                                                NOT PRECEDENTIAL

                  UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT
                            _____________

                                No. 13-1137
                               _____________

                           ANTHONY ADAMO;
                            MICHAEL GILL,
                                   Appellants

                                      v.

     MICHAEL DILLON; JOSEPH MUSHALKO; WALTER REMMERT;
       CORINNE SWEENEY; JOHN HANNUM; RAYMOND HAMM

               On Appeal from the United States District Court
                   for the Middle District of Pennsylvania
                      District Court No. 1-10-cv-02382
               District Judge: The Honorable Sylvia H. Rambo

              Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                            September 11, 2013

     Before: McKEE, Chief Judge, SMITH, and SLOVITER, Circuit Judges

                         (Filed: September 13, 2013)
                          _____________________

                                 OPINION
                          _____________________

SMITH, Circuit Judge.

     On February 2, 2010, the Pennsylvania Horse Racing Commission ejected

Anthony Adamo and Michael Gill from the Penn National Race Course. Adamo, a

race horse trainer, and Gill, a race horse owner, were both licensed by the
Commonwealth of Pennsylvania. The ejection notice advised that an appeal must

be filed within 48 hours of receipt. Adamo challenged the ejection by filing a

timely appeal with the Commission. The parties entered into discussions, and on

March 5, 2010, Adamo’s ejection was rescinded.

      On June 28, 2010, the Commission issued a notice directing Adamo to

personally appear within ten days for an investigative interview. On July 19, the

Commission suspended Adamo’s license for failure to appear for the interview.

Adamo appealed the suspension to the Pennsylvania Commonwealth Court, which

upheld the suspension.

      Unlike Adamo, Gill did not file a timely appeal of the ejection. Instead, he

filed a request more than two months later seeking either the termination of the

ejection or a hearing. The Commission denied the request as untimely, noting that

Gill had adequate notice of the appeal period and an opportunity to exercise his

due process rights.

      Thereafter, in November 2010, Adamo and Gill filed a complaint in the

United States District Court for the Middle District of Pennsylvania, alleging that

the three commissioners and three other individuals affiliated with the Commission

(collectively, “the defendants”) had violated their rights to equal protection and

procedural due process under the Fourteenth Amendment to the United States

Constitution. During a bench trial, the District Court granted defendants’ motion

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for judgment as a matter of law on the equal protection claims. After the close of

Adamo’s and Gill’s cases–in–chief, the defendants asserted for the first time that

they were entitled to qualified immunity.1 After the conclusion of the trial, the

District Court ordered briefing on whether the defendants had waived the

affirmative defense of qualified immunity. The Court determined that neither

Adamo nor Gill had been prejudiced by the untimely invocation of qualified

immunity and that the defendants had not waived the defense. In addition, the

Court granted judgment in favor of the defendants on Adamo’s and Gill’s claims

that they were entitled to pre- and post-ejection hearings. It also concluded that

Adamo’s suspension did not violate his right to procedural due process. Although

Adamo and Gill requested reconsideration, the motion was denied.

      This timely appeal followed.2 Adamo and Gill challenge the District Court’s

decision that the defendants had not waived the defense of qualified immunity and

the Court’s entry of judgment in favor of the defendants on the due process claims.

We will affirm.

      We review the District Court’s decision regarding waiver of the defense of


1
   “Qualified immunity shields government officials from civil damages liability
unless the official violated a statutory or constitutional right that was clearly
established at the time of the challenged conduct.” Reichle v. Howards, __ U.S.
__, 132 S. Ct. 2088, 2093 (2012).
2
  The District Court exercised jurisdiction under 28 U.S.C. § 1331. We have
jurisdiction under 28 U.S.C. § 1291.

                                         3
qualified immunity for an abuse of discretion. Eddy v. V. I. Water and Power

Auth., 256 F.3d 204, 209-10 (3d Cir. 2001). The District Court appropriately

considered the factors we articulated in Eddy and did not abuse its discretion in

concluding that the defense, though raised late in the proceedings, had not been

waived.

      Adamo and Gill contend that the District Court erred by concluding that the

failure to provide a hearing before the ejection did not violate their rights to

procedural due process. Instead of determining whether Adamo and Gill had

proven a due process violation based on the lack of a pre-deprivation hearing, the

Court considered whether the right to a pre-deprivation hearing was clearly

established at the time of the ejection notice.3

      In Barry v. Barchi, 443 U.S. 55 (1979), the Supreme Court considered

whether a race horse trainer was entitled to a pre-deprivation hearing before the

suspension of his license. The Court recognized the substantial interest that the

trainer had in avoiding suspension, but it declared that the “State also has an

important interest in assuring the integrity of the racing carried on under its

auspices.” Id. at 64. In light of the evidence that suggested a horse had been

drugged, the Court held “the State was entitled to impose an interim suspension,


3
  We review the grant of qualified immunity, including the clearly established
prong, “de novo as it raises a purely legal issue.” Sharp v. Johnson, 669 F.3d 144,
159 (3d Cir. 2012).
                                           4
pending a prompt judicial or administrative hearing[.]” Id.

      Unlike Barry, which concerned the suspension of a license, this case

concerned an ejection from one race track based on circumstances that pointed to a

likely disruption in the orderly conduct of the horse races. Thus, Barry does not

clearly establish that a pre-deprivation hearing was necessary on the facts

presented in this case.     Accordingly, we conclude that the District Court

appropriately considered Barry, noted that the applicable regulations did not

require a pre-deprivation hearing, cited to the testimony of record regarding both

the prospect of a boycott by the jockeys if Adamo and Gill were present at the

track and the need to act quickly to preserve the orderly conduct of a race meeting,

and recognized that the regulations provided an appeal process by which the

ejection could be challenged. Under these circumstances, we conclude that the

District Court did not err in concluding that, at the time of the issuance of the

ejection notice to Adamo and Gill, it was not clearly established that a pre-

deprivation hearing was required.

      Nor are we persuaded that the District Court erred in deciding that Adamo

was not deprived of a prompt post-ejection hearing. The District Court found that

Adamo filed a timely appeal, which prompted discussions that resulted in a

rescission of the ejection. These findings of fact are not clearly erroneous. See

Fed. R. Civ. P. 52(a)(6). Given the existence of the discussions following the

                                         5
appeal, we do not believe that the District Court erred in rejecting Adamo’s claim

that he was deprived of a prompt post-deprivation hearing. The discussions and

the rescission that followed confirm that Adamo had a meaningful opportunity to

be heard. See Barry, 443 U.S. at 66 (reiterating that “opportunity to be heard must

be ‘at a meaningful time and in a meaningful manner’” (quoting Armstrong v.

Manzo, 380 U.S. 545, 552 (1965))). Furthermore, as the District Court reasoned, it

was not clearly established that the post-deprivation process had to be afforded in

light of the discussions that ensued.

      The due process claim based on the suspension of Adamo’s license for

failure to personally appear for the investigative interview is also without merit.

We agree with the District Court that Adamo had sufficient notice and an

opportunity to be heard.

      Gill also asserts that the District Court erred by concluding that his

procedural due process claim based on the lack of a post-deprivation hearing failed

as a matter of law. We are not persuaded. “In order to state a claim for failure to

provide due process, a plaintiff must have taken advantage of the processes that are

available to him . . . unless those processes are unavailable or patently inadequate.

‘A state cannot be held to have violated due process requirements when it has

made procedural protection available and the plaintiff has simply refused to avail

himself of them.’” Alvin v. Suzuki, 227 F.3d 107, 116 (3d Cir. 2000) (quoting

                                         6
Dusanek v. Hannon, 677 F.2d 538, 543 (7th Cir. 1982)). Here, the ejection notices

advised that Adamo and Gill had a right to a hearing under Pennsylvania law, 58

Pa. Code § 165.231, and that they could file an appeal within forty-eight hours of

receiving the notice of ejection. Yet Gill never availed himself of this opportunity.

Thus, the Commission did not deprive him of due process as he had notice and an

opportunity to be heard.

         Finally, we conclude that the District Court did not err in dismissing any

substantive due process claim by Adamo and Gill given the need for strong police

regulation of horse racing, see Hudson v. Tex. Racing Comm’n, 455 F.3d 957, 600

(5th Cir. 2006) (citing W. Turf Ass’n v. Greenberg, 204 U.S. 359, 363-64 (1907)),

and the circumstances in this case. See Cnty. of Sacramento v. Lewis, 523 U.S.

833, 847-49 (1998) (holding that a substantive due process claim requires conduct

that shocks the conscience).

         For the reasons set forth above, we will affirm the judgment of the District

Court.




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