Mark A. Merritt, Appellee, v. M.d. Reed; Charles Lanehart, Appellants,arkansas Department of Correction, Defendant, 120 F.3d 124 (8th Cir. 1997)

Defendants appeal the district court's denial of their motion for summary judgment based on qualified immunity in this 42 U.S.C. § 1983 action. We reverse.

In November 1992, Mark Merritt filled out a pre-employment questionnaire with the Arkansas Department of Correction (ADC) stating that he could perform the job functions of a correctional officer. He was hired for a position with the ADC Varner Unit and placed on probationary status while in training. At the ADC training academy, Merritt informed an instructor that he could not run, jog, or jump, pursuant to his doctor's orders. On December 15, 1992, Merritt was discharged from employment for providing false information on his job questionnaire. He then sought other employment. During his job search, Merritt alleges that prison officials informed prospective employers of the reason for his termination as a correctional officer.

Merritt brought this section 1983 action against M.D. Reed, the former warden of the Varner Unit; Charles Lanehart, the Varner Unit personnel officer; and the ADC. Merritt alleged defendants violated his due process rights by terminating him from employment as a correctional officer without giving him an opportunity to respond to the charges, thereby affecting his good name within the employment community.¹  Defendants moved for summary judgment based on qualified immunity, arguing that Merritt was not deprived of a liberty interest because there was no public disclosure of the reason for his discharge. The motion was supported by Lanehart's affidavit stating that, as a matter of policy, the ADC does not give reasons for an employee's termination to prospective employers, even upon request from those employers. In response, Merritt submitted evidence that defendants placed the reason for the dismissal in his personnel file, and that a former ADC employee disclosed the reason to a possible employer.

The district court granted summary judgment to ADC and the individual defendants in their official capacities. The court denied summary judgment, however, to defendants Reed and Lanehart in their individual capacities. Reed and Lanehart appeal.

We review the district court's denial of qualified immunity de novo. Henderson v. Baird, 29 F.3d 464, 467 (8th Cir. 1994), cert. denied, 515 U.S. 1145, 115 S. Ct. 2584, 132 L. Ed. 2d 833 (1995). Qualified immunity shields government officials from suit unless their conduct violates a clearly established constitutional or statutory right of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738, 73 L. Ed. 2d 396 (1982). In considering whether defendants are entitled to qualified immunity, we must consider whether the plaintiff has asserted a violation of a constitutional or statutory right that was clearly established at the time of the violation, and whether a reasonable official would have known that the alleged action violated that right. Yowell v. Combs, 89 F.3d 542, 544 (8th Cir. 1996).

In this case, Merritt has failed to assert a violation of a constitutional or statutory right.²  Merritt was entitled to procedural due process upon termination only if he was deprived of a constitutionally protected property or liberty interest. Shands v. City of Kennett, 993 F.2d 1337, 1347 (8th Cir. 1993). Merritt asserts that he has a liberty interest in his good name and reputation in the employment community and that defendants deprived him of this interest without due process. See Codd v. Velger, 429 U.S. 624, 627, 97 S. Ct. 882, 884, 51 L. Ed. 2d 92 (1977). To establish a liberty interest in his good name, Merritt must show that the reasons for discharge stigmatized him and that the defendants made the reasons public. Bishop v. Wood, 426 U.S. 341, 349, 96 S. Ct. 2074, 2079-80, 48 L. Ed. 2d 684 (1976); Hogue v. Clinton, 791 F.2d 1318, 1322 (8th Cir. 1986) (citing Payne v. Ballard, 761 F.2d 491, 493 (8th Cir. 1985)). On the facts of this case, Merritt failed to make such a showing.

Merritt presented no evidence to establish that either defendant Reed or Lanehart made the reasons for his termination public. See Kentucky v. Graham, 473 U.S. 159, 166, 105 S. Ct. 3099, 3105, 87 L. Ed. 2d 114 (1985) (to establish personal liability in section 1983 action, plaintiff must show that defendant official caused deprivation of right). The uncontroverted facts of this case show that neither Reed nor Lanehart informed any prospective employers of the reasons for Merritt's termination. Merritt introduced a letter, signed by Jean Cannon, a former ADC assistant personnel officer, and addressed to one of Merritt's prospective employers, stating the reason for his dismissal. If publication occurred, it occurred at the hands of Cannon, not those of Reed or Lanehart. Cf. Brockell v. Norton, 688 F.2d 588, 592 n. 5 (8th Cir. 1982) (publication not attributable to defendants, and therefore, insufficient to establish liberty interest). Because Merritt has failed to show that defendants Reed or Lanehart published the reasons for his dismissal, he has failed to establish a violation of a liberty interest. Consequently, the defendants' motion for summary judgment should have been granted.³  See Waddell v. Forney, 108 F.3d 889, 896 (8th Cir. 1997) (reversing denial of summary judgment after qualified immunity inquiry where plaintiff failed to show violation of constitutionally protected liberty interest). We have considered the remainder of Merritt's arguments and find them to be without merit.

Because the defendants did not violate a constitutionally protected right, we reverse the district court's denial of defendants' motion for summary judgment.