UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 15-1185

MACKEAN P. NYANGWESO MAISHA,

Plaintiff - Appellant,

v.

UNIVERSITY OF NORTH CAROLINA; HOLDEN THORP, Chancellor; WADE 

H. HARGROVE, Chair Board of Trustees; HANNAH D. GAGE, Board 

of Governors; MICHAEL KOSOROK; MELISSA HOBGOOD; SCOTT ZENTZ; 

MICHAEL G. HUDGENS; CHENXI LI; JASON P. FINE; GARY G. KOCH; 

MICHAEL A. HUSSEY; ALISA S. WOLBERG; BAHJAT F. QAQISH; JOHN 

S. PREISSER; JIANWAN CAI,

Defendants - Appellees.

Appeal from the United States District Court for the Middle 

District of North Carolina, at Greensboro. Catherine C. Eagles, 

District Judge. (1:12-cv-00371-CCE-LPA)

Submitted: February 29, 2016 Decided: March 17, 2016

Before NIEMEYER and AGEE, Circuit Judges, and HAMILTON, Senior 

Circuit Judge.

Affirmed by unpublished per curiam opinion.

Stephon J. Bowens, BOWENS LAW GROUP, PLLC, Raleigh, North 

Carolina, for Appellant. Roy Cooper, North Carolina Attorney 

General, Matthew Tulchin, Assistant Attorney General, Raleigh, 

North Carolina, for Appellees. 
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Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Mackean P. Nyangweso Maisha appeals the district court’s 

orders dismissing portions of his amended complaint, granting 

summary judgment to Appellees on his remaining claims, striking 

portions of declarations he submitted, and granting summary 

judgment to the University of North Carolina at Chapel Hill 

(UNC) on its counterclaim. Finding no error, we affirm.

I.

We review de novo a district court’s dismissal of claims 

under Fed. R. Civ. P. 12(b)(6), accepting factual allegations in 

the complaint as true and drawing all reasonable inferences in 

favor of the nonmoving party. Kensington Volunteer Fire Dep’t 

v. Montgomery Cty., 684 F.3d 462, 467 (4th Cir. 2012). To 

survive a motion to dismiss, the complaint’s “[f]actual 

allegations must be enough to raise a right to relief above the 

speculative level” and sufficient “to state a claim to relief 

that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 

U.S. 544, 555, 570 (2007).

Maisha contends that the district court erred in dismissing 

his claims under 42 U.S.C. § 1983 (2012) against defendants 

Melissa Hobgood, Scott Zentz, Gary G. Koch, Bahjat F. Qaqish, 

and John S. Preisser, as well as certain claims against UNC 

under Title VI of the Civil Rights Act of 1964, 42 U.S.C. 

§§ 2000d to 2000d-7 (2012), amended by Every Student Succeeds 
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Act, Pub. L. No. 114-95, 129 Stat. 1802, 2171 (2015), as barred 

by the statute of limitations because they are timely under the 

continuing-violation doctrine. While North Carolina’s threeyear statute of limitation applies to claims under Title VI and 

§ 1983, see Tommy Davis Construction, Inc. v. Cape Fear Public

Utility Authority, 807 F.3d 62, 67 (4th Cir. 2015) (§ 1983 

claims); Jersey Heights Neighborhood Ass’n v. Glendening, 174 

F.3d 180, 187 (4th Cir. 1999) (Title VI claims), federal law 

controls when the statute of limitations beings to run. A Soc’y 

Without a Name v. Virginia, 655 F.3d 342, 348 (4th Cir. 2011).

“In general, to establish a continuing violation, the 

plaintiff must establish that the unconstitutional or illegal 

act was a fixed and continuing practice.” Id. (alteration and 

internal quotation marks omitted). However, “continu[ing] 

unlawful acts are distinguishable from the continuing ill 

effects of an original violation because the latter do not 

constitute a continuing violation.” Id. Only “if the same 

alleged violation was committed at the time of each act[] [does] 

the limitations period begin[] anew with each violation.” Id.

(internal quotation marks omitted). General allegations of “a 

‘pattern or practice’ of discrimination” are insufficient to 

establish a continuing violation. Williams v. Giant Food Inc., 

370 F.3d 423, 429-30 (4th Cir. 2004). We conclude that the 

district court did not err in dismissing these claims as barred 
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by the statute of limitations as each event related to a 

discrete act that was not repeated by the individual actor, and 

Maisha’s general allegations of a pattern or practice of 

discrimination do not suffice to render these claims timely.

Next, Maisha contends that the district court erred in 

dismissing his remaining § 1983 claims against Defendants Wade 

H. Hargrove, Hannah D. Gage, Chenxi Li, Michael A. Hussey, and 

Alisa S. Wolberg. We conclude, however, that the district court 

did not err in dismissing these parties because Maisha’s amended 

complaint did not allege sufficient facts to state a plausible 

claim that any of these parties violated a constitutional right.1

Finally, Maisha argues that the district court erred in 

dismissing his conversion claim against Defendants Li, Michael 

G. Hudgens, and Jason P. Fine. North Carolina defines 

conversion as “the unauthorized assumption and exercise of right 

of ownership over goods or personal property belonging to 

another to the alteration of their condition or the exclusion of 

the owner’s rights.” Marina Food Assocs., Inc. v. Marina Rest., 

 1 We further note that because Maisha’s opening brief failed 

to argue that the district court erred in dismissing Defendants 

Holden Thorpe, Michael Kosorok, and Jianwan Cai, Maisha has 

waived appellate review of this portion of the district court’s 

order. See A Helping Hand, LLC v. Balt. Cty., 515 F.3d 356, 369 

(4th Cir. 2008). (“It is a well settled rule that contentions 

not raised in the argument section of the opening brief are 

abandoned.” (internal quotation marks omitted)).
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Inc., 394 S.E.2d 824, 831 (N.C. Ct. App. 1990). Federal

copyright law “preempt[s] a conversion claim where the plaintiff 

alleges only the unlawful retention of its intellectual property

rights and not the unlawful retention of the tangible object 

embodying its work.” United States ex rel. Berge v. Bd. of Trs.

of the Univ. of Ala., 104 F.3d 1453, 1463 (4th Cir. 1997)

(internal quotation marks omitted). “[A] state law action for 

conversion will not be preempted if the plaintiff can prove the 

extra element that the defendant unlawfully retained the 

physical object embodying plaintiff’s work.” Id. (internal 

quotation marks omitted). Maisha’s amended complaint alleged 

claims based on plagiarism and lack of attribution, which are 

preempted by federal copyright law. Id. at 1464. Thus, we 

conclude that the district court did not err in dismissing these 

claims.

II.

Maisha also contends that the district court erred in 

granting summary judgment to UNC, Fine, and Hudgens. We

“review[] de novo [a] district court’s order granting summary 

judgment.” Jacobs v. N.C. Admin. Office of the Courts, 780 F.3d

562, 565 n.1 (4th Cir. 2015). “A district court ‘shall grant 

summary judgment if the movant shows that there is no genuine 

dispute as to any material fact and the movant is entitled to 

judgment as a matter of law.’” Id. at 568 (quoting Fed. R. Civ. 
7

P. 56(a)). In determining whether a genuine issue of material 

fact exists, “we view the facts and all justifiable inferences 

arising therefrom in the light most favorable to . . . the 

nonmoving party.” Id. at 565 n.1 (internal quotation marks 

omitted). However, “[c]onclusory or speculative allegations do 

not suffice, nor does a mere scintilla of evidence in support of 

[the nonmoving party’s] case.” Thompson v. Potomac Elec. Power 

Co., 312 F.3d 645, 649 (4th Cir. 2002) (internal quotation marks 

omitted).

First, Maisha argues that the district court erred in 

striking portions of several declarations that he attached to 

his opposition to the motion for summary judgment. We review 

for abuse of discretion a district court’s ruling regarding the 

admissibility of evidence for summary judgment purposes. Nader 

v. Blair, 549 F.3d 953, 963 (4th Cir. 2008). We discern no 

abuse of discretion in the district court’s evidentiary rulings 

and, thus, affirm the district court’s order striking portions 

of the disputed declarations.

Second, Maisha contends that the district court erred in 

granting summary judgment to UNC on his Title VI discrimination

and retaliation claims. We apply the familiar McDonnell Douglas2

 2 McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 

(1973).
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test for claims of discrimination under Title VI. Rashdan v. 

Geissberger, 764 F.3d 1179, 1182 (9th Cir. 2014) (collecting 

cases from four circuits); see Middlebrooks v. Univ. of Md., No. 

97-2473, 1999 WL 7860, at *4-5 (4th Cir. Jan. 11, 1999). We 

conclude that the district court did not err in finding that 

Maisha failed to establish a prima facie case. While Maisha is 

correct that UNC did not have a formal policy concerning 

enrollment in BIOS 994, a doctoral dissertation course, UNC had 

an informal policy requiring that students take a “Qualifying 

Exam” prior to beginning dissertation research. See Merritt v. 

Old Dominion Freight Line, Inc., 601 F.3d 289, 297 (4th Cir. 

2010) (“[A]n informal policy is no less a policy.”). When 

Maisha failed to take the Qualifying Exam as instructed, Fine 

informed Maisha that he was longer eligible to take BIOS 994, 

and, when Maisha failed to register for any other courses, he 

was eventually unenrolled from UNC. Thus, we conclude that 

Maisha was not eligible to continue his graduate studies.

Maisha also contends that the district court erred in 

granting summary judgment to UNC on his Title VI retaliation 

claim. To establish a Title VI retaliation claim, Maisha “must 

show (1) that [he] engaged in protected activity; (2) that [UNC] 

took a material adverse . . . action against [him;] and (3) that 

a causal connection existed between the protected activity and 

the adverse action.” Peters v. Jenney, 327 F.3d 307, 320 (4th 
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Cir. 2003). On appeal, Maisha argues that temporal proximity 

establishes causation. However, UNC learned of his complaint to 

the Department of Education’s Office of Civil Rights in 2009, 

and it was not until June 2010 that Maisha alleged UNC 

retaliated against him by requiring him to sit for the 

Qualifying Exam. This gap of nearly one year does not provide 

the temporal proximity needed to establish causation. See

Lettieri v. Equant Inc., 478 F.3d 640, 650 (4th Cir. 2007) 

(noting that plaintiff relied on additional evidence of 

retaliatory animus when there was seven-month gap between 

protected activity and termination). Thus, we conclude that the 

district court did not err in granting summary judgment to UNC 

on this claim.

Third, Maisha contends that the district court erred in 

granting summary judgment on his claims of negligent and 

intentional infliction of emotional distress against Fine and 

Hudgens.3 In North Carolina, claims of intentional and negligent 

 3 Maisha also contends that the district court erred in 

granting summary judgment to Fine and Hudgens on his due process 

claims pursuant to § 1983. As the district court correctly 

noted, in order to establish a due process violation, “a 

plaintiff must first show that he has a constitutionally 

protected liberty or property interest.” Stone v. Univ. of Md. 

Med. Sys. Corp., 855 F.2d 167, 172 (4th Cir. 1988) (internal 

quotation marks omitted). Because Maisha failed to argue in his 

opening brief that he has a protected property or liberty 

interest, we conclude that he has waived appellate review of

this issue. See A Helping Hand, LLC, 515 F.3d at 369.
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infliction of emotional distress both require a plaintiff to 

show severe emotional distress. Pierce v. Atl. Grp., Inc., 724 

S.E.2d 568, 577 (N.C. Ct. App. 2012). Severe emotional distress 

includes “any emotional or mental disorder . . . which may be 

generally recognized and diagnosed by professionals trained to 

do so.” Id. While medical evidence is not necessarily required 

to support a claim, a plaintiff’s failure to seek medical 

treatment is a ground for granting a defendant summary judgment 

when there is no “real evidence of severe emotional distress.” 

Pacheco v. Rogers & Breece, Inc., 579 S.E.2d 505, 508 (N.C. Ct. 

App. 2003). We conclude that the district court did not err in 

finding that Maisha failed to forecast sufficient evidence to 

demonstrate he suffered severe emotional distress. See Johnson 

v. Scott, 528 S.E.2d 402, 405 (N.C. Ct. App. 2000) (finding 

evidence of sleeplessness, nightmares, loss of appetite, and 

fear of dark insufficient to establish severe emotional 

distress).

Finally, Maisha contends that the district court erred in 

granting summary judgment to UNC on its counterclaim for money 

had and received. “An action for money had and received may be 

maintained as a general rule whenever the defendant has money in 

his hands which belongs to the plaintiff, and which in equity 

and good conscience he ought to pay to the plaintiff.” 

Primerica Life Ins. Co. v. James Massengill & Sons Constr. Co., 
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712 S.E.2d 670, 676 (N.C. Ct. App. 2011) (internal quotation 

marks omitted). To prove a claim of unjust enrichment, UNC was 

required to establish “(1) a measurable benefit was conferred on 

[Maisha], (2) [Maisha] consciously accepted that benefit, and 

(3) the benefit was not conferred officiously or gratuitously.” 

Id. at 677. We conclude that UNC was entitled to summary 

judgment on its counterclaim because it refunded Maisha’s 

student loans when he failed to enroll in courses as required by 

his loan agreement and that it did not do so gratuitously.

III.

Accordingly, we affirm the district court’s orders. We 

dispense with oral argument because the facts and legal 

contentions are adequately presented in the materials before 

this court and argument would not aid the decisional process.

AFFIRMED