Humphrey v. Scott County Fiscal Court

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 06a0861n.06
Filed: November 22, 2006
No. 06-5075
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
HOBERT WAYNE HUMPHREY )
)
Plaintiff-Appellant, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
SCOTT COUNTY FISCAL COURT, et al. ) EASTERN DISTRICT OF KENTUCKY
)
Defendants-Appellees. )
Before: MARTIN and COOK, Circuit Judges; TARNOW, District Judge.*
COOK, Circuit Judge. Plaintiff Hobert Wayne Humphrey sued the Scott County Sheriff’s
Department pursuant to 42 U.S.C. § 1983 for violations of the Fourteenth Amendment’s due process
guarantees. Relevant to this appeal, Humphrey claims the Sheriff’s Department terminated him
without notice and denied him the opportunity to be heard. The Sheriff’s Department moved for
summary judgment, which the district court granted. We affirm.
I
*
The Honorable Arthur J. Tarnow, United States District Judge for the Eastern District of
Michigan, sitting by designation.
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While serving as a deputy sheriff for the Scott County Sheriff’s Department in Kentucky in
December 2003, Humphrey was arrested and charged with hindering prosecution and official
misconduct. The Sheriff’s Department placed Humphrey on administrative leave with pay pending
resolution of the charges. There is some ambiguity about what happened immediately following
Humphrey’s June 2004 conviction: the Sheriff’s Department claims it terminated him; Humphrey
says he was placed on a three-month leave. But at an October 2004 meeting, Sheriff Bobby
Hammons told Humphrey that “he could not put [him] back on the road.” The district court relied
on this as Humphrey’s notice in granting Defendant’s motion for summary judgment, citing
Humphrey’s deposition testimony admitting that “he assumed he was terminated” as a result of the
October meeting with Hammons. The district court ruled that Humphrey received all the process
he was due, and alternatively, that Humphrey waived his due process claim by failing to exhaust his
administrative remedies under Kentucky law. Humphrey v. Scott County Fiscal Court, No. 5:05-3-
JMH, 2005 U.S. Dist. LEXIS 32362, at *2 (E.D. Ky. Dec. 9, 2005).
II
Humphrey claims that the Sheriff’s failure to notify him in writing of his termination as
specified by Ky. Rev. Stat. § 70.270 violates his Fourteenth Amendment procedural due process
rights. Assuming that Humphrey had a legitimate claim to continued employment under these
circumstances, we look to what process is due. Mitchell v. Fankhauser, 375 F.3d 477, 480 (6th Cir.
2004). While state law governs whether an individual has a protected property interest, we employ
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a federal constitutional analysis to determine whether the interest was deprived fairly or arbitrarily.
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541 (1985); Black v. Parke, 4 F.3d 442, 447
(6th Cir. 1993).
“The due process clause requires that, prior to termination, a public employee, with a
property interest in his or her public employment, be given oral or written notice of the charges
against him or her, an explanation of the employer’s evidence, and an opportunity to present his or
her side of the story to the employer.” Buckner v. City of Highland Park, 901 F.2d 491, 494 (6th Cir.
1990) (citations omitted) (emphasis added). Though Kentucky law prescribes written notice, no
procedural due process violation results from oral notice.
Humphrey received sufficient oral notice of his termination when he met with Sheriff
Hammons in October 2004, and he admitted as much in his deposition. Humphrey’s arrest and
prosecution also sufficiently apprised him about the reasons for his termination. The district court
aptly summarized Humphrey’s notice as follows:
Plaintiff’s state court trial for Official Misconduct and Hindering Prosecution apprised him
of the evidence against him stemming from his arrest on December 28, 2003. Considering
that Plaintiff was fully aware that his arrest led to his being placed on administrative leave
and that his conviction led to his termination, the Court does not agree that Defendants’
failure to provide a written explanation of the reason why Plaintiff was terminated deprived
Plaintiff of any due process protections.
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Humphrey, 2005 U.S. Dist. LEXIS 32362, at *12–13. Thus, we conclude that Humphrey received
sufficient notice, and his meeting with Sheriff Hammons provided the informal opportunity for
discussion required. See Buckner, 901 F.2d at 494.
Moreover, as the district court correctly recognized, Humphrey waived his procedural due
process claim by failing to pursue the administrative remedies provided by Kentucky law. This
failure prevents him from pursuing his procedural due process claim in federal court. As this circuit
explained in Farhat v. Jopke, 370 F.3d 580, 596 (6th Cir. 2004) (citation omitted), “[t]he law is
well-established that it is the opportunity for a post-deprivation hearing before a neutral
decisionmaker that is required for due process. As long as the procedural requirements are
reasonable and give the employee notice and an opportunity to participate meaningfully, they are
constitutionally adequate.” If the government provides this opportunity, and “the employee refuses
to participate or chooses not to participate in the post-termination proceedings, then the employee
has waived his procedural due process claim.” Id. (citation omitted). Here, Ky. Rev. Stat.
§ 70.270(2) provided Humphrey with the right to request review of his termination by the Scott
County Deputy Sheriff Merit Board. Humphrey failed to do this and provides no plausible
explanation.
III
We affirm the district court’s judgment.
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