United States Court of Appeals
for the Ninth Circuit
Riverside Sheriff’s Association,
a not-for-profit mutual benefit corporation; et al.,
Plaintiffs - Appellants,
County of Riverside,
a political subdivision; et al.,
Defendants - Appellees.
2005 U.S. App. Lexis 6304
2005 WL 668648
February 16, 2005, Argued, Pasadena, California
March 23, 2005, Filed
Appeal from the United States District Court for the Central District of California. D.C. No. CV-02-00560-VAP. Virginia A. Phillips, District Judge, Presiding.
Kleinfeld, Wardlaw, and Berzon, Circuit Judges.
Riverside Sheriff’s Association and Coy Bradstreet sued the County of Riverside (“County”) for an injunction and damages, claiming that the County failed to afford Bradstreet the name-clearing hearing to which he was entitled upon his discharge from employment. The district court granted summary judgment to the County. We affirm.
Because Bradstreet was a probationary employee, he had a right to a liberty interest hearing only if, “in the context of [his] employer discharging or failing to rehire” him, Siegert v. Gilley, 500 U.S. 226, 233, 114 L. Ed. 2d 277, 111 S. Ct. 1789 (1991), “the State . . . imposed on him a stigma or other disability that foreclosed his freedom to take advantage of other employment opportunities,” Board of Regents v. Roth, 408 U.S. 564, 573, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972). Moreover, “the charges must be published.” Portman v. County of Santa Clara, 995 F.2d 898, 907 (9th Cir. 1993).
No “stigma” could have attached to the termination because the county gave no reason at all in the termination letter placed in Bradstreet’s employment record. The district court correctly found that “the only statement made at the time of termination simply says [Bradstreet] was released on probation, and gives no reasons at all. . . . There is no evidence that, at the time of [Bradstreet’s] termination, any statement regarding any basis for [his] discharge was made public.”
Nor does the County’s filing of an investigative report to the District Attorney constitute “publication” of stigmatizing charges in connection with the termination. Sending the investigation report did not create a “public record,” as Bradstreet claims; only the District Attorney’s independent decision to prosecute “published” the charges, Portman, 995 F.2d at 907, and could possibly have “foreclosed [Bradstreet’s] freedom to take advantage of other employment opportunities.” Roth, 408 U.S. at 573.
Moreover, Bradstreet and the Riverside Sheriff’s Association have not provided evidence that the County has an official policy, custom, and practice of discharging probationary deputies, upon charges of misconduct expressed or implied in their records, which stigmatizes employees in their ability to retain law enforcement employment with other public employers, as required by Monnell v. Department of Social Services of the City of New York, 436 U.S. 658, 690, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978) (holding that “local governing bodies . . . can be sued directly under § 1983” only where the unconstitutional action “implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body’s officers.”).
In any event, Bradstreet was given an opportunity to explain his version of the incident during the investigation, had a preliminary hearing on the charges in criminal court, which led to the charges being dismissed, and could have further availed himself of a proceeding declaring him factually innocent of the charges under California Penal Code section 851.8(c). As the district court recognized, an employee has no need for a name-clearing hearing in connection with criminal charges, because the criminal justice system adequately protects whatever procedural rights are due him.
* This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
Circuit Rule 36-3
Citation of unpublished dispositions or orders
(a) Not Precedent: Unpublished dispositions and orders of this Court are not binding precedent, except when relevant under the doctrine of law of the case, res judicata, and collateral estoppel.
(b) Citation: Unpublished dispositions and order of this Court may not be cited to or by the courts of this circuit, except in the following circumstances.
(i) They may be cited to this Court or to or by any other court in this circuit when relevant under the doctrine of law of the case, res judicata, or collateral estoppel.
(ii) They may be cited to this Court or by any other courts in this circuit for factual purposes, such as to show double jeopardy, sanctionable conduct, notice, entitlement to attorneys = fees, or the existence of a related case.
(iii) They may be cited to this Court in a request to publish a disposition or order made pursuant to Circuit Rule 36-4, or in a petition for panel rehearing or rehearing en banc, in order to demonstrate the existence of a conflict among opinions, dispositions, or orders.
(c) Attach Copy: A copy of any cited unpublished disposition or order must be attached to the document in which it is cited, as an appendix. (New Rule 7/1/2000)