JEREMY R. DURHAM,
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`Plaintiff,
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`v.
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`BUTCH ELEY, as Commissioner of
`Finance and Administration, in his
`official capacity,1 et al.,
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`Defendants.
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE MIDDLE DISTRICT OF TENNESSEE
`NASHVILLE DIVISION
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`MEMORANDUM
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`Case No. 3:17-cv-01172
`Judge Aleta A. Trauger
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`Before the court is plaintiff Jeremy Durham’s Motion for Summary Judgment (Doc. No.
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`64), seeking judgment in his favor on the sole remaining claim in this case: whether he was denied
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`due process in connection with the termination of certain health insurance benefits, which resulted
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`from his expulsion from the Tennessee legislature. For the reasons set forth herein, the plaintiff’s
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`motion will be denied.
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`I.
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`FACTUAL AND PROCEDURAL BACKGROUND
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`The basic facts of this case are undisputed.2 Plaintiff Jeremy Durham was elected to the
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`108th General Assembly of the Tennessee House of Representatives in November 2012 and served
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`1 Durham originally sued Larry Martin in his official capacity as the Tennessee
`Commissioner of Finance and Administration. Martin was succeeded by Stuart McWhorter and
`then Butch Eley, who was appointed to that position in April 2020. Commissioner Eley is
`automatically substituted for former-Commissioner Martin as a defendant in this case. Fed. R. Civ.
`P. 25(d).
`2 Unless otherwise indicated, the facts set forth herein are drawn from the defendants’
`Response to [Plaintiff’s] Statement of Undisputed Material Facts (Doc. No. 69) and the plaintiff’s
`Response to Defendants’ Supplemental Statement of Undisputed Material Facts (Doc. No. 72).
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`2
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` a
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` full term, which expired in 2014. He was reelected in 2014 to serve a full term as a member of
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`the 109th General Assembly. Under ordinary circumstances, his term would have expired on the
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`date of the general election in November 2016. See Tenn. Const. art. II, § 3 (“Representatives shall
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`hold office for two years . . . from the day of the general election . . . .”).
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`On September 2, 2016, then-Governor Bill Haslam announced that he would call a special
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`session of the General Assembly after learning that sixty million dollars in federal highway funds
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`was in jeopardy. The governor’s proclamation, calling for the special session, identified four
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`specific items for the General Assembly to consider and act upon. All four items dealt with certain
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`DUI laws and federal highway funds. (See Proclamation, Doc. No. 33-1.) The Proclamation did
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`not mention or reference Durham.
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`Prior to the announcement of the special session, Durham had been the subject of an
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`investigation and report issued by the Tennessee Attorney General’s office (“Report”) in July
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`2016.3 (Doc. No. 72-1, Durham Decl. ¶ 4.) Durham did not receive a copy of the Report until it
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`was released to the public. (Durham Decl. ¶ 5.) The Report cited anonymous sources and identified
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`the individuals alleging improper conduct by Durham only as “Jane Doe.” (Durham Decl. ¶ 6.)
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`The Report concluded that Durham had engaged in “disorderly conduct” while in office.4 Prior to
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`issuing the Report, the Attorney General’s office told Durham that he could answer questions from
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`the office’s investigators, but the Attorney General’s office did not notify Durham of the nature of
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`3 The Report
`is available online at
`record but
`the court’s
`in
`is not
`https://www.documentcloud.org/documents/2993307-Final-Report-Into-Inappropriate-Conduct-
`Rep.html.
`4 More specifically, the Report concluded that Durham had engaged in sexually
`inappropriate conduct involving at least 22 women between 2012 and 2016. Report at 2.
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`the allegations against him or the identity of his accusers in advance of the meeting. (Durham Decl.
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`3
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`¶ 7.) Durham declined to meet with the investigators. (Id.)
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`Shortly after the Report became public, Representative Mike Stewart called for a special
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`session of the Tennessee House of Representatives to vote to expel Durham, but the call failed.
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`(Doc. No. 33 ¶¶ 35, 39; Doc. No. 63 ¶¶ 35, 39.) House Republican Caucus Chair Glen Casada and
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`Representative Joe Armstrong circulated a second petition to call a special legislative session to
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`oust Durham. That petition failed as well. (Doc. No. 33 ¶ 40; Doc. No. 63 ¶ 40.)
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`On July 14, 2016, Durham publicly announced that he would not seek reelection. (Doc.
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`No. 33 ¶ 42; Doc. No. 63 ¶ 42.)
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`On July 26, 2016, The Tennessean newspaper quoted defendant Connie Ridley, Director
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`of Legislative Administration, as stating: “All members of the general assembly who are elected
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`to serve a full term of office as a member of the general assembly are eligible to continue their
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`health insurance by paying the appropriate premium amount.” (Doc. No. 33 ¶ 37; Doc. No. 63 ¶
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`37.)
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`On September 12, 2016, during the special session called by the governor, Representative
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`Susan Lynn made a motion to expel Jeremy Durham from the House of Representatives. Durham
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`learned about the motion late in the afternoon of September 12, 2016, through a text alert from an
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`online newspaper article. (Durham Decl. ¶ 10.) A few hours later, Doug Himes, then-Director of
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`the Office of Legal Services for the Tennessee General Assembly, emailed Durham to notify him
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`that the House would be considering a motion to expel him the next day. (Doc. No. 70-1, Himes
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`Decl. ¶¶ 1, 2 & Ex. A; Durham Decl. ¶ 14.) Durham contacted his personal attorney as soon as he
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`heard about the motion and discovered that his attorney would not be available to accompany him
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`to the General Assembly the following morning. (Durham Decl. ¶ 11.) That evening, Durham
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`wrote a letter to his House colleagues detailing the ways in which he believed the Attorney
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`4
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`General’s investigation and the motion to expel him had denied him the right to due process. He
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`also expressed his belief that he would not receive a fair hearing on the House floor. (Durham
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`Decl. ¶ 18 & Ex. B, Doc. No. 72-1, at 12–19.)
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`On September 13, 2016, prior to his expulsion, Durham was given an opportunity to
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`address the House. He spoke for approximately thirteen minutes before voluntarily concluding his
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`statements. Debate on the motion remained open for an additional hour, during which time
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`members of the House could pose questions to Durham. Durham, however, was not permitted to
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`ask questions or to confront the accusers whose allegations formed the basis of the Attorney
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`General’s Report. At some point during this debate, Durham voluntarily left the House. The House
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`eventually voted 70-2 to expel Durham. Durham was not present for the vote. He alleges that, due
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`to Ridley’s comments in The Tennessean, he believed that he would retain his health insurance
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`benefit, even if he was expelled from the House. (Durham Decl. ¶¶ 22–23.)
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`On September 26, 2016, after the expulsion, Durham received correspondence from
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`defendant Connie Ridley’s office stating that his health insurance coverage would end effective
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`September 30, 2016 and that the decision to terminate his insurance was made by then-
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`Commissioner of Finance and Administration, Larry Martin, in consultation with the Attorney
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`General. Durham’s (and his family’s) state health insurance coverage ended on September 30,
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`2016. The communication from Ridley’s office did not provide any process for a hearing or for
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`appealing the decision to terminate Durham’s health insurance, either before or after the
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`termination went into effect. (Doc. No. 33-2; see also Durham Decl. ¶ 27 & Ex. C, Doc. No. 72-
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`1, at 21–24.)
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`Tennessee law provides that, “[u]pon retirement from the general assembly, any . . .
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`5
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`representative . . . may elect to retain retiree health benefits by participating in the plan authorized
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`by the state insurance committee.” Tenn. Code Ann. § 8-27-208(a)(1) (2015). The provision only
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`applies to officials first elected prior to July 1, 2015, and the statute expressly excludes any former
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`member of the General Assembly who, after November 2, 2010, is convicted of a felony “arising
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`out of that person’s official capacity as a member of the general assembly.” Id. § 8-27-208(a)(2),
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`(b).
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`Durham has never been convicted of a felony. (Durham Decl. ¶ 2.) Accordingly, if he had
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`retired after his first term expired in 2014, he would have been eligible to elect to retain retiree
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`health benefits under Tenn. Code Ann. § 8-27-208. However, following his expulsion, the
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`Commissioner of Commerce and Insurance, acting in his official capacity and in consultation with
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`the Tennessee Attorney General, determined that Durham was not entitled to continued health
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`insurance benefits, because he had not “retired” from the General Assembly.5
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`The plaintiff filed suit in August 2017, challenging his expulsion from the legislature and
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`the termination of state benefits—a state pension as well as the lifetime health insurance benefit—
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`on the grounds that the expulsion and denial of benefits violated his right to due process. (Doc.
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`No. 1.) The defendants promptly filed their first Motion to Dismiss, arguing that Durham lacked
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`standing to bring the case. This court granted the motion, but the Sixth Circuit reversed. Durham
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`v. Martin, 287 F. Supp. 3d 683 (M.D. Tenn. 2017), rev’d & remanded, 905 F.3d 432 (6th Cir.
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`2018). Following remand, Durham filed his Amended Complaint, adding a new cause of action
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`and new defendants. The court granted in part and denied in part the defendants’ second Motion
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`5 This court previously held as a matter of law that “expulsion” is not equivalent to
`retirement. See Durham v. Martin (“Durham III”), 388 F. Supp. 3d 919, 941 (M.D. Tenn. 2019),
`aff’d sub nom. Durham v. McWhorter (“Durham IV”), 789 F. App’x 533 (6th Cir. 2020).
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`to Dismiss, dismissing for failure to state a claim the plaintiff’s new cause of action, which asserted
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`6
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`that the decision to expel Durham from the legislature constituted an unconstitutional Bill of
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`Attainder, and dismissing the claims against the new defendants as time-barred. The court also
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`dismissed for failure to state a claim for which relief could be granted the plaintiff’s claim
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`pertaining to his right to a state pension. However, the court denied the motion to dismiss the
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`plaintiff’s claim for deprivation of a vested property right to continued health insurance coverage
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`without due process of law, finding both that the claim was not barred by sovereign immunity and
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`that it was not subject to dismissal for failure to state a claim for which relief could be granted.
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`Durham III, 388 F. Supp. 3d at 942. The defendants appealed only on the basis that the claim was
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`barred by sovereign immunity, but the Sixth Circuit affirmed. Durham IV, 789 F. App’x at 534.
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`The plaintiff now seeks summary judgment in his favor on the grounds that the material
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`facts are undisputed and he is entitled to judgment as a matter of law. Specifically, he seeks only
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`“the restoration of the vested property right” (Doc. No. 64-1, at 19), through an injunction
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`reinstating his right to lifetime health insurance coverage for himself and his family that was
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`terminated as a result of his expulsion from the legislature (see also Doc. No. 33, at 13). His motion
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`(Doc. No. 64) is supported by a Memorandum of Law and Statement of Undisputed Material Facts
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`(Doc. Nos. 64-1, 64-2). The remaining defendants—Butch Eley, Tennessee Commissioner of
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`Finance and Administration, Connie Ridley, Director of Legislative Administration, and David H.
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`Lillard, Jr., Treasurer of the State of Tennessee, in their official capacities only—oppose the
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`motion. (Doc. No. 68.) Besides responding to the plaintiff’s Statement, the defendants filed their
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`own Supplemental Statement of Undisputed Material Facts. (Doc. Nos. 69–70.) The plaintiff has
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`filed a Reply and a Response to the Supplemental Statement. (Doc. Nos. 72, 72.) Although the
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`facts are basically undisputed, both parties have filed evidentiary material, referenced herein as
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`7
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`necessary.
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`II.
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`
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`STANDARD OF REVIEW
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`“The court shall grant summary judgment if the movant shows that there is no genuine
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`dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
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`Civ. P. 56(a). “By its very terms, this standard provides that the mere existence of some alleged
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`factual dispute between the parties will not defeat an otherwise properly supported motion for
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`summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson
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`v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986).
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`The party bringing the summary judgment motion has the initial burden of identifying
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`portions of the record—including, inter alia, depositions, documents, affidavits, or declarations—
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`that it believes demonstrate the absence of a genuine dispute over material facts. Pittman v.
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`Experian Info. Sols., Inc., 901 F.3d 619, 627–28 (6th Cir. 2018); Fed. R. Civ. P. 56(c)(1)(A). The
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`non-moving party must set forth specific facts showing that there is a genuine issue for trial.
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`Pittman, 901 F.3d at 628.
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`III. DISCUSSION
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`A.
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`Legal Standards
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`
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`The plaintiff’s claim is brought under 42 U.S.C. § 1983, for deprivation of his rights under
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`the Fourteenth Amendment, which provides, in relevant part, that “[n]o State shall . . . deprive any
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`person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. The
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`due process clause has both procedural and substantive components, EJS Props., LLC v. City of
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`Toledo, 698 F.3d 845, 855 (6th Cir. 2012), but the court has already construed the Amended
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`Complaint as stating a claim for violation of the right to procedural due process. Durham III, 388
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`F. Supp. 3d at 937. “To establish a procedural due process claim, a plaintiff must show that (1)
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`[he] had a life, liberty, or property interest protected by the Due Process Clause; (2) [he] was
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`8
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`deprived of this protected interest; and (3) the state did not afford [him] adequate procedural
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`rights.” Daily Servs., LLC v. Valentino, 756 F.3d 893, 904 (6th Cir. 2014).
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`B. Whether the Plaintiff Had a Constitutionally Protected Property Interest
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`An individual claiming to have a protected property interest “must have more than a
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`unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.” Roth,
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`408 U.S. at 577. “Property interests . . . are not created by the Constitution. Rather they are created
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`and their dimensions are defined by existing rules or understandings that stem from an independent
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`source such as state law[.]” Id.; see also EJS Props., 698 F.3d at 855 (“Whether a person has a
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`‘property’ interest is traditionally a question of state law.” (citing Logan v. Zimmerman Brush Co.,
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`455 U.S. 422, 430 (1982)). Thus, a legitimate claim of entitlement “must be grounded in some
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`statute, rule, or policy,” Hughlett v. Romer–Sensky, 497 F.3d 557, 567 (6th Cir. 2006), or express
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`or implied contract. Ludwig v. Bd. of Trs. of Ferris State Univ., 123 F.3d 404, 409 (6th Cir. 1997).
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`Based on these principles, the Supreme Court has found, for instance, that welfare benefits
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`“are a matter of statutory entitlement for persons qualified to receive them” and that such
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`entitlement cannot be terminated without a pretermination evidentiary hearing. Goldberg v. Kelly,
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`397 U.S. 254, 262 (1970). Similarly, a child cannot be “exclu[ded] from the educational process
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`for more than a trivial period” without due process. Goss v. Lopez, 419 U.S. 565, 576 (1975). And
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`state employees who, under state statute, can only be terminated for cause have a protected
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`property interest in their employment. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538–
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`39 (1985). Likewise, the Sixth Circuit has recognized that “[p]articipation in a public housing
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`program is a property interest protected by due process” Woods v. Willis, 515 F. App’x 471, 478
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`(6th Cir. 2013) (citation omitted); that “a social security claimant has a property interest in benefits
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`for which he or she hopes to qualify,” Hamby v. Neel, 368 F.3d 549, 559 (6th Cir. 2004) (citing
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`Flatford v. Chater, 93 F.3d 1296, 1304 (6th Cir. 1996); and that, because “Medicaid is a program
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`9
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`established by Title XIX of the Social Security Act, 42 U.S.C. § 1396, et seq., . . . Plaintiffs
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`likewise have a property interest in the TennCare coverage for which they hope to qualify,” id. at
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`559. Based on the same principles, at least one court has concluded that a statutorily created
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`entitlement to life-time health insurance for retired civil servants is a protected property right. See
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`Jackson v. Roslyn Bd. of Educ., 652 F. Supp. 2d 332, 343 (E.D.N.Y. 2009).
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`In this case, the defendants do not actually address the fact—or contest the proposition—
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`that, pursuant to Tenn. Code Ann. § 8-27-208, Durham had “a legitimate claim of entitlement,”
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`Roth, 408 U.S. at 577, to continued participation in the health insurance plan “authorized by the
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`state insurance committee,” Tenn. Code Ann. § 8-27-208(a)(1), once he completed one full term
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`as a legislator, at least up until his ouster from the legislature. The statute itself refers to this benefit
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`as a “right to continue[d] coverage.” Id. § 8-27-208(a)(2). Consequently, the court finds that the
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`right to continued participation in the state’s health insurance plan, created by state statute, gave
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`rise to a legitimate claim of entitlement protected by the Due Process clause.
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`C.
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`The Right to Due Process
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`There is no dispute that the plaintiff was deprived of this interest when the defendants
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`unilaterally notified him on September 26, 2016 that his insurance benefit would end effective
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`September 30, 2016. “Procedural due process generally requires that the state provide a person
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`with notice and an opportunity to be heard before depriving that person of a [constitutionally
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`protected] property or liberty interest.” Daily Servs., 756 F.3d at 904 (quoting Warren v. City of
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`Athens, 411 F.3d 697, 708 (6th Cir. 2005)).
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`
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`The plaintiff points to three arenas in which he should have been, but was not, accorded
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`adequate process. The first of these is the Attorney General’s investigation, which led to the final
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`Report that Durham had engaged in misconduct. The plaintiff does not explain the source of any
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`due process rights to which he might have been entitled in connection with that investigation,
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`10
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`however, and he fully acknowledges that the failure to accord him “procedural due process related
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`to the investigation . . . would have been moot . . . were it not for the legislature’s subsequent
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`actions.” (Doc. No. 64-1, at 12.) Because the report, standing alone, did not have any effect on
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`Durham’s status as a legislator or his entitlement to insurance benefits and did not provide a basis
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`for punitive action or criminal charges against him, the court concludes that Durham did not have
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`any right to due process in connection with the Attorney General’s investigation. Accord Kolley v.
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`Adult Protective Servs., 725 F.3d 581, 586–87 (6th Cir. 2013) (dismissing procedural due process
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`claims against social workers and investigators because it was the juvenile court’s duty, rather than
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`the investigators’, to provide notice and a hearing).
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`The true crux of the plaintiff’s claim is that his expulsion from the state legislature was
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`unconstitutional. To be clear, the plaintiff does not seek to vacate his ouster or to be reinstated to
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`the 109th General Assembly, which no longer exists.6 He nonetheless ties the termination of his
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`insurance coverage right to an alleged constitutional violation suffered when he was expelled from
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`the General Assembly in violation of state law and without adequate process. Specifically, he
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`asserts that “[p]rocedural due process is owed to legislators who face expulsion” and that he “was
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`denied notice and procedural due process when the House expelled him on the basis of the one-
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`sided investigation he was given no opportunity to contest.” (Doc. No. 64-1, at 12.)
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`This assertion, however appealing, is firmly negated by Supreme Court and Sixth Circuit
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`precedent. The Supreme Court has stated that “public office is not property” protected by due
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`6 Such relief, in any event, would be barred by sovereign immunity and the Eleventh
`Amendment. See S & M Brands, Inc. v. Cooper, 527 F.3d 500, 509 (6th Cir. 2008) (the Eleventh
`Amendment bars all suits for retroactive relief against the State or state actors in their official
`capacity (citing Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 103 (1984)).
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`process. Taylor v. Beckham, 178 U.S. 548, 576 (1900). Despite a passionate and persuasive dissent
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`11
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`by Justice Harlan in that case, see id. at 602 (Harlan, J., dissenting) (“I am of opinion that, equally
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`with tangible property that may be bought and sold in the market, an office—certainly one
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`established by the Constitution of a state, to which office a salary is attached, and which cannot be
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`abolished at the will of the legislature—is, in the highest sense, property of which the incumbent
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`cannot be deprived arbitrarily in disregard of due process of law.”), the Supreme Court has never
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`backed away from that decision. See, e.g., Snowden v. Hughes, 321 U.S. 1, 7 (1944) (reaffirming
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`the holding in Taylor that “an unlawful denial by state action of a right to state political office is
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`not a denial of a right of property or of liberty secured by the due process clause”).
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`Although the Supreme Court’s jurisprudence in the years after Snowden has substantially
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`expanded the scope of property rights protected by the Fourteenth Amendment, the lower courts
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`remain bound by the earlier decisions. See Velez v. Levy, 401 F.3d 75, 86–87 (2d Cir. 2005) (“We
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`are mindful that, since Taylor and Snowden were decided, the Court has adopted a more expansive
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`approach to identifying ‘property’ within the meaning of the 14th Amendment. But while
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`intervening cases may cast a shadow over Taylor and Snowden, it is [the Supreme] Court’s
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`prerogative alone to overrule one of its precedents.” (internal citations and quotation marks
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`omitted)).7 The Sixth Circuit, specifically, has continued to recognize that Taylor and Snowden
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`are controlling. See Moncier v. Haslam, 570 F. App’x 553, 559 (6th Cir. 2014) (“Public office is
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`7 While it seems perverse, and even absurd, to conclude that Durham could have a protected
`property interest in his health insurance benefit but not in his elected office, the relevant
`jurisprudence appears to support just such a conclusion. See Taylor, 178 U.S. at 599 (Harlan, J.,
`dissenting) (“[The majority has] now adjudged, that the office in dispute is not ‘property’ within
`the meaning of the 14th Amendment. So that while we may inquire whether a citizen’s land, worth
`$100, or his mules, have been taken from him by the legislative or judicial authorities of his state
`without due process of law, we may not inquire whether the legislative or judicial authorities of a
`state have, without due process of law, ousted one lawfully elected . . . .”).
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`not property within the meaning of the Fourteenth Amendment.” (quoting Burks v. Perk, 470 F.2d
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`12
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`163, 165 (6th Cir. 1972); citing Snowden, 321 U.S. at 7)).
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`
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`This court, therefore, is bound by precedent to conclude that, however lacking in process
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`Durham’s ouster from the state legislature may have been, he did not have a property interest in
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`his elected office protected by the Fourteenth Amendment, and the absence of process and even
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`the violation of state law associated with his ouster cannot be said to have violated his Fourteenth
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`Amendment right to procedural due process. Thus, to the extent Durham’s due process claim
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`hinges upon the denial of adequate pre-deprivation process in the course of his expulsion from the
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`legislature, which led to the termination of his right to continued health insurance under the state
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`plan, it fails on the merits.
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`This conclusion does not necessarily completely dispose of the plaintiff’s claim, however.
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`The question is whether the plaintiff can show that he was denied process to which he was due in
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`connection with the termination of his health insurance benefit. With respect to that deprivation,
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`the plaintiff asserts that the defendants denied him procedural due process at three distinct times:
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`(1) when they failed to provide advance notice that his expulsion from the legislature might result
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`in the termination of his health insurance benefit; (2) when they failed to provide him adequate
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`notice and a meaningful pre-deprivation opportunity to contest the termination of his benefits after
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`he had been expelled (see Doc. No. 64-1, at 15 (“Defendants gave Mr. Durham no time to contest
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`their decision—they simply informed Mr. Durham that his health benefits would cease in four
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`days. Defendants took the step of depriving Mr. Durham of his property right to health benefits
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`without any hearing or process.”); and (3) when they failed to inform him of the existence of any
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`type of post-deprivation procedure he might pursue to contest the termination of health insurance
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`benefits. (See Doc. No. 64-1, at 14–15.)
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`Regarding the first claim, the plaintiff’s briefing does not incorporate any argument in
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`13
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`support of his contention that the defendants were required to formally notify him, prior to his
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`expulsion—which the defendants had no reason to expect—that his health insurance benefit would
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`terminate if he was expelled from the legislature. Regardless, the plaintiff’s actual position appears
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`to be that he reasonably believed that expulsion would not affect his right to health insurance,
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`based on a newspaper article in July 2016, quoting defendant Ridley as stating that “[a]ll members
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`of the general assembly who are elected to serve a full term of office as a member of the general
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`assembly are eligible to continue their health insurance by paying the appropriate premium
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`amount.” He alleges that, if he had known that his benefit could be terminated, he would have
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`retired from the General Assembly rather than face expulsion. (Durham Decl. ¶ 28.)
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`On this point, the court first notes that there appears to be a disputed fact and/or an
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`unresolved legal question as to whether mid-session resignation to avoid expulsion would have
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`qualified as “retirement” for purposes of the statute. The defendants do not concede as much (see
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`Def.’s Resp. to Stmt. Undisp. Fact, Doc. No. 69 ¶ 3 (conceding only that, if Durham had retired
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`after the expiration of his first term in 2014, he would have been eligible to retain retiree benefit).)
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`And neither party has addressed the legal aspects of the question. Moreover, the court has already
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`determined that a statement by Ridley—or, more accurately, an alleged statement by Ridley as
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`reported in a newspaper article—“cannot create a binding property interest if it is in fact
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`contradicted by state law.” Durham III, 388 F.3d at 940; see id. at 940–41 (“[R]epresentations and
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`customs may not create a property right where they are contrary to an existing statute or
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`regulation.” (quoting Puckett v. Lexington-Fayette Urban Cty. Gov’t, 566 F. App’x 462, 468 (6th
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`Cir. 2014)). In addition, even assuming that pre-expulsion resignation would have ensured
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`Durham’s continued entitlement to the health insurance benefit, the plaintiff’s purported reliance
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`Case 3:17-cv-01172 Document 74 Filed 12/16/20 Page 13 of 22 PageID #: 529
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`on hearsay appearing in a newspaper article, without making any further investigation or inquiry,
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`14
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`was objectively unreasonable; he had an independent obligation to apprise himself of what the law
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`actually said. The plaintiff cites to no authority in support of his suggestion that reliance on a
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`newspaper article could give rise to a due process violation.
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`With respect to the plaintiff’s claim regarding insufficient notice of post-deprivation
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`remedies, “[f]or one hundred years, the Supreme Court has declared that a publicly available
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`statute may be sufficient to provide such notice because individuals are presumptively charged
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`with knowledge of such a statute.” Grayden v. Rhodes, 345 F.3d 1225, 1239 (11th Cir. 2003)
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`(citations omitted); see City of W. Covina v. Perkins, 525 U.S. 234, 241 (1999) (holding that
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`“individualized notice of state-law remedies” of post-deprivation procedure was not required when
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`those remedies “are established by published, generally available state statutes and case law”). In
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`short, the defendants had no obligation to notify the plaintiff of the existence of the state’s statutory
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`or regulatory procedure for challenging the termination of his health insurance coverage.
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`The only question properly before the court, then, is whether the defendants were required
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`to provide the plaintiff with adequate notice (more than four days) and a meaningful opportunity
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`to contest the termination of his benefits after the expulsion.
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`D. What Process Was Due?
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`Generally, to comport with due process, a state must provide pre-deprivation procedures
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`before taking property, regardless of the adequacy of its post-deprivation remedies. Zinermon v.
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`Burch, 494 U.S. 113, 132 (1990). And to determine the adequacy of the procedure accorded, courts
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`apply the balancing test developed in Mathews v. Eldridge, 424 U.S. 319 (1976), which requires
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`the weighing of three factors: (1) “the private interest that will be affected by the official action”;
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`(2) “the risk of an erroneous deprivation of such interest through the procedures used, and the
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`probable value, if any, of additional or substitute procedural safeguards”; and (3) “the
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`Case 3:17-cv-01172 Document 74 Filed 12/16/20 Page 14 of 22 PageID #: 530
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`Government’s interest, including the function involved and the fiscal and administrative burdens
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`15
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`that the additional or substitute procedural requirement would entail.” Id. at 335.8
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`Addressing these factors, Durham argues that he was afforded, at best, “abbreviated
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`process” and that, under the first Mathews factor, his interest in lifetime health insurance benefits
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`was a “substantial property interest” affected by the defendants’ action. Mathews, 424 U.S. at 335.
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`As for the second factor, the plaintiff asserts that the risk of erroneous deprivation through the
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`procedures used was high, as he was never permitted to question the evidence against him that led
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`to his ouster and the termination of his health insurance benefit, and there was no contested fact-
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`finding process. He also contends that the probable value of additional or substitute procedural
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`safeguards—specifically post-deprivation process—does not excuse the absence of pre-
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`deprivation process, because, as the plaintiff states,
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`[e]ven if Defendants were to hold a hearing and find factually for Mr. Durham, that
`would not undo the expulsion, which per Defendants’ position and this Court’s
`prior rulings, makes it legally necessary that Mr. Durham not receive benefits. In
`other words, there is no post-deprivation procedure that the state could provide that
`would restore Mr. Durham to the position he was in prior to the deprivation of due
`process.
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`(Doc. No. 64-1, at 16.) On the strength of this argument, he concludes that the second Mathews
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`factor weighs in his favor as well. (Id.) As to the final factor, Durh