Unpublished Disposition, 923 F.2d 864 (9th Cir. 1989)

MEMORANDUM^** 

Stella Young-Smith (Young-Smith), a school principal, was terminated for cause on June 9, 1987 to be effective June 30, 1987. Young-Smith filed suit in state court alleging, among other things, denial of due process and violation of 42 U.S.C. § 1983. The action was removed to federal district court on May 10, 1988. The district court granted summary judgment in favor of defendants and dismissed all but Young-Smith's breach of contract claim, which the district court remanded to state court. We affirm.

FACTS

Young-Smith was hired by appellee Grant Joint Union High School District (District) as principal of Martin Luther King Junior High School (School) in the middle of the 1986-87 academic year.

On February 26, 1987, Young-Smith signed a six month contract for employment as principal for the period January 15, 1987 through July 2, 1987. The contract stated that " [y]our services in the above named position will begin on 1/15/87 and end on 7/02/87." Supplemental Excerpts of Record No. 78 at 3 (emphasis added).

On February 27, 1987 Young-Smith received a "Notice of Release from Position" informing her that she might be released from her position the following year. The notice stated that it was being sent pursuant to California Education Code sections 45117 and 45308. Both of these sections address termination due to lack of funding. Neither section addresses removal for cause. On June 9, 1987, the District dismissed Young-Smith for cause effective June 30, 1987.¹ 

In April 1988, Young-Smith filed a complaint against the District in Sacramento County Superior Court. Young-Smith listed six state law causes of action including breach of contract, misrepresentation and various tort claims. She also raised three federal causes of action for denial of due process, denial of equal protection and civil rights violations under 42 U.S.C. § 1983 (1988). The action was removed to the United States District Court for the Eastern District of California on May 10, 1988. The district court heard the parties' cross motions for summary judgment on August 3, 1989. The district court dismissed all of the state law causes of action except the breach of contract claim. The court also dismissed all of Young-Smith's federal causes of action. The court remanded the breach of contract claim to state court.

Young-Smith appeals from the district court's decision dismissing her due process and section 1983 claims. Young-Smith failed to address the district court's remaining decisions in her briefs. As a consequence, she has abandoned any appeal of the dismissal of the state law claims, the denial of the federal equal protection claim, or the remand of the breach of contract claim to the state court.

STANDARD OF REVIEW

This court has jurisdiction over the appeal of the grant of summary judgment pursuant to 28 U.S.C. § 1291 (1988). A grant of summary judgment is reviewed de novo. T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 629 (9th Cir. 1987). The appellate court's review is governed by the same summary judgment test applied by the district court. See id. at 630.

THE DUE PROCESS CLAIM

Young-Smith's appeal is solely based on her due process claim. While she also has a section 1983 remedy, it is totally dependent upon the due process claim. Section 1983 protects persons who have been deprived of their constitutionally protected rights. This section is remedial; it does not create any new constitutional or statutory rights. See Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 617 (1979).

Young-Smith claims on appeal that she suffered a deprivation of property without due process of law. To support this claim, she must have had a property interest in her position as principal. If she had no property right in her position, she is not entitled to fourteenth amendment due process protection.² 

As the United States Supreme Court observed in Board of Regents of State Colleges v. Roth, 408 U.S. 564 (1972), to have a property interest, an individual "must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it." Id. at 577. The Supreme Court held that property interests giving rise to due process protection "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...." Id. Accordingly, a determination of whether Young-Smith has a property interest in her job as principal requires an examination of state law.

In the instant case, state law does not create a property interest. In Barthuli v. Board of Trustees, 19 Cal. 3d 717, 566 P.2d 261, 139 Cal. Rptr. 627 (1977) (in bank), cert. denied, 434 U.S. 1040 (1978), the California Supreme Court held that administrators, unlike teachers, have no property rights in their positions. Id. at 722-23, 566 P.2d at 264, 139 Cal. Rptr. at 630; see also McFall v. Madera Unified School Dist., 222 Cal. Rptr. 1228, 1234-35, 272 Cal. Rptr. 345, 348-349 (1990) (holding that principal did not possess a statutory right to his position). This circuit has held that California does not recognize a property interest in administrative positions. Lagos v. Modesto City Schools Dist., 843 F.2d 347, 349 (9th Cir. 1988) (citing Loehr v. Ventura Community College Dist., 743 F.2d 1310 (9th Cir. 1984)), cert. denied, 488 U.S. 926 (1988).

It follows that Young-Smith is not entitled to such protection because the California Supreme Court has ruled that she has no property interest in her position. As a consequence, she is entitled to no relief under section 1983.

In spite of Barthuli, Young-Smith argues that the procedural requirements of California Education Code section 44951 create a property interest in her position as principal of Martin Luther King Junior High School. Young-Smith is incorrect.

The cases Young-Smith relies on are inapposite. See Hoyme v. Board of Educ., 107 Cal. App. 3d 449, 165 Cal. Rptr. 737 (1980); Barton v. Governing Bd., 60 Cal. App. 3d 476, 131 Cal. Rptr. 455 (1976). The courts in these cases ordered the reinstatement of principals, but the decisions were not based on the existence of a property right. In each case, the principal was reinstated because the notice requirements of section 44951 were not satisfied.³  See Hoyme, 107 Cal. App. 3d at 455, 165 Cal. Rptr. at 741; Barton, 60 Cal. App. 3d at 479-480, 131 Cal. Rptr. at 457-458. The cases relied upon by Young-Smith do not support the creation of a property interest in Young-Smith's job as principal. Given the California Supreme Court's decision in Barthuli, the district court properly concluded that Young-Smith does not have a constitutionally protected property interest in her job.

AFFIRMED.