FILED

NOT FOR PUBLICATION

DEC 24 2015

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

DENNIS KING; TRICIA KING, husband No. 14-35460 and wife, D.C. No. 2:12-cv-00622-TOR Plaintiffs - Appellees,

v. MEMORANDUM*

GARFIELD COUNTY PUBLIC

HOSPITAL DISTRICT NO. 1, a municipal corporation; SUSAN

MORROW; JAMES D. MORROW;

ANDREW CRAIGIE; BARBARA

CRAIGIE; MICHELE BEEHLER;

BLAINE BEEHLER,

Defendants - Appellants,

and

TERENCE SEAN MCGEE, M.D.; KIM

MCGEE; OHS HEALTH & SAFETY

SERVICES, INC.,

Defendants.

Appeal from the United States District Court for the Eastern District of Washington Thomas O. Rice, District Judge, Presiding

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. Argued and Submitted November 17, 2015 Richland, Washington

Before: LEAVY, GRABER, and TALLMAN, Circuit Judges.

Plaintiff Dennis King, a nurse previously employed at Defendant Garfield

County Public Hospital, filed a complaint under 42 U.S.C. § 1983 after the hospital

terminated him following a positive drug test. Plaintiff alleged that his termination

violated his procedural due process rights under the Fifth and Fourteenth

Amendments. Defendants appeal the district court’s denial of their motion for

summary judgment on qualified immunity. Because Defendants were entitled to

qualified immunity, we reverse.

"[P]rocedural due process requirements can rarely be considered clearly

established[,] at least in the absence of closely corresponding factual and legal

precedent." Shinault v. Hawks, 782 F.3d 1053, 1059 (9th Cir. 2015) (internal

quotation marks omitted); see id. at 1060 (holding that the defendant was entitled

to qualified immunity when there was an "absence of precedent establishing a

state’s obligation to provide a pre-deprivation hearing" to an inmate before the

Oregon Department of Corrections withdrew funds from his trust account). Here,

no clearly established law put Defendants on notice that Plaintiff was entitled to

more process than he received.

2 Before the termination, Defendants provided Plaintiff with notice that the

presence of drugs in his sample could result in termination under hospital policy.

Plaintiff had an opportunity to explain the drug test result at a lengthy meeting with

three hospital administrators and the medical review officer who interpreted the

drug test results. He also had ample opportunity (a period of several weeks) to

submit additional documentation explaining the presence of drugs in his sample,

following the meeting and before his eventual termination. Indeed, he took

advantage of that opportunity. Various arguments that Plaintiff was not provided

sufficient process are not persuasive:

• The medical review officer’s decision to change the designation of the drug

screen report from negative to positive three weeks after Plaintiff’s meeting

with the hospital administrators does not demonstrate a lack of due process.

To the contrary, the timing of the decision suggests that Defendants and the

medical review officer were willing to consider Plaintiff’s explanations for

his test results.

• The doctrine of qualified immunity shields officials from civil liability so

long as their conduct does not violate clearly established law of which a

reasonable person would have known. Mullenix v. Luna, 136 S. Ct. 305,

308 (2015) (per curiam). "This inquiry turns on the objective legal (2009) (internal quotation marks omitted). Contrary to Plaintiff’s argument

that Defendants’ personal ignorance of the procedural requirements of a

name-clearing hearing should influence our decision, a defendant’s state of

mind is not relevant to the objective qualified immunity inquiry.

• The fact that Defendants never gave Plaintiff the numerical values of his test

results (as distinct from the conclusion that the drug test was positive) is not

dispositive, because Defendants reasonably could have believed that the

process that they provided was sufficient. See Levine v. City of Alameda,

525 F.3d 903, 906–07 (9th Cir. 2008) (holding that an official was entitled to

qualified immunity even though the plaintiff’s due process rights had been

violated, because the official reasonably could have believed that his

conduct was lawful).

• "The fundamental requirement of due process is the opportunity" for an

individual "to be heard at a meaningful time and in a meaningful manner."

Kaley v. United States, 134 S. Ct. 1090, 1114 (2014) (emphasis added)

(internal quotation marks omitted). Due process does not, however, require

the decision-maker to reach the individual’s desired outcome in order for the

process to be constitutional.

4 For the foregoing reasons, we hold that Defendants were entitled to qualified

immunity.

REVERSED.

5

FILED

King v. Garfield Cty. Public Hosp., 14-35460

DEC 24 2015

LEAVY, Circuit Judge, dissenting. MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

I would affirm the district court’s denial of the motion for summary

judgment on the issue of qualified immunity filed by defendants Andrew Craigie,

Susan Morrow, and Michele Beehler. These individual defendants stated that they

were unaware of the requirements for a hearing prior to discharging an employee

for serious wrongdoing. They did not know that the meeting which they asked

King to attend was what they now refer to as a “hearing.”

The defendants told King at the meeting that he had tested “positive” for

certain drugs, but no test results were provided. King was told that his continued

employment depended on final laboratory results and interpretation by the medical

review officer. Several days after the meeting, the defendants received the

laboratory results indicating King’s drug test was “negative” because the results

accounted for King’s valid prescription from his dentist. Later, the medical review

officer changed the drug test report from negative to positive.

The defendants terminated King because of the level of drugs disclosed in

the drug test. Throughout this so-called “hearing” process, King was never

informed of his drug level. The parties acknowledge that the drugs prescribed by

King’s dentist would have caused the presence of the drugs in his system. It is

only the level at which the drugs were present that caused the defendants to claim that the test result was positive. King was first told of his drug levels six days after

his termination. Three days after he was informed of his drug levels, the Garfield

County Public Hospital reported King to the Washington Department of Health,

Nursing Care Quality Assurance Commission, stating that King had tested positive

for opiates. Following an investigation, the Commission determined that no cause

for discipline existed because the evidence did not support a violation.

The Supreme Court holds that a “public employee is entitled to oral or

written notice of the charges against him, an explanation of the employer’s

evidence, and an opportunity to present his side of the story.” Cleveland Board of

Education v. Loudermill, 470 U.S. 532, 546 (1985); see also Vanelli v. Reynolds

School Dist. No. 7, 667 F.2d 773, 777-78 (9th Cir. 1982) (stating that “procedural

protections of due process apply if the accuracy of the charge is contested”). Here,

a reasonable public official would have been aware that publishing stigmatizing

information in the course of King’s termination triggered King’s right to confront

the defendants’ evidence prior to his termination, particularly in light of the

shifting conclusions based on undisclosed drug levels. See Cox v. Roskelley, 359

F.3d 1105, 1113 (9th Cir. 2004) (stating that existing case law and the operation of

Washington public disclosure law precludes a “head-in-the-sand” defense, and that

“even in the absence of a Ninth Circuit case directly on point, government officials

2 may still be fairly warned of potential constitutional deprivations”).

3