Michael Erwine v. County of Churchill ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 7 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL ERWINE, No. 22-15358
Plaintiff-Appellant, D.C. No.
3:18-cv-00461-RCJ-CSD
v.
COUNTY OF CHURCHILL; BENJAMIN MEMORANDUM*
TROTTER, Churchill County Sheriff,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
Robert Clive Jones, District Judge, Presiding
Argued and Submitted February 14, 2023
San Francisco, California
Before: WARDLAW, NGUYEN, and KOH, Circuit Judges.
Michael Erwine appeals the district court’s grant of summary judgment in
favor of the County of Churchill and Sheriff Benjamin Trotter (“Defendants”).
Erwine, who was formerly employed as a Deputy Sheriff for Churchill County,
alleges that Defendants violated his procedural due process rights under the
Fourteenth Amendment by forcing him to resign and placing an allegedly
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
stigmatizing memorandum in his personnel file (“the Trotter Memorandum”) in
response to Erwine’s allegations of misconduct against his co-employees.
We review the denial of a motion for summary judgment de novo. See
Jones v. Royal Admin. Servs., Inc., 887 F.3d 443, 447 (9th Cir. 2018). Exercising
our jurisdiction under 28 U.S.C. § 1291, we affirm. Erwine has failed to show a
causal relationship between his inability to secure a job and the Trotter
Memorandum.
1. In the public employment context, a plaintiff may prove a deprivation of
a liberty interest, among other things, by showing that he was terminated from his
employment in conjunction with a stigmatizing statement. See Llamas v. Butte
Cmty. Coll. Dist., 238 F.3d 1123, 1129 (9th Cir. 2001). The Supreme Court has
clarified that “‘stigma’ to one’s reputation” alone without “more tangible interests
such as employment” is insufficient “to invoke the procedural protection of the
Due Process Clause.” Paul v. Davis, 424 U.S. 693, 701 (1976). Therefore, to state
a viable “stigma-plus” due process claim, Erwine must show that the allegedly
stigmatizing statements in the Trotter Memorandum were the cause of his loss of
employment opportunities in his chosen profession as a law enforcement officer.
The district court properly concluded that Erwine does not have a viable
stigma-plus due process claim against Sheriff Trotter as a matter of law. Erwine
has failed to put forth evidence showing that the Trotter Memorandum was the
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cause of his inability to find employment as a police officer in the State of
Nevada—outside of the tribal police force—after his resignation. Of the six state
police departments that rejected Erwine’s application, Erwine put forth evidence
that only one, the Washoe County Sheriff’s Office, had knowledge of the Trotter
Memorandum when it rejected Erwine’s application. As the district court noted,
“there is no evidence that any other agency for which [Erwine] applied reviewed
the memorandum.” However, Erwine’s background investigation file from the Las
Vegas Metropolitan Police Department indicates that an investigator from the
department had a telephone conversation with Sheriff Trotter regarding Erwine’s
employment with Churchill County.
Therefore, as the district court found, Erwine “cannot show that he was
denied employment at [the] other four agencies because of any stigmatizing
statement from Defendants.” Indeed, Erwine applied for and was rejected from
five agencies, including the Washoe County Sheriff’s Office, prior to his
employment with Defendants. As Erwine acknowledges, his difficulties securing
employment may have been due to his prior arrest for driving under the influence.
There is no evidence in the record that it was the Trotter Memorandum, rather than
Erwine’s criminal record, lack of experience, or any other aspect that potential
employers would consider, that caused four of the six agencies to deny his
application. And “[s]tigmatizing statements that merely cause ‘reduced economic
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returns and diminished prestige . . .’ do not constitute a deprivation of liberty.”
Blantz v. Cal. Dep’t of Corr. & Rehab., 727 F.3d 917, 925 (9th Cir. 2013) (quoting
Stretten v. Wadsworth Veterans Hospital, 537 F.3d 361, 366 (9th Cir. 1976)).
2. Likewise, the district court did not abuse its discretion in disregarding the
opinion of Erwine’s expert, Ron Dreher. Erwine contends that Dreher’s testimony
created a triable issue of fact as to whether the state police agencies to which he
applied reviewed the Trotter Memorandum. The district court properly analyzed
Dreher’s conclusions under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509
U.S. 579 (1993). Its ruling that Dreher’s “grand conclusions” were “not reliable”
because he “fail[ed] to provide any specific methodology from which he was able
to reach [his] judgments” was not “illogical, implausible, or without support in
inferences that may be drawn from the record.” Murray v. S. Route Mar. SA, 870
F.3d 915, 922 (9th Cir. 2017) (quoting United States v. Hinkson, 585 F.3d 1247,
1262 (9th Cir. 2009) (en banc)). Because Dreher’s statements were conclusory and
ran contrary to the evidence adduced in discovery, the district court did not abuse
its discretion in disregarding Dreher’s opinion in reaching its conclusion.
3. Nor did the district court err by dismissing Erwine’s associated claim
against Churchill County. Because Erwine’s claim under Monell v. Department of
Social Services of City of New York, 436 U.S. 658 (1978), against Churchill
County is indistinguishable from his claim against Sheriff Trotter, the same legal
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grounds support affirmance of the district court’s order granting summary
judgment in Churchill County’s favor.
AFFIRMED.
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