                                                      NOT PRECEDENTIAL

              UNITED STATES COURT OF APPEALS
                   FOR THE THIRD CIRCUIT
                       ______________

                      Nos. 16-3966 & 16-4231
                           ______________

                DREW SMITH; DAVID LEVI MCVEY

                                   v.

            TOWNSHIP OF STAFFORD; POLICE CHIEF
              JOSEPH GIBERSON; JOHN DOES 1-5

                               Drew Smith,
                                       Appellant

                           ______________

                      MICHAEL GUADALUPE,
                                   Appellant

                                   v.

                     STAFFORD TOWNSHIP;
                 POLICE CHIEF JOSEPH GIBERSON

                           ______________

             On Appeal from the United States District Court
                      for the District of New Jersey
            (D.C. Civ Nos. 3-14-cv-05945 and 3-15-cv-00613)
District Judges: Honorable Freda L. Wolfson, Honorable Michael A. Shipp
                             ______________

             Submitted under Third Circuit L.A.R. 34.1(a)
                           June 16, 2017

   BEFORE: JORDAN, KRAUSE, and GREENBERG, Circuit Judges

                     (Opinion Filed: July 26, 2017)
                                     ______________

                                       OPINION*
                                     ______________

GREENBERG, Circuit Judge.


                                     I. INTRODUCTION

       This matter comes on before this Court on consolidated appeals of two cases from

the District of New Jersey in which plaintiff-appellants Drew Smith and Michael

Guadalupe asserted causes of action under 42 U.S.C. § 1983 against defendant-appellees

the Township of Stafford and Police Chief Joseph Giberson claiming that they were

improperly denied promotions in contravention of their procedural and substantive due

process rights under the Fourteenth Amendment to the Constitution. On this appeal, they

contend that the District Courts erred in holding that they had no property interest in the

promotions to which procedural or substantive due process could attach. Because we

hold that Smith and Guadalupe failed to avail themselves of the procedural remedies

available and they do not have fundamental constitutional rights to require that the

Township adheres to a promotional process, we will affirm the District Courts’ grant of

summary judgment in favor of the defendant-appellees on both appellants’ due process

claims.

____________________

*This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.


          II. STATEMENT OF JURISDICTION AND STANDARD OF REVIEW

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       The District Courts had jurisdiction over the § 1983 claims pursuant to 28 U.S.C.

§ 1331. We maintain jurisdiction under 28 U.S.C. § 1291, as both the December 28,

2016 consent order dismissing the remaining counterclaim after granting summary

judgment in favor of the defendant-appellees against Smith’s claims and the November 8,

2016 order granting summary judgment for the defendant-appellees on Guadalupe’s

claims constitute final orders. 1

       “We exercise plenary review of a district court’s grant of summary judgment.”

Goldenstein v. Repossessors Inc., 815 F.3d 142, 146 (3d Cir. 2016). We must “grant

summary judgment if the movant shows that there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a). When deciding a motion for summary judgment, “[a]ll reasonable inferences from

the record must be drawn in favor of the nonmoving party and the court may not weigh

the evidence or assess credibility.” Goldenstein, 815 F.3d at 146 (quotation marks

omitted). “A party asserting that a fact cannot be or is genuinely disputed must support

the assertion” with citations of “particular parts of materials in the record” or by a

“showing that the materials cited do not establish the absence or presence of a genuine

dispute.” Fed. R. Civ. P. 56(c).



                                     III. BACKGROUND




1
 A grant of summary judgment is a judgment on the merits of a case and is entitled to
preclusive effect. Hubicki v. ACF Indus., Inc., 484 F.2d 519, 524 (3d Cir. 1973).
                                              3
       Inasmuch as we write primarily for the parties, we need not recite in detail the

procedures involved in determining the appellants’ fitness for promotions. Suffice it to

say that appellants Drew Smith and Michael Guadalupe worked for the Stafford

Township Police Department in Manahawkin, New Jersey, and desired to be promoted.

To that end, they each underwent a promotional assessment—Smith for the position of

sergeant, and Guadalupe for the position of lieutenant. That assessment was based on a

policy adopted by the Township of Stafford as a formal resolution. Guadalupe J.A. at

539-58. Promotions to either sergeant or lieutenant in relevant part included a Police

Executive Assessment done by the Chief of Police. Id. The promotional process for

sergeant in addition included two phases. Id. at 548. Those who succeeded in Phase One

would proceed to Phase Two. Id. Further, for promotion to sergeant, there was a

Supervisory Recommendation roundtable portion of the assessment. Id. Neither

candidate scored highly enough to receive an immediate promotion.

       Smith and Guadalupe contend that the assessment of candidates was unfair and

violated their constitutional due process rights. Smith claims both that there was an error

in determining who would proceed after Phase One in light of some tie scores and that

the Supervisory Recommendation and Police Executive Assessment improperly weighed

factors concerning his promotion. Smith Appellant’s br. at 6. Guadalupe solely contests

the Police Executive Assessment. Guadalupe Appellant’s br. at 6. Neither Smith nor

Guadalupe followed the appeals procedure delineated in the formal resolution, but both




                                             4
claim that such a procedure was futile because the appeals would have been reviewed by

the Chief of Police, the same decision-maker whose decisions they contest. 2

         Smith and Guadalupe filed unsuccessful separate suits in District Court that were

consolidated for purposes of this appeal. See Guadalupe Appellant’s br. at 3. Guadalupe

acknowledges that “[t]he legal theory was essentially identical” in Smith’s case to that

pursued in his own. Id. at 2. Thus, we consider the appeals jointly. 3



                                       IV. DISCUSSION

1. Procedural Due Process

         Appellants contend that they had a property interest in “a fair and unbiased

promotional examination”—or, phrased differently, a “legitimate expectation of

entitlement to the Police Department’s compliance” with the Township’s promotional

regulations—to which procedural due process attaches. Guadalupe Appellant’s br. at 23;

Smith Appellant’s br. at 32. Appellees claim that there are no such interests and further

assert that each party was required to have completed, but did not complete, the proper

procedures in order to proceed on a procedural due process claim. Smith Appellees’ br.

at 20, 35; Guadalupe Appellees’ br. at 14, 28.

         We need not come to a conclusion about the property interest question, as both

appellees did not pursue the appeals process as provided by the Township of Stafford’s

2
  The Phase One calculation actually according to the appeals procedure may not have
been appealed to the Chief of Police but rather to the outside testing consultant who ran
that portion of the assessment. Guadalupe J.A. at 552.
3
    There cases have complex procedural historys that we need not recite.
                                              5
council procedural resolution. Because a plaintiff must allege that he did not receive due

process after following the procedures in place, “a procedural due process violation

cannot have occurred when the governmental actor provides apparently adequate

procedural remedies and the plaintiff has not availed himself of those remedies.” Alvin

v. Suzuki, 227 F.3d 107, 116 (3d Cir. 2000).

       The record shows that Smith and Guadalupe failed to initiate the appeals process

according to the procedures provided by Stafford’s resolution. Smith did not attempt to

appeal at all. Smith J.A. at 905. On the other hand, Guadalupe met with the Chief of

Police in person within the ten-day window for appeals and then filed a grievance with

the Chief of Police after that window had closed. Guadalupe J.A. at 478, 504-506. But

that process did not comply with the procedure designated in the Township of Stafford’s

governing regulation. Id. at 552.

       Smith and Guadalupe contend without citing any sources that the appeals process

would have been futile because they contested the Chief of Police’s decision and the

appeal would be reviewed by that same decision-maker. Smith Appellant’s reply br. at 1;

Guadalupe Appellant’s reply br. at 3. They do not direct us to evidence to support their

claim that the appeals process would not have sufficed. We are unwilling to hold as a

matter of law without any evidence in support that an appeals process is inherently futile

because the same decision-maker would review the appeal. Thus, summary judgment in

favor of defendants on the procedural due process claim is warranted.

2. Substantive Due Process



                                             6
       Both appellants contend that they have a valid substantive due process claim

without identifying a valid property interest under the Constitution. Instead, they seem to

claim that the alleged “arbitrary, bad faith manner” of deciding promotions creates a

substantive due process right. Smith Appellant’s br. at 50; Guadalupe Appellant’s br. at

39.

       Because a valid substantive due process claim only attaches to interests that are

“fundamental” to the Constitution, appellants’ substantive due process claims must fail.

See Nicholas v. Pa. State Univ., 227 F.3d 133, 142 (3d Cir. 2000). We have

acknowledged that there is no substantive due process property interest in public

employment—let alone procedures for promotion—because any rights in employment

are state-created, not federally guaranteed. Id. at 142-43 (citing cases from other

circuits). Thus, the District Courts correctly granted summary judgment in favor of the

defendants on the substantive due process claims.



                                   V.   CONCLUSION

       For the foregoing reasons, we will affirm the District Courts’ grant of summary

judgment on behalf of appellees.




                                             7
