                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 17a0616n.06

                                   Case Nos. 16-4200/17-3187                         FILED
                                                                               Nov 08, 2017
                                                                           DEBORAH S. HUNT, Clerk
                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


RICHARD MARTINEZ,                                  )
                                                   )
     Plaintiff-Appellant/Cross-Appellee,           )
                                                   )      ON APPEAL FROM THE UNITED
v.                                                 )      STATES DISTRICT COURT FOR
                                                   )      THE NORTHERN DISTRICT OF
CITY OF CLEVELAND; MARTIN FLASK,                   )      OHIO
Individually and in his Official Former            )
Capacity as Director, Department of Public         )
Safety; MICHAEL MCGRATH, Individually              )
and in his Official Former Capacity as Chief       )
of Police,                                         )
                                                   )
     Defendants-Appellees/Cross-Appellants.        )
                                                   )

         BEFORE: SILER, KETHLEDGE, and THAPAR, Circuit Judges.

         THAPAR, Circuit Judge. Sergeant Richard Martinez wants to become a lieutenant in the

City of Cleveland’s Police Department. So he took the department’s civil service exam—the

means historically used to rank aspiring lieutenants—and finished seventh.            When the

department promoted the six people ahead of him in rank order, Martinez hoped his time for

promotion had arrived.

         But when Martinez’s turn came, the department passed him over. The department did so

by applying its “one-in-three” policy to bypass Martinez for a lower-scoring candidate. The

“one-in-three” policy allows the department to select any one of the top three scoring candidates
Case Nos. 16-4200/17-3187
Martinez v. City of Cleveland

to fill a vacant position. See Cleveland, Ohio, Charter § 133 (2015). And when additional

vacancies opened up, the department applied “one-in-three” to pass Martinez over again: three

more times in fact. This happened, according to Martinez, in spite of the department’s “past

practice and de facto policy” to promote whoever had the highest score. Martinez’s test score

ultimately expired, and he was removed from the eligibility list without a promotion.

       Martinez raised his grievance with his union. But when the union tried to arbitrate with

the department, the department obtained an injunction barring arbitration. So Martinez filed a

complaint in federal district court, claiming that the City and several local officials violated his

due process rights when they failed to promote him. He also sought a writ of mandamus

ordering the defendants to promote him to lieutenant. The district court dismissed his complaint

for failure to state a claim, and Martinez now appeals. We review the district court’s dismissal

de novo. La. Sch. Emps.’ Ret. Sys. v. Ernst & Young, LLP, 622 F.3d 471, 477 (6th Cir. 2010).

       Procedural Due Process. To survive a motion to dismiss on his procedural due process

claim, Martinez needed to plead facts that, if proven to be true, would support a finding that

(1) the defendants deprived him of a constitutionally protected interest and (2) he was not

provided adequate procedural rights to protect that interest. See Hahn v. Star Bank, 190 F.3d

708, 716 (6th Cir. 1999).

       The protected-interest element is easy: This court has previously found that a plaintiff

adequately pleaded a protected property interest in a nearly identical case. In Paskvan, a police

officer was passed over for a promotion despite his examination score and resulting rank.

Paskvan v. City of Cleveland Civil Serv. Comm’n, 946 F.2d 1233, 1234 (6th Cir. 1991). The

officer alleged that the department violated his procedural due process rights by failing to

promote him, but the district court dismissed his claim. Id. at 1234–35. This court reversed,


                                               -2-
Case Nos. 16-4200/17-3187
Martinez v. City of Cleveland

finding that the officer had adequately alleged a deprivation of a protected property interest. Id.

at 1237. So too here. And although defendants ask us to reconsider Paskvan, a prior panel

decision remains binding until the Supreme Court or the Sixth Circuit sitting en banc says

otherwise. See Salmi v. Sec’y of Health & Human Servs., 774 F.2d 685, 689 (6th Cir. 1985).

       The remaining question is whether Martinez received adequate process. Neither side

disputes that the department did not give Martinez notice or a hearing before promoting lower-

scoring candidates over him. But lack of pre-deprivation process is not dispositive—post-

deprivation process may suffice. Parratt v. Taylor, 451 U.S. 527, 538 (1981), overruled on other

grounds by Daniels v. Williams, 474 U.S. 327 (1986). And in the procedural due process

context, an adequate remedy available under state law constitutes post-deprivation process.

Zinermon v. Burch, 494 U.S. 113, 125–26 (1990).

       Here, Martinez had numerous state-law remedies available to him. D’Amico v. City of

Strongsville, 59 F. App’x 675, 678 (6th Cir. 2003) (per curiam). For example, he could have

brought a declaratory judgment action to determine his rights to a promotion or a breach of

contract suit, requested an investigation and hearing before the civil service commission, or

sought a writ of mandamus. Id.; see Shirokey v. Marth, 585 N.E.2d 407, 413–14 (Ohio 1992).

And while Martinez disputes whether some of these remedies were available or adequate, he

sought a writ of mandamus in this very action. Because Martinez had at least one adequate state-

law remedy available to him, no due-process violation occurred.

       Martinez suggests that the district court erred in refusing to accept his allegation that

state-law remedies were inadequate. He is mistaken. His legal conclusion did not bind the

district court. Fritz v. Charter Twp. of Comstock, 592 F.3d 718, 722 (6th Cir. 2010) (noting that

a “‘legal conclusion couched as a factual allegation’ need not be accepted as true on a motion to


                                               -3-
Case Nos. 16-4200/17-3187
Martinez v. City of Cleveland

dismiss” (quoting Hensley Mfg. v. ProPride, Inc., 579 F.3d 603, 609 (6th Cir. 2009))); Jackson v.

City of Columbus, 194 F.3d 737, 745, 749–51 (6th Cir. 1999) (noting that a district court need

not accept a plaintiff’s “summary allegations or unwarranted legal conclusions” at the pleading

stage and affirming the court’s rejection of plaintiff’s allegation that state-law remedies were

inadequate), abrogated on other grounds by Swierkiewicz v. Sorema N. A., 534 U.S. 506 (2002);

see also Locurto v. Safir, 264 F.3d 154, 170 (2d Cir. 2001) (“Whether a post-deprivation remedy

is adequate presents a question of law.”). The district court thus properly dismissed his claim.

       Writ of Mandamus. Martinez also asked the district court to issue a writ of mandamus

ordering the defendants to promote him to lieutenant. The district court dismissed his claim,

reasoning that he could not seek a writ as a freestanding cause of action. The district court’s

reasoning was incorrect: As both sides concede, Ohio law does permit a party to seek a writ of

mandamus as an independent cause of action. See Ohio Rev. Code Ann. § 2731.02; Shirokey,

585 N.E.2d at 414. The district court’s misapplication of Ohio law demonstrates why there is a

“strong presumption” in favor of declining to exercise jurisdiction over supplemental state-law

claims after dismissing federal anchor claims under Rule 12(b)(6). See 28 U.S.C. § 1367(c)(3);

Musson Theatrical, Inc. v. Fed. Express Corp., 89 F.3d 1244, 1255 (6th Cir. 1996). This

presumption follows from the common-sense recognition that our state-court brethren are better

equipped to address issues of state law. On remand, the district court can consider whether it

will exercise its discretionary jurisdiction over this claim.




                                                 -4-
Case Nos. 16-4200/17-3187
Martinez v. City of Cleveland

                                         *    *    *

       For these reasons, we AFFIRM the district court’s dismissal of Martinez’s procedural

due process claim. We VACATE its dismissal of Martinez’s petition for a writ of mandamus

under Ohio law and REMAND with instructions to consider this claim consistent with this

opinion.




                                             -5-
