Tony Bonney v. John Van Daveer

MEMORANDUM **

Plaintiff Tony Bonney (“Bonney”) brought this action under 42 U.S.C. § 1983 against Defendants John VanDaveer (“VanDaveer”), Jean Pentecost (“Pentecost”), and Butte Silver Bow County *357 (“BSBC”) (collectively, “Defendants”), alleging violation of his constitutional right to due process. Pentecost and VanDaveer discovered Bonney using BSBC equipment for personal use and confronted him on the spot; he acknowledged the violation of work rules and was terminated the following day. Bonney’s union pursued a grievance on his behalf and an arbitrator agreed that Bonney had violated the rules but found that termination was too harsh a penalty and ordered a sixty-day suspension instead. Bonny was reinstated to his position with back pay, less the amount of wages for the suspension period.

The district court granted summary judgment in favor of Defendants, and Bon-ney timely appealed. We have jurisdiction under 28 U.S.C. § 1291 , and we affirm.

Bonney’s § 1983 claim alleges that he was deprived of his constitutionally-protected right to continued employment without due process. See Knappenberger v. City of Phoenix, 566 F.3d 936, 940 (9th Cir.2009). However, Bonney received…

dissenting:

Constitutional due process requires that an employee with a property interest in his employment be provided adequate procedures prior to termination. 1 Pre-termi-nation procedures are adequate only if the employee is provided: (1) adequate notice; (2) an explanation of the evidence; and (3) a meaningful opportunity to respond. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546 , 105 S.Ct. 1487 , 84 L.Ed.2d 494 (1985); see also Matthews v. Harney County, Or., Sch. Dist. No. 4, 819 F.2d 889, 892 (9th Cir.1987) (clarifying that notice must be adequate and that the opportunity to respond must be meaningful). Here, Bonney did not receive due process because he was not provided adequate notice or given a meaningful opportunity to respond as required by Matthews. It is also uncontested that his employment was terminated and that he was required to *358 pursue union grievance procedures to overturn that termination. Therefore, I would reverse the grant of summary judgment.

The majority errs by treating Bonney’s reinstatement as effectively erasing his termination for purposes of due process analysis. Cf. Loudermill, 470 U.S. at 536-37, 548 , 105 S.Ct. 1487 (finding a…

FILED

NOT FOR PUBLICATION FEB 04 2010

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS

FOR THE NINTH CIRCUIT

TONY BONNEY, No. 09-35108

Plaintiff - Appellant, D.C. No. 2:08-cv-00046-RFC

v.

MEMORANDUM *

JOHN VAN DAVEER; JEAN

PENTECOST; BUTTE SILVER BOW

COUNTY; JOHN AND JANE DOES, 1-

10,

Defendants - Appellees.

Appeal from the United States District Court for the District of Montana Richard F. Cebull, Chief District Judge, Presiding

Submitted January 14, 2010** Seattle, Washington

Before: KLEINFELD, TASHIMA, and TALLMAN, Circuit Judges.

Plaintiff Tony Bonney ('Bonney') brought this action under 42 U.S.C.

y 1983 against Defendants John VanDaveer ('VanDaveer'), Jean Pentecost

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously finds this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2)(C). ('Pentecost'), and Butte Silver Bow County ('BSBC')…