Billie Milstead v. Mark Begich , 363 F. App'x 471 ( 2010 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JAN 25 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
BILLIE JEAN MILSTEAD, No. 09-35181
Plaintiff - Appellant, D.C. No. 3:08-cv-00100-RRB
v.
MEMORANDUM *
MARK BEGICH; WALTER C.
MONEGAN; THE MUNICIPALITY OF
ANCHORAGE; JOHN DOES, 1-20
inclusive,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Alaska
Ralph R. Beistline, Chief District Judge, Presiding
Submitted January 14, 2010**
Seattle, Washington
Before: KLEINFELD, TASHIMA, and TALLMAN, Circuit Judges.
The parties are familiar with the facts of the case and we do not repeat them
here. Plaintiff Billie Jean Milstead (“Milstead”) appeals a district court order
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
granting Defendants’ motion to dismiss. Milstead brought suit under 42 U.S.C.
§ 1983 alleging Defendants deprived her of due process by making defamatory
statements that (1) damaged her reputation, (2) caused the owners of the Panhandle
bar in Anchorage, Alaska, to terminate her employment, and (3) caused her peers
in the hospitality industry to “ostracize” her. We affirm.
First, applying Paul v. Davis, 424 U.S. 693 (1976), we have held that
“reputation, without more, is not a protected constitutional interest.” WMX Techs.,
Inc. v. Miller, 197 F.3d 367, 374 (9th Cir. 1999) (en banc) (citation omitted).
Therefore, Milstead’s allegation that Defendants’ statements resulted in damage to
her reputation in the Anchorage hospitality industry does not provide a federal
cause of action, as her reputation alone is not a constitutionally protected liberty or
property interest.
Second, we have noted that “where the actions of private individuals operate
to deprive an individual of his employment, a suit for interference with private
contractual relationships would lie, but where government officials are involved,
the nature of the interest at stake in private employment is a property interest.”
Merritt v. Mackey, 827 F.2d 1368, 1371 (9th Cir. 1987). Nevertheless, “[f]or the
purpose of due process, [a plaintiff] must show that [s]he had more than a
‘unilateral expectation’ of continued employment; [s]he must demonstrate a
2
‘legitimate claim of entitlement.’” Id. (quoting Board of Regents v. Roth, 408
U.S. 564, 577 (1972)).
The Supreme Court has repeatedly held there is no Fourteenth Amendment
property interest in an at-will employment contract. See, e.g., Roth, 408 U.S. at
578 (holding at-will college professor had no liberty or property interest in his
continued employment within the meaning of the Fourteenth Amendment); Bishop
v. Wood, 426 U.S. 341, 348 (1976) (holding employee may be discharged without
the requirement of fair procedures where position is one the applicable law defines
as terminable for any reason). Milstead does not allege anything more than an at-
will employment. Her complaint contains no representation that she even had a
contract. As a result, she has not alleged that she had “more than a ‘unilateral
expectation’ of continued employment.” Merritt, 827 F.2d at 1371.
Third, even if liberally construed, Milstead’s allegation that she has been
“ostracized by her peers and nearly all others in the bar industry” does not
sufficiently articulate a claim that she has been foreclosed from future
employment. Milstead has not alleged that an employer refused to hire her as a
result of Defendants’ statements. Her allegations therefore have not raised “a right
to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007). Thus, her federal claims fail.
3
Finally, Milstead argues that the district court erred in dismissing her federal
claims with prejudice without sua sponte giving her leave to amend her complaint.
“Where a party never asked for permission, its argument that the ‘district court
should have permitted’ is without force.” Alaska v. United States, 201 F.3d 1154,
1163 (9th Cir. 2000). As Milstead never asked for permission to amend her
complaint, she cannot now argue that the district court erred in not permitting an
amendment.
AFFIRMED.
4