IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-10544 Summary Calendar

J. KEITH ROSE, M.D.,

Plaintiff-Appellant,

versus

UNIVERSITY OF TEXAS SOUTHWESTERN MEDICAL SCHOOL AT DALLAS; ROD J. ROHRICH, M.D.; FRITZ E. BARTON, M.D.; A. JAY BURNS, M.D.; H. STEVE BYRD, M.D.; DONNELL F. JOHNS, PhD.; PHILIP L. KELTON, JR., M.D.; JEFFREY M. KENKEL, M.D.; WILLIAM ADAMS, M.D.; SCOTT N. OISHI, M.D.; HARRY H. ORRENSTEIN, M.D.; SAM BERAN, M.D.; ILDIKO GYIMESI, M.D.,

Defendants-Appellees.

-------------------- Appeal from the United States District Court for the Northern District of Texas USDC No. 3:99-CV-1754-G -------------------- February 22, 2002

Before DAVIS, BENAVIDES, and CLEMENT, Circuit Judges.

PER CURIAM:*

Keith Rose appeals the district court’s summary judgment order

dismissing his suit filed after his termination from a plastic

surgery residency program at the University of Texas Southwestern

Medical School. Rose alleges that: 1) the district court abused

its discretion when it ruled on the summary judgment motion before

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

1 Rose obtained and submitted certain medical records; 2) he was

denied procedural due process because the school and its faculty

did not follow its internal policies regarding student evaluations;

3) the school was not entitled to Eleventh Amendment immunity with

respect to his claims seeking reinstatement and attorney’s fees; 4)

the individual faculty members were not entitled to qualified

immunity or statutory immunity under the Health Care Quality

Improvement Act; and 5) there was evidence demonstrating a genuine

issue of material fact with respect to the nature of his

termination. Rose asserts the decision was not based upon his

deficient performance during his plastic surgery residency but upon

animosity between the chairman of the plastic surgery department

and himself.

Our de novo review of the record reveals that the district

court’s determination as to all of Rose’s claims should be

affirmed. The district court did not abuse its discretion in

ruling on the summary judgment motion without the requested medical

records. See FED. R. CIV. P. 56(f); Washington v. Allstate Ins.

Co.,

(5th Cir. 1990)(holding that a plaintiff's

entitlement to discovery prior to a ruling on a motion for summary

judgment is not unlimited, and may be cut off when the record shows

that the requested discovery is not likely to produce the facts

needed by the plaintiff to withstand a motion for summary

judgment.)

Additionally, neither Rose’s procedural nor his substantive

due process rights were violated. Rose was informed of his

probationary status for deficient performance, and, upon

2 termination, he was afforded a hearing during which he was allowed

to question and present witnesses. Rose was given more process

than was owed under the circumstances. See Board of Curators of

University of Missouri v. Horowitz,

(1978)(holding

that “[t]he need for flexibility is well illustrated by the

significant difference between the failure of a student to meet

academic standards and the violation by a student of valid rules of

conduct. This difference calls for far less stringent procedural

requirements in the case of an academic dismissal); Wheeler v.

Miller,

(5th Cir. 1999). Rose was therefore

not entitled to any prospective relief.

Finally, Rose’s challenges to the district court’s

determination that the medical school and its individual faculty

members were entitled to Eleventh Amendment and qualified immunity

are without merit. Shaboon v. Duncan,

(5th

Cir. 2001).

AFFIRMED.

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