from the United States District Court for the Northern
District of Mississippi USDC No. 4:16-CV-93
KING, ELROD, and GRAVES, Circuit Judges.
E. GRAVES, JR., CIRCUIT JUDGE:
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 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."
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. 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.
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.
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 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).
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. 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
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."
that Greene could have obtained meaningful judicial review of
his termination by filing an appeal under § 37-9-113,
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); 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
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). In this case, of course, no
pre-termination process was afforded to Greene.
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 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
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.
district court's judgment is REVERSED with respect to
Greene's property-based procedural due process claim and
AFFIRMED with respect to his other ...