F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 13 2003
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
J. MICHAEL MCGEE, M.D.,
an individual and a tenured faculty
member of the University of
Oklahoma Health Sciences Center,
at its Tulsa campus,
Plaintiff - Appellant,
v. No. 02-5005
D.C. No. 01-CV-343-C
DAVID L. BOREN, individually and (N.D. Oklahoma)
as state actor, policymaker and
co-conspirator; JOSEPH HARROZ,
JR., individually and as state actor,
policymaker and co-conspirator;
JOSEPH FERRETTI, sued as: Joseph
Ferretti, Ph.D., individually and as
state actor, policymaker and
co-conspirator; OKLAHOMA
UNIVERSITY BOARD OF
REGENTS, sued as: the University of
Oklahoma Board of Regents,
individually and as state actors,
policymakers and co-conspirators,
Defendants - Appellees.
ORDER AND JUDGMENT *
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Before SEYMOUR , PORFILIO , and O’BRIEN , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
J. Michael McGee appeals from the district court’s order granting the
defendants’ motion to dismiss his 42 U.S.C. § 1983 civil rights suit for failure to
state a claim. See Fed. R. Civ. P. 12(b)(6). We affirm.
We provide here only a brief summary of the facts alleged at great length in
Dr. McGee’s complaint and throughly summarized in the district court’s order.
Dr. McGee is the former Vice-Chairman of the Department of Surgery at the
University of Oklahoma College of Medicine in Tulsa. He served as the Director
of Research at the Department of Surgery from 1990 through 1999.
In 1997, the Food and Drug Administration (FDA) approved a study of a
melanoma vaccine at the College of Medicine. Dr. McGee was the
sponsor/investigator of the study. By the middle of December 1999, problems
surfaced with regulatory compliance in the study. These problems eventually
received national media attention.
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Dr. McGee alleges that as the regulatory investigation unfolded, the
defendants 1
took a series of increasingly harsh measures against him. In June
2000, they locked him out of his office and his files and charts were confiscated.
On July 3, 2000, they removed him as vice-chair of the department of surgery,
stripped him of his administrative duties, and decreased his pay. Finally, on
July 19, 2000, he was informed that his tenure was to be abrogated.
Sometime thereafter, defendants prepared a complaint for abrogation of
Dr. McGee’s tenure. McGee filed an appeal from or response to the complaint, in
accordance with the procedures provided in the Faculty Handbook. On
December 7, 2000, defendants conducted an informal meeting with Dr. McGee.
A formal hearing subsequently was scheduled before the Faculty Appeals Board
(FAB).
Dr. McGee protested a number of the conditions established for the FAB
hearing. When these protests were not resolved in his favor, he announced his
intention not to attend, and he did not in fact attend the hearing. The University
then abrogated his tenure, citing his failure to attend the FAB hearing.
Dr. McGee thereafter brought this suit against the defendants, contending
they had denied him procedural and substantive due process in connection with
1
For simplicity’s sake, we refer here to “the defendants” in the aggregate
rather than discussing each defendant’s asserted responsibility for each alleged
act.
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the abrogation of his tenure and other steps taken against him. The district court
concluded that the defendants were entitled to qualified immunity, because
Dr. McGee’s complaint did not allege the violation of any constitutional right. It
further concluded that Dr. McGee had abandoned his right to assert the denial of
substantive due process and had waived his claim of procedural due process.
We review a dismissal under Rule 12(b)(6) de novo, applying the same
standards as the district court. County of Santa Fe v. Pub. Serv. Co. , 311 F.3d
1031, 1034 (10th Cir. 2002). “[W]e accept as true all well-pleaded factual
allegations in the amended complaint, and those allegations are viewed in the
light most favorable to the nonmoving party.” Id. (quotations omitted). A Rule
12(b)(6) dismissal should not be granted “unless it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim which would entitle him
to relief.” Id. at 1034-35 (quotation omitted).
Dr. McGee presents two main appellate challenges to the district court’s
order of dismissal. He argues, first, that the district court erred in granting the
defendants qualified immunity. Second, he argues that the district court erred in
holding that he waived his right to assert a due process claim by failing to attend
the FAB hearing.
We have carefully reviewed the district court’s order, the record, the briefs,
and the applicable law in light of the standard of review set forth above. At times
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in its decision, the district court made reference to factual “findings.” These
references appear inappropriate to a Rule 12(b)(6) disposition. Nevertheless,
under our de novo standard of review, we have concluded that dismissal of
Dr. McGee’s claims is appropriate. Dr. McGee relinquished his right to raise his
substantive due process assertions and waived his procedural due process claim
with his decision not to attend the formal FAB hearing. Case law firmly
establishes that failure to attend a deprivation hearing waives any claims a party
might raise about the hearing’s inadequacy. “If there is a process on the books
that appears to provide due process, the plaintiff cannot skip that process and use
the federal courts as a means to get back what he wants.” Alvin v. Suzuki ,
227 F.3d 107, 116 (3d Cir. 2000).
Federal courts do not sit to second guess state decisions on the merits
of a discharge decision, but only to ensure that employees are
provided due process when the decision is made . . . .[U]nless state
law fails to afford [Dr. McGee] adequate process, he has no federal
constitutional claim to begin with.
Pitts v. Bd. of Educ. , 869 F.2d 555, 557 (10th Cir. 1989). See also Giglio v.
Dunn , 732 F.2d 1133, 1135 (2d Cir. 1984) (holding plaintiff’s failure to avail self
of post-deprivation hearings resulted in waiver of due process claim). By failing
to attend the hearing, Dr. McGee “gave up his right to test the correctness of the
[University’s] decision.” Pitts , 869 F.2d at 557. This waiver analysis applies
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equally to his challenges to the pre-termination process, and to his liberty interest
and Fifth Amendment claims.
Therefore, dismissal of Dr. McGee’s claims is entirely appropriate and the
judgment of the district court is AFFIRMED.
Entered for the Court
John C. Porfilio
Circuit Judge
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