Christopher A. Sciolino v. City of Newport News, Virginia Dennis A. Mook, Individually and as Chief of Police for the City of Newport News

480 F.3d 642, 25 I.E.R. Cas. (BNA) 1402, 2007 U.S. App. LEXIS 5734, 90 Empl. Prac. Dec. (CCH) 42,927, 2007 WL 726740
CourtCourt of Appeals for the Fourth Circuit
DecidedMarch 12, 2007
Docket05-2229
StatusPublished
Cited by120 cases

This text of 480 F.3d 642 (Christopher A. Sciolino v. City of Newport News, Virginia Dennis A. Mook, Individually and as Chief of Police for the City of Newport News) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Christopher A. Sciolino v. City of Newport News, Virginia Dennis A. Mook, Individually and as Chief of Police for the City of Newport News, 480 F.3d 642, 25 I.E.R. Cas. (BNA) 1402, 2007 U.S. App. LEXIS 5734, 90 Empl. Prac. Dec. (CCH) 42,927, 2007 WL 726740 (4th Cir. 2007).

Opinions

Vacated and remanded by published opinion. Judge MOTZ wrote the opinion, in which Judge GREGORY joined. Judge WILKINSON wrote a dissenting opinion.

OPINION

DIANA GRIBBON MOTZ, Circuit Judge.

A former probationary city police officer brings this action pursuant to 42 U.S.C. [645]*645§ 1983 (2000). He asserts that when discharging him, the city placed in his personnel file false information damaging to his good name without granting him a name-clearing hearing, and so deprived him of liberty rights without due process of law. Because the former employee did not allege facts asserting a likelihood that prospective employers or members of the public would see the damaging information, the district court did not abuse its discretion in dismissing the employee’s complaint. However, when the district court denied the employee’s motion to amend his complaint in order to meet this standard, the court did abuse its discretion. Accordingly, we vacate the judgment and remand for further proceedings consistent with this opinion.

I.

In May 2002, the Newport News Police Department hired Christopher Sciolino as a police officer. Sciolino began an eighteen-month probationary period during which he was not entitled to any departmental grievance rights. On June 26, 2003, the Acting Chief of Police Carl Burt placed Sciolino on administrative duty, asserting that Sciolino had advanced the odometer of his police cruiser approximately 10,000 miles, ostensibly to get a new car sooner. Sciolino denied these charges. On September 26, 2003, Chief of Police Dennis Mook, acting on behalf of the department, terminated Sciolino’s employment by letter, accusing him of deliberately destroying city property by advancing the odometer. Sciolino alleges that the department placed the letter in his personnel file.

On June 2, 2004, Sciolino brought this action against the City of Newport News and Chief Mook (in both his individual and official capacity). The City and Chief Mook (hereafter collectively “the City”) moved to dismiss Sciolino’s first amended complaint for failure to state a claim. The district court granted the motion, holding that in order to give rise to a due process claim, a plaintiff must allege facts asserting that damaging and false charges in his personnel file were likely to be disseminated to prospective employers or members of the public.

After dismissal, Sciolino moved to file a second amended complaint, assertedly to satisfy this standard. The district court denied Sciolino’s motion to amend. Scioli-no appeals both the order dismissing the case, and the order denying his motion to file an amended complaint.

II.

Sciolino contends that by placing false charges in his personnel file, which “may be available” to prospective employers, the City deprived him of Fourteenth Amendment liberty interests — in his reputation and his ability to obtain future employment — without granting him a name-clearing hearing. Like the district court, we believe that in order to state a claim under the Due Process Clause, a plaintiff must allege a likelihood that prospective employers will inspect his personnel file. Accordingly, the district court did not abuse its discretion in dismissing Sciolino’s first amended complaint.

A.

Although Sciolino, as a probationary employee, has no protected “property” interest in his employment with the City, a public employer cannot deprive a probationary employee of his “freedom to take advantage of other employment opportunities.” Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 573, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). For this reason, a Fourteenth Amendment “liberty interest is [646]*646implicated by public announcement of reasons for an employee’s discharge.” Johnson v. Morris, 903 F.2d 996, 999 (4th Cir.1990).

Sciolino’s claim thus arises from the combination of two distinct rights protected by the Fourteenth Amendment: (1) the liberty “ ‘to engage in any of the common occupations of life,’ ” Roth, 408 U.S. at 572, 92 S.Ct. 2701 (quoting Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625, 67 L.Ed. 1042 (1923)); and (2) the right to due process “[wjhere a person’s good name, reputation, honor, or integrity is at stake because of what the government is doing to him,” Wisconsin v. Constantineau, 400 U.S. 433, 437, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971); see also Paul v. Davis, 424 U.S. 693, 701, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976) (explaining that an individual’s liberty interest in his reputation is only sufficient “to invoke the procedural protection of the Due Process Clause” if combined with “some more tangible interest[] such as employment”).1

To state this type of liberty interest claim under the Due Process Clause, a plaintiff must allege that the charges against him: (1) placed a stigma on his reputation; (2) were made public by the employer; (3) were made in conjunction with his termination or demotion; and (4) were false. See Stone v. Univ. of Md. Med. Sys. Corp., 855 F.2d 167, 172 n. 5 (4th Cir.1988).

At this stage, the only element seriously at issue2 is the second, the require[647]*647ment that the charges have been “made public” — or that there has been a “public disclosure.” See Bishop v. Wood 426 U.S. 341, 348, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976). Sciolino alleges in his first amended complaint that his file “may be available” to prospective employers. Quoting our decision in Ledford v. Delancey, 612 F.2d 883, 886-87 (4th Cir.1980), he argues that a plaintiff satisfies the dissemination element if he alleges that his personnel file “ ‘may be the subject of inspection by prospective employers.’ ” Brief of Appellant at 9 (emphasis added by Appellant). In contrast, the City contends that a plaintiff must allege a specific incident of “actual publication” of the personnel file to state a claim. Brief of Appellees at 19. The district court selected an intermediate standard, holding that to state a claim the plaintiff must allege a “likelihood of dissemination” of the false charges to prospective employers.3

B.

Although they emphasize different portions of Bishop and Ledford, each side contends that these cases dictate the standard it espouses. Actually, neither case does so.

In Bishop, the Supreme Court considered the case of a discharged city police officer who sued his former employer contending that false charges accompanying his discharge “deprived him of an interest in liberty protected by” the Due Process Clause, even though his employer had not “public[ly] disclose[d] the reasons for the discharge.” 426 U.S. at 343, 348, 96 S.Ct. 2074.

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480 F.3d 642, 25 I.E.R. Cas. (BNA) 1402, 2007 U.S. App. LEXIS 5734, 90 Empl. Prac. Dec. (CCH) 42,927, 2007 WL 726740, Counsel Stack Legal Research, https://law.counselstack.com/opinion/christopher-a-sciolino-v-city-of-newport-news-virginia-dennis-a-mook-ca4-2007.