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Burnett v. College of the Mainland

United States District Court, S.D. Texas, Galveston Division

January 13, 2014

JACQUELYN BURNETT, et al, Plaintiffs,
COLLEGE OF THE MAINLAND, et al, Defendants

Order Filed: February 21, 2014

Page 824

For Jacquelyn Burnett, Jerusa Wekulo, Gina Stafford, Stella Mbagwu, Bridgette Fuselier, Liza Davis, Kesha Davis, Plaintiffs: Anthony P Griffin, A Griffin Lawyers, Galveston, TX.

For College of The Mainland, Gay Reeves, individually and in her official capacity, Defendants: James Edwards Byrom, LEAD ATTORNEY, Walsh, Anderson, Brown, Gallegos & Green, P.C., Houston, TX.


Page 825


Gregg Costa, United States District Judge.

Seven former nursing students at College of the Mainland (COM) allege that the college violated their substantive and procedural due process rights by failing them in a class that was a requirement for graduation. The gist of their complaint is that the college changed its policy concerning whether the students could retake an exam. COM argues that the students' procedural claims should be dismissed because the students received an ample appeal process. And it argues that the substantive due process claims fail because COM's decision to give the students a failing grade in the class without an opportunity to retake the exam was a reasonable exercise of professional judgment.

This case was referred to the magistrate court, which concluded that COM's motion to dismiss should be granted in part and denied in part. This Court now conducts the required de novo review of COM's motion.

I. Background[1]

COM is a public community college located in Texas City. Plaintiffs are seven former students in COM's nursing program: Jacquelyn Burnett, Kesha Davis, Liza Davis, Bridgette Fuselier, Stella Mbagwu, Gina Stafford, and Jerusa Wekulo. Docket Entry No. 8 ¶ 4. The students enrolled in COM's nursing program at various points in 2010 and 2011. Id. ¶ 8. Upon their enrollment, they received a student handbook, which contained a requirement that students pass an exit examination--the HESI NCLEX-RN readiness exam--as a prerequisite to graduation. The handbook also provided that students could retake this exam if they did not pass it on the first attempt.

In 2010, the Texas Board of Nursing issued a position statement " recommending that a high stakes test not be the only criteria for graduation." Id. ¶ 38. Based on this recommendation, COM changed the way students would be required to take the HESI exam. Instead of administering the exam as a stand-alone test, COM decided to include the HESI exam in the nursing program's Advanced Medical Surgical course, where it would account for 40% of the students' final grades. Id. ¶ 40. This change was instituted in the fall of 2011. The students claim that COM never put this modification to the policy in writing and did not otherwise inform the students of this change. Id. ¶ 42.

In June 2012, the students took the HESI exam as part of the Advanced Medical Surgical course and later learned that they failed the course and could not graduate. The students then contacted an administrator in the nursing program and asked to retake the exam. They also met with Gay Reeves, the Director of the Nursing School. Neither encounter led to what the students were ultimately looking for--an opportunity to retake the HESI exam and be eligible for graduation. The students then voiced their concerns at a meeting of COM's Board of Trustees, which also did not change COM's decision. Id. ¶ 34. Finally, they launched a formal grade appeal. In August 2012, the appeal panel rejected their request to retake the

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examination, asserting that COM informed the students of the change and, furthermore, that COM has the right to change nursing program policies when necessary. The end result is that the students have not graduated from COM's nursing program.

The students brought section 1983 claims against COM and Reeves, asserting violations of their substantive and procedural due process rights. The magistrate judge submitted his Memorandum and Recommendation on COM's motion to dismiss the students' claims, and COM filed timely objections. The magistrate judge recommended that the Court dismiss the claim against Reeves in her official capacity because it was duplicative of the claim against COM. However, the magistrate judge concluded that the procedural and substantive due process claims against COM and Reeves in her individual capacity should survive the motion to dismiss.

II. Rule 12 Standard of Review

Federal Rule of Civil Procedure 12(b)(6) allows dismissal if a plaintiff fails to state a claim upon which relief may be granted. Fed.R.Civ.P. 12(b)(6). In evaluating a Rule 12(b)(6) motion, the " court accepts 'all well-pleaded facts as true, viewing them in the light most favorable to the plaintiff.'" Martin K. Eby Constr. Co. v. Dallas Area Rapid Transit,369 F.3d 464, 467 (5th Cir. 2004) (quoting Jones v. Greninger, 188 F.3d 322, 324 (5th Cir. 1999)). The court does not look beyond the face of the pleadings to determine whether the plaintiff has stated a claim. Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999). To survive a motion to ...

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