### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-50808 Summary Calendar

RODERICK DAVID EKMARK, M.D., Plaintiff–Appellant,

versus DOCTOR KENNETH MATTHEWS, In His Official and Individual Capacity; DOCTOR LOIS BREADY, In Her Official and Individual Capacity, Defendants–Appellees.

Appeal from the United States District Court for the Western District of Texas USDC No. 5:11-CV-465

Before SMITH, PRADO, and HIGGINSON, Circuit Judges. PER CURIAM: *

Roderick Ekmark appeals a summary judgment, c l aiming that Doctors U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D April 5, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R. 47. 5, the court has determ ined that this op inion s hould not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 12-50808 Document: 00512198774 Page: 1 Date Filed: 04/05/2013No. 12-50808

Kenneth Matthews and Lois Bready violated his Fourteenth Amendment dueprocess rights b y d e n y i n g him a formal grievance hearing before refusing to grant him a certification in psychiatry. We affirm. Ekmark is a former psychiatry resident at the University of Texas Health Science Center a t S an Antonio (“UTHSC”). Matthews was the program director for the P sychiatric Residency P rogram, and Bready oversaw UTHSC’s Graduate Medical Education p rogram. The psychia t ry program requirements included providing clinical care at the University H ospital and local V e terans Affairs (“VA”) facilities. About September 2008, during Ekmark’s fourth and final year of the prog r a m , an a cquaintance and UTHSC employee told Bready that Ekmark h a d admi t t e d t o a n inappropriate relationship with a VA hospital patient. As a result, UTHSC suspended Ekmark’s patient-care duties pending an investigation and offered him at least two opportunities to present his account of the situation, but he continued to deny the allegations. UTHSC notified the Texas Medical Board of the suspension, c ausing the Board to suspend E kmark’s physicianin-training permit. The VA was notified and began an investigation, during which U T H SC placed the matter o n hold. About November, the VA’s Administrative Investigation Board sent UTHSC a summary of its conclusion that the allegations were
more likely true than n ot an d t h a t , a s a result, the VA had r evoked E kmark’s privileges at all VA facilities. Ekmark informed UTHSC that he would appeal the VA’s determination; in the meantime, UTHSC maintained the suspension. Although on clinical suspension, Ekmark was p aid through the e nd of the fourth-year contract. Because, however, he c o u l d n o t complete his clinical duties, including his rotations at the VA, h e did not r eceive the psychiatry certi2 Case: 12-50808 Document: 00512198774 Page: 2 Date Filed: 04/05/2013No. 12-50808

fication. 1 It is u n disputed that he requested a formal grievance h earing but never received one. Ekmark sued Matthews and Bready, alleging a deprivation of due process and seeking damages and o ther relief. Th e district court granted summary judgment, finding that E kmark had no protected property interest in his certifi c ation or ongoing education and was not entitled, under the Fourteenth Amendment, to a formal grievance hearing. The court continued that, even assumingarguendoa property interest in continuing his residency, Ekmark had received the required due-process protections. We review de novo a summary judgment, affirming on any b asis supported by the record, even if different from the district court’s reasoning. Reed v. Neopost USA, Inc. , 701 F .3d 434, 438 (5th C ir. 2012). Summary j udgment is appropriate w here there is “ no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” F E D
. R. C I V
. P. 56(a). “The Fourteenth Amendment’s procedural protection of property i s a safeguard of the security o f i nterests that a person has a lready acquired in specific benefits.” Bd. of Regents of State Colls. v . Roth , 408 U.S. 564, 576 (1972). Even assuming arguendo Ekmark had any prop e r t y i n terest in continuing his residency and achieving certification, he received all the process to which he was entitled under the Fourteenth Amendment. See Davis v. Mann , 882 F.2d 967, 973 (5th Cir. 1989). In the context of due process, medical residents are students rather than employees o f the hospital. Shaboon v. Duncan , 2 5 2 F

. 3 d 722, 729 (5th Cir. 2001). “It is well-known that the primary p urpose of a residency p rogram is not employment o r a stipend, but the a cademic training and the academic certification for successful completion of the program.” Davis , 882 F.2d at 974. In rec1 In 2011, the Texas M ed ical Board allow ed Ek m ark to obtain a Texas m ed ical licens e. 3 Case: 12-50808 Document: 00512198774 Page: 3 Date Filed: 04/05/2013No. 12-50808

ognition of the complex s tudent-faculty relationship, s tudents a r e not entitled to the s ame du e process protections as are e mployees. Shaboon , 252 F.3d at 730. We further distinguish between the process required for students facing discipline and academic actions t h a t r equire “far less s tringent procedural requirements.” Bd. of Curators of Univ. of Mo. v. H o r o w i t z , 4 35 U.S. 78, 86 (1978); see also Davis , 882 F.2d a t 974. Educational institutions “should not be weighted d own with f o rmalized procedural r equirements imposed by actors estranged from the academic environment.” Davis , 882 F.2d at 974. The physicians and a dministrators directing residency programs are in the best position to determine which candidates are suited to progress through the program and have satisfactorily completed the requirements for certification. Id. Adverse

a c a d e m i c a c ti o n s against medical residents require o nly the minimum procedu r e of notice and not a hearing. Horowitz , 435 U.S. at 90; see also Shaboon , 252 F.3d at 731. Bready and Matthew’s determinati o n t h at Ekmark was unable to fulfill the clinical r esidency requirements, and was thus u nqualified f or certification,

was a cademic in n ature. Despite that the underlying disciplinary actions by the VA a ffected Ekmark’s c apacity to meet the certification prerequisites, his inability to complete the program “furnished a sound academic b asis for [the denial of certification].” Shaboon , 252 F.3d at 731. Viewing the facts in the light most favorable to Ekmark, he received sufficient process. Matthews notified Ekmark of his suspension and of the hospital’s determination that he would not be able to c omplete the p rogram i f h is physician-in-training permit was not renewed. Contrary to Ekmark’s claims, he

was not entitled t o a formal hearing. Id. Furthermore, even i f a formal hearing

was required by UTHSC policy, the UTHSC rules do not establish the constitutional floor of due process. Levitt v. Univ. of Tex. at El Paso , 759 F.2d 1224, 1230 (5th Cir. 1985).

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The summary judgment is AFFIRMED.

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