Gentilello v. Rege, 627 F.3d 540

Background

Gentilello was a tenured surgery professor at UT Southwestern; he held Chair Positions (Division of Burns, Trauma and Critical Care and the Carrico Chair) until March 2007.
He alleges he was demoted from these Chair Positions after informing others about allegedly substandard Parkland Hospital patient care, in retaliation for his speech (First Amendment claim) and for deprivation of a property interest under the Fourteenth Amendment.
Defendants are Rege (Chair of Surgery) and Gilman (Dean); Gentilello sued under 42 U.S.C. § 1983.
The district court granted judgment on the pleadings on the § 1983 due process claim, denied leave to amend, and later denied a motion to supplement; district court found no constitutionally protected property interest due to lack of an enforceable agreement.
Gentilello appealed, arguing he had a protected property interest and that the district court erred in denying leave to amend/supplement; the court reviews de novo and applies plausibility standard under Iqbal/Twombly.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Gentilello had a constitutionally protected property interest in the Chair Positions.	Gentilello asserts an entitlement arising from a contract or rules creating a property interest.	Defendants contend there is no state-law or contractual basis for a property interest in the Chair Positions.	No protected property interest established; failure to plead a basis for entitlement.
Whether Gentilello pleaded sufficient facts to state a due process claim.	Gentilello maintained he was deprived of a vested property right to his Chair Positions.	No enforceable agreement or statute establishing such property right was pled.	Plaintiff failed to plead the necessary factual basis for a property interest.
Whether the district court abused its discretion in denying leave to amend.	If deficiencies existed, Gentilello could amend to cure them; amendment should be allowed.	Court should not allow amendment after scheduling deadlines and after years of delay.	Not abuse of discretion; amendment denied.
Whether the district court abused its discretion in denying leave to supplement with a Parkland trauma call claim.	Supplemental claim should be allowed given timing of events.	Late filing and untimeliness justify denial.	District court did not err in denying supplemental pleading.
Whether qualified immunity shields the defendants given the asserted constitutional claims.	Defendants violated clearly established rights in demotion.	No violation of clearly established law given lack of a protectable property interest.	Qualified immunity defeated; no constitutional violation shown.

Key Cases Cited

Harlow v. Fitzgerald, 457 F.2d 800 (U.S. 1982) (official immunity standard for public officials in § 1983 actions)
Roth, 408 U.S. 564 (U.S. 1972) (establishes property interest concept for employment under due process)
Montgomery Cnty. Hosp. Dist. v. Brown, 965 S.W.2d 501 (Tex. 1998) (Texas recognizes at-will employment absent express contract; no implied right to specific duties)
Jacquez v. Procunier, 801 F.2d 789 (5th Cir. 1986) (abuse of amendment opportunities; dampens subsequent amendments after deadline)
Blackburn v. City of Marshall, 42 F.3d 925 (5th Cir. 1995) (property interest must stem from state statute/regulatory scheme, contract, or independent source)
Johnson v. Johnson, 385 F.3d 503 (5th Cir. 2004) (viability of due-process claim hinges on protected right; no violation where none)
Doe v. MySpace, Inc., 528 F.3d 413 (5th Cir. 2008) (plausibility standard; no mere conclusory allegations)
Ashcroft v. Iqbal, 129 S. Ct. 1937 (U.S. 2009) (plausibility pleading standard; bare allegations insufficient)
Twombly, 550 U.S. 544 (U.S. 2007) (pleading must state a plausible claim)
Great Plains Trust Co. v. Morgan Stanley Dean Witter & Co., 313 F.3d 305 (5th Cir. 2002) (jurisdictional/pleading standards applied in Rule 12(c) context)
DePree v. Saunders, 588 F.3d 282 (5th Cir. 2009) (limits on due process protection of job duties absent statute or agreement)
Kelleher v. Flawn, 761 F.2d 1079 (5th Cir. 1985) (no entitlement to specific duties absent express basis)
Baldwin v. Daniels, 250 F.3d 943 (5th Cir. 2001) (identifies protected life, liberty, property interests for due process)