IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

m 02-10182

Summary Calendar

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SCHOPPA FAMILY, ETC., ET AL.,

Plaintiffs,

S.E. PODUSLO,

Plaintiff-Appellant,

VERSUS

JOEL KUPERSMITH, M.D.,

DEAN, TEXAS TECH UNIVERSITY HEALTH CENTER SCHOOL OF MEDICINE;

RANDOLPH SCHIFFER, M.D.,

CHAIRMAN, DEPARTMENT OF PSYCHIATRY,

Defendants-Appellees.

_________________________

Appeal from the United States District Court

for the Northern District of Texas

m 5:01-CV-085-C

_________________________

November 26, 2002
2

Before HIGGINBOTHAM, SMITH, and 

CLEMENT, Circuit Judges.

JERRY E. SMITH, Circuit Judge:*

Shirley Poduslo, a professor at the School

of Medicine at Texas Tech University Health

Sciences Center (“TTUHSC”), was removed

as Director of Basic Research in the Alzheimer’s Institute, was denied access to the research laboratory and lost funding for laboratory supplies and a research technician.

Along with more than 700 persons who had

provided their own or deceased family members’ DNA samples and/or brains to the Alzheimer’s DNA Bank that she ran, Poduslo sued,

in state court, Robert Schiffer, Chairman of

the Department of Neuropsychiatry, and Joel

Kupersmith, Dean of the School of Medicine,

asserting several state law claims and claims

under 42 U.S.C. § 1983 for violation of her

First and Fourth Amendment rights and the

FourteenthAmendment’s Due Process Clause.

The district court remanded all state law

claims and granted summary judgment for defendants on the constitutional claims. We

affirm. 

I.

Poduslo was hired in 1990 as a professor at

TTUHSC. An October 3, 1989, letter from

the Chairman of TTUHSC2noted his recommendation 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 of Director of

Basic Research in the Alzheimer’s Institute

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

1989, letter from the Dean of the School of

Medicine3offered 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 of 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 research repository of

DNA samples and brains from thousands of

Alzheimer’s victims. On January 28, 2000,

following a series of conflicts,4 Schiffer and

Kupersmith removed Poduslo as Director of

Research and denied her unsupervised access

to the laboratory. 

II.

In their state petition, plaintiffs sought an

injunction ordering defendants not to destroy

DNA samples, 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, plaintiffs

sought the return of their DNA samples and

their deceased relatives’ DNA samples and/or

* 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.

2 The letter was from Joseph Green, then a

professor and the chairman of TTUHSC.

3 The letter was from 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

undisputed that the conflicts culminated 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, deprived her “of a liberty interest without due process and violated

her constitutional right of association and her

First Amendment rights to academic freedom

by their actions, all in violation of the First,

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

professor, the defendants removed her as Director of Research, limited her access to the

laboratory and to charts, and instructed

laboratory assistants not to talk to her on

threat of termination. Poduslo 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 immunity, defendantsremoved to federal court, whereupon

plaintiffs moved to remand. After remanding

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

qualified immunity, then granted defendants’

motion for summary judgment. 

The district court determined that Poduslo

did not have a property interest in her job assignment as laboratory director, that the

alleged conversion of her personal property

did not violate her procedural due process

rights because adequate state post-deprivation

remedies existed, 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 thatshe had failed to overcome

the qualified immunitydefense because she had

tendered no evidence that defendants had

acted unreasonably. The court further

concluded that defendants were entitled to

qualified immunity with respect to Poduslo’s

liberty interest claims, because defendants did

not deprive her of the right to pursue her

occupation, the mere change in status did not

violate her liberty interest in future

employability, and, in any event, she was

provided due process through the grievance

procedure.

III.

A.

We review a summary judgment de novo,

using the same standard applicable in the district court. Olabisiomotosho v. City of

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

“After consulting applicable law in order to

ascertain the material factual issues, we

consider the evidence bearing on the issues,

viewing the facts and the inferences to be

drawn therefrom in the light most favorable to

the nonmovant.” Id. “Summary judgment is

properlygranted if‘the pleadings, depositions,

answers to interrogatories, and admissions on

file, together with the affidavits, if any, show

that there is no genuine issue asto anymaterial

fact and that the moving party is entitled to

judgment as a matter of law.’” Id. (quoting

FED. R. CIV. P. 56(c)). 

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

discretionary functions from civil liability if

their conduct violates no clearly established

statutory or constitutional right of which a

reasonable personwould have known.” Evans

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

We conduct a bifurcated analysis: “First, a

court must determine whether the plaintiff 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 of
4

clearly established law at the time that the

challenged conduct occurred.” Id. “A right is

‘clearly established’ if its contours are

‘sufficiently clear that a reasonable official

would understand that what he is doing

violates that right.’” Cozzo v. Tangipahoa

Parish 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 district court

erred in concluding that she has no civil rights

remedy for the allegedly intentional and

malicious seizure of her equipment and

supplies kept in the laboratory.5 She argues

that the availability of state court remedies

does not bar federal relief, because the

conversion was not a random, unauthorized

act, but a deliberate exercise of power by

individuals who had lawful authority to

exclude her fromthe premises and separate her

from her property. She states that defendants

are not entitled to qualified immunity, because

they acted with deliberate indifference to her

constitutionally protected interests.

1.

The Parratt/Hudson doctrine providesthat

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

by a state officer’s random and unauthorized

intentional conduct, rather than by an established state procedure, there is no

infringement of procedural due process rights

if there is an adequate state post-deprivation

remedy. See Cozzo, 279 F.3d at 290. “The

doctrine is meant to protect the state from

liability for failing to provide predeprivation

processin situations where it cannot anticipate

the need for such process (when actions are

random and unauthorized).” Brooks v.

George County, 84 F.3d 157, 165 (5th Cir.

1996). If the state actors allegedly are acting

in accord with official policy or customary

procedures, the “random and unauthorized”

criteria are not satisfied.6

Poduslo does not contend that the

defendants were acting in accord with an

official policy or customary procedure of

converting personal property contained in the

laboratory. The state could not have foreseen

the unusual circumstances that led to

defendants’ allegedly intentional deprivation of

Poduslo’s personal property or the need for

predeprivation process. Though the

defendants had the authority to control access

to the laboratory, their intentional conversion

of Poduslo’s private property was not

authorized by the state. Because Poduslo has

available to her an adequate postdeprivation

remedySSa Texas state tort action for

conversionSSher proceduraldue process claim

was properly dismissed.

2.

Poduslo’s allegationsthat the conversion of

her property was malicious and a flagrant

abuse of power also constitute a claim that she

was deprived of her property without

substantive due process. “This substantive

5 Poduslo has failed to brief on appeal, and

therefore has 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) (concluding that the “allegation

that the Defendants were acting in their customary

manner of failing to 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 protectsindividual liberty

against certain government actions regardless

of the fairness of the procedures used to

implement them.” McClendon v. City of

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

2002) (en banc) (internal quotation marks and

citations omitted). 

Regardless of the theory of liability

that a plaintiff is pursuing, in order to

state a viable substantive due process

claimthe plaintiffmust demonstrate that

the state official acted with culpability

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 constitutionalsense. The Court has spoken of

the cognizable level of executive abuse

of power as that which shocks the

conscience. In elaborating on the

constitutional concept of conscience

shocking, the Court has made it clear

that the due process guarantee does not

entail a body of constitutional law

imposing liability whenever someone

cloaked with state authority causes

harm. Liability for negligently inflicted

harm is categorically beneath the

threshold of constitutional due process.

Id. at 326 (internal quotation marks and

citations omitted).

Poduslo cites three incidents as evidencing

the arbitrary deprivation of her property:

(1) Defendants failed to return the property

after she had detailed her property interests in

her pleading responding to the qualified

immunity 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, these allegations

might set forth a claim for arbitrary

deprivation. Poduslo admits, however, that

uponher departure fromTTUHSC, defendants

allowed her to take laboratory equipment for

which she had serial numbers, and items

plainly ancillary to that serial-numbered

equipment.7 

Defendants’ retention of items for which

Poduslo could not demonstrate ownershipwas

reasonably related to the l egitimate

governmental interest of protecting state

property. This conduct does not rise to the

level of egregiousness required by our

jurisprudence. Because Poduslo has failed to

create a genuine issue of material fact regarding whether defendants arbitrarilydeprived 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

in determining that she was not

constitutionally injured by the deprivation of

her contractual employment rights. Poduslo

argues that although there may not be

economic value in her job title, she lost

economic benefits when she was deprived of

her supply budget, the support of a laboratory

technician, and access to laboratory space.

She contends that by depriving her of these

economic benefits ofher employment contract,

defendants denied her the right to pursue her

profession as a scientist. 

7 This admission comesin an affidavit filed with

Polduslo’s summary judgment response.
6

A.

To prevail on a claim based on denial of

procedural or substantive due process,8a

plaintiffmust make a showing that he has been

denied a constitutionally protected property

interest. See Williams v. Texas Tech Univ.

Health Sciences Ctr., 6 F.3d 290, 294 (5th

Cir. 1993); Browning v. City of Odessa, 990

F.2d 842, 844 (5th Cir. 1993). To enjoy a

property interest in employment, an employee

must “have a legitimate claim of entitlement,”

created and defined by “existing rules or

understandingsthat stem from an independent

source such as state law . . . .” Board of

Regents of State Colleges v. Roth, 408 U.S.

564, 577 (1972). 

Under Texaslaw, 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

circumstances.” Montgomery County Hosp.

Dist. v. Brown, 965 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 more detailed and conditional

the understanding becomes betweenemployer and employee, the weaker the

linkage becomes between those

understandings and the Due Process

Clause. See Mangaroo v. Nelson, 864

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

some point the linkage is uncertain

enough to justify qualified immunity 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

professorship, that he understood tenure

would be requested for her, that her salary

would be $66,000, that her moving expenses

would be defrayed, and that she would be

furnished a supply budget of $20,000, support

for a technician, and renovated space for two

contiguous laboratories. Poduslo also

submitted the October 18, 1989, letter from

the dean that offered 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. Id. at 293. It is apparent that

the letter was tentative and not an actual offer

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

ultimatelygranted to Poduslo, would extend to

the supply budget, support for a technician, or

access to laboratory space.9 

8

It is uncertainwhether Poduslo assertsthatshe

was deprived of a property interest without

procedural due process or without substantive due

process, or both.

9 Poduslo held her position as Director of Research, and received 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 interest 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 because of the loss of

her 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 other 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; Connelly 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 indicated 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 intangible, noneconomic benefits of his

assignment as coach”); Kelleher v. Flawn, 761

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

instructor demonstrated no property interest in

teaching specific government 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 could be shown, it

cannot be said, given the uncertainties underlying

this aspect of Poduslo’s employment relationship

withTTUHSC, that the lawclearly established that

she had a constitutionally protected property

interest in the supply budget, support for a

technician, and access to laboratory space. See

Williams, 6 F.3d at 294. Because reasonable

(continued...)

11(...continued)

administrators could have concluded, without

treading on ground plainly protected by the

Constitution, 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. See 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

(5th Cir. 1983) (citing authorities), modified in

other part on rehearing, 724 F.2d 490 (5th Cir.

1984); see also Martin v. Mem. Hosp., 130 F.3d

1143, 1148 (5th Cir. 1997).