               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 06a0861n.06
                          Filed: November 22, 2006

                                         No. 06-5075

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT


HOBERT WAYNE HUMPHREY                          )
                                               )
       Plaintiff-Appellant,                    )
                                               )
v.                                             )    ON APPEAL FROM THE UNITED
                                               )    STATES DISTRICT COURT FOR THE
SCOTT COUNTY FISCAL COURT, et al.              )    EASTERN DISTRICT OF KENTUCKY
                                               )
       Defendants-Appellees.                   )



       Before: MARTIN and COOK, Circuit Judges; TARNOW, District Judge.*


       COOK, Circuit Judge. Plaintiff Hobert Wayne Humphrey sued the Scott County Sheriff’s

Department pursuant to 42 U.S.C. § 1983 for violations of the Fourteenth Amendment’s due process

guarantees. Relevant to this appeal, Humphrey claims the Sheriff’s Department terminated him

without notice and denied him the opportunity to be heard. The Sheriff’s Department moved for

summary judgment, which the district court granted. We affirm.


                                               I




       *
       The Honorable Arthur J. Tarnow, United States District Judge for the Eastern District of
Michigan, sitting by designation.

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       While serving as a deputy sheriff for the Scott County Sheriff’s Department in Kentucky in

December 2003, Humphrey was arrested and charged with hindering prosecution and official

misconduct. The Sheriff’s Department placed Humphrey on administrative leave with pay pending

resolution of the charges. There is some ambiguity about what happened immediately following

Humphrey’s June 2004 conviction: the Sheriff’s Department claims it terminated him; Humphrey

says he was placed on a three-month leave. But at an October 2004 meeting, Sheriff Bobby

Hammons told Humphrey that “he could not put [him] back on the road.” The district court relied

on this as Humphrey’s notice in granting Defendant’s motion for summary judgment, citing

Humphrey’s deposition testimony admitting that “he assumed he was terminated” as a result of the

October meeting with Hammons. The district court ruled that Humphrey received all the process

he was due, and alternatively, that Humphrey waived his due process claim by failing to exhaust his

administrative remedies under Kentucky law. Humphrey v. Scott County Fiscal Court, No. 5:05-3-

JMH, 2005 U.S. Dist. LEXIS 32362, at *2 (E.D. Ky. Dec. 9, 2005).


                                                II


        Humphrey claims that the Sheriff’s failure to notify him in writing of his termination as

specified by Ky. Rev. Stat. § 70.270 violates his Fourteenth Amendment procedural due process

rights. Assuming that Humphrey had a legitimate claim to continued employment under these

circumstances, we look to what process is due. Mitchell v. Fankhauser, 375 F.3d 477, 480 (6th Cir.

2004). While state law governs whether an individual has a protected property interest, we employ


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a federal constitutional analysis to determine whether the interest was deprived fairly or arbitrarily.

Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541 (1985); Black v. Parke, 4 F.3d 442, 447

(6th Cir. 1993).


       “The due process clause requires that, prior to termination, a public employee, with a

property interest in his or her public employment, be given oral or written notice of the charges

against him or her, an explanation of the employer’s evidence, and an opportunity to present his or

her side of the story to the employer.” Buckner v. City of Highland Park, 901 F.2d 491, 494 (6th Cir.

1990) (citations omitted) (emphasis added). Though Kentucky law prescribes written notice, no

procedural due process violation results from oral notice.


       Humphrey received sufficient oral notice of his termination when he met with Sheriff

Hammons in October 2004, and he admitted as much in his deposition. Humphrey’s arrest and

prosecution also sufficiently apprised him about the reasons for his termination. The district court

aptly summarized Humphrey’s notice as follows:


       Plaintiff’s state court trial for Official Misconduct and Hindering Prosecution apprised him
       of the evidence against him stemming from his arrest on December 28, 2003. Considering
       that Plaintiff was fully aware that his arrest led to his being placed on administrative leave
       and that his conviction led to his termination, the Court does not agree that Defendants’
       failure to provide a written explanation of the reason why Plaintiff was terminated deprived
       Plaintiff of any due process protections.




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Humphrey, 2005 U.S. Dist. LEXIS 32362, at *12–13. Thus, we conclude that Humphrey received

sufficient notice, and his meeting with Sheriff Hammons provided the informal opportunity for

discussion required. See Buckner, 901 F.2d at 494.


       Moreover, as the district court correctly recognized, Humphrey waived his procedural due

process claim by failing to pursue the administrative remedies provided by Kentucky law. This

failure prevents him from pursuing his procedural due process claim in federal court. As this circuit

explained in Farhat v. Jopke, 370 F.3d 580, 596 (6th Cir. 2004) (citation omitted), “[t]he law is

well-established that it is the opportunity for a post-deprivation hearing before a neutral

decisionmaker that is required for due process. As long as the procedural requirements are

reasonable and give the employee notice and an opportunity to participate meaningfully, they are

constitutionally adequate.” If the government provides this opportunity, and “the employee refuses

to participate or chooses not to participate in the post-termination proceedings, then the employee

has waived his procedural due process claim.” Id. (citation omitted). Here, Ky. Rev. Stat.

§ 70.270(2) provided Humphrey with the right to request review of his termination by the Scott

County Deputy Sheriff Merit Board. Humphrey failed to do this and provides no plausible

explanation.


                                                  III


       We affirm the district court’s judgment.



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