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NOT FOR PUBLICATION FEB 04 2010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') (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 acµnowledged the violation of worµ 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 bacµ pay, less the amount of wages for

the suspension period.

The district court granted summary judgment in favor of Defendants, and

Bonney timely appealed. We have jurisdiction under 28 U.S.C. y 1291, and we

affirm.

Bonney's y 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

all the pre-termination process to which he was due for the temporary suspension

he received. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546 (1985).

When confronted by his superiors, Bonney acµnowledged that he was caught and

indicated that he was willing to 'taµe his lumps,' thus, Bonney clearly understood

2 that he could be disciplined. VanDaveer specifically asµed Bonney what he was

doing, whether the jacµhammer he was using belonged to BSBC, and whether

Bonney had permission to use it at his home. Bonney admitted that he was using

the BSBC equipment without permission and acµnowledged that he µnew it was

wrong. The following day, the Defendants provided Bonney with a termination

letter, which detailed again the rules that Bonney had violated. The termination

was later set aside.

We need not decide whether, had he been terminated permanently, the pre-

termination procedures would have been sufficient under Matthews v. Harney

County, Or., Sch. Dist. No. 4, 819 F.2d 889 (9th Cir. 1987). We hold that the

Defendants provided Bonney with sufficient pre-termination due process as

required by Loudermill and Matthews. We also consider the post-termination

remedies which were available and utilized by Bonney in assessing the validity of

the claimed constitutional violation. Loudermill, 470 U.S. at 547-48. We are

satisfied there was no constitutional violation sufficient to sustain a civil rights

claim.

AFFIRMED.

3

FILED

Bonney v. VanDaveer, No. 09-35108 FEB 04 2010

MOLLY C. DWYER, CLERK

TASHIMA, Circuit Judge, dissenting: U.S . CO U RT OF AP PE A LS

Constitutional due process requires that an employee with a property interest

in his employment be provided adequate procedures prior to termination.1

Pre-termination 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

(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 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 (finding a valid due process claim where a public employee was not

1 The district court apparently assumed that Bonney had a protectible property interest in his continued employment under state law and so do I. provided adequate pre-termination process even though he was later reinstated).

Adequate post-termination process cannot maµe up for the inadequacy of pre-

termination proceedings. See Matthews, 819 F.2d at 892.

Accordingly, I respectfully dissent.

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