The opinion of the court was delivered by: Keith Starrett United States District Judge
MEMORANDUM OPINION AND ORDER
This matter is before the Court on a Motion to Dismiss or in the Alternative, for Summary Judgment filed on behalf of The University of Southern Mississippi, Dr. Martha Saunders, Dr. Rebecca Woodrick and Dr. Charles West [#s 7 & 9]. The Court, having reviewed the motion, the pleadings and exhibits on file, the authorities cited and being advised that the Plaintiff has failed to respond to the motion finds that it is well taken and should be granted. The Court finds specifically as follows:
The Plaintiff, Maria Salcido, enrolled as a part-time student in the Marriage and Family Therapy (MFT) program in the Department of Psychology at the University of Southern Mississippi (USM) in the Fall semester of 2006. On July 6, 2011, Salcido filed this suit claiming she has been discriminated against because of her race, national origin and ethnicity and denied specific constitutional rights, among them Procedural and Substantive Due Process rights, Equal Protection, and First Amendment and Liberty Interest rights. She filed her federal law claims pursuant to 42 U.S.C. § 1983. In addition, Salcido alleges a state law breach of contract claim.
The Defendants first assert that Salcido's claims are insufficiently pled and cannot overcome the individual defendants' entitlement to qualified immunity. The Fifth Circuit has held that "government officials performing discretionary functions are protected from civil liability under the doctrine of qualified immunity if their conduct violates no 'clearly established statutory or constitutional rights of which a reasonable person would have known.'" Sorenson v. Ferrie, 134 F.3d 325, 327 (5th Cir. 1998) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738, 73 L. Ed. 2d 396 (1982)). The shield of qualified immunity is available to government officials sued under 42 U.S.C. § 1983 for constitutional torts in their individual capacity. See Anderson v. Creighton, 483 U.S. 635, 649 (1987).
Under the two step analysis employed by the Fifth Circuit in reviewing claims wherein qualified immunity has been asserted, the Court must first determine "whether the plaintiff has asserted the violation of a clearly established constitutional right. If so, the court decides whether the defendant's conduct was objectively reasonable." Sorenson, 134 F.3d at 327 (quoting Coleman v. Houston Indep. Sch. Dist., 113 F.3d 528, 533 (5th Cir. 1997) (applying the two-prong test of Siegert v. Gilley, 500 U.S. 226, 231-32, 111 S. Ct. 1789, 1792-93, 114 L. Ed. 2d 277 (1991)). The first step "is subdivided into three questions: (1) whether a constitutional violation is alleged; (2) whether the law regarding the alleged violation was clearly established at the time of the alleged violation; and (3) whether the record shows that a violation occurred." Dudley v. Angel, 209 F.3d 460, 462 (quoting Kerr v.Lyford, 171 F.3d 330, 339 (5th Cir. 1999) (citing Rich v. Dollar, 841 F.2d 1558, 1563 (11th Cir. 1988)).
The United States Supreme Court has set the standard for determining whether a complaint is sufficient to survive a motion to dismiss based upon qualified immunity, calling for a "flexible plausibility standard". Under this standard, the plaintiff is required "to amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed. 929 (2007). In order to survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face". Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1940 (2009) (quoting Twombly, 550 U.S. at 570). 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 1940 (citing Twombly, 550 U.S. at 556). See also Mendenhall v. Riser, 213 F.3d 226, 230 (5th Cir. 2000).
A plaintiff cannot do this by merely peppering the complaint with legal conclusions. Instead the complaint must be supported by factual allegations that support more than a mere possibility that some defendant is guilty of wrongful conduct.
Iqbal, 129 S. Ct. at 1940. Factual allegations are entitled to a presumption of truth, while legal conclusions are not. Iqbal, 129 S. Ct. at 1940 (citing Twombly, 55 U.S. at 535). The pleadings must nudge plaintiff's claims "across the line from conceivable to plausible." Id.
Against this backdrop, the Defendants assert that Salcido's bare bones complaint fails to plausibly suggest the violation of any constitutional right and is insufficient under Fed. R. Civ. P. 8(a)(2). They have, therefore, moved to dismiss her claims against all the Defendants in their entirety.
I. Invidious Discrimination/Equal Protection
In the instant case, Salcido's allegations center around her claim that the defendants discriminated against her by not providing her an externship or practicum hours because of her race, national origin and ethnicity. Comparing the allegations of Salcido's Complaint to Twombly and its prodigy, she is required to show facts that plausibly demonstrate defendants adopted and implemented a policy in the MFT program at USM of assigning practicum hours and externships based upon race, national origin or ethnicity. More specifically, Salcido must show that each separate defendant purposely denied externship and intentionally failed to assign practicum hours to her for the specific purpose of thwarting her efforts at obtaining a Master's degree in MFT because of her race, national origin or ethnicity.
Salcido's claims of invidious discrimination must show more than the mere possibility that the conduct actually occurred, but that it occurred "because of" the defendants' purposeful intent to effect the adverse consequences on the plaintiff, Maria Salcido, because of her race, national origin or ethnicity. See Iqbal, supra.
The facts Salcido alleges are that she is a Latino female with a good GPA and that she was denied the 500 practicum hours she needed to graduate and was denied an externship because of her race. She claims these denials stemmed from a bad evaluation she gave one of her professors, Dr. Mary Ann Adams, who is not a defendant in this action. She goes on to allege that defendant Woodrick denied her a hearing on her AA-EEO complaint, presumably because of her race, and that Dr. Saunders, President of USM, being Defendant Woodrick's supervisor, is vicariously liable for this alleged denial. Dr. West is presumably "guilty" because he was the head of the MFT Department at the time these events allegedly occurred.
These bare factual allegations are seasoned with healthy doses of legal conclusions and fall far short of plausibly suggesting a discriminatory state of mind on the part of any defendant. As set forth below, each of these defendants is entitled to the defense of qualified immunity which shields government officials "from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights" of which any reasonable person would have known. Mitchell v. Forsyth, 472 U.S. 511 (1985) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818). Qualified immunity is both a defense to liability and a limited "entitlement" not to stand trial or face the burden of ...