Larry Cunningham v. David Blackwell


RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 22a0157p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT ┐ DR. LARRY CUNNINGHAM, │ Plaintiff-Appellee (21-6005), │ Plaintiff-Appellant (21-6174), > Nos. 21-6005/6174 │ │ v. │ │ DAVID W. BLACKWELL, LARRY HOLLOWAY, and │ WILLIAM EUGENE THRO, individually, │ │ Defendants-Appellants (21-6005), │ Defendants-Appellees (21-6174). │ ┘ ┐ DR. EHAB SHEHATA, │ Plaintiff-Appellee (21-6006), │ > Nos. 21-6006/6172 Plaintiff-Appellant (21-6172), │ │ v. │ │ │ DAVID W. BLACKWELL, LARRY HOLLOWAY, and │ WILLIAM EUGENE THRO, individually, │ Defendants-Appellants (21-6006), │ Defendants-Appellees (21-6172). │ ┘ Appeal from the United States District Court for the Eastern District of Kentucky at Frankfort. Nos. 3:20-cv-00008 (Cunningham) and 3:20-cv-00012 (Shehata); Gregory F. Van Tatenhove, District Judge. Argued: June 29, 2022 Decided and Filed: July 18, 2022 Before: SUTTON, Chief Judge; BATCHELDER and DONALD, Circuit Judges. Nos. 21-6005/6006/6172/6174 Cunningham, et al. v. Blackwell, et al. Page 2 _________________ COUNSEL ARGUED: Joe F. Childers, CHILDERS & BAXTER, PLLC, Lexington, Kentucky, for Plaintiffs. Bryan H. Beauman, STURGILL, TURNER, BARKER & MOLONEY, PLLC, Lexington, Kentucky, for Defendants. ON BRIEF: Joe F. Childers, CHILDERS & BAXTER, PLLC, Lexington, Kentucky, for Plaintiffs. Bryan H. Beauman, Donald C. Morgan, STURGILL, TURNER, BARKER & MOLONEY, PLLC, Lexington, Kentucky, William E. Thro, UNIVERSITY OF KENTUCKY, Lexington, Kentucky, for Defendants. Ronald G. London, FOUNDATION FOR INDIVIDUAL RIGHTS IN EDUCATION, Washington, D.C., for Amicus Curiae in 21-6172. SUTTON, C.J., delivered the opinion of the court in which BATCHELDER, J., joined, and DONALD, J., joined in part. DONALD, J. (pp. 19–23), delivered a separate opinion concurring in all but Parts III.A.1. and III.B.2. of the majority opinion. _________________ OPINION _________________ SUTTON, Chief Judge. The University of Kentucky investigated two dentistry professors for entering false data about whether they, or their students, had performed services for patients at a university clinic and whether they, or the clinic, should be paid for those services. While the investigation proceeded, the provost barred the professors from seeing patients in the clinic but allowed them to perform their other duties. After the investigation ended, both professors left the University. The professors sued, alleging the University violated their rights to due process under the Fourteenth Amendment and retaliated against them in violation of their rights to free speech under the First Amendment. Because the administrators did not violate clearly established law, qualified immunity protects them from each claim. I. Doctor Larry Cunningham and Doctor Ehab Shehata worked at the University of Kentucky’s College of Dentistry. Cunningham began teaching at the College in 2001, and he had tenure. Shehata began teaching at the College in 2013, and he did not have tenure. Both professors worked at the College’s clinic for oral and maxillofacial surgery. Nos. 21-6005/6006/6172/6174 Cunningham, et al. v. Blackwell, et al. Page 3 On top of their salaries as professors, Cunningham and Shehata received pay for their clinical work. If one of them cared for a patient, the clinic designated him as the treating provider, and he would receive …

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