IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-31427
Summary Calendar
KEVIN E. JOHNSON,
Plaintiff-Appellant,
versus
LOUISIANA STATE POLICE ET AL.,
Defendants,
PAUL W. FONTENOT, Colonel; MINEL J. FOLSE, Captain; JOHN W.
SOILEAU, Lieutenant, in their official and individual capacities,
Defendants-Appellees.
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Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 96-CV-108
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October 23, 2000
Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Kevin Johnson appeals summary judgments dismissing his
claims raised pursuant to 42 U.S.C. § 1983. Johnson alleges
deprivations of due process and equal protection afforded by the
Fourteenth Amendment. He contends that, during a hostile
interview concerning allegations of prior misconduct made by his
previous employer, defendants Folse and Soileau, with support
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 99-31427
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from defendant Fontenot, coerced him into resigning his position
as a Louisiana State Police probationary cadet. He further
alleges that the defendants denied him a “name clearing” appeal
hearing by providing only “sham appellate proceedings.”
Three summary-judgment motions were filed in the district
court. The first resulted in the dismissal of all claims except
procedural due process claims against three individuals. The
second motion sought dismissal of the remaining procedural due
process claims and was denied on narrow grounds. The third
motion, decided by a judge new to the case, resulted in the
dismissal of all remaining claims and defendants. Johnson
challenges aspects of both summary judgments. He argues that he
was deprived of procedural due process and substantive due
process. He also contends that the court ignored the “law of the
case” and improperly granted the last summary-judgment motion sua
sponte in favor of Folse and Soileau although only Fontenot was
the named movant. All other issues are waived by Johnson’s
failure to argue them in this court. Yohey v. Collins, 985 F.2d
222, 225 (5th Cir. 1995).
Summary judgment is reviewed de novo and is proper if
“‘there is no genuine issue as to any material fact and . . . the
moving party is entitled to judgment as a matter of law.’”
Amburgey v. Corhart Refractories Corp., 936 F.2d 805, 809 (5th
Cir. 1991) (quoting Fed. R. Civ. P. 56(c)). Summary judgment
must be entered against a nonmovant who cannot establish elements
essential to his case. Little v. Liquid Air Corp., 37 F.3d 1069,
1075 (5th Cir. 1994) (en banc). This court construes the facts
No. 99-31427
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in the light most favorable to nonmovant Johnson and assumes that
he was involuntarily terminated from a position in which he had a
constitutionally protected property interest.
Procedural due process is provided when even a minimal
predeprivation hearing is “coupled with post-termination
administrative procedures.” Cleveland Bd. of Educ. v.
Loudermill, 470 U.S. 532, 546-48 (1985); Schaper v. City of
Huntsville, 813 F.2d 709, 713-16 (5th Cir.1987). A
pretermination due-process hearing need not be elaborate; the
essential elements “are notice and an opportunity to respond.”
Loudermill, 470 U.S. at 546.
At Johnson’s pretermination hearing, Folse and Soileau
accused Johnson of misconduct and allowed him to respond to the
charges and make a statement. Even if it is assumed that Folse
and Soileau were so hostile to Johnson that his “resignation” was
actually an involuntary termination, Johnson received
predeprivation due process. The defendants also offered Johnson
a postdeprivation hearing which he declined to attend. His
contention that the appeal process was “sham” is unsupported by
the record. “[O]ne who fails to take advantage of procedural
safeguards available to him cannot later claim that he was denied
due process.” Browning v. City of Odessa, 990 F.2d 842, 845 n.7
(5th Cir. 1993).
Substantive due process protects individuals against certain
governmental actions regardless of procedural safeguards. Walton
v. Alexander, 44 F.3d 1297, 1302 (5th Cir. 1995). To state a
substantive due process claim, Johnson must show that his
No. 99-31427
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termination was irrational, arbitrary, or not reasonably related
to any legitimate governmental interest. Williams v. Texas Tech
Univ. Health Sciences Ctr., 6 F.3d 290, 294 (5th Cir. 1993);
Neuwirth v. Louisiana State Bd. of Dentistry, 845 F.2d 553, 558
(5th Cir. 1988). In his interview, Johnson conceded that he
committed misconduct and lied during his prior employment. He
also conceded that he lied during the interview. Thus his
termination was not irrational or unrelated to a legitimate
governmental interest in having honest and diligent policemen.
Johnson contends that the district court improperly granted
the last summary judgment in favor of Folse and Soileau sua
sponte because the only movant was Fontenot. This court assumes
without deciding that the motion was granted sua sponte as to
Folse and Soileau. A district court has the power to enter
summary judgment sua sponte provided that the nonmovant has
notice consistent with Rule 56. Leatherman v. Tarrant County
Narcotics Intelligence & Coordination Unit, 28 F.3d 1388, 1397-98
(5th Cir. 1994). Johnson had notice that he was in jeopardy of
having his entire case dismissed, as shown by his response to the
motion in which he addressed arguments pertaining to all of the
defendants. Even if the notice were deemed inadequate, summary
judgment was harmless because it was granted as a matter of law
after resolving factual disputes in Johnson’s favor. Thus, there
was no additional evidence that Johnson could have offered that
would justify relief. See Ross v. University of Texas at San
Antonio, 139 F.3d 521, 527 (5th Cir. 1998).
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Johnson also contends that the “law of the case” doctrine
foreclosed summary judgment on the issue of procedural due
process because the previous judge had denied summary judgment on
that issue. “[T]he law of the case doctrine is a discretionary
rule of practice which does not limit the power of the court to
revisit a legal issue.” Copeland v. Merrill Lynch & Co., 47 F.3d
1415, 1424 (5th Cir. 1995). An earlier denial of summary
judgment is not res judicata and does not preclude a subsequent
grant of summary judgment. United States v. Horton, 622 F.2d
144, 148 (5th Cir. 1980). The law of the case did not preclude
the final grant of summary judgment.
The judgments of the district court are AFFIRMED
AFFIRMED