                United States Court of Appeals
                          For the Eighth Circuit
                    ______________________________

                              No. 15-3575
                    ______________________________

                              Rodney Raymond

                                      Plaintiff - Appellant

                                      v.

               Board of Regents of the University of Minnesota,
                   individually in their official capacities;
                         The University of Minnesota

                                   Defendants - Appellees
                    ______________________________

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

                      Submitted: November 15, 2016
                          Filed: January 31, 2017
                    ______________________________

Before BENTON and SHEPHERD, Circuit Judges, and STRAND,1 District Judge.
                  ______________________________


STRAND, District Judge.




     1
      The Honorable Leonard T. Strand, United States District Judge for the
Northern District of Iowa, sitting by designation.
       Rodney Raymond (Raymond) brought this action against the Board of Regents
of the University of Minnesota, individually in their official capacities (Regents), and
the University of Minnesota (University) pursuant to 42 U.S.C. § 1983, seeking
damages and injunctive relief. The district court2 dismissed Raymond’s amended
complaint. This appeal followed. We affirm.

I.      BACKGROUND
       A.    Raymond’s Amended Complaint3
       Raymond was employed as a wellness director and fitness instructor at the
University’s Duluth campus. Beginning in 2009, the University received reports that
Raymond was violating various school policies, including policies related to sexual
harassment. Raymond denied the allegations and the University conducted
investigations. Each investigation concluded Raymond had indeed violated school
policies. He appealed these decisions to varying degrees, with each appeal being
determined against him.

       Raymond alleged that one of the investigations was tainted by bias and
involved collusion between the investigator and complainant. A University panel
agreed and decided to hire a new investigator. Raymond objected to a new
investigation on double jeopardy and due process grounds. The University denied
Raymond’s objection. Raymond then requested to be involved in selecting the new
investigator. This request was denied. The new investigator was hired based, in part,
on the recommendation of the University’s legal counsel. Raymond requested the


      2
       The Honorable Donovan W. Frank, United States District Judge for the
District of Minnesota.
      3
       We must accept the factual allegations set forth in the amended complaint as
true for purposes of deciding whether the district court properly dismissed that
complaint. See e.g., Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 591 (8th Cir.
2009).
                                          -2-
investigator recuse himself given that the attorney who had recommended him would
be the “prosecutor” against Raymond. This request was denied.

       Raymond alleged the new investigation was flawed because it went beyond the
scope of the allegations and was not justified by University policy. According to
Raymond, the new investigator engaged in unprofessional communications with
Raymond’s counsel, failed to investigate the collusion in the original investigation,
exceeded the scope of his investigatory mandate, distorted witness statements and
came to erroneous conclusions. He also alleged that an appellate panel had found the
investigator “over-reached in his attempt to show that [Raymond] should be
disciplined by [the University.]” See Amended Complaint at ¶ 9. During the
investigative process, Raymond contends he never had the opportunity to examine or
cross-examine witnesses.

       On November 19, 2012, Raymond submitted a written request to the Regents
that they intervene as a court of appeal and provide him with a hearing to address his
grievances with respect to the investigation. The Regents denied this request through
written correspondence dated December 12, 2012. On April 10, 2013, the University
informed Raymond that the investigation concluded there was “just cause” to
discipline him for violations of University policy. Raymond requested the
opportunity to respond to this letter, but was informed on April 25, 2013, that the
University had decided to terminate his employment.

      On May 1, 2013, Raymond filed a petition with the Office of Conflict
Resolution (OCR) challenging the termination and requesting a hearing. Around this
time, news reports were purportedly circulating regarding his discharge and the
sexual harassment allegations. On August 8, 2013, the OCR issued a jurisdictional
decision to determine the scope of panel review in addressing the grounds for
Raymond’s discharge. On October 13, 2013, the Provost intervened and overturned
the OCR’s jurisdictional decision by limiting the scope of the hearing to exclude the

                                         -3-
sexual harassment allegations from further review. Raymond contends these
allegations were a basis for the University’s termination decision.

      On November 7, 2013, Raymond requested that the presiding hearing officer
recuse herself because she had been privy to the investigative report that led to
Raymond’s discharge, which included the sexual harassment allegations. In addition,
he requested a new hearing panel and the submission of a redacted report excluding
the sexual harassment allegations. The University denied these requests.

      On February 5, 2014, Raymond withdrew from the hearing process “based on
the futility of the process and its inherent unfairness and bias towards him, and
because of the University’s bad faith in its dealings with him.” See Amended
Complaint at ¶ 21. Raymond contends that the University used the process to harass
him and discourage his legitimate defenses to discharge. He alleges that if he had
continued to engage in the process, which he claims was unfair and biased, he would
have been irreparably injured.

        On September 19, 2014, Raymond requested a post-termination hearing before
the Regents to address all the grounds for his discharge. He also requested the
Regents consult outside counsel because the University’s counsel had been involved
in the investigative, “prosecutorial,” and decision-making processes. These requests
were denied.

       Raymond’s amended complaint asserted two claims of procedural due process
violations—one against his liberty interest and the other against his property interest.
He sought damages and injunctive relief.

     B.     Proceedings Below
     Pursuant to Federal Rules of Civil Procedure 12(b)(6) and 12(b)(1), the
University and Regents moved to dismiss the amended complaint for failure to state

                                          -4-
a claim upon which relief could be granted and lack of subject matter jurisdiction.
The district court granted the motion. It dismissed Raymond’s claims against the
University on Eleventh Amendment grounds and similarly ruled that the Eleventh
Amendment prohibits Raymond from seeking damages from the Regents. Raymond’s
appeal does not address these issues.

        With regard to injunctive relief, the district court found Raymond had failed
to state a due process claim upon which relief could be granted. In doing so, the court
analyzed whether the University’s pre-termination and post-termination procedures
were adequate and concluded they were. The court also found that Raymond failed
to exhaust state remedies. The court rejected Raymond’s allegation that exhaustion
would have been futile, noting that futility must be based on certainty rather than the
subjective belief of the person asserting futility. The court also concluded that the
futility exception is not available in the context of a § 1983 procedural due process
claim. Raymond appeals the dismissal of his claims for injunctive relief.

II.    DISCUSSION
       A.     Standard of Review
       “‘Whether a complaint states a cause of action is a question of law which we
review on appeal de novo.’” Packard v. Darveau, 759 F.3d 897, 900 (8th Cir. 2014)
(quoting Miller v. Redwood Toxicology Lab., Inc., 688 F.3d 928, 936 (8th Cir. 2012)).
Under Rule 12(b)(6), a defendant may move for dismissal based on a plaintiff’s
“failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6).
“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.’” Hopkins v. City of Bloomington, 774
F.3d 490, 491-92 (8th Cir. 2014) (quoting Walker v. Barrett, 650 F.3d 1198, 1203
(8th Cir. 2011)). “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).



                                           -5-
      B.     Raymond’s Due Process Claims
      Raymond alleges that he was deprived of liberty and property interests without
due process when his employment with the University was terminated. The Regents
and University do not challenge the adequacy of Raymond’s alleged interests.
Rather, they argue Raymond did not satisfy a condition of his procedural due process
claims—exhaustion of state remedies. For this reason, they argue the district court’s
decision should be affirmed.

       “[T]he exhaustion requirement is an affirmative defense that a defendant must
plead and prove.” Nash v. Lappin, 172 F. App’x 702, 703 (8th Cir. 2006) (per
curiam). However, “[i]f an affirmative defense . . . is apparent on the face of the
complaint . . . that [defense] can provide the basis for dismissal under Rule 12(b)(6).”
C.H. Robinson Worldwide, Inc. v. Lobrano, 695 F.3d 758, 764 (8th Cir. 2012)
(quoting Noble Sys. Corp. v. Alorica Cent., LLC, 543 F.3d 978, 983 (8th Cir. 2008))
(alterations in original). “Generally, a plaintiff is not required to exhaust state
administrative remedies as a prerequisite to bringing an action pursuant to § 1983.”
Hopkins, 774 F.3d at 492 (citing Patsy v. Bd. of Regents of Fla., 457 U.S. 496, 516
(1982)). However, this court has “recognized an exception to Patsy’s general rule
that exhaustion of state remedies prior to bringing a section 1983 claim is not
required.” Id. (quoting 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.” Id. (quoting Wax ‘n Works v. City of St. Paul, 213 F.3d 1016, 1019 (8th Cir.
2000)).

       “[A]n employee who fails to request post-termination process cannot later sue
for having been deprived of it.” Winskowski v. City of Stephen, 442 F.3d 1107, 1111
(8th Cir. 2006); see also Krentz v. Robertson, 228 F.3d 897, 904 (8th Cir. 2000)
(“[A]n employee waives a procedural due process claim by refusing to participate in
post-termination administrative or grievance procedures made available by the

                                          -6-
state.”). “[T]his requirement is distinct from exhaustion requirements in other
contexts.” Crooks v. Lynch, 557 F.3d 846, 848 (8th Cir. 2009). “Rather, this
requirement is necessary for a procedural due process claim to be ripe for
adjudication.” Id. A plaintiff “cannot complain of a violation of procedural due
process when he has not availed himself of existing procedures.” Anderson v.
Douglas Cnty., 4 F.3d 574, 578 (8th Cir. 1993).

       Although Raymond’s amended complaint focuses primarily on the adequacy
of the post-termination procedures, we must first consider whether he has sufficiently
alleged a pre-termination procedural due process violation, which would not require
exhaustion. See Keating, 562 F.3d at 929 (“[I]t is not necessary for a litigant to have
exhausted available postdeprivation remedies when the litigant contends that he was
entitled to predeprivation process.”) (emphasis in original)). In the context of a
public employee’s discharge, a pre-termination hearing is required, although it “need
not be elaborate.” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 545 (1985);
see also Christiansen v. West Branch Comm. Sch. Dist., 674 F.3d 927, 934 (8th Cir.
2012) (“Due process does not require elaborate pre-termination procedures, especially
where meaningful post-termination process is available.”).

      “The essential requirements of due process . . . are notice and an opportunity
to respond.” Loudermill, 470 U.S. at 546. “To satisfy minimal due-process
requirements at the pre-termination stage, a public employer must give the public
employee 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.” Smutka v.
City of Hutchinson, 451 F.3d 522, 526-27 (8th Cir. 2006) (internal quotations
omitted). “To require more than this prior to termination would intrude to an
unwarranted extent on the government’s interest in quickly removing an
unsatisfactory employee.” Id.




                                          -7-
       Raymond alleges that when the University began investigating the alleged
violations of school policies, he denied the allegations and appealed the conclusions,
with each appeal being determined against him. Raymond presented evidence of bias
and collusion to the University, which led an appellate panel to determine that
investigation could not be used against Raymond. Raymond objected to a new
investigation on double jeopardy and due process grounds. His request was denied.
He then requested to be involved in the selection of a new investigator. That request
was denied. Finally, he requested that the new investigator recuse himself. That
request was also denied. Following the second investigation, Raymond submitted a
written request to the Regents to sit as a court of appeal and provide him a hearing to
address his grievances. That request was denied through written correspondence.
Raymond then received a letter dated April 10, 2013, advising him that the
investigative report found “just cause” to discipline Raymond for violating school
policies. Raymond requested an opportunity to respond, but received a letter on April
25, 2013, notifying him his employment had been terminated.

       These allegations, taken as true from Raymond’s amended complaint, fail to
state a claim of a pre-termination due process violation. Indeed, they establish the
opposite. Raymond was advised of the allegations and evidence against him. He had
the opportunity to respond, and did respond, to the allegations. Indeed, the University
agreed with his complaints of bias and collusion as to one investigation and ordered
a new investigation. During the subsequent investigation, the University and Regents
responded to Raymond’s requests. His only complaint about this process is that he
was never afforded the opportunity to examine or cross-examine witnesses. This type
of formal process is not required prior to termination. See Mathews v. Eldridge, 424
U.S. 319, 343 (1976) (noting that “something less than an evidentiary hearing is
sufficient prior to adverse administrative action.”). Because Raymond did not
sufficiently plead a pre-termination procedural due process violation, exhaustion of
state remedies is required to proceed on his post-termination claim.



                                          -8-
       Raymond’s amended complaint acknowledges that he withdrew from the post-
termination OCR process by withdrawing his petition on February 5, 2014.
Therefore, he did not exhaust state remedies. However, Raymond contends this
failure is not detrimental to his claim. He alleges that he withdrew from the process
“based on the futility of the process and its inherent unfairness and bias towards him,
and because of the University’s bad faith in its dealings with him.” See Amended
Complaint at ¶ 21. Raymond argues we should recognize futility as an exception to
the exhaustion requirement in the context of a procedural due process claim and allow
him to proceed with his lawsuit.

       C.    Futility
       Raymond argues the OCR process was futile for two reasons: (1) he did not
have the opportunity to confront and cross-examine witnesses and (2) the Provost’s
jurisdictional ruling denied him a name-clearing hearing on the sexual harassment
allegations that were part of the basis for his termination.4 For these reasons, he
argues this court should recognize a futility exception to the exhaustion requirement.

       This court has recognized exceptions to exhaustion requirements in other
contexts. See, e.g., Ace Property and Cas. Ins. Co. v. Fed. Crop Ins. Corp., 440 F.3d
992, 1000 (8th Cir. 2006) (“A party may be excused from exhausting administrative
remedies if the complaint involves a legitimate constitutional claim, if exhaustion
would cause irreparable harm, if further administrative procedures would be futile . . .
or if the issues to be decided are primarily legal rather than factual.”). An
administrative remedy is futile “if there is doubt about whether the agency could grant
effective relief.” Id. Notably, Ace did not involve a § 1983 procedural due process




      4
        The record is silent as to whether Raymond ever complained of these
perceived deficiencies to the University or Regents prior to withdrawing his OCR
petition.
                                          -9-
claim, but an alleged breach of contract by an administrative agency. Id. at 995.
Exhaustion of administrative remedies was mandated by statute. Id.

      This court has never held that the exceptions recognized in Ace apply in the
context of § 1983 procedural due process claims. Raymond suggests, however, that
none of our cases preclude it. He distinguishes Winskowski, 442 F.3d at 1110, a case
the district court cited for the proposition that an individual who did not take
advantage of a post-termination process cannot claim that it was inadequate.
Raymond argues Winskowski is inapplicable because unlike the Winskowski plaintiff,
who failed to request any post-termination process, Raymond requested that process
and withdrew from it only when he concluded that it was futile. He cites Schleck v.
Ramsey Cnty., 939 F.2d 638 (8th Cir. 1991), to argue that futility should be
recognized as an exception in this context. In Schleck, this court held that there was
no due process violation when county employees declined a post-termination hearing.
Schleck, 939 F.2d at 643. Raymond notes that the post-termination process in that
case explicitly included the right to cross-examine witnesses and respond to the
charges against them, id., and asserts that those rights were omitted from the post-
termination procedures here. Essentially, Raymond suggests that if a post-
termination process does not guarantee certain rights (i.e., the right to cross-examine
witnesses and respond to charges), the claimant should not have to exhaust remedies
and should be permitted to allege futility.

      With regard to the post-termination process here, paragraph 9 of the
University’s conflict resolution procedures for civil service employee complaints5
provides, “[t]he hearing panel will provide a fair opportunity for the petitioner and


      5
       “Though matters outside the pleading may not be considered in deciding a
Rule 12 motion to dismiss, documents necessarily embraced by the complaint are not
matters outside the pleading.” Gorog v. Best Buy Co. Inc., 760 F.3d 787, 791 (8th
Cir. 2014) (quoting Ashanti v. City of Golden Valley, 666 F.3d 1148, 1151 (8th Cir.
2012)).
                                         -10-
the respondent to present their views and information from witnesses.” See
Appellant’s App’x at 36. Even if the opportunity to cross-examine witnesses at the
OCR hearing was ambiguous, that does not justify foregoing the process altogether
on grounds of futility. See Brown v. J.B. Hunt Transp. Servs., Inc., 586 F.3d 1079,
1085 (8th Cir. 2009) (“The futility exception is narrow—the plan participant must
show that it is certain that [his] claim will be denied on appeal, not merely that [he]
doubts that an appeal will result in a different decision.”) (internal quotations
omitted). Proper grounds of futility include the situation in which an agency may be
“unable to consider whether to grant relief because it lacks institutional competence
to resolve the particular type of issue presented” or “an agency may be competent to
adjudicate the issue presented, but still lack authority to grant the type of relief
requested.” See Bartlett v. U.S. Dept. of Agriculture, 716 F.3d 464, 473 (8th Cir.
2013) (quoting McCarthy v. Madigan, 503 U.S. 140, 147-48 (1992), superseded by
statute, Prison Litigation Reform Act of 1995, 42 U.S.C. §1997e et seq., as
recognized in Woodford v. Ngo, 548 U.S. 81 (2006)).

       Raymond has not sufficiently alleged that proceeding with the OCR hearing
would have been futile. He has only speculated that he would not be allowed to
cross-examine witnesses and that the OCR panel would not consider the sexual
harassment allegations. See Midgett v. Washington Group Intern. Long Term
Disability Plan, 561 F.3d 887, 898 (8th Cir. 2009) (“[u]nsupported and speculative
claims of futility do not excuse a claimant’s failure to exhaust his or her
administrative remedies.”) (internal quotations omitted). Raymond could have
challenged these issues at the OCR hearing and, if the outcome was unfavorable,
appealed them to the Provost. He then could have sought certiorari review by the
Minnesota Court of Appeals or demanded binding arbitration in accordance with the
University’s conflict review procedures. At any of these stages, the presiding body
or individual could have ruled in Raymond’s favor. None of the allegations establish,




                                         -11-
with certainty, that the final outcome of the process would have been adverse to
Raymond. For this reason, Raymond’s futility argument fails.6

III.  CONCLUSION
      Raymond’s § 1983 procedural due process claims were properly dismissed.
The judgment of the district court is affirmed.

SHEPHERD, Circuit Judge, concurring.

        I concur in the judgment of the majority affirming the dismissal of Raymond’s
§ 1983 procedural due process claims but I write separately to express two points.
First, aside from a few sweeping generalities,7 Raymond’s briefing invokes only post-
termination due process requirements and he does not appeal the district court’s
ruling as to the pre-termination procedures. I therefore would refrain from any
discussion of Raymond’s pre-termination due process rights. Jasperson v. Purolator
Courier Corp., 765 F.2d 736, 740 (8th Cir. 1985) (issues not raised in a party’s brief
are deemed abandoned).

       Second, regarding post-termination due process, Raymond’s futility argument
is unsupported. As the majority notes, the cases recognizing futility as an exception
to the exhaustion requirement do not involve § 1983 procedural due process claims.
See McCarthy v. Madigan, 503 U.S. 140, 149 (1992) (Bivens claim for money
damages); Brown v. J.B. Hunt Transp. Servs., Inc., 586 F.3d 1079, 1085 (8th Cir.
2009) (ERISA action); Ace Prop. & Cas. Ins. Co. v. Fed. Crop Ins. Corp., 440 F.3d

       6
        Because Raymond’s allegations are insufficient to support a claim that
exhaustion would have been futile, we need not decide whether futility is available
as an exception to the exhaustion requirement in a procedural due process claim.
       7
        For example: “Raymond claims that the entire process was infected from start
to finish.” And: “Raymond was never, pre-termination or post-termination, . . . given
the right to confront and cross-examine [witnesses].”
                                         -12-
992, 1000 (8th Cir. 2006) (breach of contract claim under the Federal Crop Insurance
Act). Rather, the law in this context is settled: Futility is not an exception to the
requirement that a litigant exhaust his state remedies in order to pursue a § 1983
procedural due process claim. See Christiansen v. W. Branch Cmty. Sch. Dist., 674
F.3d 927, 935-36 (8th Cir. 2012) (“[A] government employee who chooses not to
pursue available post-termination remedies cannot later claim, via a § 1983 suit in
federal district court, that he was denied post-termination due process.”); Winskowski
v. City of Stephen, 442 F.3d 1107, 1110 (8th Cir. 2006) (“[A]n employee who fails
to request post-termination process cannot later sue for having been deprived of it.”).
Our court rejected an argument similar to Raymond’s futility claim in Riggins v.
Board of Regents of University of Nebraska, 790 F.2d 707, 711-12 (8th Cir. 1986).
In that case, a terminated employee alleged that the University’s process for
post-termination grievances was constitutionally insufficient because it would not
have allowed her to confront or cross-examine witnesses. Id. at 711. After
concluding that the process would have been adequate, the court stated that,
nonetheless, the plaintiff “chose not to file a grievance. In so choosing, she waived
any claim that the grievance procedure did not afford her the process she was due.”
Id. at 712. Since Riggins, we have consistently held that a plaintiff cannot bring a
§ 1983 procedural due process challenge to the adequacy of post-deprivation
remedies without first exhausting those remedies. Hopkins v. City of Bloomington,
774 F.3d 490, 492 (8th Cir. 2014); Christiansen, 674 F.3d at 935-36; Winskowski,
442 F.3d at 1110.

       Because Raymond’s invocation of futility lacks legal authority, there is no need
to analyze whether the University’s post-termination procedures were in fact futile.
I instead conclude that Raymond waived his § 1983 procedural due process claim by
failing to pursue the post-termination processes available to him and his claim
therefore fails as a matter of law. Christiansen, 674 F.3d at 936.
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