639 F2d 452 Gamble v. University of Minnesota N L C

639 F.2d 452

Marguerite GAMBLE, Appellant,
v.
UNIVERSITY OF MINNESOTA, N. L. Gault, Jr., and C. Peter
McGrath, Appellees.

No. 80-1352.

United States Court of Appeals,
Eighth Circuit.

Submitted Jan. 15, 1981.
Decided Feb. 3, 1981.

Sylvia Meek, Philadelphia, Pa., for appellant.

Dorsey, Windhorst, Hannaford, Whitney & Halladay, Thomas W. Tinkham, Joel W. Lavintman, Michael Wahoske, Jr., Minneapolis, Minn., for appellees.

Before HEANEY and ARNOLD, Circuit Judges, and GIBSON, Senior Circuit Judge.

PER CURIAM.

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1

Plaintiff, a student, claims she was dismissed from the Medical School of the University of Minnesota because of her race, in violation of 42 U.S.C. §§ 1981 and 1983. The case was referred to the Honorable George G. McPartlin, United States Magistrate, for a hearing. The Magistrate found that plaintiff was dismissed for nondiscriminatory academic reasons. The Honorable Edward J. Devitt, Chief Judge of the United States District Court for the District of Minnesota, after an independent consideration, adopted this finding, and judgment was entered dismissing the complaint with prejudice. We affirm.

2

The Magistrate's recommended findings and conclusions thoroughly canvass the detailed factual contentions of the parties. We are not persuaded that these findings are clearly erroneous. The case in the end comes down to an assessment of the credibility of witnesses, including plaintiff. In this situation, we must and do give great deference to the findings made below. Fed.R.Civ.P. 52(a). In brief, we note that the 12 other black students in plaintiff's class were duly graduated; that plaintiff had long had academic problems; and that plaintiff, in order to succeed under 42 U.S.C. § 1981, must persuade the trier of fact by a preponderance of the evidence that defendants intentionally discriminated against her. E. g., Johnson v. Alexander, 572 F.2d 1219 (8th Cir.), cert. denied, 439 U.S. 986, 99 S.Ct. 579, 58 L.Ed.2d 658 (1978). The same is true of a § 1983 claim. On the question of procedural due process, we agree with the District Court that this dismissal was for academic reasons. Cf. Board of Curators of the University of Missouri v. Horowitz, 435 U.S. 78, 98 S.Ct. 948, 55 L.Ed.2d 124 (1978). Even if the dismissal is viewed as based on disciplinary reasons, plaintiff was given proper notice and a hearing.

3

The judgment is affirmed. 8th Cir. R. 14.