United States Court of Appeals

For the Eighth Circuit

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No. 15-3575

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Rodney Raymond

Plaintiff - Appellant

v.

Board of Regents of the University of Minnesota,

individually in their official capacities;

The University of Minnesota

Defendants - Appellees

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Appeal from United States District Court

for the District of Minnesota - Minneapolis

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Submitted: November 15, 2016

Filed: January 31, 2017

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Before BENTON and SHEPHERD, Circuit Judges, and STRAND, District Judge. 1

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STRAND, District Judge.

The Honorable Leonard T. Strand, United States District Judge for the

1

Northern District of Iowa, sitting by designation.
RodneyRaymond (Raymond) brought this action against the Board ofRegents

ofthe University of Minnesota, individually in their official capacities(Regents), and

the University of Minnesota (University) pursuant to 42 U.S.C. § 1983, seeking

damages and injunctive relief. The district court dismissed Raymond’s amended

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complaint. This appeal followed. We affirm.

I. BACKGROUND

A. Raymond’s Amended Complaint

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Raymond was employed as a wellness director and fitness instructor at the

University’s Duluth campus. Beginning in 2009, the University received reportsthat

Raymond was violating various school policies, including policies related to sexual

harassment. Raymond denied the allegations and the University conducted

investigations. Each investigation concluded Raymond had indeed violated school

policies. He appealed these decisions to varying degrees, with each appeal being

determined against him. 

Raymond alleged that one of the investigations was tainted by bias and

involved collusion between the investigator and complainant. A University panel

agreed and decided to hire a new investigator. Raymond objected to a new

investigation on double jeopardy and due process grounds. The University denied

Raymond’s objection. Raymond then requested to be involved in selecting the new

investigator. This request was denied. The new investigator was hired based, in part,

on the recommendation of the University’s legal counsel. Raymond requested the

The Honorable Donovan W. Frank, United States District Judge for the

2

District of Minnesota.

We must accept the factual allegations set forth in the amended complaint as 3

true for purposes of deciding whether the district court properly dismissed that

complaint. See e.g., Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 591 (8th Cir.

2009).

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investigator recuse himself given that the attorney who had recommended him would

be the “prosecutor” against Raymond. This request was denied. 

Raymond alleged the new investigation wasflawed because it went beyond the

scope of the allegations and was not justified by University policy. According to

Raymond, the new investigator engaged in unprofessional communications with

Raymond’s counsel, failed to investigate the collusion in the original investigation,

exceeded the scope of his investigatory mandate, distorted witness statements and

came to erroneous conclusions. He also alleged that an appellate panel had found the

investigator “over-reached in his attempt to show that [Raymond] should be

disciplined by [the University.]” See Amended Complaint at ¶ 9. During the

investigative process, Raymond contends he never had the opportunity to examine or

cross-examine witnesses. 

On November 19, 2012, Raymond submitted a written request to the Regents

that they intervene as a court of appeal and provide him with a hearing to address his

grievances with respect to the investigation. The Regents denied thisrequest through

written correspondence dated December 12, 2012. On April 10, 2013, the University

informed Raymond that the investigation concluded there was “just cause” to

discipline him for violations of University policy. Raymond requested the

opportunity to respond to this letter, but was informed on April 25, 2013, that the

University had decided to terminate his employment.

On May 1, 2013, Raymond filed a petition with the Office of Conflict

Resolution (OCR) challenging the termination and requesting a hearing. Around this

time, news reports were purportedly circulating regarding his discharge and the

sexual harassment allegations. On August 8, 2013, the OCR issued a jurisdictional

decision to determine the scope of panel review in addressing the grounds for

Raymond’s discharge. On October 13, 2013, the Provost intervened and overturned

the OCR’s jurisdictional decision by limiting the scope of the hearing to exclude the

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sexual harassment allegations from further review. Raymond contends these

allegations were a basis for the University’s termination decision. 

On November 7, 2013, Raymond requested that the presiding hearing officer

recuse herself because she had been privy to the investigative report that led to

Raymond’s discharge, which included the sexual harassment allegations. In addition,

he requested a new hearing panel and the submission of a redacted report excluding

the sexual harassment allegations. The University denied these requests.

On February 5, 2014, Raymond withdrew from the hearing process “based on

the futility of the process and its inherent unfairness and bias towards him, and

because of the University’s bad faith in its dealings with him.” See Amended

Complaint at ¶ 21. Raymond contends that the University used the process to harass

him and discourage his legitimate defenses to discharge. He alleges that if he had

continued to engage in the process, which he claims was unfair and biased, he would

have been irreparably injured. 

On September 19, 2014, Raymond requested a post-termination hearing before

the Regents to address all the grounds for his discharge. He also requested the

Regents consult outside counsel because the University’s counsel had been involved

in the investigative, “prosecutorial,” and decision-making processes. These requests

were denied.

Raymond’s amended complaint asserted two claims of procedural due process

violations—one against his liberty interest and the other against his property interest. 

He sought damages and injunctive relief. 

B. Proceedings Below

Pursuant to Federal Rules of Civil Procedure 12(b)(6) and 12(b)(1), the

University and Regents moved to dismiss the amended complaint for failure to state

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a claim upon which relief could be granted and lack of subject matter jurisdiction. 

The district court granted the motion. It dismissed Raymond’s claims against the

University on Eleventh Amendment grounds and similarly ruled that the Eleventh

Amendment prohibits Raymond fromseeking damagesfromtheRegents. Raymond’s

appeal does not address these issues. 

With regard to injunctive relief, the district court found Raymond had failed

to state a due process claim upon which relief could be granted. In doing so, the court

analyzed whether the University’s pre-termination and post-termination procedures

were adequate and concluded they were. The court also found that Raymond failed

to exhaust state remedies. The court rejected Raymond’s allegation that exhaustion

would have been futile, noting that futility must be based on certainty rather than the

subjective belief of the person asserting futility. The court also concluded that the

futility exception is not available in the context of a § 1983 procedural due process

claim. Raymond appeals the dismissal of his claims for injunctive relief. 

II. DISCUSSION

A. Standard of Review

“‘Whether a complaint states a cause of action is a question of law which we

review on appeal de novo.’” Packard v. Darveau, 759 F.3d 897, 900 (8th Cir. 2014)

(quoting Miller v. Redwood Toxicology Lab., Inc., 688 F.3d 928, 936 (8thCir. 2012)). 

Under Rule 12(b)(6), a defendant may move for dismissal based on a plaintiff’s

“failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). 

“We will affirm the dismissal if the complaint fails to allege facts sufficient to ‘state

a claim to relief that is plausible on its face.’” Hopkins v. City of Bloomington, 774

F.3d 490, 491-92 (8th Cir. 2014) (quoting Walker v. Barrett, 650 F.3d 1198, 1203

(8th Cir. 2011)). “A claim has facial plausibility when the plaintiff pleads factual

content that allows the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 

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B. Raymond’s Due Process Claims

Raymond alleges that he was deprived ofliberty and property interests without

due process when his employment with the University was terminated. The Regents

and University do not challenge the adequacy of Raymond’s alleged interests.

Rather, they argue Raymond did not satisfy a condition of his procedural due process

claims—exhaustion ofstate remedies. For thisreason, they argue the district court’s

decision should be affirmed.

“[T]he exhaustion requirement is an affirmative defense that a defendant must

plead and prove.” Nash v. Lappin, 172 F. App’x 702, 703 (8th Cir. 2006) (per

curiam). However, “[i]f an affirmative defense . . . is apparent on the face of the

complaint . . . that [defense] can provide the basis for dismissal under Rule 12(b)(6).” 

C.H. Robinson Worldwide, Inc. v. Lobrano, 695 F.3d 758, 764 (8th Cir. 2012)

(quoting Noble Sys. Corp. v. Alorica Cent., LLC, 543 F.3d 978, 983 (8th Cir. 2008))

(alterations in original). “Generally, a plaintiff is not required to exhaust state

administrative remedies as a prerequisite to bringing an action pursuant to § 1983.” 

Hopkins, 774 F.3d at 492 (citing Patsy v. Bd. of Regents of Fla., 457 U.S. 496, 516

(1982)). However, this court has “recognized an exception to Patsy’s general rule

that exhaustion of state remedies prior to bringing a section 1983 claim is not

required.” Id. (quoting Keating v. Neb. Pub. Power Dist., 562 F.3d 923, 929 (8th Cir.

2009)). “Under federal law, a litigant asserting a deprivation of procedural due

process must exhaust state remedies before such an allegation states a claim under §

1983.” Id. (quoting Wax ‘n Works v. City of St. Paul, 213 F.3d 1016, 1019 (8th Cir.

2000)). 

“[A]n employee who fails to request post-termination process cannot later sue

for having been deprived of it.” Winskowski v. City of Stephen, 442 F.3d 1107, 1111

(8th Cir. 2006); see also Krentz v. Robertson, 228 F.3d 897, 904 (8th Cir. 2000)

(“[A]n employee waives a procedural due process claim by refusing to participate in

post-termination administrative or grievance procedures made available by the

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state.”). “[T]his requirement is distinct from exhaustion requirements in other

contexts.” Crooks v. Lynch, 557 F.3d 846, 848 (8th Cir. 2009). “Rather, this

requirement is necessary for a procedural due process claim to be ripe for

adjudication.” Id. A plaintiff “cannot complain of a violation of procedural due

process when he has not availed himself of existing procedures.” Anderson v.

Douglas Cnty., 4 F.3d 574, 578 (8th Cir. 1993). 

Although Raymond’s amended complaint focuses primarily on the adequacy

of the post-termination procedures, we must first consider whether he has sufficiently

alleged a pre-termination procedural due process violation, which would not require

exhaustion. See Keating, 562 F.3d at 929 (“[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.”) (emphasis in original)). In the context of a

public employee’s discharge, a pre-termination hearing isrequired, although it “need

not be elaborate.” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 545 (1985);

see also Christiansen v. West Branch Comm. Sch. Dist., 674 F.3d 927, 934 (8th Cir.

2012) (“Due process does not require elaborate pre-termination procedures, especially

where meaningful post-termination process is available.”). 

“The essential requirements of due process . . . are notice and an opportunity

to respond.” Loudermill, 470 U.S. at 546. “To satisfy minimal due-process

requirements at the pre-termination stage, a public employer must give the public

employee 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.” Smutka v.

City of Hutchinson, 451 F.3d 522, 526-27 (8th Cir. 2006) (internal quotations

omitted). “To require more than this prior to termination would intrude to an

unwarranted extent on the government’s interest in quickly removing an

unsatisfactory employee.” Id. 

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Raymond alleges that when the University began investigating the alleged

violations ofschool policies, he denied the allegations and appealed the conclusions,

with each appeal being determined against him. Raymond presented evidence of bias

and collusion to the University, which led an appellate panel to determine that

investigation could not be used against Raymond. Raymond objected to a new

investigation on double jeopardy and due process grounds. His request was denied. 

He then requested to be involved in the selection of a new investigator. That request

was denied. Finally, he requested that the new investigator recuse himself. That

request was also denied. Following the second investigation, Raymond submitted a

written request to the Regents to sit as a court of appeal and provide him a hearing to

address his grievances. That request was denied through written correspondence. 

Raymond then received a letter dated April 10, 2013, advising him that the

investigative report found “just cause” to discipline Raymond for violating school

policies. Raymond requested an opportunity to respond, but received a letter on April

25, 2013, notifying him his employment had been terminated. 

These allegations, taken as true from Raymond’s amended complaint, fail to

state a claim of a pre-termination due process violation. Indeed, they establish the

opposite. Raymond was advised of the allegations and evidence against him. He had

the opportunity to respond, and did respond, to the allegations. Indeed, the University

agreed with his complaints of bias and collusion as to one investigation and ordered

a new investigation. During the subsequent investigation, the University and Regents

responded to Raymond’s requests. His only complaint about this process is that he

was never afforded the opportunity to examine or cross-examine witnesses. This type

of formal process is not required prior to termination. See Mathews v. Eldridge, 424

U.S. 319, 343 (1976) (noting that “something less than an evidentiary hearing is

sufficient prior to adverse administrative action.”). Because Raymond did not

sufficiently plead a pre-termination procedural due process violation, exhaustion of

state remedies is required to proceed on his post-termination claim. 

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Raymond’s amended complaint acknowledges that he withdrew fromthe posttermination OCR process by withdrawing his petition on February 5, 2014. 

Therefore, he did not exhaust state remedies. However, Raymond contends this

failure is not detrimental to his claim. He alleges that he withdrew from the process

“based on the futility of the process and its inherent unfairness and bias towards him,

and because of the University’s bad faith in its dealings with him.” See Amended

Complaint at ¶ 21. Raymond argues we should recognize futility as an exception to

the exhaustion requirement in the context of a procedural due process claimand allow

him to proceed with his lawsuit.

C. Futility

Raymond argues the OCR process was futile for two reasons: (1) he did not

have the opportunity to confront and cross-examine witnesses and (2) the Provost’s

jurisdictional ruling denied him a name-clearing hearing on the sexual harassment

allegations that were part of the basis for his termination. For these reasons, he 4

argues this court should recognize a futility exception to the exhaustion requirement. 

This court has recognized exceptions to exhaustion requirements in other

contexts. See, e.g., Ace Property and Cas. Ins. Co. v. Fed. Crop Ins. Corp., 440 F.3d

992, 1000 (8th Cir. 2006) (“A party may be excused from exhausting administrative

remedies if the complaint involves a legitimate constitutional claim, if exhaustion

would cause irreparable harm, if further administrative procedures would be futile . . .

or if the issues to be decided are primarily legal rather than factual.”). An

administrative remedy isfutile “if there is doubt about whether the agency could grant

effective relief.” Id. Notably, Ace did not involve a § 1983 procedural due process

The record is silent as to whether Raymond ever complained of these

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perceived deficiencies to the University or Regents prior to withdrawing his OCR

petition. 

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claim, but an alleged breach of contract by an administrative agency. Id. at 995. 

Exhaustion of administrative remedies was mandated by statute. Id. 

This court has never held that the exceptions recognized in Ace apply in the

context of § 1983 procedural due process claims. Raymond suggests, however, that

none of our cases preclude it. He distinguishes Winskowski, 442 F.3d at 1110, a case

the district court cited for the proposition that an individual who did not take

advantage of a post-termination process cannot claim that it was inadequate. 

Raymond argues Winskowski isinapplicable because unlike the Winskowski plaintiff,

who failed to request any post-termination process, Raymond requested that process

and withdrew from it only when he concluded that it was futile. He cites Schleck v.

Ramsey Cnty., 939 F.2d 638 (8th Cir. 1991), to argue that futility should be

recognized as an exception in this context. In Schleck, this court held that there was

no due process violation when county employees declined a post-termination hearing. 

Schleck, 939 F.2d at 643. Raymond notes that the post-termination process in that

case explicitly included the right to cross-examine witnesses and respond to the

charges against them, id., and asserts that those rights were omitted from the posttermination procedures here. Essentially, Raymond suggests that if a posttermination process does not guarantee certain rights (i.e., the right to cross-examine

witnesses and respond to charges), the claimant should not have to exhaust remedies

and should be permitted to allege futility.

With regard to the post-termination process here, paragraph 9 of the

University’s conflict resolution procedures for civil service employee complaints

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provides, “[t]he hearing panel will provide a fair opportunity for the petitioner and

“Though matters outside the pleading may not be considered in deciding a

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Rule 12 motion to dismiss, documents necessarily embraced by the complaint are not

matters outside the pleading.” Gorog v. Best Buy Co. Inc., 760 F.3d 787, 791 (8th

Cir. 2014) (quoting Ashanti v. City of Golden Valley, 666 F.3d 1148, 1151 (8th Cir.

2012)).

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the respondent to present their views and information from witnesses.” See

Appellant’s App’x at 36. Even if the opportunity to cross-examine witnesses at the

OCR hearing was ambiguous, that does not justify foregoing the process altogether

on grounds of futility. See Brown v. J.B. Hunt Transp. Servs., Inc., 586 F.3d 1079,

1085 (8th Cir. 2009) (“The futility exception is narrow—the plan participant must

show that it is certain that [his] claim will be denied on appeal, not merely that [he]

doubts that an appeal will result in a different decision.”) (internal quotations

omitted). Proper grounds of futility include the situation in which an agency may be

“unable to consider whether to grant relief because it lacks institutional competence

to resolve the particular type of issue presented” or “an agency may be competent to

adjudicate the issue presented, but still lack authority to grant the type of relief

requested.” See Bartlett v. U.S. Dept. of Agriculture, 716 F.3d 464, 473 (8th Cir.

2013) (quoting McCarthy v. Madigan, 503 U.S. 140, 147-48 (1992), superseded by

statute, Prison Litigation Reform Act of 1995, 42 U.S.C. §1997e et seq., as

recognized in Woodford v. Ngo, 548 U.S. 81 (2006)). 

Raymond has not sufficiently alleged that proceeding with the OCR hearing

would have been futile. He has only speculated that he would not be allowed to

cross-examine witnesses and that the OCR panel would not consider the sexual

harassment allegations. See Midgett v. Washington Group Intern. Long Term

Disability Plan, 561 F.3d 887, 898 (8th Cir. 2009) (“[u]nsupported and speculative

claims of futility do not excuse a claimant’s failure to exhaust his or her

administrative remedies.”) (internal quotations omitted). Raymond could have

challenged these issues at the OCR hearing and, if the outcome was unfavorable,

appealed them to the Provost. He then could have sought certiorari review by the

Minnesota Court of Appeals or demanded binding arbitration in accordance with the

University’s conflict review procedures. At any of these stages, the presiding body

orindividual could have ruled in Raymond’s favor. None of the allegations establish,

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with certainty, that the final outcome of the process would have been adverse to

Raymond. For this reason, Raymond’s futility argument fails.6

 

III. CONCLUSION

Raymond’s § 1983 procedural due process claims were properly dismissed. 

The judgment of the district court is affirmed.

SHEPHERD, Circuit Judge, concurring.

I concur in the judgment of the majority affirming the dismissal of Raymond’s

§ 1983 procedural due process claims but I write separately to express two points. 

First, aside froma few sweeping generalities, Raymond’s briefing invokes only post7

termination due process requirements and he does not appeal the district court’s

ruling as to the pre-termination procedures. I therefore would refrain from any

discussion of Raymond’s pre-termination due process rights. Jasperson v. Purolator

Courier Corp., 765 F.2d 736, 740 (8th Cir. 1985) (issues not raised in a party’s brief

are deemed abandoned). 

Second, regarding post-termination due process, Raymond’s futility argument

is unsupported. As the majority notes, the cases recognizing futility as an exception

to the exhaustion requirement do not involve § 1983 procedural due process claims. 

See McCarthy v. Madigan, 503 U.S. 140, 149 (1992) (Bivens claim for money

damages); Brown v. J.B. Hunt Transp. Servs., Inc., 586 F.3d 1079, 1085 (8th Cir.

2009) (ERISA action); Ace Prop. & Cas. Ins. Co. v. Fed. Crop Ins. Corp., 440 F.3d

Because Raymond’s allegations are insufficient to support a claim that 6

exhaustion would have been futile, we need not decide whether futility is available

as an exception to the exhaustion requirement in a procedural due process claim. 

For example: “Raymond claims that the entire process wasinfected from start 7

to finish.” And: “Raymond was never, pre-termination or post-termination, . . . given

the right to confront and cross-examine [witnesses].” 

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992, 1000 (8th Cir. 2006) (breach of contract claim under the Federal Crop Insurance

Act). Rather, the law in this context is settled: Futility is not an exception to the

requirement that a litigant exhaust his state remedies in order to pursue a § 1983

procedural due process claim. See Christiansen v. W. Branch Cmty. Sch. Dist., 674

F.3d 927, 935-36 (8th Cir. 2012) (“[A] government employee who chooses not to

pursue available post-termination remedies cannot later claim, via a § 1983 suit in

federal district court, that he was denied post-termination due process.”); Winskowski

v. City of Stephen, 442 F.3d 1107, 1110 (8th Cir. 2006) (“[A]n employee who fails

to request post-termination process cannot later sue for having been deprived of it.”). 

Our court rejected an argument similar to Raymond’s futility claim in Riggins v.

Board of Regents of University of Nebraska, 790 F.2d 707, 711-12 (8th Cir. 1986). 

In that case, a terminated employee alleged that the University’s process for

post-termination grievances was constitutionally insufficient because it would not

have allowed her to confront or cross-examine witnesses. Id. at 711. After

concluding that the process would have been adequate, the court stated that,

nonetheless, the plaintiff “chose not to file a grievance. In so choosing, she waived

any claim that the grievance procedure did not afford her the process she was due.” 

Id. at 712. Since Riggins, we have consistently held that a plaintiff cannot bring a

§ 1983 procedural due process challenge to the adequacy of post-deprivation

remedies without first exhausting those remedies. Hopkins v. City of Bloomington,

774 F.3d 490, 492 (8th Cir. 2014); Christiansen, 674 F.3d at 935-36; Winskowski,

442 F.3d at 1110.

BecauseRaymond’s invocation offutility lacks legal authority, there is no need

to analyze whether the University’s post-termination procedures were in fact futile. 

I instead conclude that Raymond waived his § 1983 procedural due process claim by

failing to pursue the post-termination processes available to him and his claim

therefore fails as a matter of law. Christiansen, 674 F.3d at 936.

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