United States Court of Appeals,
Eleventh Circuit.
No. 94-7205.
John BELL, Plaintiff-Appellant,
v.
CITY OF DEMOPOLIS, ALABAMA; Austin Caldwell, individually and in
his official capacity as Mayor of the City of Demopolis, Alabama;
Charles Avery, individually and in his official capacity as Police
Chief of the City of Demopolis, Alabama, Defendants-Appellees.
June 20, 1996.
Appeal from the United States District Court for the Southern
District of Alabama. (No. CV-92-1051-CB-S), Charles R. Butler, Jr.,
Chief Judge.
Before TJOFLAT, Chief Judge, and RONEY and CAMPBELL*, Senior
Circuit Judges.
PER CURIAM:
In this section 1983 employment discrimination action,
plaintiff, a former police officer, alleged he received
constitutionally inadequate procedural due process both before and
after his termination. The district court refused to set aside a
grant of summary judgment for the defendants, holding that
plaintiff had suffered no due process violation. We affirm.
Plaintiff John Bell was a police officer with the Demopolis,
Alabama, police department. While employed by the department, Bell
was disciplined and reprimanded on a number of occasions. In early
June 1992, he was placed on indefinite suspension, and on July 1,
1992, he received written notice of his termination.
Bell's termination was reviewed and affirmed, first by a body
*
Honorable Levin H. Campbell, Senior U.S. Circuit Judge for
the First Circuit, sitting by designation.
comprised of the police chief, the mayor, and select members of the
city council called the "police committee," and then by the city
council.
Bell then brought this section 1983 action alleging violations
of federal substantive and procedural due process of law and state
law claims, seeking compensatory and punitive damages, as well as
reinstatement.
The district court granted defendants' motion for summary
judgment after Bell failed to timely respond. Bell then filed a
Fed.R.Civ.P. 60(b) motion asking the court to set aside the
defendants' summary judgment based on excusable neglect. After the
defendants filed an opposition brief, the court directed the
parties to file supplemental briefs addressing the merits of Bell's
due process claims in light of this Court's recent en banc decision
in McKinney v. Pate, 20 F.3d 1550 (11th Cir.1994), cert. denied, --
- U.S. ----, 115 S.Ct. 898, 103 L.Ed.2d 783 (1995).
The district court denied Bell's motion for relief from
judgment, holding that even if it were inclined to set aside the
judgment based on excusable neglect, there was no need to do so
because Bell could raise no genuine issue of material fact in
opposition to the summary judgment motion. It held that (1)
pursuant to McKinney, Bell's substantive due process claim fails as
a matter of law; (2) because Alabama has available a satisfactory
means by which Bell can seek redress for any procedural due process
deprivation, he does not have a cognizable procedural due process
claim, and (3) there was no state law wrongful discharge claim.
Bell argues that McKinney is not dispositive of his procedural
due process claim. In McKinney, the plaintiff based his due
process claim on the alleged bias of the decision maker at his
pretermination hearing. The en banc court 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. The Court determined that the State of
Florida's remedy for a biased decision maker, review by Florida
courts, satisfied due process.
Bell attempts to distinguish McKinney in three ways. First,
Bell asserts 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. See, e.g., Ex Parte Tuskegee,
447 So.2d 713 (Ala.1984); Guinn v. Eufaula, 437 So.2d 516
(Ala.1983).
Second, Bell describes his attack as one on the termination
process itself, whereas the plaintiff in McKinney challenged
procedures as they applied to him. For the first time in his
supplemental brief in support of his motion to set aside the
judgment, Bell stated his challenge was "to the state's system
itself, and its failure to ever provide him with a proper
evidentiary hearing with counsel, witnesses, and
cross-examination." Bell's characterization cannot belie the fact
that the meat of his complaint—bias on the part of the police
committee and the city council and inadequate time to speak in his
post-termination hearing—amounts to an "as applied" attack. The
evidence before the district court indicates that Bell was in no
way restricted from being represented by counsel or examining and
cross-examining witnesses. At no time did Bell present any
evidence to the contrary. In fact, Bell stipulated in the pretrial
order that he had no complaints about how his hearings were
handled.
Third, Bell distinguished his challenge from the type of
process challenged in McKinney. The plaintiff inMcKinney attacked
only the adequacy of the pre termination process he received,
positing his challenge directly in federal court instead of seeking
post-termination review in the state system. Bell, on the other
hand, challenged primarily the post-termination process, having
pursued state court remedies. The controlling factor in McKinney,
however, was that the state had a mechanism in place which appears
adequate to remedy any procedural due process violations. Though
the plaintiff in McKinney did not pursue post-termination remedies,
this Court determined that because there was an adequate state
remedy available—state court review—no due process violation
existed. Likewise in this case, the state offers an adequate
remedy in the form of administrative as well as state court review.
Alternatively, Bell argues that McKinney was wrongly decided
and should be overturned. This panel, however, is bound by prior
panel decisions of the Eleventh Circuit, and, of course, the
decisions of the en banc court, such as McKinney.
The district court correctly held that considering all the
evidence in the light most favorable to Bell, he has failed to
establish a genuine issue of material fact and is therefore not
entitled to obtain relief from judgment in this case.
AFFIRMED.