MacKean Maisha v. University of North Carolina , 641 F. App'x 246 ( 2016 )

UNPUBLISHED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Affirmed by unpublished per curiam opinion.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.
Unpublished opinions are not binding precedent in this circuit.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 three-
year 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.,
1We 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.
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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 Douglas 2
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
3Maisha 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
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