                                                          [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                        ________________________           FILED
                                                  U.S. COURT OF APPEALS
                               No. 09-13885         ELEVENTH CIRCUIT
                                                        MAY 28, 2010
                         ________________________
                                                         JOHN LEY
                                                           CLERK
                    D. C. Docket No. 06-02275-CV-5-VEH

SYLVANUS OGBURIA,

                                                       Plaintiff-Appellee-
                                                       Cross-Appellant,

                                     versus

JESSE CLEVELAND,
in his official capacity
as Trustee of Alabama A&M,
HALL BRYANT, JR.,
in his official capacity
as Trustee of Alabama A&M, et al.,

                                                       Defendants-Appellants-
                                                       Cross-Appellees.

                         ________________________

                 Appeals from the United States District Court
                    for the Northern District of Alabama
                       _________________________

                                (May 28, 2010)

Before BLACK, HULL and KRAVITCH, Circuit Judges.
PER CURIAM:

       The Trustees of Alabama A&M University (Trustees) appeal the district

court’s partial grant of summary judgment and award of injunctive relief to

Sylvanus Ogburia on his post-termination procedural due process claim, asserting

the district court erred in its application of McKinney v. Pate, 20 F.3d 1550 (11th

Cir. 1994) (en banc), in concluding Ogburia suffered a deprivation of his post-

termination due process rights, and in awarding injunctive relief. Ogburia cross-

appeals the district court’s partial grant of summary judgment to the Trustees,

asserting the district court erred in concluding Ogburia was provided sufficient

pre-termination procedural due process.

       After reading the parties’ briefs, de novo review of the record,1 and having

had the benefit of oral argument, we reverse in part, affirm in part, and remand

with instructions for the district court to enter judgment in favor of the Trustees.

                                     I. DISCUSSION

A. Adequate State Remedy

       In McKinney, we explained procedural due process violations do not

become “complete unless and until the State fails to provide due process. In other



       1
          The standard of review on all summary judgment issues is de novo. Menuel v. City of
Atlanta, 25 F.3d 990, 994 n.7 (11th Cir. 1994).

                                               2
words, the state may cure a procedural due process deprivation by providing a

later procedural remedy; only when the state refuses to provide a process sufficient

to remedy the procedural deprivation does a constitutional violation actionable

under section 1983 arise.” 20 F.3d at 1557 (internal quotations and citation

omitted). However, “[t]his directive is not an exhaustion requirement. Instead,

this directive is a recognition that procedural due process violations do not even

exist unless no adequate state remedies are available.” Cotton v. Jackson, 216

F.3d 1328, 1331 n.2 (11th Cir. 2000) (internal citation omitted).

      The district court erred by concluding the state remedies in this case were

inadequate. At the time Ogburia filed his lawsuit, the last action that had been

taken with respect to his termination was the Grievance Committee’s report and

recommendation in his favor, recommending the Davis “case be investigated by a

neutral committee before any final action is taken by the University.” In addition,

the University’s grievance procedures provided the report of the Grievance

Committee should be submitted to the Board of Trustees for final disposition.

There is no dispute that the case had not been re-investigated or that the case had

not been decided by the Board of Trustees as of the filing of this lawsuit. In fact,

the lawsuit was filed approximately one month before the next meeting of the

Trustees, and the Trustees never had the opportunity to act on the Grievance

                                          3
Committee’s report and recommendation before the filing of the lawsuit. Thus, at

the time Ogburia filed suit, there was still an adequate state remedy available and

the last decision was in his favor. As there was an adequate state remedy

available, the district court erred in finding that a claim for post-termination due

process existed.2

B. Pre-Termination Due Process

       The Supreme Court has explained the minimal requirements for due process

in the context of public employment:

       The essential requirements of due process . . . are notice and an
       opportunity to respond. The opportunity to present reasons, either in
       person or in writing, why the proposed action should not be taken is a
       fundamental due process requirement . . . . The tenured public
       employee is entitled to oral or written notice of the charges against
       him, an explanation of the employer’s evidence, and an opportunity to
       present his side of the story.

Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546, 105 S. Ct. 1487, 1495

(1985) (internal citation omitted).

       Here, it is undisputed that Ogburia was advised regarding the charges

against him by receiving a letter from Human Resources detailing the charges and




       2
          Because we conclude there was no claim for post-termination due process, all other
issues regarding the district court’s post-termination due process analysis are moot.

                                               4
copies of the formal complaints. Additionally, Ogburia provided the Investigation

Committee with detailed written responses, complete with exhibits, denying the

sexual harassment allegations. Ogburia also verbally denied the allegations and

presented his side of the story to the Investigation Committee. Thus, Ogburia was

provided both notice and an opportunity to respond, and the district court did not

err in concluding he received adequate pre-termination due process.

                                     II. CONCLUSION

       For the foregoing reasons, we reverse the district court’s partial grant of

summary judgment to Ogburia on his post-termination due process claim, affirm

the district court’s partial grant of summary judgment to the Trustees on Ogburia’s

pre-termination due process claim, and remand with instructions to enter summary

judgment in favor of the Trustees.3

       REVERSED in part, AFFIRMED in part, and REMANDED.




       3
           Because Ogburia suffered no deprivation of procedural due process, the injunctive
relief issue is now moot.

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