     Case: 17-60157   Document: 00514471173     Page: 1   Date Filed: 05/14/2018




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                              United States Court of Appeals

                                 No. 17-60157
                                                                       Fifth Circuit

                                                                     FILED
                                                                 May 14, 2018

MONTRELL GREENE,                                                Lyle W. Cayce
                                                                     Clerk
             Plaintiff - Appellant

v.

GREENWOOD PUBLIC SCHOOL DISTRICT; DEIRDRE MAYES, in her
official and individual capacities; RANDY CLARK, in his official and
individual capacities; and SAMANTHA MILTON, in her official and
individual capacities,

             Defendants - Appellees




                Appeal from the United States District Court
                  for the Northern District of Mississippi
                           USDC No. 4:16-CV-93


Before KING, ELROD, and GRAVES, Circuit Judges.
JAMES E. GRAVES, JR., Circuit Judge:
      Greenwood Public School District (GPSD) hired Montrell Greene as
superintendent of schools in April 2013. Greene’s contract initially provided for
a three-year term of employment. GPSD later extended the contract through
June 2018. On January 4, 2016, three members of the GPSD Board of
Trustees—Deirdre Mayes, Randy Clark, and Samantha Milton—called a
special meeting and voted to terminate Greene’s employment. Greene was
present at the meeting but was neither informed of the basis for his
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termination nor given an opportunity to address the Board. The following day,
Greene received a letter from GPSD’s attorney stating that he had been
“terminated for cause . . . effective January 4, 2016.”
       Greene filed suit in federal district court against GPSD, Mayes, Clark,
and Milton (hereinafter, “Defendants”). His complaint set forth a number of
federal and state law claims, but only one of those claims is at issue in this
appeal. 1 Pursuant to 42 U.S.C. § 1983, Greene claimed that Defendants
violated the Due Process Clause of the Fourteenth Amendment by depriving
him of his property interest in his job as superintendent without “provid[ing]
[him] a hearing or the opportunity to present a defense before the Board.”
Defendants moved to dismiss under Rule 12(b)(6) of the Federal Rules of Civil
Procedure. The district court granted that motion and dismissed all of Greene’s
claims. Greene appeals.
       “We review de novo a district court’s grant of a Rule 12(b)(6) motion,
‘accepting all well-pleaded facts as true and viewing those facts in the light
most favorable to the plaintiff.’” SGK Props., L.L.C. v. U.S. Bank Nat’l Ass’n,
881 F.3d 933, 943 (5th Cir. 2018) (quoting Stokes v. Gann, 498 F.3d 483, 484
(5th Cir. 2007)).
       “To state a Fourteenth Amendment due process claim under § 1983, ‘a
plaintiff must first identify a protected life, liberty or property interest and
then prove that governmental action resulted in a deprivation of that interest.’”
Gentilello v. Rege, 627 F.3d 540, 544 (5th Cir. 2010) (quoting Baldwin v.
Daniels, 250 F.3d 943, 946 (5th Cir. 2001)). It is undisputed that Greene has
sufficiently alleged a property interest in his job and that Defendants’
termination of Greene constituted governmental action depriving him of that


       1  Greene filed a general notice of appeal but did not brief or argue any aspect of his
other claims. Consequently, we deem those other claims abandoned and do not consider them
in this appeal.
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interest. The sole issue is whether Greene has adequately alleged that he was
terminated without receiving the process to which he was entitled under the
Fourteenth Amendment. See Tex. Faculty Ass’n v. Univ. of Tex. at Dallas, 946
F.2d 379, 383–84 (5th Cir. 1991); see also Grayden v. Rhodes, 345 F.3d 1225,
1232 (11th Cir. 2003).
       “An essential principle of due process is that a deprivation of life, liberty,
or property ‘be preceded by notice and opportunity for hearing appropriate to
the nature of the case.’” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532,
542 (1985) (quoting Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306,
313 (1950)). In the context of public employment, “[t]his principle requires
‘some kind of a hearing’ prior to the discharge of an employee who has a
constitutionally protected property interest in his employment.” Id. at 542
(emphasis added) (citing Bd. of Regents v. Roth, 408 U.S. 564, 569–70 (1972)).
“‘[T]he formality and procedural requisites for [a constitutionally-adequate
pre-termination hearing] can vary, depending upon the importance of the
interests involved and the nature of the subsequent proceedings.’” Id. at 545
(quoting Boddie v. Connecticut, 401 U.S. 371, 378 (1971)); Roth, 408 U.S. at
570 n.8. At a minimum, however, an employee facing termination must be
given “notice and an opportunity to respond” before the termination takes
effect. Loudermill, 470 U.S. at 546. 2 Taking the allegations in his complaint as
true, Greene did not receive a pre-termination hearing of any sort. He has
therefore adequately stated a procedural due process claim. 3




       2  In “rare and extraordinary situations . . . deprivation of a protected interest need
not be preceded by opportunity for some kind of hearing,” Roth, 408 U.S. at 570 n.7, and “a
postdeprivation hearing will satisfy due process requirements.” Loudermill, 470 U.S. at 542
n.7. This case does not present such a situation.

       3There is no merit to Defendants’ contention that Greene asserted a pre-termination
procedural due process claim only after the district court granted the motion to dismiss.
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       The district court dismissed Greene’s claim because he did not appeal his
termination under Mississippi Code § 37-9-113. That provision states that
“[a]ny employee aggrieved by a decision of the school board is entitled to
judicial review thereof” by filing an appeal in Mississippi chancery court. MISS.
CODE ANN. § 37-9-113(1)–(2). The district court concluded that Greene, having
failed to seek relief under § 37-9-113, “cannot cognizably argue that he has not
received adequate due process.”
       Assuming that Greene could have obtained meaningful judicial review
of his termination by filing an appeal under § 37-9-113, 4 doing so would only
have provided him with a post-termination hearing. The Fourteenth
Amendment entitled him to a hearing before he was terminated. Greene’s
failure to pursue “postdeprivation remedies does not affect his entitlement to
predeprivation process.” Chiles v. Morgan, 53 F.3d 1281, 1995 WL 295931, at
*1–2 (5th Cir. 1995); 5 accord Christiansen v. W. Branch Cmty. Sch. Dist., 674
F.3d 927, 936 (8th Cir. 2012) (“[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.” (quoting Keating v. Neb. Pub. Power
Dist., 562 F.3d 923, 929 (8th Cir. 2009))); Alvin v. Suzuki, 227 F.3d 107, 120
(3d Cir. 2000) (“[I]f the Constitution requires pre-termination procedures,
[even] the most thorough and fair post-termination hearing cannot undo the
failure to provide such procedures.”).




       4  Greene argues that meaningful judicial review was not available to him because
Mississippi Code § 37-9-113(3) expressly limits “[t]he scope of review of the chancery court in
such cases . . . to a review of the record made before the school board or hearing officer.” Since
he did not receive any hearing before the school board, Greene contends, there is no “record”
for the chancery court to review in assessing his termination.

       5 As an unpublished opinion issued before January 1, 1996, Chiles is precedential.
5TH CIR. R. 47.5.3.
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       As this court has recognized, an individual cannot claim to have been
unconstitutionally denied pre-deprivation process if he purposely chose not to
utilize constitutionally-adequate pre-deprivation procedures that were readily
available to him. Galloway v. Louisiana, 817 F.2d 1154, 1158 (5th Cir. 1987);
Gurski v. De Leon, 142 F.3d 1279, 1998 WL 224587, at *2 (5th Cir. 1998)
(unpublished opinion); see also Rathjen v. Litchfield, 878 F.2d 836, 840 (5th
Cir. 1989). 6 In this case, of course, no pre-termination process was afforded to
Greene.
       Defendants maintain that Mississippi law prohibited them from giving
Greene a pre-termination hearing. They point to Mississippi Code § 37-9-59,
which states that “a school superintendent whose employment has been
terminated [for cause, as specified elsewhere in the section,] shall not have the
right to request a hearing before the school board or a hearing officer.”
Defendants’ interpretation is certainly not compelled by the text of § 37-9-59.
The provision does not expressly oust the school board of authority to grant the
superintendent a hearing, should it wish to do so, and can instead be read as
simply specifying that the school board is not obligated to provide a hearing
upon the superintendent’s request. Reading § 37-9-59 as reflecting a
distinction between what a school board is prohibited from doing, and what it
is permitted, but not required, to do, is consistent with another statutory
provision, Mississippi Code § 37-7-301.1, which states that a school board “may


       6  The district court appears to have relied on this court’s imprecise statement in
Rathjen that “no denial of procedural due process occurs where a person has failed to utilize
the state procedures available to him.” 878 F.2d at 839–40. The Rathjen court followed that
statement by referencing two cases: Myrick v. City of Dallas, 810 F.2d 1382 (5th Cir. 1987),
which held that a plaintiff could not challenge the adequacy of post-deprivation remedies she
chose not to pursue, id. at 1388, and Galloway, which held that a plaintiff could not claim
that he was denied pre-deprivation process that he chose not to pursue, 817 F.2d at 1158.
Neither of these cases held that a plaintiff who chooses not to pursue a post-deprivation
remedy is precluded from claiming that he was unconstitutionally denied pre-deprivation
process.
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adopt any orders, resolutions or ordinances with respect to school district
affairs . . . which are not inconsistent with . . . any other statute or law of the
State of Mississippi.” Furthermore, we are reluctant to adopt Defendants’
interpretation of § 37-9-59 since doing so would raise serious questions about
the provision’s constitutionality.
      Even if Mississippi law did prohibit Defendants from giving Greene a
pre-termination hearing, that would have no effect on the viability of his
procedural due process claim. The Fourteenth Amendment required
Defendants to afford Greene a pre-termination hearing; a state law prohibiting
such a hearing would not diminish Greene’s rights under federal law. See
Loudermill, 470 U.S. at 541. In fact, such a law would indicate that “the
deprivation was authorized by the state,” thereby “implicat[ing]” the Due
Process Clause even more strongly. See Stotter v. Univ. of Tex. at San Antonio,
508 F.3d 812, 821–22 (5th Cir. 2007) (citing Zinermon v. Burch, 494 U.S. 113,
127–30 (1990)); Brooks v. George Cty., 84 F.3d 157, 165 (5th Cir. 1996).
      The district court’s judgment is REVERSED with respect to Greene’s
property-based procedural due process claim and AFFIRMED with respect to
his other claims. This matter is REMANDED to the district court.




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