NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued May 11, 2011
Decided August 30, 2011
Before
ILANA DIAMOND ROVNER, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
JOAN HUMPHREY LEFKOW, District Judge*
No. 10-3099
CORY W. GOECKS, Appeal from the United States District
Plaintiff-Appellant, Court for the Western District
of Wisconsin.
v.
No. 3:09-cv-00351
SCOTT E. PEDLEY,
Defendant-Appellee. William M. Conley,
Chief Judge.
ORDER
Plaintiff Cory W. Goecks appeals from a judgment of the United States District Court
for the Western District of Wisconsin granting defendant Scott Pedley’s motion for summary
judgment. Goecks voluntarily resigned as Deputy Sheriff from the Lafayette County Sheriff’s
Department in 2005. He alleges that Lafayette County Sheriff Pedley deprived him of his
occupational liberty without due process of law under the Fourteenth Amendment by making
*
The Honorable Joan Humphrey Lefkow of the Northern District of Illinois, sitting
by designation.
No. 10-3099 Page 2
defamatory and stigmatizing statements to prospective law-enforcement employers and by
discouraging potential employers from hiring Goecks. We incorporate the district court’s
statement of facts by reference. See Goecks v. Pedley,
732 F. Supp. 2d 828, 830-32 (W.D. Wis.
2010). Because Goecks’ claim is foreclosed as a matter of law by Siegert v. Gilley,
500 U.S. 226
(1991), we affirm.
Defamation is a claim under state tort law, but defamation by a state actor is not, by
itself, a constitutional deprivation. Siegert,
500 U.S. at 233-34. “[T]o implicate a liberty interest,
such charges of defamation must be coupled with the alteration of a legal status, such as the
loss of an employment position.” Townsend v. Vallas,
256 F.3d 661, 669 (7th Cir. 2001), citing
Paul v. Davis,
424 U.S. 693, 708-10 (1976). Goecks’ claim fails as a matter of law because the
undisputed facts show that Pedley did not make his defamatory statements incident to any
change in Goecks’ legal status. Pedley made his defamatory statements about Goecks and his
efforts to discourage other police departments (notably the Shullsburg Police Department)
from hiring Goecks nearly two years after Goecks voluntarily resigned from the Lafayette
County Sheriff’s Department. The statements therefore were not “incident to” termination (or
accompanied by a failure to rehire) as required by Siegert. See
500 U.S. at 234; see also Klug v.
Chicago School Reform Bd. of Trustees,
197 F.3d 853, 859 (7th Cir. 1999) (“One must show both a
stigma and a failure to rehire. The infliction of a stigma to reputation accompanied by a failure
to rehire (or, a fortiori, by a discharge) states a claim for deprivation of liberty without due
process within the meaning of the Fourteenth Amendment.”) (citation and quotation marks
omitted); McMath v. City of Gary,
976 F.2d 1026, 1032 (7th Cir. 1992) (“Siegert . . . emphasized
that the publication [of stigmatizing statements] must occur in the context of termination”);
Wroblewski v. City of Washburn,
965 F.2d 452, 456 (7th Cir. 1992) (observing that Siegert’s
“requirement that the defamatory statement be ‘incident to’ the adverse employment action
is a strict one”).
We find no principled basis on which to distinguish Siegert, a similar case in which the
defendant employer made post-resignation statements that allegedly harmed the plaintiff’s
professional reputation and interfered with new employment prospects. The plaintiff lost in
Siegert because the alleged defamation did not occur incident to his termination. See
500 U.S.
at 234. Thus, as in Siegert, and for the reasons articulated by the district court, Pedley’s
statements about Goecks, do not state a claim for the violation of a liberty interest under the
Fourteenth Amendment.
We also do not believe that Goecks’ allegations about Pedley’s persistent efforts to
encourage the Shullsburg Police Department not to hire Goecks, actions that Goecks
characterizes as “threats” or “inducements” of the Shullsburg Mayor or the City of Shullsburg,
form the basis of any claim for the deprivation of Goecks’ constitutional rights or in any
meaningful way distinguish this case from Siegert.
No. 10-3099 Page 3
We also agree with the district court that stigmatizing statements within Goecks’
personnel file with the Sheriff’s Department were not actionable because they had not yet been
released, or published. See Franklin v. City of Evanston,
384 F.3d 838, 845 (7th Cir. 2004);
McMath,
976 F.2d at 1035 (noting that information in a personnel file may be a “ticking time
bomb . . . but until the time bomb explodes – i.e., until the information is disseminated – there
is no publication and no constitutional tort.”) (citations and quotation marks omitted). There
is no evidence in the record that Pedley’s memos in Goecks’ personnel file were ever
disseminated.
Goecks’ remaining arguments were not raised before this appeal and are waived.
Goecks argues, for instance, that Pedley’s actions constitute tortious interference with a
contract under Wisconsin law, which amounts to a change in legal status. He also argues that
Pedley’s actions “shock the conscience” and thus constitute a deprivation of Goecks’ right to
substantive due process. We will not consider these arguments for the first time on appeal.
County of McHenry v. Insurance Co. of the West,
438 F.3d 813, 819-20 (7th Cir. 2006).
We address only Goecks’ federal constitutional claim. We express no view on any
possible state law remedies that might have been available. The judgment of the district court
is AFFIRMED.
