                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 13-3378
                        ___________________________

Antonnette A. Hopkins, individually and on behalf of all others similarly situated

                        lllllllllllllllllllll Plaintiff - Appellant

                                            v.

                              The City of Bloomington

                       lllllllllllllllllllll Defendant - Appellee
                                      ____________

                     Appeal from United States District Court
                    for the District of Minnesota - Minneapolis
                                   ____________

                             Submitted: October 9, 2014
                             Filed: December 22, 2014
                                  ____________

Before RILEY, Chief Judge, WOLLMAN and BYE, Circuit Judges.
                             ____________

BYE, Circuit Judge.

     Antonnette A. Hopkins filed this 42 U.S.C. § 1983 action against the City of
Bloomington (the City), alleging Minnesota’s vehicle forfeiture statute violated her
due process rights under the Fifth Amendment and article I, section 7, of the
Minnesota Constitution, and amounted to an unreasonable seizure in violation of the
Fourth Amendment and article I, section 10, of the Minnesota Constitution. The
district court1 dismissed Hopkins’s complaint, and she appeals. We affirm.

                                           I

        After Hopkins was arrested for driving while impaired, her third driving while
impaired offense in ten years, police officers towed and impounded her vehicle under
Minnesota Statute § 169A.63, subdivision 1(e)(1) (2009). Hopkins received a notice
of seizure and intent to forfeit her vehicle from the officers. Hopkins was thereafter
charged with one count of second-degree driving while impaired. Hopkins made her
initial appearance in the case on March 17, 2011, the day after being arrested, and
was released with conditions after posting bond.

       On March 30, 2011, Hopkins filed a demand for a judicial determination
pursuant to Minnesota Statute § 169A.63, subdivision 9 (2009), challenging the
vehicle forfeiture and requesting the immediate return of her vehicle. The court
administrator, however, did not schedule a hearing on the demand because according
to subdivision 9(d), “[a] judicial determination . . . must not precede adjudication in
the criminal prosecution of the designated offense without the consent of the
prosecuting authority.” Hopkins neither requested a decision on her demand prior to
the resolution of her underlying criminal case nor utilized the procedures offered by
subdivision 4, which allow an owner to give security or post bond in exchange for the
vehicle. On September 5, 2012, Hopkins voluntarily withdrew her demand for
judicial determination. Hopkins pled guilty on January 30, 2013.2


      1
      The Honorable John R. Tunheim, United States District Judge for the District
of Minnesota.
      2
       The resolution of Hopkins’s criminal case was delayed after she moved for
and received a continuance pending the outcome of separate litigation relating to the
breathalyzer utilized for Hopkins and other individuals.

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       Hopkins then filed this § 1983 claim, alleging the Minnesota vehicle forfeiture
statute violated both the federal and state constitutions by depriving Hopkins of
procedural due process and by unreasonably seizing her vehicle. The City moved for
dismissal of the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). The
district court granted the City’s motion to dismiss for all four of Hopkins’s claims,
finding the claim for a lack of pre-deprivation procedural due process failed as a
matter of law, the claim for a lack of post-deprivation procedural due process was
barred because Hopkins failed to exhaust available state remedies, the Fourth
Amendment claim was not cognizable, and Hopkins conceded to dismissal of her
state constitutional claims. Hopkins appeals.

                                           II

       We “review[ ] de novo the grant of a motion to dismiss for failure to state a
claim under Federal Rule of Civil Procedure 12(b)(6).” Levy v. Ohl, 477 F.3d 988,
991 (8th Cir. 2007). We will affirm the dismissal if the complaint fails to allege facts
sufficient to “state a claim to relief that is plausible on its face.” Walker v. Barrett,
650 F.3d 1198, 1203 (8th Cir. 2011) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)). Factual allegations contained in the complaint are assumed true.
Levy, 477 F.3d at 991. “A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). “A pleading that offers labels and conclusions or a formulaic recitation of the
elements of a cause of action will not do.” Id. (internal quotation marks and citation
omitted).

      Hopkins’s sole argument on appeal is the district court erred by finding she
needed to exhaust state remedies prior to filing her § 1983 claim for post-deprivation
procedural due process. Generally, a plaintiff is not required to exhaust state
administrative remedies as a prerequisite to bringing an action pursuant to § 1983.

                                          -3-
Patsy v. Bd. of Regents of Fla., 457 U.S. 496, 516 (1982); see also Barry v. Barchi,
443 U.S. 55, 63 n.10 (1979) (“Under existing authority, exhaustion of administrative
remedies is not required when the question of the adequacy of the administrative
remedy . . . is for all practical purposes identical with the merits of the plaintiff’s
lawsuit.” (internal quotation marks and citation omitted)). The Eighth Circuit,
however, has “recognized an exception to Patsy’s general rule that exhaustion of state
remedies prior to bringing a section 1983 claim is not required.” Keating v. Neb.
Pub. Power Dist., 562 F.3d 923, 929 (8th Cir. 2009). “Under federal law, a litigant
asserting a deprivation of procedural due process must exhaust state remedies before
such an allegation states a claim under § 1983.” Wax ‘n Works v. City of St. Paul,
213 F.3d 1016, 1019 (8th Cir. 2000), see also Christiansen v. W. Branch Cmty. Sch.
Dist., 674 F.3d 927, 935-36 (8th Cir. 2012) (affirming the dismissal of a complaint
alleging post-deprivation procedural due process because the plaintiff failed to pursue
available post-termination administrative remedies); Crooks v. Lynch, 557 F.3d 846,
848 (8th Cir. 2009) (“[T]his requirement is distinct from exhaustion requirements in
other contexts. Rather, this requirement is necessary for a procedural due process
claim to be ripe for adjudication.”).

       In Hopkins’s case, she did not exhaust available state administrative remedies
offered pursuant to Minnesota Statute § 169A.63 (2009) prior to bringing her § 1983
claim, and she makes no argument she exhausted those available remedies.
Nonetheless, citing Lathon v. City of St. Louis, 242 F.3d 841 (8th Cir. 2001), and
King v. Fletcher, 319 F.3d 345 (8th Cir. 2003), Hopkins argues it was unnecessary
for her to exhaust the administrative remedies and the court should instead consider
her challenges to the adequacy of the administrative remedies. Hopkins additionally
cites Ali v. Ramsdell, 423 F.3d 810, 814 (8th Cir. 2005), which quotes Justice Sandra
Day O’Connor’s concurring opinion in Hudson v. Palmer, 468 U.S. 517, 539 (1984):
“[I]n challenging a property deprivation, the claimant must either avail himself of the
remedies guaranteed by state law or prove that the available remedies are
inadequate.”

                                         -4-
       Hopkins’s reliance on Lathon and King is not persuasive because, although the
courts considered the adequacy of available remedies, the remedies analyzed, state
replevin actions, are distinguishable from the administrative remedies available in
Hopkins’s case and the exhaustion of administrative remedies was not at issue in
either of those cases. See Lathon, 242 F.3d at 844 (“In any event, we believe there
is no adequate postdeprivation state remedy. Mr. Lathon’s recourse would not be
under Mo. Rev. Stat. § 542.301, but in an action for replevin.”); King, 319 F.3d at
350 (affirming the denial of summary judgment because a genuine issue of material
fact existed as to whether the appellees’ suit in state court to recover their vehicles
constituted an adequate post-deprivation remedy). Further, Hopkins’s cite to Ali is
misplaced for the same reasons. 423 F.3d at 813-14. Accordingly, because Hopkins
voluntarily ceased pursuing available state administrative remedies, she waived her
ability to pursue a post-deprivation procedural due process claim and the district court
did not err by dismissing her claim. See Krentz v. Robertson Fire Prot. Dist., 228
F.3d 897, 904 (8th Cir. 2000) (finding that a plaintiff who was “aware of the available
administrative procedures, yet . . . did not pursue relief thereunder” had waived due
process).

                                          III

      For the foregoing reasons, we affirm.
                      ______________________________




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