Killion ex rel. Ackers v. Burl

Eighth Circuit

Killion ex rel. Ackers v. Burl

860 F.2d 306

CourtCourt of Appeals for the Eighth Circuit

DecidedOctober 27, 1988

DocketNo. 87-2422

StatusPublished

Cited by2 cases

This text of 860 F.2d 306 (Killion ex rel. Ackers v. Burl) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Killion ex rel. Ackers v. Burl, 860 F.2d 306 (8th Cir. 1988).

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PER CURIAM.

Lee André Killion appeals from an order granting summary judgment against him in the District Court¹ for the Eastern District of Arkansas. Killion ex rel. Ackers v. Burl, No. LRC86113 (E.D.Ark. Sept. 24, 1987). The district court ruled that Killion had not stated a claim upon which relief can be granted in federal court either on due process or equal protection grounds. For the reasons discussed below, we affirm the judgment of the district court.

Lee André Killion attended first grade at Carver Elementary School in Little Rock, Arkansas. Killion worked below grade level in both reading and mathematics and consequently was not promoted to the second grade. Whether by mistake or otherwise, Killion’s progress report at the end of first grade indicated that he would be promoted to second grade. Killion alleges that the failure to promote him to second grade violated his right to procedural due process in that he was not notified of the fact that he would not be promoted, and he was not notified (through his mother and next friend) of his learning difficulties before the decision was made not to promote.

In order for Killion to state an actionable claim for violation of procedural due process, he must establish that he has a liberty or property interest in promotion to the second grade. Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). We find no precedent for such an interest. See, e.g., Regents of the University of Michigan v. Ewing, 474 U.S. 214, 225, 106 S.Ct. 507, 513, 88 L.Ed.2d 523 (1985).

In order for Killion to state an actionable equal protection claim, he must establish [307]*307that he was classified in an irrational manner and was thereby treated differently than similarly situated students. San Antonio Indep. School Dist. v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973). Killion has neither briefed this point nor offered any facts in support of a finding of such disparate classification or treatment.

Summary judgment is appropriate when no genuine issue of material fact exists in the case, and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). To avoid entry of summary judgment, the non-moving party must make a sufficient showing on every essential element of its case on which it bears the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). Killion has not made such a showing.

Accordingly, the judgment of the district court is affirmed. See 8th Cir.R. 14.

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PER CURIAM.

Lee André Killion appeals from an order granting summary judgment against him in the District Court¹ for the Eastern District of Arkansas. Killion ex rel. Ackers v. Burl, No. LRC86113 (E.D.Ark. Sept. 24, 1987). The district court ruled that Killion had not stated a claim upon which relief can be granted in federal court either on due process or equal protection grounds. For the reasons discussed below, we affirm the judgment of the district court.

Lee André Killion attended first grade at Carver Elementary School in Little Rock, Arkansas. Killion worked below grade level in both reading and mathematics and consequently was not promoted to the second grade. Whether by mistake or otherwise, Killion’s progress report at the end of first grade indicated that he would be promoted to second grade. Killion alleges that the failure to promote him to second grade violated his right to procedural due process in that he was not notified of the fact that he would not be promoted, and he was not notified (through his mother and next friend) of his learning difficulties before the decision was made not to promote.

In order for Killion to state an actionable claim for violation of procedural due process, he must establish that he has a liberty or property interest in promotion to the second grade. Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). We find no precedent for such an interest. See, e.g., Regents of the University of Michigan v. Ewing, 474 U.S. 214, 225, 106 S.Ct. 507, 513, 88 L.Ed.2d 523 (1985).

In order for Killion to state an actionable equal protection claim, he must establish [307]*307that he was classified in an irrational manner and was thereby treated differently than similarly situated students. San Antonio Indep. School Dist. v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973). Killion has neither briefed this point nor offered any facts in support of a finding of such disparate classification or treatment.

Summary judgment is appropriate when no genuine issue of material fact exists in the case, and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). To avoid entry of summary judgment, the non-moving party must make a sufficient showing on every essential element of its case on which it bears the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). Killion has not made such a showing.

Accordingly, the judgment of the district court is affirmed. See 8th Cir.R. 14.

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