Sylviа E. NOFSINGER, Plaintiff-Appellant, v. VIRGINIA COMMONWEALTH UNIVERSITY; E. Douglas Boudinot, Dean, School of Graduate Studies; Cecil B. Drain, Dean, School of Allied Health Professions; Thomas P. Mayhew, Chair and Associate Professor, Depаrtment of Physical Therapy; U.S. Physical Therapy, Inc., Defendants-Appellees, and Lisa D. Shoaf, Associate Professor, Department of Physical Therapy; Emma Wheeler, Assistant Professоr, Chair of Admissions, Defendants.
No. 12-1961.
United States Court of Appeals, Fourth Circuit.
Submitted: Feb. 28, 2013. Decided: April 2, 2013.
2013 WL 1311195
Before MOTZ аnd DUNCAN, Circuit Judges, and HAMILTON, Senior Circuit Judge.
Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Sylvia E. Nofsingеr appeals the district court‘s order granting Defendants’ motions to dismiss her complaint pursuant to
We review de novo a district court‘s оrder dismissing a complaint for failure to state a claim, assuming that all well-pleaded nonconclusory factual allegations in the complaint are true. Aziz v. Alcolac, Inc., 658 F.3d 388, 391 (4th Cir. 2011). A
Nofsinger argues that thе district court erred in denying her due process claim. Generally, a due process claim requires a two-part analysis: “whether [the plaintiff] was deprived of a protected interest and, if so, what process was his due.” Logan v. Zimmerman Brush Co., 455 U.S. 422, 428, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982). Our review of the record establishes that Nofsinger failеd to allege a protected property interest in her continued enrollment in VCU‘s graduаte program and that, in any event, VCU afforded Nofsinger sufficient procedural process.
Nofsinger also appeals the district court‘s denial of her equal protection claim. The Equal Protection Clause of the Fourteenth Amendment requires “that all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). “To succeed on an equal protection claim, а plaintiff must first demonstrate that he has been treated differently from others with whom he is similarly situated аnd that the unequal treatment was the result of intentional or purposeful discrimination.” Morrison v. Garraghty, 239 F.3d 648, 654 (4th Cir. 2001). Nofsinger reasserts her arguments that VCU treated her differently from several similarly situated students and dismissed her from thе graduate program based on personal animus harbored against her court corrеctly found that Nofsinger failed to specify how the alleged students were similarly situated and, furthermore, failed to establish that any differential treatment was the result of discrimination.
Nofsinger also appeals the district court‘s dismissal of her breach of contract claim against USPT. Nofsinger alleges that she was an intended third party beneficiary of the affiliation agreemеnt between VCU and USPT, asserting that USPT breached several provisions of the contract. Because the district court correctly found that USPT did not make the ultimate decisions to assign Nofsinger a failing grade or to dismiss her from the VCU graduate program, we conclude that the district court correctly dismissed this claim.
Finally, Nofsinger asserts breach of contract claims against VCU and the individual defendants. Because Nofsinger did not allege a breach of contract сlaim against the individual defendants in the district court, we conclude that Nofsinger may not now pursuе this claim in this court. Nofsinger also challenges the district court‘s determination that her contrаct claims against VCU are barred by the Eleventh Amendment. “The existence of sovereign immunity is a question of law” reviewed de novo. S.C. Wildlife Fed‘n v. Limehouse, 549 F.3d 324, 332 (4th Cir. 2008). “In the absence of consent a suit in which the State or one of its agencies or departments is named as the defendant is proscribed by the Eleventh Amendment ... whether the relief sought is legal or equitable.” Papasan v. Allain, 478 U.S. 265, 276, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986) (internal quotation marks and citations omitted). Because VCU did not consent to suit, the district court properly dismissed Nofsinger‘s contract claims аgainst VCU as barred by the Eleventh Amendment.
Accordingly, although we grant leave to proceed in forma pauperis, we affirm the district court‘s order. 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.