Bruce Dougherty v. Gloria Cortez ( 2011 )

FILED
NOT FOR PUBLICATION AUG 10 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRUCE DOUGHERTY, No. 09-56239
Plaintiff - Appellant, D.C. No. 2:08-cv-01149-PA-CT
v.
MEMORANDUM*
GLORIA CORTEZ and NORMAN J.
KIRSCHENBAUM,
Defendants - Appellees.
Appeal from the United States District Court
for the Central District of California
Percy Anderson, District Judge, Presiding
Argued and Submitted June 9, 2011
Pasadena, California
Before: B. FLETCHER and N.R. SMITH, Circuit Judges, and BREWSTER,
Senior District Judge.**
Brian Dougherty appeals the district court’s grant of summary judgment in
favor of Gloria Cortez and Norman Kirschenbaum in their supervisory capacity, in
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Rudi M. Brewster, District Judge for the U.S. District
Court for Southern California, San Diego, sitting by designation.
his 42 U.S.C. § 1983 claim. Dougherty argues that California Education Code
§ 44938 creates a property interest sufficient to guarantee him a hearing before
derogatory information is placed in his personnel file. Dougherty brought claims
other than his 42 U.S.C. § 1983 due process claim. However, he has not appealed
the grant of summary judgment as to any other claim. We have jurisdiction
pursuant to 28 U.S.C. § 1291 and we AFFIRM.
To prevail in a § 1983 claim premised on a procedural due process violation,
a plaintiff must show deprivation of a protected property or liberty interest without
being given due process. Bd. of Regents v. Roth, 408 U.S. 564, 569 (1972).
“Property interests . . . are not created by the Constitution. Rather they are created
and their dimensions are defined by existing rules or understandings that stem from
an independent source such as state law-rules or understandings that secure certain
benefits and that support claims of entitlement to those benefits.” Id. at 577.
California Education Code § 44938 does not create a property interest
entitling Dougherty to a hearing prior to derogatory information being placed in his
file. Rather, the statute guarantees that a teacher will be given written notice of
unprofessional conduct and at least 45 days as an “opportunity to correct his or her
faults and overcome the grounds for the charge” before being discharged. Cal.
Educ. Code § 44938(a); Crowl v. Comm’n on Prof’l Competence, 275 Cal. Rptr.
2
86, 88, 92 (Ct. App. 1990). It is undisputed that Dougherty was given written
notice of and an opportunity to correct his conduct. It is also undisputed that
Dougherty was not discharged. California has created a property interest to the
extent of allowing a rebuttal letter to be placed in a personnel file alongside any
derogatory information. See Cal. Educ. Code § 44031; Miller v. Chico Unified
Sch. Dist., 597 P.2d 475, 480 (Cal. 1979). Dougherty was allowed to place a
rebuttal letter in his personnel file, which was adequate under the statute. See
Roth, 408 U.S. at 577.
Dougherty did not raise the argument that the Appellees violated his liberty
interest in his reputation to the district court. The district court did not address this
issue in its order. Therefore, Dougherty waived this issue. See Broad v. Sealaska
Corp., 85 F.3d 422, 430 (9th Cir. 1996).
AFFIRMED.
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