacobs, individually and in her official capacity as Faculty Chairperson of the Board of Ethics of ULM's College of Pharmacy ("Dr. Jacobs"); Dr. Michael Cockerham, individually and in his official capacity as Associate Dean of Academic Affairs of ULM's College of Pharmacy ("Dr. Cockerham"); Dr. Khalid El Sayed, individually and in his official capacity as Professor of ULM's College of Pharmacy ("Dr. El Sayed"); Eric A. Pani, individually and in his official capacity as Vice President of Academic Affairs for ULM ("Pani"); and Sherrye Carradine, individually and in her official capacity as in- House Counsel for ULM ("Carradine") (referred to collectively as "Defendants") for purported violations of 42 U.S.C. § 1983 (" § 1983").

Pending before the Court are Pham's Motion for a Preliminary Injunction [Doc. No. 2] and Defendants' Motion to Dismiss all claims against Defendants for monetary damages in their individual capacities on qualified immunity grounds. [Doc. No. 11]. For the following reasons, Pham's Motion for a Preliminary Injunction is DENIED. Defendants' Motion to Dismiss is GRANTED to the extent they seek qualified immunity with respect to all claims against them in their individual capacities for monetary damages. Those claims are DISMISSED WITH PREJUDICE.

I. FINDINGS OF FACT ¹

At the time of his expulsion, Pham was a third-year pharmacy student at the ULM's College of Pharmacy. Pham was allegedly caught cheating on multiple occasions which caused the school to take disciplinary actions. He asserts that the College of Pharmacy failed to comply with due process before punishing him on two occasions, the second of which resulted in his expulsion.

A. Initial Charge ("Pham I")

The initial charge of cheating related to the administration of an Infectious Disease examination. Professors Adam Pate ("Pate") and El Sayed claimed to have witnessed Pham cheating with another student. Dr. Cockerham sent written notice to Pham that the professors alleged academic dishonesty in violation of Rules 3.01, 02, and 03 of the University of Louisiana at Monroe College of Pharmacy Code of Ethical and Professional Conduct ("the Code").² Pham requested a hearing in accordance with the Code.

On April 2, 2015, the Ethics Board conducted the initial hearing against Pham. Pham was not represented by counsel and pled not guilty. According to the hearing minutes, the Ethics Board found Pham guilty on the basis of testimony from Pate and Dr. El Sayed, which included testimony concerning ExamSoft records from the examination. The actual ExamSoft records were not introduced at the hearing, or, it appears, on appeal.³ The Ethics Board recommended that Pham receive a zero grade for the examination and probation for the duration of his tenure at ULM's pharmacy school.

On April 7, 2015, Jackson sent a letter to Pham notifying him that the Ethics Board had found him guilty by a preponderance of the evidence for "giving unauthorized assistance to a fellow student on an exam and receiving unauthorized assistance." According to Defendants, this violation alone would have been grounds for expulsion.

After this letter was sent, Pham sought the advice of Dr. El Sayed who recommended that Pham apologize for his alleged misconduct and seek mercy.

Pham followed Dr. El Sayed's advice and wrote a letter to Dean Blaylock apologizing for his misconduct but not explicitly admitting cheating. On April 15, 2015, Dean Blaylock gave Pham written notice that his Office would uphold the Ethics Board's findings and recommendation. According to Pham, Dean Blaylock's review was meaningless because he essentially rubber-stamped the findings and recommendation of the Ethics Board.

Pham appealed this adverse decision to Pani, the final arbiter in the process. According to Pham, at this time, he realized that he had been "duped." He wrote a letter to Pani explaining that he had written the apology letter on the advice of Dr. El Sayed–his original accuser. Pani denied Pham's appeal, stating that "I find no grounds for your appeal since you admitted the misconduct in your appeal to Dean Blaylock."

B. Second Charge ("Pham II")

Around November 12, 2015, Dr. Courtney Robinson ("Dr. Robinson") informed Dr. Cockerham that she caught Pham using unauthorized materials in the completion of a graded examination. On November 12, 2015, Dr. Cockerham sent written notice to Pham that Dr. Robinson had accused him of academic dishonesty in violation of Rule 3.01.01.⁴

On November 16, 2015, Pham's counsel provided notice to Dr. Jacobs and Dr. Cockerham that Pham denied the charges against him and requested a formal hearing. Pham's counsel requested the opportunity to cross examine witnesses. This request was denied, but Dr. Cockerham indicated that Pham would be allowed to cross examine witnesses in accordance with the Code.

The formal hearing was scheduled for December 14, 2015. Before the hearing, Pham requested that the Ethics Board consider his answer sheet, which he felt would demonstrate his innocence. At the hearing, Pham and his counsel were prevented from cross examining witnesses. Moreover, the Ethics Board did not consider the answer sheet in Pham's presence. Instead, the Ethics Board considered the evidence during deliberations and found that it showed Pham's guilt. The Ethics Board found Pham guilty of using unauthorized materials and recommended expulsion.

On December 16, 2015, Dean Blaylock wrote Pham and informed him that he agreed with the Ethics Board's findings and recommendation of expulsion. Pham did not receive any findings of fact or conclusions from the Ethics Board despite Rule 11.11 which requires their divulgence.

On January 4, 2016, Pham's counsel delivered a letter to Dean Blaylock which documented multiple instances of the Ethics Board and Dean Blaylock failing to comply with the Code. That same day, Dean Blaylock emailed Pham and informed him that he would grant a second, abbreviated hearing in which Pham could cross examine witnesses. The findings of fact and conclusions from the initial hearing were given to Pham on January 12, 2016.

On January 21, 2016, the supplemental hearing was held during which Pham was allowed to cross examine witnesses. The Ethics Board maintained its initial findings and recommendation. On January 23, 2016, Dean Blaylock sent a letter to Pham informing him that he agreed with the Ethics Board's findings and recommendation. No findings of fact or conclusions were ever provided to Pham from the supplemental hearing.

On February 1, 2016, Pham appealed the decision to Pani. Pham presented an appeal which noted multiple deviations from the Code including Dean Blaylock's decision to adopt the Ethics Board's findings before Pham had even appealed the decision.

On March 24, 2016, Pani sent Pham a letter which specifically addressed the complaint that Dean Blaylock failed to hear his appeal. Pani granted Pham two options. The first option entailed Pani suspending his review of the appeal until Dean Blaylock had a chance to properly review the appeal. If Dean Blaylock upheld the Ethics Board's findings and recommendation, Pani would resume his review of the appeal. The second option involved foregoing the appeal to Dean Blaylock so that the case effectively went straight from the Ethics Board to Pani–the final arbiter. It is somewhat unclear, but it appears that Pham chose option two, asking Pani to remedy the "grave injustice" and denial of constitutional rights stemming from the proceedings.

On April 1, 2016, Pani adopted the Board's decision to expel Pham from the pharmacy school. The letter stated that Pham "simultaneously possessed unauthorized materials and the graded [exercise's] answer sheet, violating Rule 3.01.01 of the ULM School of Pharmacy Code of Ethical and Professional Conduct."

On April 6, 2016, Pham filed a Complaint in this Court seeking a temporary restraining order, preliminary injunction, and monetary damages. [Doc. Nos. 1, 2]. Specifically, he asserts that Defendants' actions deprived him of a protected liberty or property interest (his continuing education) without due process of law. He also asserted that the Code was a binding contract between university and student which ULM breached by failing to conduct the disciplinary proceedings in strict compliance with the Code.

The Court denied Pham's request for a temporary restraining order on April 8, 2016. [Doc. No. 5]. On May 11, 2016, Defendants filed a motion to dismiss certain parties and claims from this lawsuit. [Doc. No. 11]. On June 6, 2016, the Court granted the motion in part, but deferred ruling on the issue of qualified immunity pending further briefing.⁵ [Doc. Nos. 20, 21].

On June 7 and 8, 2016, the Court held a hearing on Pham's motion for a preliminary injunction. The parties submitted post-hearing briefs on the preliminary injunction issue. The parties also submitted further briefing on the qualified immunity issue. The Court is now prepared to rule on both issues.

II. CONCLUSIONS OF LAW

A. Preliminary Injunction Standard

There are four traditional criteria a party moving for a preliminary injunction must satisfy: (1)...