United States District Court, W.D. Virginia, Roanoke Division
MATTHEW J. BYERLY Plaintiff,
VIRGINIA POLYTECHNIC INSTITUTE AND STATE UNIVERSITY, ET. AL., Defendants.
MEMORANDUM OPINION 
S. Ballou United States Magistrate Judge
Matthew J. Byerly (“Byerly”), filed a Second
Amended Complaint (Dkt. 37) after I dismissed his Amended
Complaint. Byerly asserts a single cause of action under 28
U.S.C. § 1983, claiming that academic discipline imposed
by the defendants violated his due process rights under the
Fourteenth Amendment to the Constitution. Defendants Virginia
Polytechnic Institute and State University (“Virginia
Tech”), Timothy Sands (“Sands”), and
James Orr, Sr. (“Orr”), move to dismiss
Byerly's Second Amended Complaint. Dkt. 42. Byerly again
fails to state a claim upon which relief can be granted, and
thus, I grant the motion to dismiss. Byerly has had previous
opportunity to amend, and since further amendment would be
futile, I dismiss the Second Amended Complaint with
originally filed this action as John Doe, proceeding against
Virginia Tech only. I denied Byerly's motion to proceed
under a pseudonym and directed him to file an amended
complaint disclosing his actual name. Dkt. 17. Thereafter,
Byerly filed the Amended Complaint, which Virginia Tech moved
to dismiss. I granted the motion, but allowed Byerly leave to
amend to address the factual and legal deficiencies in his
Amended Complaint. Dkt. 36.
then filed the Second Amended Complaint, again naming
Virginia Tech, but also adding as defendants Sands, the
president of Virginia Tech, and Orr, the Assistant Provost
for Academic Strategy and Policy, both employees of Virginia
Tech. Second Am. Compl. ¶¶ 6-7, Dkt. 37. The Second
Amended Complaint seeks the same relief as the Amended
Complaint and asserts primarily the same factual allegations,
with the only new substantive allegation being that, after he
was adjudged guilty of cheating on the final exam in one of
his classes, Virginia Tech required Byerly to enroll in an
Academic Integrity Education Program costing $150. Byerly
asserts that this punishment caused him to suffer a
“deprivation of a property interest in [these] funds .
. . .” Id. ¶¶ 38, 39,
must, I accept as true the factual allegations in the Second
Amended Complaint. In the fall of 2016, Byerly was a student
at Virginia Tech and enrolled in an epidemiology course
taught by Dr. Pamela Ray, a part-time instructor.
Id. ¶¶ 13-14. During the final examination
in December 2016, Dr. Ray approached Byerly, collected his
answer sheet and stated, “A student behind you said it
appeared you were sharing answers, so I will have to take
these. You will be contacted by honor court in the next few
days.” Id. ¶¶ 16-17.
appeared before an honor panel in February 2017 and at the
hearing he denied sharing answers during the exam or cheating
in any way. Id. ¶¶ 26, 28. Dr. Ray also
spoke before the honor panel, explaining that she collected
Byerly's exam upon receiving a complaint of cheating from
another student. Id. ¶¶ 29-30. The student
who allegedly witnessed Byerly cheating and notified Dr. Ray
did not appear before the honor panel and was never
identified. Id. ¶¶ 31, 34. The panel found
against Byerly and his appeal to Dr. Orr was denied.
Id. ¶¶ 32-33. Byerly received an
“F*” in the course, which he asserts will be
“devastating for his plans to enter the field of
medicine.” Id. ¶ 40. He also forfeited
the credits he purchased for the course and was required to
enroll in an Academic Integrity Education Program, which cost
$150. Id. ¶¶ 36-39. Byerly filed the
Second Amended Complaint in April 2019 and indicated at that
time that he was a college senior at Virginia Tech, with
plans to attend medical school. Byerly contends that
disclosing this academic violation as required on the
standardized medical school application could limit the
number of schools that consider him for admission.
Id. ¶¶ 11- 12, 43.
asserts that he has a constitutionally protected property
interest in his continued education at Virginia Tech, the
credits he purchased for his epidemiology course, and the
$150 he paid for the Academic Integrity Education Program.
Id. ¶ 45-46. Byerly also asserts he has a
constitutionally protected liberty interest in “his
good name, reputation and integrity.” Id.
¶ 47. Byerly alleges that the due process provisions of
the Fourteenth Amendment apply to Virginia Tech's
disciplinary process, and that defendants “failed to
provide adequate due process when they collectively neglected
to identify [his] accuser or provide him with an opportunity
to confront and question his accuser.” Id.
¶¶ 48-50. Byerly asks for declaratory and
injunctive relief, as well as attorney's fees and costs.
Sands and Orr move to dismiss the Second Amended Complaint
pursuant to Rule 12(b)(6), for failure to state a claim upon
which relief can be granted, asserting that Byerly has failed
to allege a constitutionally protected liberty or property
interest. Dkt. 43. Byerly opposes the motion to dismiss,
arguing he “has a property interest in his
education.” In dismissing the Amended Complaint, I
previously found that Byerly failed to allege a proper source
for his claim of entitlement to credits for the epidemiology
course, or a basis for a property right involving a grade.
Nevertheless, I granted leave to amend to allege a source for
his claim of a property right. However, in the Second Amended
Complaint, the only material new fact Byerly asserts is that
he was “subject to other financial penalties”
including being required to enroll in an Academic Integrity
Education Program costing $150. Consequently, Byerly argues
he suffered a “deprivation of property interest in the
funds he had to pay for the Academic Integrity Education
Program . . .” Id. ¶¶ 38-39, 46.
This new allegation does not create a legitimate source for a
property interest protected by the Constitution.
STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(b)(6)
purpose of a Rule 12(b)(6) motion to dismiss is to test the
sufficiency of the plaintiff's complaint. See Edwards
v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir.1999).
In considering a Rule 12(b)(6) motion, a court must accept
all factual allegations in the complaint as true and must
draw all reasonable inferences in favor of the plaintiff.
Erickson v. Pardus, 551 U.S. 89, 94 (2007). The
Federal Rules of Civil Procedure “require[ ] only
‘a short and plain statement of the claim showing that
the pleader is entitled to relief,' in order to
‘give the defendant fair notice of what the . . . claim
is and the grounds upon which it rests.' ” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(omission in original) (quoting Conley v. Gibson,
355 U.S. 41, 47 (1957)). Legal conclusions in the guise of
factual allegations, however, are not entitled to a
presumption of truth. Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009); see also Twombly, 550 U.S. at 555
(requiring a complaint to contain facts sufficient “to
raise a right to relief above the speculative level”
and to “state a claim to relief that is plausible on
Motion to Dismiss ...