UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

FRED GUTHRIE IVEY, JR.,

Plaintiff-Appellant,

v.

J. FRANK YEAGER, Dr., both in his

personal capacity and in his official

capacity as Superintendent of the

Buncombe County Schools; THE

BUNCOMBE COUNTY BOARD OF

EDUCATION; M. WENDELL BEGLEY, in

his official capacity as Chairman of

No. 97-1627

the Buncombe County Board of

Education; CHARLES JOHNSON;

MICHAEL ANDERS; WILLIAM D.

WILLIAMS; GRACE BRAZIL; BRUCE

GOFORTH; TERRY ROBERTSON,

members of the Board of Education

of Buncombe County sued in their

official capacity as members of the

Board of Education,

Defendants-Appellees.

Appeal from the United States District Court

for the Western District of North Carolina, at Asheville.

Lacy H. Thornburg, District Judge.

(CA-96-97-1)

Submitted: November 25, 1997

Decided: April 3, 1998

Before LUTTIG, WILLIAMS, and MICHAEL, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Charles R. Brewer, Asheville, North Carolina, for Appellant. James

G. Middlebrooks, Brian D. Barger, SMITH, HELMS, MULLISS &

MOORE, L.L.P., Charlotte, North Carolina, for Appellees.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Fred Guthrie Ivey, Jr., appeals from the district court's grant of the

defendant's summary judgment motion in an action brought under 42

U.S.C. § 1983 (1994), the First and Fourteenth Amendments to the

United States Constitution and the North Carolina Constitution. Finding no error, we affirm.

The gravamen of Ivey's complaint concerned adverse employment

actions allegedly taken in violation of his right to petition the Government for redress of grievances. Allegedly, the adverse actions were

based upon Ivey's purported pursuit of a lawsuit and his refusal to

sign a release abandoning any legal claims he had against the Buncombe County Board of Education (the "Board") or any of its

employees.

Ivey was a tenured high school principal. In November 1994, Ivey

was informed by Yeager, the school superintendent, that a purchase

order prepared by Ivey may have been in violation of public school

law. A subsequent audit revealed that Ivey had violated a state criminal statute. Yeager offered Ivey three options: (1) he could accept a

demotion to a teaching position; (2) he could resign; or (3) he could

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face dismissal proceedings. In January 1995, after continued negotiations and consultation with his attorney, Ivey requested a transfer to

a teaching position for personal reasons. Yeager accepted the terms

Ivey set forth in his request. Ivey's wife then wrote letters to members

of the Board informing them that her husband was pressured by

Yeager to request a transfer. Yeager then learned from a supporter of

Ivey's that Ivey had met with a new lawyer and discussed suing the

Board.

In February 1995, Yeager presented Ivey with a proposed modified

written agreement concerning the transfer and a written release of

claims against the Board. According to Ivey, Yeager intended on recommending that he be dismissed if he did not sign the documents. Of

concern to Yeager was Ivey's apparent contention that his request for

a transfer was not voluntary and the possibility of a law suit. Ivey

refused to sign the documents.

In March 1995, Ivey was informed that there were other improprieties allegedly committed by him involving his oversight of the school

and he was given an opportunity to respond. In late March 1995,

Yeager informed Ivey of his intent to suspend him without pay and

to recommend to the Board that he be dismissed. He also rescinded

the transfer agreement because Ivey had contended that he did not

enter the agreement voluntarily. In April 1995, Ivey was presented

with a formal letter of immediate suspension. The grounds for Ivey's

suspension were upheld by a panel of the State Professional Review

Committee. After a hearing before the Board, Ivey was dismissed.

This Court reviews a district court grant of a motion for summary

judgment de novo. See Nguyen v. CNA Corp., 44 F.3d 234, 236-37

(4th Cir. 1995). A summary judgment motion should only be granted

if there is no genuine dispute as to an issue of material fact and the

moving party is entitled to judgment as a matter of law. Id. (citing

Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248 (1986)).

As the district court properly concluded, with regard to Ivey's

claim that his First Amendment right to petition the government for

redress was violated, Ivey failed to show that he was prevented from

speaking as a private citizen on matters of public concern. See

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Connick v. Myers, 461 U.S. 138 (1983); see also Rendish v. City of

Tacoma, 123 F.3d 1216 (9th Cir. 1997).

There is no indication that Ivey's pursuit of a civil lawsuit was

nothing more than a disgruntled employee seeking to air his grievances. See Huang v. Board of Governors of Univ. of N.C., 902 F.2d

1134, 1140 (4th Cir. 1990). Furthermore, there is no indication that

the release chilled his opportunities to speak as a private citizen concerning matters of public concern. See Luethje v. Peavine Sch. Dist.

of Adair County, 872 F.2d 352, 355 (10th Cir. 1989).

In addition, Ivey was provided with all the pre-deprivation process

that he was due. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S.

532, 546 (1985). Insofar as Ivey asserts that Yeager ignored the process by having predetermined the disposition, he is asserting that

Yeager's conduct was random and unauthorized, for which there were

adequate post-deprivation remedies. See Zinermon v. Burch, 494 U.S.

113, 115 (1990). Ivey's substantive due process claim will not be

reviewed by this Court because the source of the claim is a specific

constitutional guarantee. See Winfield v. Bass , 106 F.3d 525, 530 n.2

(4th Cir. 1997) (citing Graham v. Connor, 490 U.S. 386 (1989)); see

also Albright v. Oliver, 510 U.S. 266, 273 (1994) (plurality opinion).

Finally, Ivey's state constitutional claims must also fail. A litigant

who asserts violations of state constitutional rights may bring an

action under the North Carolina constitution only if there is an

absence of state remedies. See Hughes v. Bedsole , 48 F.3d 1376, 1383

n.6 (4th Cir. 1995). North Carolina provides judicial review of a

Board's decision to dismiss a tenured principal. See N.C. Gen. Stat.

§§ 115C-40, 115C-325(n) (1983). In fact, Ivey initiated an action

under these provisions asserting the state constitutional claims raised

in the federal action. However, he withdrew that action prior to a

decision on the merits.

Accordingly, we affirm the district court's grant of summary judgment in favor of the Defendants. We dispense with oral argument

because the facts and legal contentions are adequately presented in the

material before the court and argument will not aid in the decisional

process.

AFFIRMED

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