UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 95-60374
_____________________
ANTHONY MARINELLO,
Plaintiff-Appellant,
versus
PHILLIP A. BUSHBY AND
H. DWIGHT MERCER,
in their individual capacities,
Defendants-Appellees.
________________________________________________
Appeal from the United States District Court
for the Northern District of Mississippi
(1:95CV167-D-D)
________________________________________________
January 25, 1996
Before REAVLEY, HIGGINBOTHAM, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Anthony Marinello appeals the denial of his motion for a
preliminary injunction. Because the district court did not abuse
its discretion when it concluded that Marinello failed to
demonstrate a substantial likelihood of success on the merits, as
required by Canal Authority of Florida v. Callaway, 489 F.2d 567
(5th Cir. 1974), we AFFIRM.
*
Pursuant to Local Rule 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
I.
In the Fall of 1994, Anthony Marinello was pursuing a degree
in veterinary medicine at Mississippi State University when, in his
third year, of a four-year course of study, he received a grade of
"D" in one of his courses. By a letter distributed to veterinary
school faculty and the Dean, Marinello appealed the "D". The
letter contained, however, statements asserting unprofessional and
corrupt behavior on the part of several faculty members.
The Academic and Professional Standards Committee, the
veterinary college body responsible for handling grade appeals,
recommended that the Dean uphold the grade of "D", and Marinello
was so advised. In addition, by letter to the Dean, one of the
veterinary college professors criticized in Marinello's grade
appeal letter complained that Marinello had violated standards of
reasonable professional behavior by making false statements in his
letter.
The Dean notified Marinello of the professor's charges and
referred the matter to a second veterinary college committee, the
Academic and Professional Standards Select Committee, for
consideration of both the professor's complaint and Marinello's
claim, articulated in his grade appeal letter, that he had been
verbally harassed by a faculty member and mistreated by other
faculty members. Marinello was notified and given the opportunity
to submit documents, identify witnesses he wanted interviewed, and
to make a personal oral presentation to the committee.
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The second committee reported to the Dean that it had found
that Marinello had made false statements regarding faculty in the
grade appeal letter. It found further that the statements violated
the professional guidelines applicable to veterinary students.
In his letter to Marinello reporting the second committee's
findings, the Dean informed Marinello that he was placed on
disciplinary probation as a result of his breach of the conduct
normally expected of a professional student and directed Marinello
to, inter alia, provide the Dean with an essay synopsizing the
Principles of Veterinary Medical Ethics and discussing the
application of those principles to the actions that Marinello had
taken during the grade appeal process.1 The Dean's letter advised
Marinello that his admission to phase four (final year) of his
studies was contingent upon his compliance with the Dean's
directions.
Marinello sought review by a University committee of both the
grade appeal and the complaints regarding his letter (and the
Dean's resulting disciplinary action). This committee also upheld
the grade determination, as well as the Dean's assignment.
When Marinello's admission to phase four of his veterinary
training was denied because of his failure to complete the Dean's
assignment, he filed this action. After granting a temporary
restraining order, the district court denied a preliminary
injunction, ruling that Marinello had failed to carry his burden of
1
The constitutionality vel non of these principles is not in
issue on this appeal.
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establishing the existence of a substantial likelihood that he
would prevail on the merits.
II.
Marinello challenges the denial of a preliminary injunction on
three bases: (1) violation of his First Amendment rights, in that
he was punished for the expression of his views in his letter; (2)
violation of his First Amendment rights, in that he was required to
profess a belief that his actions were unethical; and (3) violation
of his rights to due process, in that he was not afforded a
meaningful hearing before denial of his admission to the final
phase of his veterinary training.
As the district court stated, a preliminary injunction is "an
extraordinary measure" that can be "rarely granted". We will
reverse the denial of a preliminary injunction "only under
extraordinary circumstances", White v. Carlucci, 862 F.2d 1209,
1211 (5th Cir. 1989), with our review being limited to whether the
district court abused its discretion. Apple Barrel Productions,
Inc. v. Beard, 730 F.2d 384, 386 (5th Cir. 1984). We cannot simply
substitute our judgment for that of the district court, "else that
court's announced discretion would be meaningless". Enterprise
Int'l, Inc. v. Corporacion Estatal Petrolera Ecuatoriana, 762 F.2d
464, 472 (5th Cir. 1985).
A.
The standard by which the college regulated Marinello's speech
mirrors that standard by which he would be measured once admitted
to the profession for which his degree was to prepare him. The
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school's efforts constituted a legitimate educational mission.
There was no abuse of discretion as to this claim.
B.
Marinello claims an additional First Amendment injury,
asserting that he was required to make an admission of unethical
conduct before the college would admit him to phase four.
Considering both the possibility that no admission was required and
the possibility that the scope of the admission, if it was in fact
required, was sufficiently narrow to serve the school's legitimate
educational goals, the court found that Marinello had failed to
demonstrate the requisite substantial likelihood of success on the
merits of this claim. We agree.
C.
Finally, Marinello asserts that he was denied procedural due
process. To succeed on such a claim, he first must identify a
property or liberty interest triggering due process protections.
Cleveland Board of Education v. Loudermill, 470 U.S. 532, 538-39
(1985). And, "[t]he fundamental requirement of due process is the
opportunity to be heard at a meaningful time and in a meaningful
manner". Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (internal
citations omitted).
We need not address whether Marinello held the requisite
property interest in admission to the fourth phase of the program
because, even assuming its existence, Marinello has not shown, as
discussed below, a substantial likelihood of success on the merits
of this due process claim.
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Before the district court was evidence that Marinello was
afforded review by three separate bodies at the University. After
having the matter considered by two veterinary college committees,
Marinello pursued review by a University committee.
Marinello appealed the grade decision (reached by the Academic
Standards Committee) and indicated in that appeal that he requested
the University Academic Review Committee, a higher level committee
outside the veterinary program, to review, in addition to the
grade, the Dean's requirements imposed as a result of the findings
of the Academic Performance and Professional Standards Select
Committee. Marinello received, from this University committee,
notice of its intent to meet and copies of the materials submitted
to the committee. Marinello was invited to be present during the
proceedings, to submit any documentary evidence he requested the
committee to review, and to call and confront witnesses. The
committee voted to uphold both the grade and the Dean's probation
action.
When Marinello failed to take the action required by the Dean,
the Dean invited Marinello, by an April 11, 1995, letter, to meet
to discuss resolution of the problem. By this point, all of the
University's review processes had been exhausted. Even after
Marinello's admission was denied and the district court, by
temporary restraining order, directed the school to admit
Marinello, yet another meeting was scheduled for the purpose of
allowing Marinello to comply with the Dean's requirements.
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III.
For the foregoing reasons, the denial of preliminary
injunctive relief is
AFFIRMED.
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