United States District Court, S.D. Alabama, Southern Division
KATHERINE P. NELSON UNITED STATES MAGISTRATE JUDGE
undersigned has considered the parties' briefing (Docs.
52 - 54) timely submitted in response to the Court's
August 15, 2017 order (Doc. 51), which gave notice of intent
to grant summary judgment under Federal Rule of Civil
Procedure 56(f) in favor of all Defendants on the federal
claims raised in Counts I and III of the complaint. Upon
consideration, the undersigned finds that summary judgment is
due to be granted in part for the reasons previously stated
in the Court's August 15 order.
The Due Process Clause of the Fourteenth Amendment provides
“nor shall any State deprive any person of life,
liberty, or property, without due process of law.” U.S.
Const. amend. XIV, § 1. The Supreme Court's
interpretation of this clause explicates that the amendment
provides two different kinds of constitutional protection:
procedural due process and substantive due process. Cf.
Zinermon v. Burch, 494 U.S. 113, 125, 110 S.Ct. 975,
983, 108 L.Ed.2d 100 (1990). A violation of either of these
kinds of protection may form the basis for a suit under
section 1983. Id.
McKinney v. Pate, 20 F.3d 1550, 1555 (11th Cir.
1994) (en banc).
alleges that the Defendants deprived Smith of “his
property right interest in his job as a county merit system
employee…” (Doc 1 at 9, ¶ 52). As was
explained previously, it has long been the law of this
Circuit that “areas in which substantive rights are
created only by state law (as is the case
with…employment law) are not subject to substantive
due process protection under the Due Process Clause because
substantive due process rights are created only by the
Constitution. As a result, these state law based rights
constitutionally may be rescinded so long as the elements of
procedural-not substantive-due process are observed.”
McKinney, 20 F.3d at 1556. Thus, “an employee
with a property right in employment is protected only by the
procedural component of the Due Process Clause, not its
substantive component. Because employment rights are
state-created rights and are not ‘fundamental'
rights created by the Constitution, they do not enjoy
substantive due process protection.” Id. at
1560. See also Bell v. City of Demopolis,
Ala., 86 F.3d 191, 192 (11th Cir. 1996) (per curiam)
(McKinney “held that the alleged wrongful
discharge of an employee by a state actor does not give rise
to a substantive due process claim but instead implicates
only procedural due process.”). Count III alleges that
the Defendants deprived Smith “his due process right to
a fair disciplinary hearing” (Doc. 1 at 10, ¶ 54),
which also implicates only procedural due process. See
Id. at 1559 (“Whether an individual…asserts
that his particular hearing was not fair and impartial, he
has raised only procedural due process concerns.”).
Smith's brief confirms that he is only asserting
procedural due process violations. (See Doc. 52 at 8
It is axiomatic that, in general, the Constitution requires
that the state provide fair procedures and an impartial
decisionmaker before infringing on a person's interest in
life, liberty, or property. More specifically, the Supreme
Court has explained that a “tenured employee is
entitled to oral or written notice of the charges against
him, an explanation of the employer's evidence, and an
opportunity to present his side of the story” before a
state or state agency may terminate an employee. In other
words, the employee is entitled to “some kind” of
pre-termination hearing. That hearing is not a mini-trial and
“need not definitely resolve the propriety of the
discharge. It should be an initial check against mistaken
decisions-essentially, a determination of whether there are
reasonable grounds to believe that the charges against the
employee are true and support the proposed action.”
McKinney, 20 F.3d at 1561 (citations omitted)
(quoting Cleveland Bd. of Educ. v. Loudermill, 470
U.S. 532, 542, 545-46 (1985)). See also Gilbert v.
Homar, 520 U.S. 924, 929 (1997) (“In Cleveland
Bd. of Ed. v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487,
84 L.Ed.2d 494 (1985), we concluded that a public employee
dismissable only for cause was entitled to a very limited
hearing prior to his termination, to be followed by a more
comprehensive post-termination hearing. Stressing that the
pretermination hearing ‘should be an initial check
against mistaken decisions-essentially, a determination of
whether there are reasonable grounds to believe that the
charges against the employee are true and support the
proposed action, ' id., at 545-546, 105 S.Ct.,
at 1495, we held that pretermination process need only
include oral or written notice of the charges, an explanation
of the employer's evidence, and an opportunity for the
employee to tell his side of the story, id., at 546,
105 S.Ct., at 1495.”).
The lack of a meaningful opportunity to be heard is at the
core of a due process claim because “the deprivation by
state action of a constitutionally protected interest in
‘life, liberty, or property' is not in itself
unconstitutional; what is unconstitutional is the deprivation
of such an interest without due process of
law.” Zinermon v. Burch, 494 U.S. 113,
125, 110 S.Ct. 975, 983, 108 L.Ed.2d 100 (1990) (emphasis in
original) (quoting Parratt v. Taylor, 451 U.S. 527,
537, 101 S.Ct. 1908, 1913, 68 L.Ed.2d 420 (1981)).
“Although the Due Process Clause generally requires
notice and an opportunity to be heard before the
government seizes one's property ... the Supreme Court
‘has rejected the proposition that ... the State [must
always] provide a hearing prior to the initial deprivation of
property.' ” Reams v. Irvin, 561 F.3d
1258, 1263 (11th Cir. 2009) (emphasis in original) (internal
citation omitted) (quoting Parratt, 451 U.S. at 540-
41, 101 S.Ct. at 1915-16); see also Hudson v.
Palmer, 468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393
“[T]he feasibility of predeprivation procedures [i]s
the central question in determining [whether predeprivation
procedures must be provided].” Rittenhouse v.
DeKalb Cnty., 764 F.2d 1451, 1455 (11th Cir. 1985);
see also Carcamo v. Miami-Dade Cnty., 375 F.3d 1104,
1105 n.4 (11th Cir. 2004). So long as the State provides
adequate post-deprivation remedies, “due process d[oes]
not require pre-deprivation hearings where the holding of
such a hearing would be impracticable, that is, where the
deprivation is the result of either a negligent or an
intentional deprivation of property.” McKinney v.
Pate, 20 F.3d 1550, 1562-63 (11th Cir. 1994) (en banc).
Pre-deprivation process is impractical “where a loss of
property is occasioned by a random, unauthorized act by a
state employee, rather than by an established state
procedure, ” because “the state cannot know when
such deprivations will occur.” Hudson, 468
U.S. at 532, 533, 104 S.Ct. at 3203. These “established
state procedure[s]” are typically established for the
purpose of depriving citizens of their property.
Rittenhouse, 764 F.2d at 1455.
Nat'l Ass'n of Boards of Pharmacy v. Bd. of
Regents of the Univ. Sys. of Georgia, 633 F.3d 1297,
1316-17 (11th Cir. 2011)
the “established state procedures” for depriving
certain Mobile County public employees, such as Smith, of
their constitutionally protected property interests in their
employment tenure, and for providing them both pre- and
post-termination process, are found in Act No. 470, Local
Acts of 1939, as amended by Act No. 2004-105, Ala. Acts 2004
(“Local Act 470”), and the Rules and Regulations
of the Personnel Board (“Board
Rules”). More specifically, Board Rule 14.3(a)
provides an “established state procedure” for
pre-termination hearings.Additional Board Rules provide an
“established state procedure” for a
post-termination appeal to the ...