## IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________



### m 02-10182

Summary Calendar

_______________



### S CHOPPA 

### F AMILY



### , ETC



### ., ET AL



### .,

Plaintiffs,



### S.E. P ODUSLO



### ,

Plaintiff-Appellant,

VERSUS



### J OEL 

### K UPERSMITH



### , M.D.,

D EAN

, T EXAS T ECH U NIVERSITY H EALTH C ENTER S CHOOL OF M EDICINE ;



### R ANDOLPH 

### S CHIFFER



### , M.D.,

C HAIRMAN

, D EPARTMENT OF P SYCHIATRY

,



### Defendants-Appellees.

_________________________

Appeal from the United States District Court

for the Northern District of Texas



### m 5:01-CV-085-C

_________________________

November 26, 20022

Before H IGGINBOTHAM

, S MITH , and

C LEMENT , Circuit Judges.

J ERRY E. S MITH , Circuit Judge: *

Shirley Poduslo, a professor at the School

of Medicine at Texas Tech University Health

Science s Center (“TTUHSC”), was removed

as Director of Basi c Research in the Alzheimer’s In st itute, was denied access to the research laboratory and lost funding for laboratory supplies and a research technician.

Along with more than 700 persons wh o had

provided their own or deceas ed family memb ers’ DNA samples and/or brains to the Alzheimer’s DNA Bank that she ran, Poduslo sued,

in stat e court, Robert Schiffer, Chairman of

the Department o f Neuropsychiatry, and Joel

Kupersmith, Dean of the School of Medicine,

asserting sev eral state law claims and claims

under 42 U.S.C. § 198 3 fo r violation of her

First and Fourth Amendment rights and the

Fourteenth Am

endment’s Due Process Clause.

The district court remanded all stat e law

claims and granted summary judgment for defendants on the consti

t ut io nal claims. We

affirm.

I.

Poduslo was hired in 1990 as a professor at

TTUHSC. An October 3, 1989, letter from

t he Chairman of TTUHSC 2 noted his re commendation to the dean of the school that Poduslo be offered a tenured faculty position, be

provided with laboratory space and a supply budget, and be given the title o f Director of

Basic Research in the Alzheimer’s In sti tute

(“Director of Research”). An October 18,

1989, letter from the Dea n of the School of

Medicine 3 offered Poduslo a tenured position

with a starting salary of $66,000, plus moving

expenses for personal items and professional

equipment.

Poduslo accepted the position and was given laboratory space, a supply budget, and the

title o f Director of Research. She kept personally-owned equipment and supplies of considerable value in the laboratory. As Director

of Research, she founded TTUHSC’s Alzheimer’s DNA Bank, a rese arch reposi tory of

D NA samples and brains from thousands of

Alzheimer’s victims. On January 28, 2000,

fo llowing a series of conflicts, 4 Schiffer an d

Kupersmith removed Poduslo as Di rector of

Research and denied her unsupervised access

to the laboratory

.

II.

In their st at e petition, plaintiffs sought an

injunction ordering defendants not to destroy

DNA sa mples, brains, or medical records associated with the Alzheimer’s DNA Bank. In

the event defendants were unable or unwilling

to allow Poduslo to continue genetic-based research as Director of Research, plaint iffs

sought the return of their DNA samples a n d

their deceased relatives’ DNA samples and/or

* Pursuant to 5 TH C IR. R . 47.5, the court has

deter mined that this opinion should not be published and is not precedent except under the limited

circumstances set forth in 5 TH C IR . R. 47.5.4.

2 The letter was from

Joseph Green, then a

professor and the chairman of TTUHSC. 3 The letter was fr om Bernhard Mittemeyer,

then the dean.

4 The exact nature and cause of the conflicts is

disputed, though we are bound, for purposes of this

review, to accept Poduslo’s characterization. It is

u ndisputed that the conflicts culminate d in

Poduslo’s halting all research two days before she

was dismissed from the DNA Alzheimer’s Bank.3

brains.

Poduslo argued that defendants, acting under color of state law, d eprived her “of a liberty interest without due process and violated

her constitutional right of association and her

First Amendment rights to academic freedom

by t heir actions, all in violation of the First,

Fourth and Fourteenth Amendments.” P oduslo asserted that although she was a tenured full

profe s sor, the defendants removed her as Director of Research, limit

ed her acce s s to the

laboratory and to charts, and instructed

laboratory assistants not to talk to h e r on

threat of termination. P oduslo sought

compensation for the damage to her ability to

research, the damage to her reputation, and the

mental anguish caused by the defendants’

actions.

After filing an answer setting forth the affirmative defense of qualified immunit y, defendants removed to federal court, whereupon

plaint iffs moved to remand. After remanding

the state claims, the district court ordering Poduslo to file a reply

to the i nvocati

on of

qualified immunit y, then granted defendants’

motion for summary judgment.

The district court determined that Poduslo

did not have a property interest in her job assignment as labo r atory director, that the

alleged conversion of her personal propert y

did not violate her procedural d ue process

rights because adequate state post-deprivation

remedies exi st ed, that the alleged conversion

did not violate her substantive due process

rights because she had presented no evidence

that the deprivation was arbitrary or

capricious, and that she had failed to overcome

the qualified immunit

y defense because she had

tendered no evidence that defendants had

acted unr easo nably. T he court further concluded that de fendants were entitled to

q ualified immunit

y with respect to Podus lo’s

liberty interest claims, because defendants did

not deprive her of the rig h t to pursue her

occupation, the mere change in status did not

violate her libe rty interest in future

e mployability, and, in any event, she was

provided due process through the grievance

procedure.

III.

A.

We review a summary judgment d e novo

, using the same standard applicable in the distri ct court. O labisiomotosho v. City of

Ho uston , 185 F.3d 521, 525 (5th Cir. 1999).

“ Aft er consulting applicable law in order to

ascertain the material factual issues, we

consider the evidence bearing o n t he issues,

view ing t he facts and the inferences to be

drawn therefrom in the light most favorable to

the nonmovant.” I

d

. “Summary judgment

is

properly granted if ‘the pleadings, depositions,

answers to interrogatories, and admissions on

file, together with the affidavits, if an y, show

that there is no genuine issue as to any material

fact and that the moving party is en titled to

judgment as a matter of law.’” I d . (quoti ng

F ED

. R. C IV

. P. 56(c)).

The doctrine of “[q]ualified immunity protects government officials performing

discretionary

functions from civil liability if

t heir conduct violates no clearly established

statuto ry o r constitutional right of which a

reasonable person would have known.” E vans

v. Ball

, 168 F.3d 856, 860 (5th Cir. 1999).

We conduct a bifurcated analysis: “First, a

court must determine whether the plaint iff has

alleged the violation of a constitutional right.”

Glenn v. City of Tyler

, 242 F.3d 307, 312 (5th

Cir. 2001). Second, we decide whether “the

conduct was objectively reasonable in light of4

clearly established law at the t ime that the

challenged conduct occurred.” I d

. “A right is

‘clearly established’ if it s contours are

‘ sufficiently clear that a reasonable offi cial

would und erst and that what he is doing

v iolates that right.’” C

ozzo v. Tangip ahoa

P arish Council-President Gov’t , 279 F.3d

273, 284 (5th Cir. 2002) (quoting Anderson v.

Creighton , 483 U.S. 635, 640 (1987)).

B.

Poduslo contends that the di stri ct court

erred in concluding that she has no civil rights

remedy for the allegedly intentional and

malicious seizure of her equi pment and

su pplies kept in the laboratory. 5 She argues

that the availab ilit y of state court remedies

does not b ar federal relief, because the

conversion was not a random, unauthorized

act, but a deliberate exercise of power by

individuals who had lawful author ity to

exclude her from the premises and separate her

from her property

. She states that defendants

are not entitled to qualified immunit y, because

they acted with deliberate indifference to her

constitutionally protected interests.

1.

The Parratt/Hudson doctrine provides that

when a § 1983 plaint iff alleges he has been deprived of property without due process of law

by a state o fficer’s random and unauthorized

intentional con duct , rather than byan established st ate procedure, there is no

infringement of procedural due process rights

if there is an adequate state post-deprivatio n

remedy

. S ee Cozzo

, 279 F.3d at 290. “The doctrine is meant to protect the state from

liabilit y for fai l ing to provide predeprivation

process in situations where it cannot anticipate

the need for such process (when actions are

random an d unauthorized).” B rooks v.

George County

, 84 F.3d 1 57, 165 (5th Cir.

1996). If the state actors allegedly are acting

in accord with official policy or customary

procedures, the “random and unauthori zed”

criteria are not satisfied. 6

Pod usl o does not contend that the

defen dant s were acting in accord with an

offi cial policy or customary procedure of

converting personal property contained in the

laboratory. The state could not have foreseen

the unusual ci

rcumstances that led to

defendants’ al

l egedly intentional deprivation of

Poduslo ’s personal property or the need for

predeprivati on process. Though the

defendants had the authority to control access

to the laboratory, their intentional conversion

o f Poduslo’s private property was no t

authorized by the state. Because Poduslo has

available to her an adequate post d eprivation

remedy 

### SS a Texas state tort action for

conversion 

### SS

her procedural due process claim

was properly dismissed.

2.

Poduslo’s allegations that the conversion of

her property was malicious and a flagrant

abuse of power also constitute a claim that she

was depr ived of her property without

subst a ntive due process. “This substantive

5 Poduslo has fa iled to brief on appeal, and

therefore h as abandoned, her argument that she

was deprived of her cell lines without due process.

See Yohey v. Collins

, 985 F.2d 222, 224-25 (5th

Cir. 1993). 6 See Alexander v. Ieyoub

, 62 F.3d 709, 713

(5th Cir. 1995) (conclu ding that the “allegation

that the Defendants were acting in their customary

manner of failing t o timely institute a forfeiture

proceeding negates the ‘random and unauthorized

conduct’ element needed for application of the

Parratt/Hudson doctrine”).5

component of the Fourteenth Amendment’s

Due Process Clause protects individual liberty

against certain government actions regardless

of t he fairness of the procedures used to

implement t hem.” M

cClendon v. City of

Columbia , 305 F.3d 314, 322 n.5 (5th Cir.

2002) (en banc) (internal quotati on marks and

citations omitted).

Regardless of the theory of liabilit y

that a plaint iff is pursui ng, i n order to

state a viable substantive due process

claim the plaint iff must demonstrate that

t he state official acted with culpabilit y

beyond mere negligence. The Supreme

Court’s discussions of abusive executive

action have repeatedly emphasized that

only the most egregious official conduct

can be said to be arbitrary in the constitutional sense. The Court has spoken of

the cognizable level of executive abuse

o f power as that which shocks th e

co nscience. In elaborating on the

constitutional concept of conscience

shocking, the Court has made it clear

that the due process guarantee does not

e nt ail a body of constitutional law

imposing liabilit

y whenev er someone

cloaked with s t ate authority causes

harm. Liability for negligently inflicted

ha rm is categorically beneath the

threshold of constitutional due process.

Id

. at 326 (internal quotati on mar k s and

citations omitted).

Poduslo cites three incidents as evidencing

the arbitrary de privation of her property:

(1) Defendants failed to retu rn the property

after she had detailed her property interests in

her ple ading responding to the qualified

immunit y defense; (2) defendants returned

only some of her property upon her departure from TTUHSC; and (3) defendants deprived

her of copies of her research notes and

notebooks she had brought from her previous

employment. Taken alone, t hese allegations

might set fo rth a claim for arbitrary

deprivation. Poduslo admits, however, that

upon her departure from TTUHSC, def endants

allowed her to take laboratory equipment fo r

which she had serial num bers, and items

plainly ancill ary to that serial-numbered

equipment. 7

Defen d ants’ retention of items for which

Poduslo could not demonstrate ownership was

reasonably related to the l egi ti m ate

go vernmental interest of protecting state

p roperty. Thi s conduct does not ri se to the

level of egregiousness required by our

jurisprudence. Because Poduslo has failed to

create a genuine issue of material fact regarding whether defendants arbitrarily deprived her

of her laboratory equipment and supplies, the

district court properly dismissed the

substantive due process claim.

IV.

Poduslo asserts that the district court erred

i n determining that she was not

constitutionally injured by the depri v ation of

her contrac t ual employment rights. Poduslo

argues that although there may not be

economic value in her job title, she lost

economic benefi

t s when she was deprived of

her supply budget, the support of a laboratory

techn ician, and access to laboratory space.

She contends that by

depriving her of these

economic benefits of her employment contr act,

defendants denied her the right to pursue her

profession as a scientist.

7 This admission comes in an affidavit filed with

Polduslo’s summary judgment response.6 A.

To prevail on a claim based on denial of

procedural or substantive d u e process, 8 a

plaint iff must make a showing that he has been

den i ed a constitutionally protected property

i nterest. S ee Williams v. Texas Tech U niv.

Health Sciences Ctr.

, 6 F.3d 290, 2 94 (5th

Cir. 1993); Brow ning v. City of Odessa , 990

F.2d 842, 844 (5th Cir. 199 3). To enj oy a

property interest in employment, an employee

must “have a legitimate claim of entitlement,”

created and defined by “existing rules or

understandings that stem from an independent

s ource such as state law

. . . .” B oa rd of

Regents of

State Colleges v. Roth , 408 U.S.

564, 577 (1972).

Under Texas law, employment is at-will unless the employer “unequivocally indicate[s] a

definite intent to be bound not to terminate the

employee except under clearly specified

circum st ances.” M

ontgomery County Hosp.

Dist. v. Brown

, 96 5 S.W.2d 501, 502 (Tex.

1998). TTUHSC’s policies expressly provide

that the “[t]ermination of employment or

dismissal of a tenured faculty member

. . . will

be only for cause.” Because Poduslo was a

tenured professor, she had a property interest

in her continued employment with TTUHSC.

See Roth , 408 U.S. at 576-77.

“An expectation of employment carries

with it some protected expectations as to a

salary.” Williams , 6 F.3d at 293.

But the mor e detailed and conditional

the understanding b e comes between employer and employee, the weaker the linkage becomes bet ween t hose

understandings and the Due Process

Cla use. S ee Mangaroo v. Nelson

, 864

F.2d 1202, 1206-08 (5th Cir. 1989). At

s ome point the linkage is uncerta i n

enough to justify qualified immunit y for

an official accused of breaking it.

Id. at 293-94.

B.

Poduslo entered into evidence the October 3, 1989, letter from Green stating that he

had recommended her appointment to a

pro fessorship, that he understood tenure

wo uld be requested for her, that her salary

would be $66,000, that her moving expenses

would be defrayed, a nd that she would be

furnished a supply budget of $20,000, support

for a technician, and renovated space for two

contiguous laboratories. Po duslo also

submitted th e October 18, 1989, letter from

the dean that offere d her a tenured

professorship and stated only that her starting

salary would be $66,000 and that her moving

costs would be paid.

The detailed and conditional October 3 letter provides only an uncertain link to the Due

Process Clause. I

d. at 293. It is apparent that

the letter was tentative and not an actual offer

of employment. Furthermore, it nowhere indicated that the protecti ons of tenure, if

ultimately granted to Poduslo, would extend to

the supply budget, support for a technician, or

access to laboratory space. 9

8 It is uncertain whether Poduslo asserts that she

was deprived of a pro p erty interest without

procedural due process or without substantive due

process, or both. 9 P o duslo held her position as Director of Research, and re ceived the concomitant supply budget

and laboratory space, for more than ten years.

Even if the October 3 letter were construed as a

promise to provide these accouterments, its

(continued...)7

Finally, the loss of her title, supply budget,

laboratory space, and support for a technician

did not reduce her income. 10 Because Poduslo

had no cognizable property int erest in the

supply budget, the support for a technician, or

the access to laboratory space, she has no due

process claim. 11 C.

Poduslo claims she was deprived, without

due process, of her liberty interest in pursuing

her chosen profession beca u se of the loss of

h er position as Director of Research. 12 “A

person has a liberty interest in pursuing an occupation.” 13 Poduslo, however, does not assert that defendants invoked any regulation to

bar her from all ot her public employment in

state universities or somehow deprived her of

a license to pursue her career as a scientist.

See Roth

, 408 U.S. at 573-74; C onnelly v.

Comptroller of the Currency , 876 F.2d 1209,

1214 (5th Cir. 1989). Her allegations do not

rise to the level required to implicate a liberty

interest in employment.

AFFIRMED. 9 (...continued)

promise certainly was fulfilled initially and did not

extend indefinitely.

10 In his affidavit, Kupersmith indicate d that

Poduslo’s salary and stipend did not change as a

result of her being removed as Director of

Research, and that she maintained her position as

a full professor with tenure. Poduslo does not

challenge this assertion on appeal.

11 Cf. Kinsey v. Salado Indep. Sch. Dist. , 950

F. 2d 988, 997 (5th Cir. 1992) (en banc) (Plaintiff

does not have “a constitutionally protected

property interest in the non-economic benefit of

serving as superintendent.”); Jett v. Dallas Indep.

Sch. Dist. , 798 F.2d 748, 754 (5th Cir. 1986),

modified on other grounds

, 491 U.S. 701 (1989)

(stating that oral contract that did not address

specific duties did not “create a property interest in

the intangibl e, noneconomic benefits of his

assignmen t as coach”); K elleher v. Flawn

, 761

F.2d 1079, 1087 (5th Cir. 1985) (concluding that

instructor demonstrated no property interest in

teaching specific gov e rnment classes where there

was no contract guaranteeing the right to teach

those classes and

the new assignments were

commensurate with her position).

Even if a property interest co u ld be shown, it

c annot be said, given the uncertainties underlyin g

this aspect of Poduslo ’s employment relationship

with TTUHSC, that the law clearly established that

she had a constitutionally protected property

interest in the supply budg et, support for a

te chnician, and access to laboratory space. S ee

Willi ams , 6 F.3d at 294. Because reasonable

(continued...) 11 (...continued)

administr a tors could have concluded, without

treading on ground plainly protected by the

Constitutio n

, that Poduslo could be denied these

employment benefits, defendants would be entitled

to qualified immunity on this claim.

12 In the district court, Poduslo also based her

liberty interest claim on alleged damage to her reputation and stigmatization that hindered her future

employability. She has not raised this as a basis in

this appeal. S ee Yohey

, 985 F.2d at 224-25 (noting

that claims not asserted on appeal are abandoned).

13 Phillips v. Vandygriff

, 711 F.2d 1217, 1222

(5 th Cir. 1983) (citing authorities), m odified in

other part on rehearing

, 724 F.2d 4 90 (5th Cir.

1984); see also Martin v. Mem. Hosp.

, 1 30 F.3d

1143, 1148 (5th Cir. 1997).