FILED

NOT FOR PUBLICATION

APR 22 2019

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

PAUL CARAWAY, No. 18-35334

Plaintiff-Appellant, D.C. No. 1:16-cv-00139-TJC

v.

MEMORANDUM*

TOWN OF COLUMBUS; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the District of Montana Timothy J. Cavan, Magistrate Judge, Presiding

Argued and Submitted April 9, 2019 Seattle, Washington

Before: W. FLETCHER, CALLAHAN, and CHRISTEN, Circuit Judges.

Plaintiff Paul Caraway, a former sergeant with the Columbus Police

Department, appeals the district court’s order granting summary judgment to the

town, its Mayor, and its former chief of police (collectively, Defendants). We have

jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. 1. We review de novo the district court’s order granting Defendants’ motion for

summary judgment on Caraway’s § 1983 due process claims.1 See Levine v. City

of Alameda, 525 F.3d 903, 905 (9th Cir. 2008). “An essential principle of due

process is that a deprivation of life, liberty, or property ‘be preceded by notice and

opportunity for hearing appropriate to the nature of the case.’” Cleveland Bd. of

Educ. v. Loudermill, 470 U.S. 532, 542 (1985) (quoting Mullane v. Cent. Hanover

Bank & Tr. Co., 339 U.S. 306, 313 (1950)). To meet this requirement, the state

must provide pre-termination notice with an explanation of its evidence, and an

opportunity for the employee facing discharge to respond, either orally or in

writing. See, e.g., Matthews v. Harney Cty. Sch. Dist. No. 4, 819 F.2d 889, 892

(9th Cir. 1987).

“[T]he existence of post-termination procedures is [also] relevant to the

necessary scope of pretermination procedures.” Loudermill, 470 U.S at 547 n.12.

In some cases, “the inadequacy of post-termination process may itself be the

source of a distinct due process violation.” Clements v. Airport Auth. of Washoe

Cty., 69 F.3d 321, 332 (9th Cir. 1995). Ultimately, a reviewing court applies the

flexible Mathews v. Eldridge, 424 U.S. 319 (1976), framework to determine how

1 The parties are familiar with the facts and arguments on appeal, so we do not recite them here. 2 much post-termination process is required in any given case. See Loudermill, 470

U.S. at 543 (analyzing due process requirements in light of Mathews); see also

Armstrong v. Meyers, 964 F.2d 948, 950 (9th Cir. 1992) (applying Mathews to

determine sufficiency of post-deprivation process).

We have also recognized that the termination of a public employee that

includes publication of stigmatizing charges triggers due process protections. See

Mustafa v. Clark Cty. Sch. Dist., 157 F.3d 1169, 1179 (9th Cir. 1998) (citing Bd. of

Regents v. Roth, 408 U.S. 564, 573 (1972)). If an employee’s termination

implicates this reputational liberty interest, “the employee must be given an

opportunity to refute the stigmatizing charge.” Id. “Failure to provide a

‘name-clearing’ hearing in such a circumstance is a violation of the Fourteenth

Amendment’s due process clause.” Cox v. Roskelley, 359 F.3d 1105, 1110 (9th

Cir. 2004).

Caraway does not, for constitutional purposes, challenge the sufficiency of

Defendants’ pre-termination procedures. We conclude that Caraway’s statutory

right to a post-termination hearing before the Columbus Police

Commission—where he could have subpoenaed witnesses and testified

publicly—affords adequate post-termination process. See Mont. Code Ann. § 7-

32-4164(2) (West 2019). The process provided Caraway with an opportunity to

3 challenge his discharge and to clear his name. Because Caraway has not exercised

his statutorily guaranteed post-termination procedure, he cannot now claim a

violation of his due process rights, particularly because there is no statute of

limitations on his right to seek review with the Police Commission. See Walls v.

Cent. Contra Costa Transit Auth., 653 F.3d 963, 969 (9th Cir. 2011).

2. Montana’s Wrongful Discharge from Employment Act (WDEA) provides

that a discharge “is wrongful” if “the employer violated the express provisions of

its own written personnel policy.” Mont. Code Ann. § 39-2-904(1)(c) (West

2019). We conclude that Mayor Woltermann’s absence from Chief Pronovost’s

pre-termination interview with Caraway did not violate an express provision of any

of the Town of Columbus’s written personnel policies. We considered Caraway’s

additional assertions of policy violations, but conclude that none are “directly

linked” with Caraway’s termination for purposes of the WDEA. See Williams v.

Plum Creek Timber Co., 264 P.3d 1090, 1097 (Mont. 2011).

AFFIRMED.

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