Smith v. City Of Mobile et al

Filing 51

Order re: 39 MOTION for Summary Judgment filed by Donald Dees, ( Responses to this order showing cause why summary judgment should not be entered in favor of all defendants on the federal claims asserted in Counts I and III, with all remaining state law claims then dismissed without prejudice under 28:1367(c)(3) due by 8/29/2017, Replies due by 9/5/2017, Motion to be taken under submission on 9/5/2017. Signed by Magistrate Judge Katherine P. Nelson on 8/15/2017. (srr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
MICHAEL SMITH,
Plaintiff,

)
)
)
)
)
)
)

v.
CITY OF MOBILE, et al.,
Defendants.

CIVIL ACTION NO. 16-00478-N

ORDER
This action is before the Court on the Motion for Summary Judgment under
Federal Rule of Civil Procedure 56 (Doc. 39) and separate memorandum and exhibits in
support (Docs. 40, 41) filed by Defendant Liana Barnett, who is being sued in her official
capacity as the Board’s Personnel Director, and Defendant Donald Dees, who is being
sued in his individual capacity.1

Plaintiff Michael Smith has timely filed a response

(Doc. 45), supported by exhibits, in opposition to the motion, and the moving Defendants
have timely filed a reply (Doc. 49) to the response.

The motion is now under submission

(see Doc. 42) and is ripe for disposition.
The motion simply moves for summary judgment on Smith’s Complaint in
general.

However, Count V and the federal claims in Count IV have already been

At the time this suit was filed, Dees was Personnel Director and was also sued in that
official capacity. However, on November 22, 2016, Dees filed notice that he had
resigned from his position with the Board effective October 1, 2016, and that Barnett
has replaced him as Personnel Director. (Doc. 14). Thus, Barnett, as Dees’s successor,
was automatically substituted as a party for the official capacity claims against the
Personnel Director, see Fed. R. Civ. P. 25(d), and the present motion is now deemed
brought by her in this regard. As such, only official capacity claims are asserted
against Barnett, while only individual capacity claims remain against Dees. To the
extent it is needed, see id. (“The court may order substitution at any time, but the
absence of such an order does not affect the substitution.”), it is ORDERED that Liana
Barnett is substituted for Dees as the party against whom the official capacity claims
against the Personnel Director are asserted.

1

dismissed by previous orders and are no longer pending.
present motion is MOOT as to those claims.

(See Docs. 31, 50).

Thus, the

As to the remaining claims, the Court

tentatively finds that the Motion for Summary Judgment (Doc. 39) is due to be is
GRANTED on all remaining federal claims, but not for the reasons argued by Barnett
and Dees.

The Court further tentatively finds that, for the same reasons, summary

judgment is due to be GRANTED in favor of all other Defendants on all remaining
federal claims in the Complaint (Doc. 1).

Because the Court finds that summary

judgment is appropriate both for nonmovants and for grounds not raised by the
movants, notice and a reasonable time to respond will be provided to the parties.

See

Fed. R. Civ. P. 56(f)(1)-(2).2
I.

Applicable Legal Standards

“A party may move for summary judgment, identifying each claim or defense--or
the part of each claim or defense--on which summary judgment is sought. The court
shall grant summary judgment if the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law.”
Civ. P. 56(a).

Fed. R.

“An issue of fact is ‘material’ if it might affect the outcome of the suit

under governing law and it is ‘genuine’ if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.”

Ave. CLO Fund, Ltd. v. Bank of Am.,

N.A., 723 F.3d 1287, 1294 (11th Cir. 2013) (quotations omitted).

“Summary judgment

is only appropriate if a case is ‘so one-sided that one party must prevail as a matter of
law.’ ”

Quigg v. Thomas Cty. Sch. Dist., 814 F.3d 1227, 1235 (11th Cir. 2016) (quoting

With the consent of the parties, the Court has designated the undersigned Magistrate
Judge to conduct all proceedings in this civil action in accordance with 28 U.S.C. §
636(c), Federal Rule of Civil Procedure 73, and S.D. Ala. GenLR 73. (See Docs. 27, 28).

2

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986)) (citation omitted).
However, a “ ‘mere scintilla’ of evidence is insufficient; the non-moving party must
produce substantial evidence in order to defeat a motion for summary judgment.”
Garczynski v. Bradshaw, 573 F.3d 1158, 1165 (11th Cir. 2009) (per curiam).

In other

words, “there must be enough of a showing that the jury could reasonably find for that
party … Where the record taken as a whole could not lead a rational trier of fact to find
for the non-moving party, there is no genuine issue for trial.”

Allen v. Tyson Foods,

Inc., 121 F.3d 642, 646 (11th Cir. 1997) (quotations omitted).
“[C]ourts are required to view the facts and draw reasonable inferences in the
light most favorable to the party opposing the summary judgment motion.”

Jackson v.

West, 787 F.3d 1345, 1352 (11th Cir. 2015) (quoting Scott v. Harris, 550 U.S. 372, 378
(2007) (alteration adopted) (quotations omitted)).

See also Allen, 121 F.3d 642, 646

(11th Cir. 1997) (“The evidence of the non-movant is to be believed, and all justifiable
inferences are to be drawn in his favor.” (quotations omitted)).

“The Court ‘must avoid

weighing conflicting evidence or making credibility determinations.’ ”

Ave. CLO Fund,

723 F.3d at 1294 (quoting Stewart v. Booker T. Washington Ins., 232 F.3d 844, 848 (11th
Cir. 2000)).
reasonable.’ ”

However, “ ‘an inference based on speculation and conjecture is not
Id. (quoting Blackston v. Shook & Fletcher Insulation Co., 764 F.2d 1480,

1482 (11th Cir. 1985)).
“Where…the non-moving party bears the burden of proof on an issue at trial, the
moving party, in order to prevail, must do one of two things: show that the non-moving
party has no evidence to support its case, or present ‘affirmative evidence demonstrating
that the nonmoving party will be unable to prove its case at trial.’ ”

Hammer v. Slater,

20 F.3d 1137, 1141 (11th Cir. 1994) (quoting United States v. Four Parcels of Real
Property, 941 F.2d 1428, 1437–38 (11th Cir. 1991) (en banc)).

“Once the movant

adequately supports its motion, the burden shifts to the nonmoving party to show that
specific facts exist that raise a genuine issue for trial.”
Corp., 598 F.3d 812, 815 (11th Cir. 2010).

Dietz v. Smithkline Beecham

“For issues on which the non-moving party

will bear the burden of proof at trial, the non-moving party must either point to evidence
in the record or present additional evidence ‘sufficient to withstand a directed verdict
motion at trial based on the alleged evidentiary deficiency.’ ”

Hammer, 20 F.3d at 1141

(quoting Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1116 (11th Cir. 1993)).
“When the moving party has the burden of proof at trial, that party must show
affirmatively the absence of a genuine issue of material fact: it must support its motion
with credible evidence that would entitle it to a directed verdict if not controverted at
trial.

In other words, the moving party must show that, on all the essential elements of

its case on which it bears the burden of proof at trial, no reasonable jury could find for
the nonmoving party.

If the moving party makes such an affirmative showing, it is

entitled to summary judgment unless the nonmoving party, in response, comes forward
with significant, probative evidence demonstrating the existence of a triable issue of
fact.” Four Parcels of Real Prop., 941 F.2d at 1438 (citations and quotations omitted).
“A party asserting that a fact cannot be or is genuinely disputed must support the
assertion by: (A) citing to particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits or declarations,
stipulations (including those made for purposes of the motion only), admissions,
interrogatory answers, or other materials; or (B) showing that the materials cited do not

establish the absence or presence of a genuine dispute, or that an adverse party cannot
produce admissible evidence to support the fact.”

Fed. R. Civ. P. 56(c)(1).

“The

nonmoving party may avail itself of all facts and justifiable inferences in the record
taken as a whole.”

Allen, 121 F.3d at 646 (quotation omitted).

“If reasonable minds

could differ on the inferences arising from undisputed facts, then a court should deny
summary judgment.”

Id. (quotation omitted).

“Conclusory allegations and

speculation are insufficient to create a genuine issue of material fact.”

Valderrama v.

Rousseau, 780 F.3d 1108, 1112 (11th Cir. 2015) (citing Cordoba v. Dillard's Inc., 419
F.3d 1169, 1181 (11th Cir. 2005) (“Speculation does not create a genuine issue of fact;
instead, it creates a false issue, the demolition of which is a primary goal of summary
judgment.”)).
II.

Summary Judgment Factual Determinations

Act No. 470, Local Acts of 1939, as amended by Act No. 2004–105, Ala. Acts 2004
(“Local Act 470”) created the Mobile County Personnel Department (“MCPD”) to “govern
and control, by Civil Service rules, regulations and practices,…all individuals in the
Classified Service” in Mobile County, Alabama. (See Doc. 41-3 at 3 – 4 [Local Act 470, §§
III – IV]).

The MCPD is composed of three entities: a Supervisory Committee, a

Personnel Board (hereinafter, “the Board”), and a Personnel Director.
[Local Act 470, § III]).

(See id. at 3

It is undisputed that, at all times material to this action, Dees

served as MCPD’s Personnel Director.

Per Section VIII of Local Act 470, the Personnel

Director serves as “executive head” of the Department and is tasked with directing and
supervising “all of its administrative and technical activities.”

(Doc. 41-3 at 10).

Smith was employed as a police sergeant with the City of Mobile Police

Department, which was considered an MCPD “Classified Services” position.

On

August 29, 2014, the City of Mobile delivered a Disciplinary Trial Board Notice to Smith,
setting forth various charges of malfeasance by Smith, providing a date for a
“non-adversary Administrative Trial Board Hearing,” and advising Smith of certain
rights.

(Doc. 41-5.

See also Doc. 45-1 at 1, ¶ 2 [Smith Aff.]).

The trial board hearing

was held September 3, 2014 (See Doc. 41-6 at 1), with Smith attending and giving
testimony (see Doc. 45-1 at 2 – 4).

By notice dated September 9, 2014, Defendant Sandy

Stimpson, in his capacity as mayor of Mobile, concurred with the trial board’s
recommendation and dismissed Smith from his employment.

(Doc. 41-6).

Smith

appealed that decision to the Board (see Doc. 41-7), under the procedures set forth in
Rule 14.4 of the Rules and Regulations of the Personnel Board (“Board Rules”) (Doc.
41-4 at 55).3 Board Rule 14.5 provides as follows:
The Director shall within seven (7) calendar days after receipt of the
appeal, investigate to insure proper procedure was followed as set out in
Rule 14.3 and 14.4 and report said appeal to the Board. The Board shall
schedule a public hearing on the appeal as early as practicable. Notice of
the date, time and place of the hearing shall be given to the employee and
the Appointing Authority. The parties may be represented by counsel. The
Board shall not be bound by the technical rules of evidence but shall seek
diligently all the information and evidence bearing on the merits of the
case.
(Doc. 41-4 at 55).
Dees and the Board first became involved in Smith’s termination proceedings
around September 12, 2014 (, when Dees “received Smith’s appeal” and “handled the
matter on behalf of the Personnel Board in the usual course of business[,]” as follows:

Under Section IX of Local Act 470, the Board Rules “have the force and effect of law.”
(Doc. 41-3).

3

I noted in the Personnel Board records receipt of Smith's appeal of his
termination by the City of Mobile Police Department. Following the
procedure in Personnel Board Rule 14.5, on September15, 2014 I reviewed
the procedural documents, including the predisciplinary hearing notice[,]
the Mayor's letter of termination, and Smith's notice of appeal (Ex. 7). The
initials "D.D." which appear in the documents are mine, and I dated the
documents when I reviewed them- September 15, 2014.
I determined from review of the documents that the City of Mobile
provided Smith with at least 24 hour advance notice of the pre-disciplinary
hearing; that the written notice contained a statement of the allegations
and facts underlying the contemplated disciplinary action; that Smith was
given an opportunity to respond to the allegations; that Smith was given
written notice of the termination by the appointing authority; and that
Smith filed a timely notice of appeal. Finding the predisciplinary hearing
documents to be in order, I reported Smith's appeal to the Board by placing
it on the Personnel Board's September 16, 2014 meeting agenda. The
Personnel Board scheduled Smith's appeal for a de novo hearing on
November 13, 2014.
As Personnel Director I (or my assistant) attended Personnel Board
hearings. At the hearing I acted as something of a bailiff by ushering
witnesses in and out the hearing room, operating A V equipment, making
copies of documents, etc…I did not in Smith's case, examine witnesses,
vote, or otherwise participate in Personnel Board hearings or decisions.
I was present in my official capacity at Smith's November 13, 2014
Personnel Board hearing. I did not participate in the hearing or in the
Board's decision.
(Doc. 41-1 [Dees’s 28 U.S.C. § 1746 Unsworn Declaration] at 1 – 3 (numbering, record
citations, and footnote omitted)). 4

By order issued December 1, 2014, the Board

Smith has failed to submit any evidence to rebut Dees’s declaration as to his
involvement in Smith’s termination proceedings.
In his response brief he
“reincorporates” the allegations in his complaint’s “Factual Statement.” (See Doc. 45
at 2). However, the complaint is not sworn document and a “ ‘party opposing a properly
submitted motion for summary judgment may not rest upon mere allegation or denials
of his pleadings, but must set forth specific facts showing that there is a genuine issue
for trial.’ ” Eberhardt v. Waters, 901 F.2d 1578, 1580 (11th Cir. 1990) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986)). Smith has also submitted

4

affirmed Smith’s termination.

(Doc. 41-10).

Section XXXIV of Local Act 470 states as follows:
COURT PROCEEDINGS: Orders of the Personnel Director and Personnel
Board may be enforced by mandamus, injunction, quo warranto, or other
appropriate proceedings in a court of competent jurisdiction. Any person
directly interested, within 14 days, may appeal to the Circuit Court of
Mobile County from any order of the board, by filing notice thereof with
the board, whereupon the board shall certify to a transcript of the
proceedings before it and file the same in court. Only findings of fact of the
board contained in the transcript, if supported by substantial evidence
adduced before the board or before its Personnel Director after hearing
and upon notice to the interested party or parties, and after affording the
parties an opportunity to be heard, shall be conclusive on appeal. The
issues on appeal shall be made up under the direction of the court within
30 days after the transcript is filed therein, and the trial shall proceed on
the evidence contained in the transcript, if it appears therefrom that the
evidence was taken after such notice and opportunity to be heard. If upon
appeal, the court finds that the ruling, order, or action appealed from is
unlawful or unreasonable within the meaning of this act, the court shall
vacate or modify the same.
(Doc. 41-3 at 25 – 26).
As explained in greater detail in the Court’s order dismissing the federal claims
in Count IV (see Doc. 50 at 3 – 5), Smith attempted to appeal the Board’s decision to the
Mobile County circuit court under the procedures in § XXXIV, but the circuit court
appeal was dismissed because Smith failed to show that he had filed a notice of appeal
his own affidavit in opposition to Dees’s motion. (See Doc. 45-1). However, the
majority of the affidavit recounts events occurring prior to Smith’s appeal of his
termination to the Board, during Smith’s disciplinary proceedings with the City of
Mobile that culminated in the City’s September 9, 2014 termination letter. Nothing in
the affidavit suggests that Dees had any involvement in Smith’s case prior to his Board
appeal. As to Dees’s involvement in the Board appeal, Smith only claims: “At no time
during my post-deprivation hearing did Defendant Dees testify or certify as to the
non-discretional duties imposed upon him by the Rules and Regulations of the Mobile
County Personnel Board or that the Appointing Authority had adhered to the MCPB
Rules.” (Doc. 45-1 at 7).

with the Board within 14 days of its decision, as required by § XXXIV. 5

For

background, see: Smith v. City of Mobile, 203 So. 3d 885 (Ala. Civ. App. 2016).
III.
a.

Analysis

Official Capacity Claims

The motion seeks dismissal of the official capacity claims against Dees “on the
grounds of official capacity immunity.”

(Doc. 40 at 17).

Dees cites no authority

indicating what “official capacity immunity” is, and his substantive argument on this
issue merely asserts that the official capacity claims against him should be dismissed as
redundant of the claims against the Mobile County Personnel Board (see Doc. 40 at 17 –
18), or alternatively because he “no longer has” an official capacity due to his resignation
as Personnel Director (see Doc. 49 at 6).
As noted previously, see n. 1, supra; (Doc. 50 at 1 n.1), by operation of Federal
Rule of Civil Procedure 25(d), Defendant Barnett was substituted as a party for the
The federal claims in Count IV, alleging that “Defendants’ Donald Dees and the Mobile
County Personnel Board intentionally denied Plaintiff Smith his due process right to
appeal the termination decision issued by the City refusing to recognize and process the
timely appeal filed on December 12, 2014, all in violation of the due process clause of the
Fourteenth Amendment made actionable by 42 U.S.C. Section 1983…” (Doc. 1 at 10),
were dismissed for lack of subject matter jurisdiction under the Rooker-Feldman
doctrine as inextricably intertwined with the state court judgment, as those claims
would succeed only to the extent that the state court wrongly decided that Smith had
failed to timely file with the Board a notice of appeal of his termination proceedings.
(See Doc. 50). Because Smith’s untimely appeal precluded the state courts’ review of
the merits of the Board’s decision, however, see Smith v. City of Mobile, 203 So. 3d 885,
887 n.2 (Ala. Civ. App. 2016), Rooker-Feldman does not deprive this Court of jurisdiction
to consider Smith’s federal claims related to his administrative proceedings. See Narey
v. Dean, 32 F.3d 1521, 1525 (11th Cir. 1994) (“[T]he Rooker–Feldman doctrine, unlike
that of res judicata, applies only to state court decisions, not to state administrative
decisions. If the decision of a state agency has been upheld by a state court, then the
Rooker–Feldman doctrine applies, because a challenge to the agency's decision
necessarily involves a challenge to the judgment of the state court. The effect of
unreviewed state administrative decisions, however, is a matter of res judicata…”
(citations and quotation omitted)).

5

official capacity claims against the Board’s Personnel Director upon her replacing Dees
in that position, and the motion is deemed brought by her in that regard.

Thus,

because there are no longer any official capacity claims against Dees, there are no such
claims to dismiss.
It is true that, “where a plaintiff brings an action against a public official in his
official capacity, the suit is against the office that official represents, and not the official
himself.”

E.g., Welch v. Laney, 57 F.3d 1004, 1009 (11th Cir. 1995).

However, as

noted previously, section III of Local Act 470 indicate that the Personnel Director and
the Board are two of three separate entities that comprise the MCPD.

Therefore, it

appears that the Personnel Director would be deemed an officer of the MCPD, which is
not a party to this action, rather than the Board.

Regardless, the undersigned has

previously rejected a similar argument in this action that mere redundancy warrants
dismissal as a matter of law.

(See Doc. 30 at 3 (“[S]imply because the official capacity

claims against Stimpson are redundant of those against the City does not mean they
‘fail[] to state a claim upon which relief can be granted’ so as to justify dismissal under
Rule 12(b)(6).”)).

While the Court may, “[o]n motion or on its own,…at anytime, on just

terms,…drop a party[,]” Fed. R. Civ. P. 21, the Court declines to drop the official
capacity claims against Barnett at this time.
Accordingly, the motion for summary judgment is due to be DENIED to the
extent it asserts “official capacity immunity.”
b.

Due Process Claims

Dees argues that he is due qualified immunity on the individual capacity claims
against him.

Because the defense of qualified immunity “does not apply to suits

governed by state law[,]”

Heggs v. Grant, 73 F.3d 317, 320 n.5 (11th Cir. 1996) (per

curiam) (citing D'Aguanno v. Gallagher, 50 F.3d 877, 879 (11th Cir. 1995)), the motion is
due to be denied as to Count II, which only alleges a state law claim for violation of “the
Mobile County Personnel Board Rules possessing force and effect of law[,]”
9), and as to the state law claims asserted in Counts III and IV.

(Doc. 1 at

As to whether Dees is

entitled to qualified immunity on the federal claims asserted against him in Counts I
and III, the Court declines to address that argument, as the record adequately reflects
that summary judgment is due to be granted on those claims for another reason.
Counts I and III allege claims under 42 U.S.C. § 1983 that the Defendants
violated Smith’s right to due process under the Fourteenth Amendment to the United
States Constitution during his administrative termination proceedings.
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).6
Smith does not specify whether he is asserting claims for deprivation of
substantive due process, procedural due process, or both.

However, it has long been the

law of this Circuit that “areas in which substantive rights are created only by state law

“[P]ublic employees who can be discharged only for cause have a constitutionally
protected property interest in their tenure and cannot be fired without due process…”
Gilbert v. Homar, 520 U.S. 924, 928–29 (1997) (citing Board of Regents of State Colleges
v. Roth, 408 U.S. 564, 578 (1972)). There is no dispute that Smith was such an
employee.

6

(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.”

Id. 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 id. at 1559

(“Whether an individual complains that a state lacks constitutionally adequate
procedures for termination of employees or asserts that his particular hearing was not
fair and impartial, he has raised only procedural due process concerns.”); 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.”).
“[A] § 1983 claim alleging a denial of procedural due process requires proof of
three elements: (1) a deprivation of a constitutionally-protected liberty or property
interest; (2) state action; and (3) constitutionally-inadequate process.”
Rhodes, 345 F.3d 1225, 1232 (11th Cir. 2003).

Grayden v.

In Parratt v. Taylor, 451 U.S. 527 (1981),

and Hudson v. Palmer, 468 U.S. 517 (1984), “the Supreme Court held that there is no
procedural due process violation when the act complained of is the random and
unauthorized act of a state employee for which adequate postdeprivation process is
available.

The Parratt–Hudson reasoning applies when the official action complained

of is of a type that the State cannot reasonably foresee and for which predeprivation
process thus is not feasible.”

Powell v. Ga. Dep't of Human Res., 114 F.3d 1074, 1081

(11th Cir. 1997).7 Counts I and III complain that the Defendants deprived Smith of due
process by failing to follow various procedures mandated by Local Act 470, the Board
Rules, and Alabama “statutory laws” during his administrative proceedings.

(See Doc.

1; Doc. 45 at 15 (“Smith is contending that any violation of Mobile County Board
Personnel Board Rules set forth in Chapter 14 are necessarily actionable under § 1983
as this case also respects both failure to follow mandatory procedures based on State
law; but also the taking of a property interest, which is protected under the 14th
Amendment and Alabama Constitution.”)). 8

These are quintessential “random and

unauthorized acts” for which adequate state postdeprivation process can provide a

See also Nat'l Ass'n of Bds. of Pharmacy v. Bd. of Regents of the Univ. Sys. of Ga., 633
F.3d 1297, 1317 (11th Cir. 2011) (“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…”)

7

Count I alleges that, “[b]y terminating Plaintiff Smith without following mandatory
and nondiscretionary merit system ‘due process procedures’, Defendants deprived
Plaintiff of his property right interest in his job as a county merit system employee
without due process of law.” (Doc. 1 at 9). Count III, entitled “INTENTIONAL
VIOLATION OF SECTION XXXIV OF THE LOCAL ACTS, THE RULES OF THE
MOBILE COUNTY PERSONNEL BOARD STATUTORY DUE PROCESS
VIOLATIONS,” alleges the Defendants “intentionally denied Plaintiff Smith his due
process right to a fair disciplinary hearing in clear violation of MCPB Rule 43.3(a) by
serving him with an inadequate notice of hearing, and in the conduct of the hearing
itself by denying Smith the right to call witnesses of his choose, and to confront
witnesses called by the City.” (Id. at 10).

8

remedy satisfying procedural due process.9
In interpreting Parratt and Hudson,
McKinney v. Pate, 20 F.3d 1550, 1557 (11th Cir. 1994) (en banc)…said that
“only when the state refuses to provide a process sufficient to remedy the
procedural deprivation does a constitutional violation actionable under
section 1983 arise.” It is the state's failure to provide adequate procedures
to remedy the otherwise procedurally flawed deprivation of a protected
interest that gives rise to a federal procedural due process claim. See id.;
see also Bass v. Perrin, 170 F.3d 1312, 1319 (11th Cir. 1999); Harris v.
Board of Educ., 105 F.3d 591, 596 (11th Cir. 1997). This rule (that a
section 1983 claim is not stated unless inadequate state procedures exist
to remedy an alleged procedural deprivation) recognizes that the state
must have the opportunity to “remedy the procedural failings of its
subdivisions and agencies in the appropriate fora—agencies, review
boards, and state courts” before being subjected to a claim alleging a
procedural due process violation. See McKinney, 20 F.3d at 1560; see also
Horton v. Board of County Comm'rs, 202 F.3d 1297, 1300 (11th Cir.2000).
…[Courts]—when determining if a plaintiff has stated a valid procedural
due process claim—look to whether the available state procedures were
adequate to correct the alleged procedural deficiencies. See McKinney, 20
F.3d at 1563; see also Bell v. City of Demopolis, Alabama, 86 F.3d 191, 192
(11th Cir. 1996); Narey v. Dean, 32 F.3d 1521, 1527–28 (11th Cir. 1994). If
adequate state remedies were available but the plaintiff failed to take
advantage of them, the plaintiff cannot rely on that failure to claim that
the state deprived him of procedural due process. See McKinney, 20 F.3d at
1565 (“The fact that [McKinney] failed to avail himself of the full
procedures provided by state law ... does not constitute a sign of their
inadequacy.”); Bell, 86 F.3d at 192; Narey, 32 F.3d at 1528. And, to be
adequate, the state procedure need not provide all the relief available
under section 1983. See McKinney, 20 F.3d at 1564. Instead, the state
procedure must be able to correct whatever deficiencies exist and to
provide plaintiff with whatever process is due.
Under the “established state procedure” exception to the Parratt–Hudson rule, “where
a deprivation occurs pursuant to an established state procedure, predeprivation process
is ordinarily feasible[,]” and thus the adequacy of postdeprivation remedies is irrelevant.
Rittenhouse v. DeKalb Cty., 764 F.2d 1451, 1455 (11th Cir. 1985). This exception is
clearly inapplicable here, as Smith’s claimed due process deprivations were the result of
the Defendants’ alleged failure to follow “established state procedures.”

9

Cotton v. Jackson, 216 F.3d 1328, 1330–31 (11th Cir. 2000) (per curiam) (footnotes
omitted).
Here, adequate state procedures were available to address any procedural
deficiencies in Smith’s administrative termination proceedings.

Smith was permitted

to, and in fact did, appeal the City’s termination decision to the Board.

After the Board

affirmed the City’s decision, Smith was permitted to appeal the Board’s decision to the
Mobile County Circuit Court under § XXXIV of Local Act 470.

Since 1996, the Eleventh

Circuit has recognized that Alabama courts are capable of providing adequate
postdeprivation process for employment termination proceedings under McKinney’s
reasoning, and Smith gives this Court no reason to believe this has changed.

See Bell,

86 F.3d at 192 (“Bell attempts to distinguish McKinney [by] assert[ing] here that
Alabama courts do not offer the same ‘thorough, almost de novo, review’ of Florida’s
circuit courts.

Alabama courts, however, like Florida courts, review employment

termination proceedings both to determine whether they are supported by substantial
evidence and to see that the proceedings comport with procedural due process.” (citing
Ex Parte Tuskegee, 447 So. 2d 713 (Ala. 1984); Guinn v. Eufaula, 437 So. 2d 516 (Ala.
1983)).

Smith, however, failed to take advantage of the opportunity for judicial review

under § XXXIV, and he cannot rely on that failure to claim that the Defendants deprived
him of procedural due process.10

Cf. Hein v. Kimbrough, 545 F. App'x 926, 927–28

Local Act 470 does not authorize the Board, or the circuit court on direct appeal of a
Board decision, to decide constitutional issues, which must instead be raised in a
“separate and distinct collateral suit.” Wright v. City of Mobile, 170 So. 3d 656, 661–62
(Ala. Civ. App. 2014). The Eleventh Circuit’s decision in Bell appears to approve of this
as sufficient postdeprivation process under McKinney. See Bell, 86 F.3d at 192 (citing
Guinn v. Eufaula, 437 So. 2d 516 (Ala. 1983), which involved an appeal of a summary
judgment on alleged constitutional violations occurring administrative termination

10

(11th Cir. 2013) (per curiam) (unpublished) (“With respect to his due-process challenge,
Hein contends the hearing process was flawed and that he was denied a meaningful
chance to clear his name.

But Hein does not dispute that he was permitted to appeal to

the Clayton County Civil Service Board (which was, in turn, subject to judicial review),
knew he had the opportunity to do so, and chose not to. ‘If adequate state remedies were
available but the plaintiff failed to take advantage of them, the plaintiff cannot rely on
that failure to claim that the state deprived him of procedural due process.’ Cotton v.
Jackson, 216 F.3d 1328, 1331 (11th Cir. 2000).” (footnote omitted)).
That Smith’s “fail[ure] to take advantage of” § XXXIV was caused by his failure to
properly follow procedure, rather than total inaction, makes no difference.

As the

Eleventh Circuit has explained, “[t]he McKinney rule is not micro in its focus, but macro.
It does not look to the actual involvement of state courts or whether they were asked to
provide a remedy in the specific case now before the federal court. Instead, the
McKinney rule looks to the existence of an opportunity-to whether the state courts, if
asked, generally would provide an adequate remedy for the procedural deprivation the
federal court plaintiff claims to have suffered. If state courts would, then there is no
federal procedural due process violation regardless of whether the plaintiff has taken

proceedings)). Regardless, Smith’s claims for deprivation of federal due process are
premised solely on the Defendants’ alleged failure to follow Local Act 470 and the Board
Rules, and the circuit court possessed authority on direct appeal to correct any such
errors. See Wright, 170 So. 3d at 661–62 (“The trial court…did not have to rule on any
constitutional issues to decide whether the City of Mobile had complied with Rule
14.3(a) in dismissing Wright. That issue depends entirely on the meaning of the first
part of Rule 14.3(a) quoted above, regardless of its constitutional implications. We agree
with Wright that the trial court could have reviewed that legal issue on appeal, see
Board of Water & Sewer Comm'rs of City of Mobile v. Smith, 591 So.2d 521, 522 (Ala.
Civ. App.1991) (allowing for certiorari review of questions of law in appeals from
personnel board's orders)…”).

advantage of the state remedy or attempted to do so.”
Flagler Cty., 202 F.3d 1297, 1300 (11th Cir. 2000).11

Horton v. Bd. of Cty. Comm'rs of
Based on the foregoing reasoning,

the Court tentatively finds that Smith cannot show a viable claim for deprivation of due
process and that summary judgment is therefore due to be granted in favor of the
Defendants on all federal claims in Counts I and III.
The Court has original jurisdiction over Smith’s federal claims under 28 U.S.C. §
1331, and supplemental jurisdiction over his state law claims under 28 U.S.C. §
1367(a).12 The only remaining federal claims in this action are those for deprivation of
due process found in Counts I and III.

If those claims are dismissed, the Court, in its

discretion, may decline to continue exercising supplemental jurisdiction over the state
law claims.

See 28 U.S.C. § 1367(c)(3).

The Eleventh Circuit has “encouraged district

courts to dismiss any remaining state claims when…the federal claims have been
dismissed prior to trial.”
2004) (per curiam).

Raney v. Allstate Ins. Co., 370 F.3d 1086, 1089 (11th Cir.

See also Betts v. Hall, 679 F. App’x 810, 814 (11th Cir. 2017) (per

curiam) (unpublished).
Under Federal Rule of Civil Procedure 56(f), “[a]fter giving notice and a
reasonable time to respond, the court may…grant summary judgment for a nonmovant”
and “grant the motion on grounds not raised by a party…”

Fed. R. Civ. P. 56(f)(1)-(2).

Because the majority in Horton ultimately concluded it lacked jurisdiction over the
appeal, they acknowledged that the opinion’s discussion of “the meaning of the
McKinney decision is dicta and not binding on anyone.”
202 F.3d at 1302.
Nevertheless, “even though not binding, dicta sometimes can be useful.”
Id.
Moreover, subsequent Eleventh Circuit decisions have relied on Horton’s discussion of
McKinney. See, e.g., Foxy Lady, Inc. v. City of Atlanta, Ga., 347 F.3d 1232, 1238-39 (11th
Cir. 2003) (per curiam); Reams v. Irvin, 561 F.3d 1258, 1266 (11th Cir. 2009).

11

Smith has not alleged diversity of citizenship under 28 U.S.C. § 1332(a) as a basis for
original jurisdiction, and nothing in the record supports such a basis for jurisdiction.

12

Accordingly, any party opposed must file and serve, no later than Tuesday, August 29,
2017, a response to this order showing cause why summary judgment should not be
entered in favor of all Defendants on the federal claims asserted in Counts I and III,
with all remaining state law claims then dismissed without prejudice under 28 U.S.C. §
1367(c)(3), for the reasons stated above.

Any party who desires to make a reply to a

response must file and serve the reply no later than Tuesday, September 5, 2017,
after which this matter will be taken under submission for further consideration by the
Court.
DONE and ORDERED this the 15th day of August 2017.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE