Schoppa Family v. Kupersmith, et al

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 02-10182
Summary Calendar
_______________
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

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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 Alzhei-
mer’s Institute, was denied access to the re-
search laboratory and lost funding for lab-
oratory supplies and a research technician.
Along with more than 700 persons who had
provided their own or deceased family mem-
bers’ DNA samples and/or brains to the Alzhei-
mer’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
Fourteenth Amendment’s Due Process Clause.
The district court remanded all state law
claims and granted summary judgment for de-
fendants 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 TTUHSC2 noted his recom-
mendation to the dean of the school that Po-
duslo 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
Medicine3 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 giv-
en laboratory space, a supply budget, and the
title of Director of Research. She kept per-
sonally-owned equipment and supplies of con-
siderable value in the laboratory. As Director
of Research, she founded TTUHSC’s Alzhei-
mer’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 as-
sociated with the Alzheimer’s DNA Bank. In
the event defendants were unable or unwilling
to allow Poduslo to continue genetic-based re-
search 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 pub-
lished 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.

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brains.
Poduslo argued that defendants, acting un-
der color of state law, deprived her “of a lib-
erty 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.” Podus-
lo asserted that although she was a tenured full
professor, the defendants removed her as Di-
rector 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 af-
firmative defense of qualified immunity, de-
fendants removed to federal court, whereupon
plaintiffs moved to remand. After remanding
the state claims, the district court ordering Po-
duslo 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 as-
signment 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 that she had failed to overcome
the qualified immunity defense 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 dis-
trict 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
properly granted if ‘the pleadings, depositions,
answers to interrogatories, and admissions on
file, together with the affidavits, if any, show
that there is no genuine issue as to any material
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 pro-
tects government officials performing
discretionary functions from civil liability if
their conduct violates no clearly established
statutory or constitutional right of which a
reasonable person would 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

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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 from the 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 provides that
when a § 1983 plaintiff alleges he has been de-
prived of property without due process of law
by a state officer’s random and unauthorized
intentional conduct, rather than by an es-
tablished 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
process in 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 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 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”).

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component of the Fourteenth Amendment’s
Due Process Clause protects individual 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
claim the plaintiff must 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 consti-
tutional sense. 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
upon her departure from TTUHSC, 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 ownership was
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 regard-
ing 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
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 of her employment contract,
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.

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A.
To prevail on a claim based on denial of
procedural or substantive due process,8 a
plaintiff must 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
understandings that stem from an independent
source such as state law . . . .” Board of
Regents of State Colleges v. Roth, 408 U.S.
564, 577 (1972).
Under Texas law, employment is at-will un-
less 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 between em-
ployer and employee, the weaker the
linkage becomes between t hose
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 Octo-
ber 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 let-
ter 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 indi-
cated that the protections 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 property interest without
procedural due process or without substantive due
process, or both.
9 Poduslo held her position as Director of Re-
search, 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...)

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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 oc-
cupation.”13 Poduslo, however, does not as-
sert 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
with TTUHSC, that the law clearly 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 rep-
utation 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).

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