IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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, claiming that Doctors

United States Court of Appeals

Fifth Circuit

F I L E D

April 5, 2013

Lyle W. Cayce

Clerk

* 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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No. 12-50808

Kenneth Matthews and Lois Bready violated his Fourteenth Amendment dueprocess rights by denying 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 at San Antonio (“UTHSC”). Matthews was the program director

for the Psychiatric Residency Program, and Bready oversaw UTHSC’s Graduate

Medical Education program. The psychiatry program requirements included

providing clinical care at the University Hospital and local Veterans Affairs

(“VA”) facilities. 

About September 2008, during Ekmark’s fourth and final year of the program, an acquaintance and UTHSC employee told Bready that Ekmark had

admitted to an 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, causing the Board to suspend Ekmark’s physicianin-training permit. 

The VA was notified and began an investigation, during which UTHSC

placed the matter on hold. About November, the VA’s Administrative Investigation Board sent UTHSC a summary of its conclusion that the allegations were

more likely true than not and that, as a result, the VA had revoked Ekmark’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 paid through the end of the

fourth-year contract. Because, however, he could not complete his clinical

duties, including his rotations at the VA, he did not receive the psychiatry certi2

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No. 12-50808

fication.1

It is undisputed that he requested a formal grievance hearing but

never received one. 

Ekmark sued Matthews and Bready, alleging a deprivation of due process

and seeking damages and other relief. The district court granted summary judgment, finding that Ekmark had no protected property interest in his certification

or ongoing education and was not entitled, under the Fourteenth Amendment,

to a formal grievance hearing. The court continued that, even assuming arguendo a property interest in continuing his residency, Ekmark had received the

required due-process protections.

We review de novo a summary judgment, affirming on any basis supported

by the record, even if different from the district court’s reasoning. Reed v. Neopost USA, Inc., 701 F.3d 434, 438 (5th Cir. 2012). Summary judgment is appropriate where there is “no genuine dispute as to any material fact and the movant

is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a).

“The Fourteenth Amendment’s procedural protection of property is a safeguard of the security of interests that a person has already acquired in specific

benefits.” Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 576 (1972). Even

assuming arguendo Ekmark had any property interest 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 of the hospital. Shaboon v. Duncan, 252 F.3d 722, 729 (5th Cir.

2001). “It is well-known that the primary purpose of a residency program is not

employment or a stipend, but the academic training and the academic certification for successful completion of the program.” Davis, 882 F.2d at 974. In rec1

In 2011, the Texas Medical Board allowed Ekmark to obtain a Texas medical license.

3

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ognition of the complex student-faculty relationship, students are not entitled

to the same due process protections as are employees. Shaboon, 252 F.3d at 730. 

We further distinguish between the process required for students facing

discipline and academic actions that require “far less stringent procedural

requirements.” Bd. of Curators of Univ. of Mo. v. Horowitz, 435 U.S. 78, 86

(1978); see also Davis, 882 F.2d at 974. Educational institutions “should not be

weighted down with formalized procedural requirements imposed by actors

estranged from the academic environment.” Davis, 882 F.2d at 974. The physicians and administrators 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

academic actions against medical residents require only the minimum procedure

of notice and not a hearing. Horowitz, 435 U.S. at 90; see also Shaboon, 252 F.3d

at 731. 

Bready and Matthew’s determination that Ekmark was unable to fulfill

the clinical residency requirements, and was thus unqualified for certification,

was academic in nature. Despite that the underlying disciplinary actions by the

VA affected Ekmark’s capacity to meet the certification prerequisites, his inability to complete the program “furnished a sound academic basis 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 complete the program if his

physician-in-training permit was not renewed. Contrary to Ekmark’s claims, he

was not entitled to a formal hearing. Id. Furthermore, even if 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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