Manu Dube v. Dinshaw Contractor , 359 F. App'x 890 ( 2009 )

FILED
NOT FOR PUBLICATION DEC 22 2009
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS
FOR THE NINTH CIRCUIT
MANU DUBE, No. 08-16678
Plaintiff - Appellant, D.C. No. 4:08-CV-00148-JMR
v.
MEMORANDUM *
DINSHAW CONTRACTOR; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Arizona
John M. Roll, Chief District Judge, Presiding
Argued and Submitted December 3, 2009
San Francisco, California
Before: B. FLETCHER, THOMAS and N.R. SMITH, Circuit Judges.
Manu Dube appeals from the district court's grant of defendants' motion to
dismiss under Fed. R. Civ. P. 12(b)(6). We affirm. Because the parties are
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
1
familiar with the factual and procedural history of this case, we need not recount it
here.
I
A dismissal for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6) is
reviewed de novo. Sanders v. Kennedy, 794 F.2d 478, 481 (9th Cir. 1986). We
cannot uphold such dismissal 'unless it appears to a certainty that the plaintiff
would not be entitled to relief under any set of facts that could be proved. All
material allegations in the complaint are taµen as true and construed in the light
most favorable to the non-moving party.' Id. (citations omitted).
To support a y 1983 claim based on damage to reputation, a plaintiff must
show that the alleged reputational harm was accompanied by the additional
deprivation of 'some more tangible interest.' Paul v. Davis, 424 U.S. 693, 701-
702 (1976). Dube has failed to allege a tangible injury stemming from
Contractor's negative employment reference sufficient to turn his defamation claim
into one implicating rights of a federal or statutory dimension. See Siegert v.
Gilley, 500 U.S. 226, 234 (1991) (plaintiff's alleged serious impairment of future
employment opportunities and failure to get job offer from potential employer
arose directly from allegedly defamatory statements and thus were insufficient to
give rise to a constitutional violation).
2
Dube's allegations of defamatory retaliation for First Amendment activity
are not sufficient to meet the requirements of Paul v. Davis, as we held in Gini v.
Las Vegas Metropolitan Police Dept., 40 F.3d 1041, 1044-45 (9th Cir. 1994).
Dube contends that Gini is immaterial due to more recent cases announcing a
three-prong test for establishing a First Amendment claim in the student speech
context. Dube further contends that he need not allege the deprivation of a
federally protected right because 'a First Amendment retaliation claim does not
require being deprived of any valuable governmental benefit or privilege.'
However, the cases upon which Dube relies for these arguments do not involve
First Amendment claims based solely on reputation damage, and thus do not alter
the holding of Gini as it applies to retaliatory defamation claims. See, e.g., Pinard
v. Clatsµanie School Dist. 6J, 467 F.3d 755, 770 (9th Cir. 2006); see also Coszalter
v. City of Salem, 320 F.3d 968, 970-71 (9th Cir. 2003).
Dube also contends, relying on the Supreme Court's decision in Goss v.
Lopez, that his claim meets the requirements of Paul v. Davis because Contractor
deprived him of a liberty interest 'in his good name.' Dube's reliance on Goss v.
Lopez is misplaced. See 419 U.S. 565 (1975). More recent Supreme Court case
law has refused to interpret Goss as holding that defamation, standing alone,
3
deprives an individual of any 'liberty' protected by the Due Process Clause. See
Paul, 424 U.S. at 708-10.
II
Because we affirm the district court's decision that Dube failed to state a
claim under y 1983, we need not, and do not, reach any other argument urged by
the parties on appeal.
AFFIRMED.
4
FILED
Case Name: Dube v. Contractor DEC 22 2009
No. 08-16678 MOLLY C. DWYER, CLERK
U.S . CO U RT OF AP PE A LS
B. FLETCHER, Circuit Judge, specially concurring:
I concur reluctantly in the majority's opinion. I find application of the
apparent current law particularly unjust where the letter-writer's reference letter:
(1) is apparently in retaliation for the plaintiff's initiating administrative
proceedings against the wrongdoing of a colleague;
(2) contains an inaccurate suggestion that the plaintiff may have misused university
property;
(3) liµely cost plaintiff a job offer; and
(4) left plaintiff unaware that the subsequent letter at issue had supplanted an
earlier favorable letter from the same advisor and senior colleague.