Daniel Reyes v. City of Pico-Rivera , 370 F. App'x 844 ( 2010 )

FILED
NOT FOR PUBLICATION MAR 11 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
DANIEL REYES, No. 08-56873
Plaintiff - Appellant, D.C. No. 2:07-cv-03767-GAF-JWJ
v.
MEMORANDUM *
CITY OF PICO-RIVERA; DONALD
GRAYSON,
Defendants - Appellees.
Appeal from the United States District Court
for the Central District of California
Gary A. Feess, District Judge, Presiding
Argued and Submitted March 4, 2010
Pasadena, California
Before: CANBY, GOULD and IKUTA, Circuit Judges.
Daniel Reyes appeals the district court’s grant of summary judgment to the
City of Pico-Rivera (the “City”) and Donald Grayson in a stigma-plus procedural
due process claim Reyes brought under 42 U.S.C. § 1983. We have jurisdiction
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
under 28 U.S.C. § 1291, and, reviewing de novo, see, e.g., Vernon v. City of Los
Angeles, 27 F.3d 1385, 1391 (9th Cir. 1994), we affirm.
Although “[t]he termination of a public employee which includes
publication of stigmatizing charges triggers due process protections,” Reyes was
not entitled to a name-clearing hearing because “there [was] [no] public disclosure
of the charge.” Mustafa v. Clark County Sch. Dist., 157 F.3d 1169, 1179 (9th Cir.
1998).1 Grayson’s dissemination of an allegedly stigmatizing report to two City
decision-makers did not, on its own, constitute publication, because there was no
public disclosure. See Wenger v. Monroe, 282 F.3d 1068, 1074 n.5 (9th Cir.
2002). Similarly, the provision of the allegedly stigmatizing information to
opposing counsel during discovery in a related lawsuit did not constitute
publication, both because it lacked the “public” element contemplated by our
stigma-plus cases, and because adopting such a rule would inhibit “forthright and
truthful communication . . . between litigants.” Bishop v. Wood, 426 U.S. 341,
348-49 (1976).2 Accordingly, because no reasonable trier of fact could find that
1
We do not accept Reyes’s suggestion at oral argument that California state
law governing the privacy of medical records somehow diminishes the requirement
of publication for a violation of § 1983 on a theory of stigma-plus discharge.
2
We reject Reyes’s attempt to distinguish Bishop on the basis of differences
in the nature of the stigmatizing information at issue.
2
the allegedly stigmatizing report was publicly disclosed, the district court properly
granted summary judgment to the City and Grayson.3
AFFIRMED.
3
We do not reach the district court’s alternative holding that summary
judgment was warranted on the ground that Reyes’s § 1983 claim was time-barred.
3