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WHITE v. BUSBOOM

Cite as 297 Neb. 717

William White, appellee and cross-appellant, 

v. Scott Busboom, appellant

and cross-appellee.

___ N.W.2d ___

Filed September 15, 2017. No. S-16-377.

1. Summary Judgment: Appeal and Error. An appellate court will 

affirm a lower court’s grant of summary judgment if the pleadings and 

admitted evidence show that there is no genuine issue as to any material 

facts or as to the ultimate inferences that may be drawn from those facts 

and that the moving party is entitled to judgment as a matter of law.

2. ____: ____. In reviewing a summary judgment, an appellate court views 

the evidence in the light most favorable to the party against whom the 

judgment was granted and give that party the benefit of all reasonable 

inferences deducible from the evidence.

3. Judgments: Appeal and Error. An appellate court independently 

reviews questions of law decided by a lower court.

4. Constitutional Law. The determination of constitutional requirements 

presents a question of law.

5. Motions to Dismiss: Immunity: Appeal and Error. An appellate court 

reviews de novo whether a party is entitled to dismissal of a claim based 

on federal or state immunity, drawing all reasonable inferences for the 

nonmoving party.

6. Attorney Fees: Appeal and Error. The award or denial of authorized 

attorney fees and the amount of a fee award are rulings that an appellate 

court reviews for abuse of discretion.

7. Due Process. Procedural due process claims require a two-step analysis: 

(1) whether the plaintiff has asserted a life, liberty, or property interest 

that is protected by the Due Process Clause and (2) whether the plaintiff 

was deprived of that interest without sufficient process.

8. Public Officers and Employees: Employment Contracts. An employment contract with a public employer can give rise to an objectively 

reasonable expectation of continued employment.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

10/06/2017 12:12 AM CDT
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9. Civil Rights: States. The elements of, and defenses to, an action 

brought under 42 U.S.C. § 1983 (2012) are defined by federal law.

10. ____: ____. State courts are bound by definitive U.S. Supreme Court 

decisions or a consensus of federal court holdings on the substantive 

requirements of a claim or defense asserted under 42 U.S.C. § 1983 

(2012).

11. Public Officers and Employees: Immunity: Liability. The doctrine of 

qualified immunity protects government officials from liability for civil 

damages insofar as their conduct, in the context of the specific facts at 

the time, does not violate clearly established statutory or constitutional 

rights of which a reasonable person would have known.

12. Public Officers and Employees: Immunity. Whether an official may 

prevail in his or her qualified immunity defense depends upon the objective reasonableness of his or her conduct as measured by reference to 

clearly established law.

13. ____: ____. Qualified immunity gives government officials breathing 

room to make reasonable but mistaken judgments about open legal questions. When properly applied, it protects all but the plainly incompetent 

or those who knowingly violate the law.

14. Judgments: Immunity. A qualified immunity inquiry has two components: (1) whether a plaintiff has alleged a deprivation of a federal 

statutory or constitutional right and (2) whether that right was clearly 

established at the time of the alleged violation. A court has discretion to 

determine which component to address first.

15. Public Officers and Employees: Due Process. Due process requirements for depriving public employees of a protected property interest 

in employment must be determined under the balancing factors set 

out in Mathews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893, 47 L. Ed. 2d 

18 (1976).

16. ____: ____. A plaintiff fails to state a viable procedural due process 

claim when adequate postdeprivation state procedures were available 

but the plaintiff failed to invoke them.

17. Federal Acts: Attorney Fees. In order to be eligible for attorney fees 

under 42 U.S.C. § 1988(b) (2012), a plaintiff must be a prevailing party, 

which means that the plaintiff must have obtained a judgment on the 

merits, a consent decree, or some other judicially enforceable settlement, 

which materially alters the legal relationship of the parties in a way that 

benefits the plaintiff.

Appeal from the District Court for Johnson County: 

Daniel E. Bryan, Jr., Judge. Reversed and remanded with 

instructions.
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Cite as 297 Neb. 717

Douglas J. Peterson, Attorney General, James D. Smith, and 

Jessica M. Forch for appellant.

Abby Osborn, of Shiffermiller Law Office, P.C., L.L.O., 

for appellee.

Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, 

Kelch, and Funke, JJ.

Funke, J.

I. NATURE OF CASE

The appellant, Scott Busboom, is an officer at the Tecumseh 

State Correctional Institution. The appellee, William White, is a 

former officer at the facility. White brought a civil rights action 

against the Department of Correctional Services (Department) 

and Busboom. He alleged that he was denied due process 

when he was placed on unpaid investigatory suspension without any opportunity to be heard. The district court granted 

the Department summary judgment, concluding that it was 

immune from suit under the doctrine of sovereign immunity. 

But it determined that Busboom was not entitled to qualified 

immunity in his individual capacity and that White was entitled 

to a judgment of liability against Busboom. The court concluded that Busboom had signed the letter suspending White 

while acting under the color of state law and that any reasonable officer in his position would have understood that White 

was entitled to a hearing before being deprived of a protected 

property interest.

We conclude that when White was suspended without pay, 

the law did not clearly establish that a public employer 

must first provide notice and an opportunity to respond to 

allegations of misconduct to an employee with a protected 

property interest in continued employment. As a result, we 

conclude that Busboom was entitled to qualified immunity. 

Additionally, we conclude that White has failed to show that 

he was deprived of due process because he did not receive a 

posttermination hearing. Accordingly, we reverse, and remand 
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with instructions for the court to enter summary judgment for 

Busboom and dismiss White’s complaint.

II. BACKGROUND

1. Underlying Events

White began working for the Department at the Tecumseh 

facility in 2008. A collective bargaining agreement (CBA) governed the terms of his employment.

In April 2010, White was arrested and accused of unlawful 

intrusion. On April 26, White was charged with a Class III 

misdemeanor for unlawful intrusion because the alleged victim 

was over age 18.1 The day after his arrest, White posted bail 

and called Busboom about the arrest. Busboom was a major 

at the facility, and his duties included reviewing documentation for disciplinary actions against the uniformed officers and 

making recommendations to the deputy warden.

Christopher Connelly, a captain at the facility, was assigned 

as the investigating officer for White’s matter. On April 13, 

2010, Connelly sent an email about White to Fred Britten, the 

warden at the Tecumseh facility, and Brian Gage, the deputy 

warden. Connelly informed them that White was charged with 

a misdemeanor offense of “Invasion of Privacy” but that the 

matter was still under investigation and that the Nebraska State 

Patrol had seized his computer. Connelly recommended White 

be suspended pending the outcome of the investigation.

Two hours later, Britten sent an email to the Department’s 

director and other persons, including Busboom. Britten stated 

that he had discussed the matter with the deputy director and 

that a decision had been made to suspend White without pay 

pending an investigation into the circumstances of his arrest.

The same day, Busboom signed a letter placing White on 

unpaid investigatory suspension:

The Department . . . is placing you on investigatory suspension without pay, pending an investigation by 

1 See Neb. Rev. Stat. § 28-311.08 (Reissue 2008).
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outside law enforcement. The Investigatory Suspension is 

in accordance with the current [CBA] section 10.3b.

While you are on the Investigatory Suspension, you are 

expected to be available in order for the agency to contact 

you. . . .

[Note: Article M.15.1, if applicable, permits the 

agency to place the employee on an unpaid suspension 

when employees are charged with a criminal offense 

that is directly related to the workplace and could reasonably be expected to result in a significant disruption of the workplace. For more details, see AR 112.06, 

Section III.B.3.b.3.]

Busboom later stated in an affidavit that he was told to 

inform White of his unpaid suspension, that he used a form letter, and that he did not make the decision to suspend White. In 

a deposition, Busboom also said that he signed the suspension 

letter only because he was the highest ranking official at the 

facility that day.

Section 10.3.b of the CBA, which was the cited authority in 

White’s 2010 suspension letter, provides the following:

Investigatory Suspension or Reassignment: When the 

Employer determines that an employee must be removed 

from a current work assignment pending the completion 

of an investigation by the Employer to determine if disciplinary action is warranted, the Employer may:

a. reassign the employee . . . at their current rate of pay 

until the investigation is completed.

b. suspend the employee from work without pay for 

alleged violations involving a report or statement supporting the allegation of gross misconduct/negligence, 

or for actions which have brought the agency into 

non-compliance with governing state or federal laws/

regulations, until the investigation is completed or until 

six work days have elapsed, whichever occurs first. In all 

other instances, except those outlined above and those 

described in 10.3.c, the suspension shall be with pay. The 
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investigation may continue after the suspended employee 

returns to a paid status. If the employee is found not to 

have committed the violations alleged, the employee will 

be granted pay, benefits, leave, and service credit for the 

period of suspension.

c. in cases where the employee has been charged in 

court with a felony, which is directly related to the workplace or which has the potential for significant impact 

on, or disruption of, the workplace, the Employer may 

suspend the employee from work with or without pay 

until the charges are resolved.

. . . .

When the Employer has placed an employee on investigatory suspension, the Employer shall have thirty work 

days from the date of discovery of an infraction to initiate disciplinary action by serving a written notice of 

allegations on the employee except when the Employer 

is awaiting the results of an outside investigation. If no 

action is taken, disciplinary action is barred for that particular incident.

(Emphasis supplied.)

Section 10.9 of the CBA provides that “[i]n no case will an 

employee be charged with a disciplinary violation when the 

employee behavior it is based upon occurred more than one 

year prior to the initiation of the disciplinary process and has 

been known by the direct supervisor for more than one year.”

White’s 2010 suspension letter incorrectly referred to 

“Article M.15.1” of the CBA, which is irrelevant to this 

dispute. In its order, the court stated that the correct provision is article M.14.1, which, in relevant part, provides the 

following:

When a Department . . . employee has been charged with 

a criminal offense that is directly related to the workplace which could reasonably be expected to result in a 

significant disruption of the workplace, the . . . Director, 

in consultation with the [Department’s] Human Resources 
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Administrator, may suspend the employee without pay 

until there is a trial court disposition of the criminal 

charges. A final disposition of the pending charges is 

not necessary prior to discipline, but may be considered 

by an arbitrator or hearing officer if a grievance is filed. 

The employee reserves the right to file a grievance on the 

Agency Director’s decision to suspend.

(Emphasis supplied.)

On December 15, 2010, White filed a grievance regarding his unpaid suspension, but an arbitrator determined that 

it was not timely filed. On December 22, an officer reported 

to Connelly, Gage, Britten, and Busboom that White had 

called the facility to report that he had been charged with a 

third degree misdemeanor and was scheduled to go to court 

in January 2011. After a human resources assistant received 

this email, he asked Gage whether to continue White’s suspension without pay or change it to suspension with pay. 

Gage responded that White’s status with the Department had 

not changed.

Busboom testified that he never received any information 

that White had been charged with a felony offense. Busboom 

did not know of any actions that the Department took to investigate the charge against White or whether the charge was 

related to the workplace. The Department’s only action was to 

have Connelly act as a liaison to the county attorney.

On March 28, 2011, the county attorney dismissed the 

charge against White without prejudice. But the Department 

did not reinstate him to his position. On March 30, Gage, the 

deputy warden, signed a new letter informing White that he 

was being placed on an unpaid investigatory suspension. Gage 

advised White that the Department was placing him on an 

“investigatory suspension without pay, pending an investigation for possible actions off the job which adversely affects 

the employee’s performance and/or the employing agency’s 

performance or function.” Like the 2010 suspension letter, the 2011 suspension letter cited § 10.3 of the CBA as 
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authority for the suspension but did not set out any allegations 

of misconduct.

Busboom testified that White was placed on a new investigatory suspension so that the Department could perform an 

internal investigation. White testified that Busboom was the 

assigned investigator. White filed a timely grievance to the 

second suspension.

White was asked to come to the Tecumseh facility on May 

5, 2011, to speak to the assigned investigator regarding his 

suspension. White did not attend. On June 2, the Department 

sent White a letter informing him that it was considering disciplinary action against him because he had failed to come in 

for questioning. The letter stated that he had violated three 

CBA provisions, which prohibited the following conduct: (1) 

violating or failing to comply with the CBA, state laws, executive orders, regulations, policies, or procedures; (2) failing or 

refusing to comply with a lawful order or proper assignment; 

and (3) acts or conduct that adversely affect the employee’s or 

employer’s performance. The only factual allegation was that 

White had failed to comply with the directive to meet with the 

assigned investigator. The letter stated that the Department’s 

charges would be heard on June 14.

On June 14, 2011, a predisciplinary hearing was held without White’s presence. White stated in an affidavit that he did 

not appear because he believed his efforts would be futile 

based on the Department’s previous actions against him. On 

July 21, Britten wrote White that his employment was terminated as of that date because he failed to comply with the 

directive to meet with the investigator at the facility.

On August 26, 2011, an administrator with the state’s 

employee relations division set aside White’s second suspension because the Department had violated § 10.3 of the CBA 

in ordering it. It determined that the first suspension ended on 

March 28, 2011, and ordered the Department to pay White his 

wages and benefits from March 28, 2011, to his discharge date. 

The Department did not appeal that decision.
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2. Procedural History

In his amended complaint, White named the State “through 

the NEBRASKA DEPARTMENT OF CORRECTIONS, and 

SCOTT BUSBOOM, Individually and in his official capacity.” 

White alleged that he had a liberty interest in his good name 

and a property interest in his employment, which was taken 

from him without due process. He alleged that the Department 

and Busboom had violated his due process rights by terminating his employment and depriving him of an opportunity 

to work “based on the ruse of an investigation which never 

occurred.” He alleged that in violation of his due process 

rights, he was denied any opportunity to be heard for over 1 

year, causing him to suffer lost wages, past and future; emotional distress and humiliation; and damage to his personal and 

professional reputation. He sought damages, injunctive relief, 

and attorney fees.

The Department and Busboom moved to dismiss White’s 

complaint for failing to state a cause of action. They alleged 

that Busboom was immune from suit under the doctrine of 

qualified immunity. The court sustained the motion to dismiss 

as to White’s claim of reputational damage but overruled it 

as to his claim of a property interest in his employment. The 

Department and Busboom then filed an answer in which they 

alleged affirmative defenses, including immunity from suit. All 

parties then moved for summary judgment.

In its February 2015 order, the court dismissed the 

Department as a party under the doctrine of sovereign immunity. It also found that neither the Department nor Busboom 

had violated White’s due process rights in terminating his 

employment in June 2011, because he had notice and an opportunity to be heard. But the court concluded that White had a 

protected property interest in his employment and that his first 

unpaid suspension from 2010 to 2011 violated both the CBA 

and state personnel rules. It determined that Busboom had 

signed the suspension order while acting under the color of 

state law and that any reasonable officer in his position would 
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have understood White was entitled to a hearing before being 

deprived of a protected property interest.

Factually, the court made the following determinations: 

(1) Busboom was involved in the disciplinary process and 

had been told to place White on an investigatory suspension; (2) the Department and Busboom learned on April 13, 

2010, that White had been charged with misdemeanor invasion of privacy; (3) White was not charged with a felony; (4) 

Busboom admitted that no disciplinary actions were considered as a result of the April 2010 letter; (5) Busboom admitted 

that White was not suspended because of a criminal offense 

directly related to the workplace; and (6) Busboom admitted that after 6 days, § 10.3.b of the CBA required a paid 

suspension.

The Department and Busboom then moved the court to 

reconsider. They argued that White’s claim against Busboom 

was barred because he failed to timely avail himself of the 

grievance procedures in article 4 of the CBA and that “[o]n this 

basis, Defendant Busboom is entitled to qualified immunity.” 

The court denied the motion.

The court acknowledged that White had not filed a grievance until 8 months after his 2010 suspension took effect, 

which was determined to be untimely. It characterized the 

waiver cases relied upon by Busboom as decisions holding 

that a plaintiff had waived his due process right to a hearing 

by failing to request it. The court distinguished these cases 

because the employee had received some type of pretermination hearing. It concluded that those cases fell within the rule 

that a posttermination proceeding can correct any deficiencies 

in a pretermination proceeding. The court concluded that there 

was no postsuspension hearing that could have cured the failure to provide a presuspension hearing.

After a hearing, the court ordered Busboom to pay White 

$20,000 in lost wages and $15,000 in compensatory damages. White’s attorney then applied for $25,901.27 in attorney 

fees and costs. The court reduced that request by half and 
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ordered Busboom to pay $12,731.25 in attorney fees and 

$438.77 in costs.

III. ASSIGNMENTS OF ERROR

Busboom assigns that the court erred in failing to conclude 

that White had waived his due process claim, granting White 

summary judgment on his claim against Busboom in his individual capacity, and concluding that Busboom was not entitled 

to qualified immunity.

In White’s cross-appeal, he assigns that the court erred in 

reducing the award of attorney fees.

VI. STANDARD OF REVIEW

[1,2] We will affirm a lower court’s grant of summary judgment if the pleadings and admitted evidence show that there is 

no genuine issue as to any material facts or as to the ultimate 

inferences that may be drawn from those facts and that the 

moving party is entitled to judgment as a matter of law.2 In 

reviewing a summary judgment, we view the evidence in the 

light most favorable to the party against whom the judgment 

was granted and give that party the benefit of all reasonable 

inferences deducible from the evidence.3

[3,4] We independently review questions of law decided by 

a lower court,4 and the determination of constitutional requirements presents a question of law.5

[5] We review de novo whether a party is entitled to dismissal of a claim based on federal or state immunity, drawing 

all reasonable inferences for the nonmoving party.6

2 Barnes v. American Standard Ins. Co. of Wis., ante p. 331, ___ N.W.2d 

___ (2017).

3 Id.

4 Doe v. McCoy, ante p. 321, ___ N.W.2d ___ (2017).

5 State v. Harris, 296 Neb. 317, 893 N.W.2d 440 (2017).

6 Holloway v. State, 293 Neb. 12, 875 N.W.2d 435 (2016).
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[6] The award or denial of authorized attorney fees and the 

amount of a fee award are rulings that we review for abuse 

of discretion.7

V. ANALYSIS

[7,8] The Due Process Clause of the 14th Amendment provides that “[n]o State shall . . . deprive any person of life, liberty, or property, without due process of law . . . .”8

 Procedural 

due process claims require a two-step analysis: (1) whether 

the plaintiff has asserted a life, liberty, or property interest 

that is protected by the Due Process Clause and (2) whether 

the plaintiff was deprived of that interest without sufficient 

process.9 An employment contract with a public employer can 

give rise to an objectively reasonable expectation of continued employment.10

In the instant case, Busboom does not dispute that White 

had a protected property interest in his continued employment. 

Nonetheless, Busboom contends that under our holding in 

Scott v. County of Richardson,

11 White waived his procedural 

due process claim by failing to timely file a grievance after the 

2010 suspension. Additionally, Busboom contends that under 

the U.S. Eighth Circuit Court of Appeals’ precedent, White’s 

failure to file a grievance under the CBA operates as a procedural bar to White’s due process claim.

White responds that because the CBA’s procedures did not 

comply with minimal due process requirements for an unpaid 

7 See, ACI Worldwide Corp. v. Baldwin Hackett & Meeks, 296 Neb. 818, 

896 N.W.2d 156 (2017); Vlach v. Vlach, 286 Neb. 141, 835 N.W.2d 72 

(2013).

8 U.S. Const. amend. XIV, § 1.

9 See Zawaideh v. Nebraska Dept. of Health & Human Servs., 280 Neb. 

997, 792 N.W.2d 484 (2011), disapproved on other grounds, State v. 

Boche, 294 Neb. 912, 885 N.W.2d 523 (2016).

10 See, Scott v. County of Richardson, 280 Neb. 694, 789 N.W.2d 44 (2010); 

63C Am. Jur. 2d Public Officers and Employees § 136 (2009).

11 Scott, supra note 10.
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suspension, his failure to grieve his suspension cannot operate 

as a waiver of his due process rights. He argues that under the 

U.S. Supreme Court’s precedent, postdeprivation procedures 

cannot cure the Department’s failure to provide required predeprivation procedures or a prompt postsuspension hearing. 

And he argues that Scott is factually distinguishable.

In determining whether the availability of postdeprivation 

procedures satisfies due process requirements, courts have 

focused on two U.S. Supreme Court decisions regarding due 

process requirements for depriving a state employee of a protected property interest in his or her employment. We first 

explain those decisions.

In Cleveland Board of Education v. Loudermill,

12 the U.S. 

Supreme Court considered what pretermination process must 

be given to a tenured public employee who can be discharged 

only for cause. The Court concluded that Ohio’s statutes, 

which provided that civil servants could not be discharged 

except for specified conduct, created a property interest in 

continued employment. It rejected the argument that the statutory procedures for discharging an employee defined the property interest. It held that a state “‘may not constitutionally 

authorize the deprivation of such an interest, once conferred, 

without appropriate procedural safeguards.’”13 The Court held 

that due process required “‘some kind of a hearing’ prior to the 

discharge of an employee who has a constitutionally protected 

property interest in his employment”14 and set out the following requirements for that hearing:

The essential requirements of due process . . . are 

notice and an opportunity to respond. The opportunity 

to present reasons, either in person or in writing, why 

proposed action should not be taken is a fundamental due 

12 Cleveland Board of Education v. Loudermill, 470 U.S. 532, 105 S. Ct. 

1487, 84 L. Ed. 2d 494 (1985).

13 Id., 470 U.S. at 541 (citations omitted).

14 Id., 470 U.S. at 542.
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process requirement. . . . The tenured public employee is 

entitled to oral or written notice of the charges against 

him, an explanation of the employer’s evidence, and an 

opportunity to present his side of the story.15

The Court emphasized that even if the underlying facts are 

clear, an employee’s only meaningful opportunity to persuade 

an employer that a discharge is unnecessary or inappropriate is 

likely to be before the discharge.16

Finally, the court explained that its holding rested in part on 

Ohio’s statutes that provided for a full posttermination hearing. It concluded that “all the process that is due is provided 

by a pretermination opportunity to respond, coupled with

posttermination administrative procedures as provided by the 

Ohio statute.”17 Accordingly, the “pretermination hearing need 

not definitely resolve the propriety of the discharge. It should 

be an initial check against mistaken decisions—essentially, 

a determination of whether there are reasonable grounds to 

believe that the charges against the employee are true and 

support the proposed action.”18 As stated, the pretermination process need only include oral or written notice of the 

charges, an explanation of the employer’s evidence, and an 

opportunity for the employee to tell his side of the story.19 The 

Court further stated that if the employer perceives a hazard in 

keeping an employee on the job, it can suspend the employee 

with pay.20

Several years later, in Gilbert v. Homar,

21 the Court held 

that due process did not require a predeprivation hearing 

15 Id., 470 U.S. at 546.

16 See Loudermill, supra note 12.

17 Id., 470 U.S. at 547-48 (emphasis supplied).

18 Id., 470 U.S. at 545-46.

19 Loudermill, supra note 12.

20 Id.

21 Gilbert v. Homar, 520 U.S. 924, 117 S. Ct. 1807, 138 L. Ed. 2d 120 

(1997).
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before an employee charged with serious criminal offenses can 

be temporarily suspended without pay.

Richard Homar was a university police officer who was 

arrested in a drug raid while at a friend’s house and charged 

with felony drug offenses. On the same day, the university 

suspended him without pay pending an investigation into the 

charges. The charges were dismissed a week later, but Homar 

remained on suspension. Almost 3 weeks after his arrest, two 

officials met with him so he could tell his side of the story, but 

they did not tell him that they had received a report that he 

made confessions on the day of his arrest. About a month after 

his arrest, the university informed him by letter that because he 

had confessed to associating with drug dealers and obtaining 

marijuana from one of them for his own use, it had demoted 

him to a groundskeeper position. The next day, Homar met 

with the university president. After allowing Homar to read the 

report and respond, the president sustained the demotion.

The Third Circuit concluded that Homar’s unpaid suspension without notice and a presuspension hearing violated his 

due process rights. It relied on the Supreme Court’s statement 

in Loudermill that the employer could suspend an employee 

with pay pending a pretermination hearing.

The Supreme Court assumed without deciding that due 

process protections extended to a disciplinary action “short of 

termination” against a tenured public employee.22 But it stated 

that a paid suspension was not the only way to avoid a perceived hazard in leaving an employee on the job. The Court 

also recognized that on multiple occasions, it had “‘rejected 

the proposition that [due process] always requires the State to 

provide a hearing prior to the initial deprivation of property.’”23

22 See id., 520 U.S. at 929.

23 Id., 520 U.S. at 930, citing Parratt v. Taylor, 451 U.S. 527, 101 S. Ct. 

1908, 68 L. Ed. 2d 420 (1981), overruled in part on other grounds,

Daniels v. Williams, 474 U.S. 327, 106 S. Ct. 662, 88 L. Ed. 2d 662 

(1986).
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In determining what process was constitutionally due 

Homar, the Court balanced the three distinct factors set out in 

Mathews v. Eldridge24: “First, the private interest that will be 

affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, 

and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest . . 

. .” In applying these balancing factors, the Court stated that 

although Homar had a significant interest in his paycheck, the 

length and finality of a deprivation must be considered and 

that Homar had faced only a temporary suspension without 

pay: “So long as the suspended employee receives a sufficiently prompt postsuspension hearing, the lost income is relatively insubstantial (compared with termination), and fringe 

benefits such as health and life insurance are often not affected 

at all . . . .”25

The Court concluded that the university had a significant 

interest in Homar’s immediate suspension to maintain public 

confidence in its police force, because he had been charged 

with serious crimes and occupied a position of high public trust and visibility. In that circumstance, the state is not 

required to pay an employee whose services are no longer 

useful because he has been charged with a felony. Finally, the 

charges supported the university’s conclusion that reasonable 

grounds existed to suspend Homar without providing a presuspension hearing.

But the Supreme Court agreed that once the charges were 

dropped, the risk of an erroneous deprivation increased substantially. Because the lower courts had not addressed whether 

the university violated Homar’s due process rights by failing 

to provide a sufficiently prompt postsuspension hearing, the 

Court remanded for consideration of that issue.

24 Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 47 L. Ed. 2d 18 

(1976).

25 Gilbert, supra note 21, 520 U.S. at 932.
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In Scott,

26 we held that deficiencies in due process during 

pretermination proceedings may be cured if the employee is 

provided adequate posttermination due process and that such 

measures can be provided by grievance procedures that have 

been agreed upon by the employer and the employee.

The plaintiff, James Scott, was a deputy sheriff who was 

placed on paid suspension for misconduct during an internal 

investigation. A week later, the chief deputy gave Scott a 

detailed report of the reasons for the suspension. A few days 

after that, Scott submitted to a polygraph test. The next day, 

the chief deputy discharged Scott after he refused to resign. At 

some point, Scott filed a grievance with the sheriff and appealed 

the sheriff’s denial to the county board of commissioners. The 

board found just cause to terminate Scott’s employment.

The district court overturned Scott’s termination because the 

defendants had violated his predeprivation due process rights. 

It relied on Martin v. Nebraska Dept. of Public Institutions,

27 a 

Nebraska Court of Appeals decision holding that posttermination proceedings cannot cure a violation of a plaintiff’s pretermination due process rights.

On appeal, we acknowledged that three federal courts of 

appeals had held that posttermination hearings will not normally cure a violation of pretermination due process rights.28

But we agreed with the Eighth Circuit’s decisions on this 

issue and held that “deficiencies in due process during pretermination proceedings may be cured if the employee is provided adequate posttermination due process.”29 We concluded 

that the grievance procedures under the labor agreement 

26 Scott, supra note 10.

27 See Martin v. Nebraska Dept. of Public Institutions, 7 Neb. App. 585, 584 

N.W.2d 485 (1998), overruled, Scott, supra note 10.

28 See Cotnoir v. University of Maine Systems, 35 F.3d 6 (1st Cir. 1994); 

Abraham v. Pekarski, 728 F.2d 167 (3d Cir. 1984); and Schultz v. Baumgart, 

738 F.2d 231 (7th Cir. 1984).

29 Scott, supra note 10, 280 Neb. at 703-04, 789 N.W.2d at 52.
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“process provides employees with due process required under 

Loudermill.”30

We emphasized that the chief deputy had given Scott the 

factual allegations that supported the suspension and had given 

him an opportunity to respond to them. We did not dispute 

that the pretermination procedures violated Scott’s due process 

rights but concluded that “the violation . . . was cured by the 

extensive posttermination hearing.”31

However, since our holding in Scott, the Eighth Circuit 

has moved away from its earlier position that posttermination 

grievance procedures can cure violations of pretermination due 

process requirements.

The U.S. Supreme Court has consistently held that exhaustion of administrative remedies is not a prerequisite to filing 

an action under 42 U.S.C. § 1983 (2012),32 absent a federal 

statute requiring such exhaustion.33 However, in Keating v. 

Nebraska Public Power Dist.,

34 a 2009 case involving a water 

dispute, the Eighth Circuit stated that it had recognized an 

exception to the general rule that exhaustion of state remedies 

prior to bringing a § 1983 claim is not required. The court 

stated that “‘[u]nder federal law, a litigant asserting a deprivation of procedural due process must exhaust state remedies 

before such an allegation states a claim under § 1983.’”35

The court held, however, that it is not necessary for a litigant 

to have exhausted available postdeprivation remedies when 

the litigant contends that he was entitled to predeprivation

30 Id. at 705, 789 N.W.2d at 53.

31 See id. at 706, 789 N.W.2d at 53.

32 See, Felder v. Casey, 487 U.S. 131, 108 S. Ct. 2302, 101 L. Ed. 2d 123 

(1988); Patsy v. Florida Board of Regents, 457 U.S. 496, 102 S. Ct. 2557, 

73 L. Ed. 2d 172 (1982).

33 See, e.g., 42 U.S.C. § 1997e (Supp. III 2015).

34 Keating v. Nebraska Public Power Dist., 562 F.3d 923 (8th Cir. 2009).

35 Id. at 929 (emphasis in original), quoting Wax ’n Works v. City of St. Paul, 

213 F.3d 1016 (8th Cir. 2000).
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process. It cited a U.S. Supreme Court holding that “‘where 

the State feasibly can provide a predeprivation hearing before 

taking property, it generally must do so regardless of the adequacy of a postdeprivation tort remedy to compensate for the 

taking.’”36 The court further noted that it had previously held 

the “‘availability of post-deprivation remedies is not a defense 

to the denial of procedural due process where predeprivation 

process is practicable.’”37 Accordingly, the court ruled that the 

appellants’ failure to exhaust postdeprivation remedies did not 

affect their entitlement to predeprivation process and that the 

district court should not have considered this failure in dismissing the claim.

In 2012, the Eighth Circuit extended this reasoning in a case 

involving an Iowa teacher’s discharge:

[W]e have held that a government employee who chooses 

not to pursue available post-termination remedies cannot 

later claim, via a § 1983 suit in federal court, that he was 

denied post-termination due process. . . . That said, we 

have also held that “it is not necessary for a litigant to 

have exhausted available postdeprivation remedies when 

the litigant contends that he was entitled to predeprivation process.” . . . Thus, the effect of a government 

employee’s failure to pursue available post-termination 

remedies depends on whether the employee alleges the 

deprivation of pre-termination process or post-termination 

process.38

The appellate court concluded that based on the plaintiff’s 

failure to pursue posttermination process, the federal district 

court had properly dismissed his claims of deficient posttermination proceedings. However, the appellate court determined 

36 Id., quoting Zinermon v. Burch, 494 U.S. 113, 110 S. Ct. 975, 108 L. Ed. 

2d 100 (1990).

37 Id., quoting Westborough Mall, Inc. v. City of Cape Girardeau, 794 F.2d 

330 (8th Cir. 1986).

38 Christiansen v. West Branch Community School Dist., 674 F.3d 927, 935-

36 (8th Cir. 2012) (emphasis in original).
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that his failure to exercise posttermination process had no 

effect on his claim that he was denied pretermination due 

process rights. As a result, the Eighth Circuit has implicitly 

acknowledged that where the Constitution demands predeprivation due process,39 postdeprivation proceedings will not 

cure a state’s failure to provide the minimum predeprivation process.

Importantly, the Eighth Circuit’s 2012 decision is consistent with other federal court decisions addressing this issue 

in cases involving the discharge of a public employee with a 

protected property interest in employment.40 Together, these 

decisions represent the consensus of lower federal appellate 

courts. Moreover, in Loudermill itself, the U.S. Supreme Court 

held that Ohio state employees were entitled to pretermination 

process despite the availability of extensive posttermination 

grievance procedures.41 Loudermill’s minimum pretermination 

procedures are required even when posttermination grievance 

procedures are available.

[9,10] The elements of, and defenses to, a § 1983 action are 

defined by federal law.42 State courts are bound by definitive 

U.S. Supreme Court decisions or a consensus of federal court 

holdings on the substantive requirements of a § 1983 claim or 

defense.43 And the consensus of federal court holdings on this 

39 See Zinermon, supra note 36.

40 See, Jones v. City of Boston, 752 F.3d 38 (1st Cir. 2014); Carmody 

v. Board of Trustees of Uni. of Illinois, 747 F.3d 470 (7th Cir. 2014); 

Walls v. Central Contra Costa Transit Authority, 653 F.3d 963 (9th Cir. 

2011); Montgomery v. City of Ardmore, 365 F.3d 926 (10th Cir. 2004); 

Ciambriello v. County of Nassau, 292 F.3d 307 (2d Cir. 2002).

41 See Loudermill, supra note 12.

42 Howlett v. Rose, 496 U.S. 356, 110 S. Ct. 2430, 110 L. Ed. 2d 332 (1990).

43 See, Ashcroft v. al-Kidd, 563 U.S. 731, 131 S. Ct. 2074, 179 L. Ed. 2d 

1149 (2011); Wilson v. Layne, 526 U.S. 603, 119 S. Ct. 1692, 143 L. Ed. 

2d 818 (1999); Howlett, supra note 42; Felder, supra note 32; Booker v. 

South Carolina Dept. of Corrections, 855 F.3d 533 (4th Cir. 2017); De 

La Rosa v. White, 852 F.3d 740 (8th Cir. 2017); Mammaro v. N.J. Div. of 

Child Prot. and Permanency, 814 F.3d 164 (3d Cir. 2016).
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issue is consistent with Loudermill. Upon the record before us, 

the Department did not provide White the minimum predeprivation due process required for a discharge under Loudermill, 

so we next consider whether that process clearly applied to 

White’s claim that he was constructively discharged.

1. Court Erred in Determining That White’s

Predeprivation Due Process Rights

Were Clearly Established

(a) Qualified Immunity Principles

[11,12] The doctrine of qualified immunity protects government officials from liability for civil damages insofar as their 

conduct, in the context of the specific facts at the time, does 

not violate clearly established statutory or constitutional rights 

of which a reasonable person would have known.44 Whether an 

official may prevail in his or her qualified immunity defense 

depends upon the objective reasonableness of his or her conduct as measured by reference to clearly established law.45

[13] The U.S. Supreme Court has stated that it does “not 

require a case directly on point, but existing precedent must 

have placed the statutory or constitutional question beyond 

debate.”46 “Qualified immunity gives government officials 

breathing room to make reasonable but mistaken judgments 

about open legal questions. When properly applied, it protects 

‘all but the plainly incompetent or those who knowingly violate the law.’”47

44 See, Messerschmidt v. Millender, 565 U.S. 535, 132 S. Ct. 1235, 182 L. 

Ed. 2d 47 (2012); Saucier v. Katz, 533 U.S. 194, 121 S. Ct. 2151, 150 

L. Ed. 2d 272 (2001), overruled in part on other grounds, Pearson v. 

Callahan, 555 U.S. 223, 129 S. Ct. 808, 172 L. Ed. 2d 565 (2009); Carney 

v. Miller, 287 Neb. 400, 842 N.W.2d 782 (2014) (quoting Ashcroft, supra

note 43).

45 Carney, supra note 44.

46 Ashcroft, supra note 43, 563 U.S. at 741.

47 Id., 563 U.S. at 743. Accord, Messerschmidt, supra note 44; Potter 

v. Board of Regents, 287 Neb. 732, 844 N.W.2d 741 (2014) (citing 

Messerschmidt, supra note 44).
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[14] A qualified immunity inquiry has two components: 

(1) whether a plaintiff has alleged a deprivation of a federal 

statutory or constitutional right and (2) whether that right 

was clearly established at the time of the alleged violation.48

A court has discretion to determine which component to 

address first.49

(b) Law Has Not Clearly Established 

Employee’s Due Process Rights 

for Constructive Discharge

Although White was not actually discharged until after the 

second suspension, he argues that Busboom’s actions amounted 

to a constructive discharge. He contends that a procedural due 

process violation can rest on a constructive discharge. In support of this contention, White relies on an unpublished federal 

district court’s judgment.50

In Hammond v. Chester Upland School Dist.,

51 the defendant 

school superintendent did not give the plaintiff school principal 

a reason for suspending her without pay until he was contacted 

by her attorney. The next month, the superintendent indicated 

that she would not be reinstated as principal and advertised 

her position as open. She refused the school board’s offer of 

a teaching position, and the defendants did not offer her a 

hearing on her continued unpaid suspension until more than 5 

months after its effective date and did not affirm the suspension 

until nearly 2 years later. The federal district court concluded 

that the suspension was a de facto termination and that she was 

entitled to pretermination due process under Loudermill, which 

had not occurred.

The Seventh Circuit has also recognized that sham investigative procedures, which deprive a tenured public employee 

48 Ashcroft, supra note 43.

49 See, id.; Pearson, supra note 44.

50 See Hammond v. Chester Upland School Dist., No. Civ. A. 13-6209, 2014 

WL 4473726 (E.D. Pa. Sept. 9, 2014) (unpublished decision).

51 Id.
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of an adequate opportunity to respond to allegations of misconduct, coupled with an extensive suspension, can constitute 

a due process violation.52

But other courts have acknowledged the difficulty of extending the predeprivation requirements of Loudermill to a constructive discharge:

A constructive discharge differs in essential ways from 

a true discharge. When an employer decides to fire an 

employee, there is no ambiguity about the loss that the 

employee will suffer. If the employee has a property 

interest in the job, the government employer must provide proper notice and a hearing before the firing is 

effected. . . . In the constructive-discharge context, however, the employer may not even know that its actions 

have compelled the employee to quit. When that is the 

case, the employer can hardly be required to provide 

notice or a hearing before the resignation . . . .53

The Fifth and the Ninth Circuits have similarly reasoned 

that in an actual discharge case, if an employer failed to provide minimum predeprivation due process, it clearly ignored 

those due process requirements, whereas an employer may not 

be on notice that it should provide predeprivation due process 

procedures in a constructive discharge case.54

Accordingly, the Fifth Circuit has held that a constructive discharge can support a viable § 1983 claim only if it 

amounted to a forced discharge to avoid providing pretermination hearing procedures.55 The 10th Circuit requires a plaintiff 

employee to show that (1) the employer intentionally or knowingly created intolerable working conditions, or was at least on 

notice of those conditions; (2) such conditions compelled the 

52 See Levenstein v. Salafsky, 164 F.3d 345 (7th Cir. 1998).

53 Lauck v. Campbell County, 627 F.3d 805, 812 (10th Cir. 2010).

54 See, Fowler v. Carrollton Public Library, 799 F.2d 976 (5th Cir. 1986); 

Gravitt v. Brown, 74 F. Appx. 700 (9th Cir. 2003).

55 Fowler, supra note 54.
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plaintiff’s resignation; and (3) the employer failed to provide 

minimum pretermination procedures.56

[15] Loudermill and Gilbert57 established that the due process requirements for depriving public employees of a protected property interest in employment must be determined 

under the Mathews balancing factors.58 But we need not 

decide whether these facts show a constructive discharge or 

what due process requires in a constructive discharge case. It 

is enough here to conclude that White’s due process rights in 

the context of a constructive discharge claim were not clearly 

established at the time that the Department placed White on 

an unpaid suspension. This is particularly true in light of 

our decision in Scott,

59 which implied that posttermination 

grievance procedures could provide all the due process that 

was required under Loudermill, even in cases involving an 

actual discharge.60

(c) Law Has Not Clearly Established Employee’s 

Predeprivation Due Process Rights 

for Unpaid Suspension

The holding in Loudermill was limited to setting out the 

minimum due process requirements before discharging an 

employee with a protected property interest in employment. As 

noted, in Gilbert, the Supreme Court did not decide whether 

procedural due process protections extend to adverse employment actions short of a discharge.61 It held only that under the 

facts of the case, due process did not prohibit an unpaid suspension without predeprivation procedures.

56 Lauck, supra note 53.

57 See Loudermill, supra note 12, and Gilbert, supra note 21.

58 See Mathews, supra note 24.

59 Scott, supra note 10.

60 See Harlow v. Fitzgerald, 457 U.S. 800, 102 S. Ct. 2727, 73 L. Ed. 2d 396 

(1982).

61 See Gilbert, supra note 21.
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In 2011, the Third Circuit applied the Mathews factors 

and held that absent extraordinary circumstances, due process 

requires notice and an informal hearing before suspending a 

state employee without pay if the employee has a protected 

property interest in employment, even if postsuspension grievance procedures are available. But the court also held that this 

right was not clearly established when the plaintiff was suspended.62 Two other federal appellate courts have also held that 

a state employer must provide at least some type of predeprivation process before imposing an unpaid suspension.63

In contrast, the 10th Circuit held that a school board’s placement of an administrator on unpaid leave without any type of 

hearing did not violate his due process rights.64 Applying the 

Mathews factors, the court specifically held that the plaintiff 

was not constitutionally entitled to notice and opportunity to 

respond before he was suspended without pay. The court stated 

that his private interest in continuous income was attenuated 

by the relatively prompt postsuspension grievance procedure 

that was available to him, even though the administrator did 

not file a grievance. In effect, the court held that in unpaid 

suspension cases, an employee forfeits a predeprivation due 

process claim by failing to invoke postdeprivation procedures 

that were available. In a footnote, the Sixth Circuit stated that 

even if the administrator were entitled to a presuspension hearing, that right was not clearly established when the district 

suspended him.65

Given this conflicting federal case law and a statement by 

two federal appellate courts that the right to predeprivation 

notice and a hearing was not clearly established in unpaid 

62 See Schmidt v. Creedon, 639 F.3d 587 (3d Cir. 2011).

63 See, O’Connor v. Pierson, 426 F.3d 187 (2d Cir. 2005); Baerwald v. City 

of Milwaukee, 131 F.3d 681 (7th Cir. 1997).

64 Kirkland v. St. Vrain Valley Sch. Dist. No. RE-1J, 464 F.3d 1182 (10th Cir. 

2006).

65 See id. at 1194 n.10.
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suspension cases, we cannot say that Busboom should have 

known that White was entitled to notice and an informal hearing before he was suspended without pay. We conclude that 

the court erred in reasoning that any reasonable officer in 

Busboom’s position should have understood that notice and an 

opportunity to be heard were required before the Department 

could deprive White of a protected property interest. That 

level of generality was too high to determine whether the 

unlawfulness of the suspension was apparent.66 The question 

was whether, at the time of Busboom’s actions, the law clearly 

established that White was entitled to notice and a predeprivation hearing to respond to the Department’s allegations, despite 

the availability of prompt postdeprivation grievance procedures 

to challenge his unpaid suspension. We conclude that it did 

not. Accordingly, the court erred in failing to determine that 

Busboom was entitled to qualified immunity on White’s claim 

that he was denied predeprivation due process.

2. White Has Failed to Show Postdeprivation

Due Process Violation

White also contends that his failure to file a grievance 

within the allowable time did not waive his postdeprivation 

due process. More specifically, he alleges that the grievance 

procedures did not comply with due process requirements 

because the CBA failed to specify the time for a postsuspension hearing.

In support of this contention, he relies on the U.S. Supreme 

Court case of Barry v. Barchi,

67 in which the Court held that 

a horseracing board’s suspension of a trainer was unconstitutional for the same failure. In Barry, the board suspended 

the trainer for 15 days after one of his horses tested positive 

for drugs. Under the applicable statute, it was presumed, subject to rebuttal, that the drug either was administered by the 

66 See Anderson v. Creighton, 483 U.S. 635, 107 S. Ct. 3034, 97 L. Ed. 2d 

523 (1987).

67 Barry v. Barchi, 443 U.S. 55, 99 S. Ct. 2642, 61 L. Ed. 2d 365 (1979).
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trainer or resulted from his negligence in failing to adequately 

protect against such occurrence. After the suspension, the 

trainer would be entitled to a hearing; however, the statute did 

not specify a time for such a hearing and granted the board up 

to 30 days after the hearing to issue a final order.

The trainer did not seek a hearing under the statute, but 

instead filed suit and challenged the law. The federal district 

court found that even a short suspension could irreparably 

damage a trainer’s livelihood and that during that period, a 

trainer would lose clients to other trainers. It concluded that 

a full hearing after he had lost his clients was not a meaningful opportunity to be heard.68 It ruled that the statute violated 

the trainer’s due process rights because it allowed the sanction 

without a presuspension or a prompt postsuspension hearing.69

The Supreme Court agreed that the board was entitled 

to impose an interim suspension, pending a prompt judicial 

or administrative hearing that would definitely determine the 

issues, whenever it has satisfactorily established probable cause 

to believe that a horse has been drugged and that a trainer has 

been at least negligent in connection with the drugging.

Nonetheless, the Court noted that the statute, on its face 

and as applied, did not provide for a prompt hearing. So trainers would often not have an opportunity to test the state’s 

evidence before they had suffered the full consequences of a 

suspension. The Court reasoned that this result did not satisfy 

the due process requirement of an opportunity to be heard on 

the ultimate determination “‘at a meaningful time and in a 

meaningful manner.’”70 Because the statute was deficient in 

that respect, the Court held that the trainer’s suspension was 

constitutionally infirm under the Due Process Clause.

But Barry is distinguishable not only because the state procedures gave the trainer no opportunity to contest the sanction 

68 Id.

69 Id.

70 Id., 443 U.S. at 66.
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until after it was completed, but because the sanction irreparably affected the trainer’s future livelihood by causing him to 

lose clients.

In contrast, in FDIC v. Mallen,

71 the Supreme Court upheld 

the administrative postdeprivation procedures for a bank president to contest his suspension where the agency was required 

to hold a hearing within 30 days of a claimant’s request and to 

issue a decision within 60 days of the hearing. The Court concluded that this 90-day period did not exceed permissible limits. It emphasized that leaving the suspension in place would 

not increase the plaintiff’s reputational injury, because he had 

been indicted of a felony crime of dishonesty, and that the public interest in a correct decision counseled against requiring a 

hasty one. The Court stated that the indictment demonstrated 

that the suspension was not arbitrary and raised a public concern that the bank was not being managed responsibly.

In Zinermon v. Burch,

72 the U.S. Supreme Court explained 

that when a plaintiff in a § 1983 action alleges a procedural 

due process violation, the existence of state remedies is a relevant consideration:

In procedural due process claims, the deprivation by state 

action of a constitutionally protected interest in “life, 

liberty, or property” is not in itself unconstitutional; what 

is unconstitutional is the deprivation of such an interest 

without due process of law. . . . The constitutional violation actionable under § 1983 is not complete when the 

deprivation occurs; it is not complete unless and until the 

State fails to provide due process. Therefore, to determine whether a constitutional violation has occurred, it 

is necessary to ask what process the State provided, and 

whether it was constitutionally adequate. This inquiry 

would examine the procedural safeguards built into the 

statutory or administrative procedure of effecting the 

71 FDIC v. Mallen, 486 U.S. 230, 108 S. Ct. 1780, 100 L. Ed. 2d 265 (1988).

72 Zinermon, supra note 36, 494 U.S. at 125-26 (emphasis in original).
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deprivation, and any remedies for erroneous deprivations 

provided by statute or tort law.

[16] Consistent with Zinermon, lower federal appellate 

courts have concluded that a plaintiff fails to state a viable procedural due process claim when adequate postdeprivation state 

procedures were available but the plaintiff failed to invoke 

them.73 We agree. These holdings are not an exception to the 

no exhaustion requirement.74 Instead, a plaintiff cannot show a 

procedural due process violation if the governmental actor provided an adequate postdeprivation procedure and the plaintiff 

failed to invoke the remedy.75

The CBA in this matter permits an employee to file a grievance for a violation of the labor contract within 15 days of the 

contested action, unless the employer exercises its discretion to 

extend the time limit. The decisionmaker who took the action 

must confer with the employee and respond to the grievance 

within 10 days. If dissatisfied with the response, an employee 

can appeal to the agency head, who must respond within 15 

days of the appeal. If instead, the agency head was the decisionmaker, he or she must respond to the grievance in 15 days. 

After that, an employee can appeal to the state’s employee relations division, which must issue a decision within 20 days of 

a conference between the parties. An employee can appeal that 

decision to an arbitrator or hearing officer. And employees can 

additionally seek judicial review.76

73 See, e.g., Raymond v. Bd. of Regents of the University of MN, 847 F.3d 

585 (8th Cir. 2017); Christiansen, supra note 38; Kirkland, supra note 

64; Alvin v. Suzuki, 227 F.3d 107 (3d Cir. 2000); Chiles v. Morgan, 

No. 94-10980, 1995 WL 295931 (5th Cir. Apr. 26, 1995) (unpublished 

disposition listed in table of “Decisions Without Published Opinions” at 

53 F.3d 1281 (5th Cir. 1995)).

74 See Alvin, supra note 73.

75 Id.

76 See Ahmann v. Nebraska Dept. of Corr. Servs., 278 Neb. 29, 767 N.W.2d 

104 (2009).
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Here, the Department knew that White had been arrested 

for a misdemeanor offense of unlawful intrusion, not a felony offense. But regardless of whether the decision to suspend White without pay was correct, we conclude that under 

Mallen, the postdeprivation procedures available to White 

were constitutionally adequate. His failure to invoke them 

does not render his unpaid suspension an unlawful deprivation of a protected property interest without due process. We 

conclude that he has failed to show a postdeprivation due 

process violation.

3. White Is Not Entitled

to Attorney Fees

[17] In order to be eligible for attorney fees under 42 U.S.C. 

§ 1988(b) (2012), a plaintiff must be a prevailing party, which 

means that the plaintiff must have obtained a judgment on 

the merits, a consent decree, or some other judicially enforceable settlement, which materially alters the legal relationship 

of the parties in a way that benefits the plaintiff.77 We have 

determined that Busboom was entitled to qualified immunity 

on White’s claim that he was deprived of predeprivation due 

process and that White has failed to show a postdeprivation 

due process violation. Accordingly, White is not entitled to 

attorney fees, because he is not a prevailing party.

VI. CONCLUSION

We conclude that the court erred in determining that any 

reasonable officer in Busboom’s position should have understood that notice and an opportunity to be heard were required 

before the Department could deprive White of a protected 

property interest. Federal case law has not clearly established 

77 See, Lefemine v. Wideman, 568 U.S. 1, 133 S. Ct. 9, 184 L. Ed. 2d 313 

(2012); Buckhannon Board & Care Home, Inc. v. West Virginia Dept. of 

Health and Human Resources, 532 U.S. 598, 121 S. Ct. 1835, 149 L. Ed. 

2d 855 (2001); Hensley v. Eckerhart, 461 U.S. 424, 103 S. Ct. 1933, 76 L. 

Ed. 2d 40 (1983).
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that in unpaid suspension cases, a public employer must provide predeprivation notice and a hearing to an employee with a 

protected property interest in employment. Nor has federal case 

law clearly established that these due process rights are available in constructive discharge cases.

Moreover, when White was suspended, the controlling 

authority of both the Eighth Circuit and this court established 

that a state official’s failure to provide pretermination due 

process could be cured by posttermination grievance procedures. A prison official in Busboom’s position could have 

reasonably concluded that the same rule applied to the lesser 

disciplinary action of an unpaid suspension. Accordingly, the 

court erred in failing to sustain Busboom’s qualified immunity defense.

Additionally, we conclude that White has failed to state a 

viable § 1983 claim that he was denied posttermination due 

process because he failed to invoke the grievance procedures 

that were available to him. Because White is not a prevailing party, he is not entitled to attorney fees. We therefore 

reverse the district court’s judgment and remand the cause with 

instructions for it to enter summary judgment for Busboom and 

dismiss White’s complaint.

Reversed and remanded with instructions.