*

Honorable Levin H. Campbell, Senior U.S. Circuit Judge for

the First Circuit, sitting by designation. 

United States Court of Appeals,

Eleventh Circuit.

No. 94-7205.

John BELL, Plaintiff-Appellant,

v.

CITY OF DEMOPOLIS, ALABAMA; Austin Caldwell, individually and in

his official capacity as Mayor of the City of Demopolis, Alabama;

Charles Avery, individually and in his official capacity as Police

Chief of the City of Demopolis, Alabama, Defendants-Appellees.

June 20, 1996.

Appeal from the United States District Court for the Southern

District of Alabama. (No. CV-92-1051-CB-S), Charles R. Butler, Jr.,

Chief Judge.

Before TJOFLAT, Chief Judge, and RONEY and CAMPBELL*

, Senior

Circuit Judges.

PER CURIAM:

In this section 1983 employment discrimination action,

plaintiff, a former police officer, alleged he received

constitutionally inadequate procedural due process both before and

after his termination. The district court refused to set aside a

grant of summary judgment for the defendants, holding that

plaintiff had suffered no due process violation. We affirm.

Plaintiff John Bell was a police officer with the Demopolis,

Alabama, police department. While employed by the department, Bell

was disciplined and reprimanded on a number of occasions. In early

June 1992, he was placed on indefinite suspension, and on July 1,

1992, he received written notice of his termination.

Bell's termination was reviewed and affirmed, first by a body
comprised of the police chief, the mayor, and select members of the

city council called the "police committee," and then by the city

council.

Bell then brought this section 1983 action alleging violations

of federal substantive and procedural due process of law and state

law claims, seeking compensatory and punitive damages, as well as

reinstatement.

The district court granted defendants' motion for summary

judgment after Bell failed to timely respond. Bell then filed a

Fed.R.Civ.P. 60(b) motion asking the court to set aside the

defendants' summary judgment based on excusable neglect. After the

defendants filed an opposition brief, the court directed the

parties to file supplemental briefs addressing the merits of Bell's

due process claims in light of this Court's recent en banc decision

in McKinney v. Pate, 20 F.3d 1550 (11th Cir.1994), cert. denied, --

- U.S. ----, 115 S.Ct. 898, 103 L.Ed.2d 783 (1995).

The district court denied Bell's motion for relief from

judgment, holding that even if it were inclined to set aside the

judgment based on excusable neglect, there was no need to do so

because Bell could raise no genuine issue of material fact in

opposition to the summary judgment motion. It held that (1)

pursuant to McKinney, Bell's substantive due process claim fails as

a matter of law; (2) because Alabama has available a satisfactory

means by which Bell can seek redress for any procedural due process

deprivation, he does not have a cognizable procedural due process

claim, and (3) there was no state law wrongful discharge claim.

Bell argues that McKinney is not dispositive of his procedural
due process claim. In McKinney, the plaintiff based his due

process claim on the alleged bias of the decision maker at his

pretermination hearing. The en banc court held that the alleged

wrongful discharge of an employee by a state actor does not give

rise to a substantive due process claim but instead implicates only

procedural due process. The Court determined that the State of

Florida's remedy for a biased decision maker, review by Florida

courts, satisfied due process.

Bell attempts to distinguish McKinney in three ways. First,

Bell asserts here that Alabama courts do not offer the same

"thorough, almost de novo, review" of Florida's circuit courts.

Alabama courts, however, like Florida courts, review employment

termination proceedings both to determine whether they are

supported by substantial evidence and to see that the proceedings

comport with procedural due process. See, e.g., Ex Parte Tuskegee,

447 So.2d 713 (Ala.1984); Guinn v. Eufaula, 437 So.2d 516

(Ala.1983).

Second, Bell describes his attack as one on the termination

process itself, whereas the plaintiff in McKinney challenged

procedures as they applied to him. For the first time in his

supplemental brief in support of his motion to set aside the

judgment, Bell stated his challenge was "to the state's system

itself, and its failure to ever provide him with a proper

evidentiary hearing with counsel, witnesses, and

cross-examination." Bell's characterization cannot belie the fact

that the meat of his complaint—bias on the part of the police

committee and the city council and inadequate time to speak in his
post-termination hearing—amounts to an "as applied" attack. The

evidence before the district court indicates that Bell was in no

way restricted from being represented by counsel or examining and

cross-examining witnesses. At no time did Bell present any

evidence to the contrary. In fact, Bell stipulated in the pretrial

order that he had no complaints about how his hearings were

handled.

Third, Bell distinguished his challenge from the type of

process challenged in McKinney. The plaintiff in McKinney attacked

only the adequacy of the pre termination process he received,

positing his challenge directly in federal court instead of seeking

post-termination review in the state system. Bell, on the other

hand, challenged primarily the post-termination process, having

pursued state court remedies. The controlling factor in McKinney,

however, was that the state had a mechanism in place which appears

adequate to remedy any procedural due process violations. Though

the plaintiff in McKinney did not pursue post-termination remedies,

this Court determined that because there was an adequate state

remedy available—state court review—no due process violation

existed. Likewise in this case, the state offers an adequate

remedy in the form of administrative as well as state court review.

Alternatively, Bell argues that McKinney was wrongly decided

and should be overturned. This panel, however, is bound by prior

panel decisions of the Eleventh Circuit, and, of course, the

decisions of the en banc court, such as McKinney.

The district court correctly held that considering all the

evidence in the light most favorable to Bell, he has failed to
establish a genuine issue of material fact and is therefore not

entitled to obtain relief from judgment in this case.

AFFIRMED.