* Pursuant to 5TH CIR. R. 47.5, the court has determined

that this opinion should not be published and is not precedent

except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 99-31427

Summary Calendar

 

KEVIN E. JOHNSON,

Plaintiff-Appellant,

versus

LOUISIANA STATE POLICE ET AL.,

Defendants,

PAUL W. FONTENOT, Colonel; MINEL J. FOLSE, Captain; JOHN W.

SOILEAU, Lieutenant, in their official and individual capacities,

Defendants-Appellees.

--------------------

Appeal from the United States District Court

for the Middle District of Louisiana

USDC No. 96-CV-108

--------------------

October 23, 2000

Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

Kevin Johnson appeals summary judgments dismissing his

claims raised pursuant to 42 U.S.C. § 1983. Johnson alleges

deprivations of due process and equal protection afforded by the

Fourteenth Amendment. He contends that, during a hostile

interview concerning allegations of prior misconduct made by his

previous employer, defendants Folse and Soileau, with support
No. 99-31427

-2-

from defendant Fontenot, coerced him into resigning his position

as a Louisiana State Police probationary cadet. He further

alleges that the defendants denied him a “name clearing” appeal

hearing by providing only “sham appellate proceedings.” 

Three summary-judgment motions were filed in the district

court. The first resulted in the dismissal of all claims except

procedural due process claims against three individuals. The

second motion sought dismissal of the remaining procedural due

process claims and was denied on narrow grounds. The third

motion, decided by a judge new to the case, resulted in the

dismissal of all remaining claims and defendants. Johnson

challenges aspects of both summary judgments. He argues that he

was deprived of procedural due process and substantive due

process. He also contends that the court ignored the “law of the

case” and improperly granted the last summary-judgment motion sua

sponte in favor of Folse and Soileau although only Fontenot was

the named movant. All other issues are waived by Johnson’s

failure to argue them in this court. Yohey v. Collins, 985 F.2d

222, 225 (5th Cir. 1995).

Summary judgment is reviewed de novo and is proper if

“‘there is no genuine issue as to any material fact and . . . the

moving party is entitled to judgment as a matter of law.’” 

Amburgey v. Corhart Refractories Corp., 936 F.2d 805, 809 (5th

Cir. 1991) (quoting Fed. R. Civ. P. 56(c)). Summary judgment

must be entered against a nonmovant who cannot establish elements

essential to his case. Little v. Liquid Air Corp., 37 F.3d 1069,

1075 (5th Cir. 1994) (en banc). This court construes the facts
No. 99-31427

-3-

in the light most favorable to nonmovant Johnson and assumes that

he was involuntarily terminated from a position in which he had a

constitutionally protected property interest.

Procedural due process is provided when even a minimal

predeprivation hearing is “coupled with post-termination

administrative procedures.” Cleveland Bd. of Educ. v.

Loudermill, 470 U.S. 532, 546-48 (1985); Schaper v. City of

Huntsville, 813 F.2d 709, 713-16 (5th Cir.1987). A

pretermination due-process hearing need not be elaborate; the

essential elements “are notice and an opportunity to respond.” 

Loudermill, 470 U.S. at 546. 

At Johnson’s pretermination hearing, Folse and Soileau

accused Johnson of misconduct and allowed him to respond to the

charges and make a statement. Even if it is assumed that Folse

and Soileau were so hostile to Johnson that his “resignation” was

actually an involuntary termination, Johnson received

predeprivation due process. The defendants also offered Johnson

a postdeprivation hearing which he declined to attend. His

contention that the appeal process was “sham” is unsupported by

the record. “[O]ne who fails to take advantage of procedural

safeguards available to him cannot later claim that he was denied

due process.” Browning v. City of Odessa, 990 F.2d 842, 845 n.7

(5th Cir. 1993). 

Substantive due process protects individuals against certain

governmental actions regardless of procedural safeguards. Walton

v. Alexander, 44 F.3d 1297, 1302 (5th Cir. 1995). To state a

substantive due process claim, Johnson must show that his
No. 99-31427

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termination was irrational, arbitrary, or not reasonably related

to any legitimate governmental interest. Williams v. Texas Tech

Univ. Health Sciences Ctr., 6 F.3d 290, 294 (5th Cir. 1993); 

Neuwirth v. Louisiana State Bd. of Dentistry, 845 F.2d 553, 558

(5th Cir. 1988). In his interview, Johnson conceded that he

committed misconduct and lied during his prior employment. He

also conceded that he lied during the interview. Thus his

termination was not irrational or unrelated to a legitimate

governmental interest in having honest and diligent policemen. 

Johnson contends that the district court improperly granted

the last summary judgment in favor of Folse and Soileau sua

sponte because the only movant was Fontenot. This court assumes

without deciding that the motion was granted sua sponte as to

Folse and Soileau. A district court has the power to enter

summary judgment sua sponte provided that the nonmovant has

notice consistent with Rule 56. Leatherman v. Tarrant County

Narcotics Intelligence & Coordination Unit, 28 F.3d 1388, 1397-98

(5th Cir. 1994). Johnson had notice that he was in jeopardy of

having his entire case dismissed, as shown by his response to the

motion in which he addressed arguments pertaining to all of the

defendants. Even if the notice were deemed inadequate, summary

judgment was harmless because it was granted as a matter of law

after resolving factual disputes in Johnson’s favor. Thus, there

was no additional evidence that Johnson could have offered that

would justify relief. See Ross v. University of Texas at San

Antonio, 139 F.3d 521, 527 (5th Cir. 1998).
No. 99-31427

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Johnson also contends that the “law of the case” doctrine

foreclosed summary judgment on the issue of procedural due

process because the previous judge had denied summary judgment on

that issue. “[T]he law of the case doctrine is a discretionary

rule of practice which does not limit the power of the court to

revisit a legal issue.” Copeland v. Merrill Lynch & Co., 47 F.3d

1415, 1424 (5th Cir. 1995). An earlier denial of summary

judgment is not res judicata and does not preclude a subsequent

grant of summary judgment. United States v. Horton, 622 F.2d

144, 148 (5th Cir. 1980). The law of the case did not preclude

the final grant of summary judgment.

The judgments of the district court are AFFIRMED

AFFIRMED