United States Court of Appeals

FOR THE EIGHTH CIRCUIT

______________

 No. 00-3776

______________

Roger D. Speer, *

*

Appellee, *

*

v. *

*

City of Wynne, Arkansas, *

*

Appellant. *

______________ Appeals from the United States

District Court for the

 No. 00-3777 Eastern District of Arkansas.

______________

Roger D. Speer, *

*

Appellant, *

*

v. *

*

Danny Glover, Individually and as *

Deputy Prosecuting Attorney, *

*

Appellee. *

_________________

 Submitted: September 14, 2001 

 Filed: January 14, 2002 
2

__________________

Before MCMILLIAN, BEAM, and HANSEN, Circuit Judges. 

___________________

HANSEN, Circuit Judge.

Roger D. Speer filed this action pursuant to 42 U.S.C. § 1983, alleging that the

City of Wynne, Arkansas (City), the City's mayor, James Green, and Deputy

Prosecuting Attorney Danny Glover violated his procedural due process right to a

name-clearing hearing. The district court granted summary judgment to Prosecutor

Glover and, following a bench trial, entered judgment against the City but in favor of

Mayor Green. The City appeals the district court's judgment in favor of Speer, and

Speer cross-appeals the district court's grant of summary judgment to the deputy

prosecutor. We affirm in part, reverse in part, and remand for further findings of fact

and conclusions of law. 

I.

The material facts are not in dispute. Lieutenant Speer was a long-time police

officer in the Wynne Police Department in Cross County, Arkansas. During a 1996

investigation into charges that the Cross County Sheriff's Department was misusing

prisoners, Susan Combs, a Cross County jail detainee, alleged that Lieutenant Speer

had engaged in sexual acts with detainees in exchange for favors such as reduced jail

time and reduced fines. Deputy Prosecutor Glover learned of the allegations against

Speer and asked the Arkansas state police to conduct an investigation into them.

During the ensuing investigation, Denise Hill similarly reported that Lieutenant Speer

had sex with Combs and Christy Hubbard, another Cross County jail detainee, in

exchange for various favors. Ms. Hill also alleged that Lieutenant Speer had

propositioned her for sex in exchange for her early release from jail.
3

Mayor Green, Police Chief Lynne Rodgers, Prosecuting Attorney Fletcher

Long, and Deputy Prosecutor Glover, held a meeting on April 17, 1997, to discuss the

allegations against Lieutenant Speer and the completed investigation. Long and

Glover informed the city officials that they would not prosecute Lieutenant Speer for

various reasons. The group then discussed the appropriate employment action to be

taken against Lieutenant Speer. Chief Rodgers reluctantly terminated Speer's

employment with the department later that same day.

After Speer's discharge, a reporter with the Arkansas Democrat-Gazette

newspaper contacted both Mayor Green and Deputy Prosecutor Glover to discuss the

investigation and the employment action taken against Speer. The following article

was published in the April 19, 1997, edition of the Arkansas Democrat-Gazette. 

Wynne Officer out, won't face charges from investigation

By Sandy Davis

Arkansas Democrat-Gazette

WYNNE – A Wynne

policeman was fired this week

over allegations of sexual

misconduct while on the job,

Deputy Prosecuting Attorney

Danny Glover said.

Glover said that he and

Prosecuting Attorney Fletcher

Long of Forrest City

recommended to city officials

that Lt. Roger Speer, a

criminal investigator with the

department, be fired after they

reviewed the results of an

Arkansas State Police

criminal investigation. 

Glover said the allegations

against Speer concern the officer

trading sex with female suspects

for favors. He said at least one of

the females was an inmate in the

county jail.

"Mr. Long and I looked at

filing criminal charges against

him, but in the end we decided we

couldn't," Glover said. "So, our

recommendation was to tell the

city to handle it. Our preference

was that he be fired."

Glover said there were three

allegations that were investigated.

"One of them we didn't feel
4

like was a crime," Glover said

of why no charges were filed.

"Another one, we believed the

statute of limitations had

expired, and on the third one,

it was one of those where we

questioned whether we could

meet our burden of proof.

The victim's credibility could

be questioned because of her

extensive criminal history."

Glover said the

investigation into the

department was continuing.

"Until then, I'm not

going to comment on the

specifics," he said.

Glover said he had

provided Wynne Police Chief

Lynn Rodgers with a copy of

the investigative file. 

Rodgers could not be

reached for comment on

Friday.

Wynne Mayor Bud

Green said Friday that Speer

was fired Thursday.

"As I understand it, the

investigation is over with," he

said. "I looked at the

investigative file and Speer

was the only one they were

looking at."

Green, who has been

mayor two years, said he did

not know how long Speer had

been a police officer.

"The allegations against

him were not from recent events,"

Green said. "As I understand it,

they all happened some time ago.

They all happened long before I

was mayor."

(J.A. at 199.)

Speer filed this § 1983 action less than a week after the article appeared in the

newspaper. He claimed that the City, Mayor Green, and Glover violated his

procedural due process rights by terminating his employment without affording him

an opportunity to contest the allegations against him at a hearing. The district court

thereafter granted summary judgment to Glover on the basis that Glover had no

employment relationship with Speer. Speer's remaining claims were tried to the

district court in a bench trial.
1

Chief Miller has filed a lawsuit alleging that he was fired in retaliation for

testifying against the City. 

5

Ms. Hill testified during the trial and, to the apparent surprise of the parties,

recanted her earlier allegations against Speer. Ms. Hill testified that the sheriff's wife

approached her in jail and promised an early release from jail if Ms. Hill made the

false accusations against Speer. According to Ms. Hill, the sheriff and his wife

wanted to have Speer fired from the police department, and Ms. Hill's false

allegations were intended to support the allegations first made by Ms. Combs. Ms.

Hubbard also testified and denied that Speer ever asked her to engage in sex in

exchange for favors. As a final blow to the defendants, City Police Chief Michael

Miller, Chief Rodgers' successor, testified that Ms. Combs demanded that she be

released from jail and relieved from fines she owed the City or she would refuse to

testify on behalf of the City. Chief Miller further testified that Ms. Combs was

subsequently released from jail, that her fines were waived, and that he feared his

testimony would cost him his job. The district court later reopened the evidence to

reflect that the City terminated Chief Miller's employment twelve days after his

testimony.1

 

In light of the trial testimony, the City conceded to the district court that the

allegations against Speer all had been false. The district court subsequently issued

judgment against the City, concluding in its written findings that Speer was entitled

to a hearing to contest the tarnishing allegations that Mayor Green made public in the

newspaper article. The district court did not discuss Speer's due process claim against

Mayor Green but entered judgment in the Mayor's favor. 
6

II.

A.

An at-will, public employee generally has no protected liberty interest in

continued employment which would obligate a state employer to provide some form

of a hearing in connection with the employee's discharge. See Bishop v. Wood, 426

U.S. 341, 348 (1976). An exception to this general rule exists where a state employer

creates and disseminates a false and defamatory impression about the at-will

employee in connection with the discharge. The Supreme Court has recognized in

such situations that the Constitution's procedural due process protections require the

employer to provide the employee with an opportunity to dispute the defamatory

allegations in what is commonly referred to as a name-clearing hearing. Codd v.

Velger, 429 U.S. 624, 627-28 (1977); Singleton v. Cecil, 176 F.3d 419, 427 (8th Cir.)

(en banc), cert. denied, 528 U.S. 966 (1999). The right to a name-clearing hearing

protects the employee's liberty interest in his or her good name and reputation, and

it prevents a public employer from depriving an employee of that interest without due

process. See Merritt v. Reed, 120 F.3d 124, 126 (8th Cir. 1997). A public employee

must make a three-part showing to establish the deprivation of a liberty interest in his

good name: 1) the public employer's reasons for the discharge stigmatized the

employee by seriously damaging his standing and association in the community or by

foreclosing employment opportunities that may otherwise have been available; 2) the

public employer made the reason or reasons public; and 3) the employee denied the

charges that led to the employee's firing. See Coleman v. Reed 147 F.3d 751, 754-55

(8th Cir. 1998); Merritt, 120 F.3d at 126; Waddell v. Forney, 108 F.3d 889, 895-96

(8th Cir. 1997). 

The City argues the district court erred in holding it liable for a violation of

Speer's due process right to a name-clearing hearing for two reasons. First, the City

argues Speer failed to show that Mayor Green made the reasons for his discharge

public. The City argues alternatively that it cannot be subject to municipal liability
7

under § 1983 because the district court made no underlying finding that Mayor Green

violated Speer's constitutional rights. In an appeal from a judgment following a

bench trial, our review of the district court's factual findings is limited to clear error.

Santucci v. Allstate Life Ins. Co., 221 F.3d 1045, 1047 (8th Cir. 2000). We review

de novo the district court's conclusions of law. Id.

The requisite dissemination triggering the right to a name-clearing hearing

occurs where the public employer makes stigmatizing allegations, in connection with

the employee's discharge, "in any official or intentional manner." In re Selcraig, 705

F.2d 789, 796 n.6 (5th Cir. 1983) (internal quotations omitted). The City argues that

the statements attributed to Mayor Green in the article did not identify the nature of

the allegations against Speer and that the article is therefore insufficient to support

the district court's finding that Mayor Green made the discharge reasons public.

According to the City, the comments attributed to Glover in the article disclosed the

nature of the investigation, and Glover's statements cannot be attributed to the City

because Glover is a state prosecuting attorney, and not a city employee. See Merritt,

120 F.3d at 126 (concluding that summary judgment should have been granted where

publication was not attributable to any of the employer's employees). The City relies

too heavily on the journalistic whims of the article's author in attributing statements

to either Mayor Green or Glover rather than on the impression that Mayor Green

conveyed to the reporter and anyone who would have read the article. It is clear that

Mayor Green willingly discussed the allegations against Speer with a reporter,

someone whom one would logically expect to publicize what one tells them. The

article also indicates that Mayor Green confirmed that Speer had been discharged and

that there was, or had been, an investigation into the matters the reporter had

discussed with Glover. Based on these facts alone, the district court did not commit

clear error in concluding that Mayor Green disseminated a false impression of Speer

in connection with his discharge. Cf. Winegar v. Des Moines Indep. Cmty. Sch., 20

F.3d 895, 899 n.3 (8th Cir.) (finding publication element satisfied where outside
8

investigator was hired and students were interviewed during investigation into

allegations against a teacher), cert. denied, 513 U.S. 964 (1994). 

The next question is whether a sufficient basis exists to support the district

court's decision to impose municipal liability. Relying on Los Angeles v. Heller, 475

U.S. 796 (1986), the City suggests that we must reverse because the district court

failed to find that Mayor Green was individually liable for a violation of Speer's

constitutional rights. In Heller, the plaintiff brought a § 1983 suit against a police

officer, the police commission (the officer's employer), and the city. The plaintiff

alleged that he was arrested without probable cause and that the officer used

excessive force in making the arrest. The jury returned a verdict in favor of the

officer, and the district court then dismissed the municipal defendants. The Supreme

Court upheld the dismissal in a per curiam decision, reasoning that the municipal

defendants' alleged liability stemmed from their legal responsibility for the officer's

conduct and that a finding that the officer's conduct was not unconstitutional obviated

any possibility that the municipal defendants were subject to liability. Id. at 799 ("If

a person has suffered no constitutional injury at the hands of the individual police

officer, the fact that the departmental regulations might have authorized the use of

constitutionally excessive force is quite beside the point.").

Our court has previously rejected the argument that Heller establishes a rule

that there must be a finding that a municipal employee is liable in his individual

capacity as a predicate to municipal liability. See Praprotnik v. City of St. Louis, 798

F.2d 1168, 1172-73 n.3 (8th Cir. 1986), rev'd on other grounds, 485 U.S. 112 (1988);

see also Parrish v. Luckie, 963 F.2d 201, 207 (8th Cir. 1992) ("A public entity or

supervisory official may be liable under § 1983, even though no government

individuals were personally liable."). As our court noted in Praprotnik, a crucial fact

underlying the Supreme Court's decision in Heller was that the theory of municipal

liability asserted was entirely dependent on the municipal defendants' responsibility

for the officer's alleged unconstitutional acts. See Praprotnik, 798 F.2d at 1173 n.3.
2

Commentators also have suggested that Heller does not stand for the broad

proposition that personal liability is a prerequisite to municipal liability. See Barbara

Kritchevsky, Making Sense of State of Mind: Determining Responsibility in Section

1983 Municipal Liability Litigation, 60 Geo. Wash. L. Rev. 417, 454 (1992) ("Heller

is best viewed as a case in which the Supreme Court struck what it considered an

inconsistent jury verdict and did not seek to establish any new principle of municipal

liability law."); Martin A. Schwartz & John E. Kirklin, Section 1983 Litigation:

Claims, Defenses, and Fees § 7.6 (2d ed. 1991) ("Heller . . . should not be read as

announcing a broad rule requiring dismissal of the claim against the municipality in

every case in which it is found that the defendant officer was not a constitutional

violator.").

9

A favorable verdict for the individual officer, therefore, would have been entirely

inconsistent with a finding that the municipal defendants were responsible for the

unconstitutional behavior.2

 Heller should not be read to require a plaintiff to show

more than that a governmental policy or custom was the "moving force" that led to

the deprivation of his constitutional rights, the foundation for municipal liability

recognized by the Court in Monnell v. Dep't of Soc. Servs., 436 U.S. 658, 694 (1978).

The appropriate question under Heller is whether a verdict or decision

exonerating the individual governmental actors can be harmonized with a

concomitant verdict or decision imposing liability on the municipal entity. The

outcome of the inquiry depends on the nature of the constitutional violation alleged,

the theory of municipal liability asserted by the plaintiff, and the defenses set forth

by the individual actors. We do not suggest that municipal liability may be sustained

where there has been no violation of the plaintiff's constitutional rights as a result of

action by the municipality's officials or employees. Cf. Trigalet v. City of Tulsa, 239

F.3d 1150, 1156 (10th Cir. 2001) (concluding that a municipality may be held liable

only if the conduct of its employees directly caused a violation of a plaintiff's

constitutional rights); Schulz v. Long, 44 F.3d 643, 650 (8th Cir. 1995) ("It is the law

in this circuit . . . that a municipality may not be held liable on a failure to train theory

unless an underlying Constitutional violation is located."). After all, a municipality
10

can act only through its officials and employees. However, situations may arise

where the combined actions of multiple officials or employees may give rise to a

constitutional violation, supporting municipal liability, but where no one individual's

actions are sufficient to establish personal liability for the violation. See Garcia v.

Salt Lake County, 768 F.2d 303, 310 (10th Cir. 1985); see also De Feliciano v. De

Jesus, 873 F.2d 447, 450 (1st Cir.) (recognizing that a jury's verdict exonerating

individual defendants for unconstitutional termination of a plaintiff's employment

may be reconcilable with a verdict holding the municipal entity liable for the

violation), cert. denied, 493 U.S. 850 (1989). 

The district court's decision to impose liability on the City here is potentially

reconcilable with its judgment in favor of Mayor Green. The district court found that

Mayor Green publicized the allegations against Speer, but the constitutional violation

accrues only when an employee is denied the opportunity to clear his name. It is

possible, for instance, that the district court relied on the fact that some other city

official or officials with final employment-policymaking authority (such as the city

council) refused Speer the opportunity to clear his name. If so, Mayor Green's

conduct would have been insufficient to support individual liability, yet the City

would be liable for the act of its policymaker who did deny Speer that opportunity.

Municipal liability may attach based on the single act or decision of a municipal

decisionmaker if the decisionmaker possesses final authority to establish municipal

policy over the subject matter in question. See City of St. Louis v. Praprotnik, 485

U.S. 112, 123 (1988). It may also be possible that the district court found that a final

policymaker ratified the decision to discharge Speer without a hearing, which could

also form the basis for municipal liability. See id. at 127 ("If the authorized

policymakers approve a subordinate's decision and the basis for it, their ratification

would be chargeable to the municipality because their decision is final."). 

Because the district court did not make findings concerning which City

policymakers violated Speer's rights and did not make specific conclusions of law
3

The City also argues that the damages awarded to Speer were excessive. In

light of our decision to remand for further proceedings, we express no opinion on the

validity of the damage award. 

11

concerning the theory of municipal liability supporting its judgment against the City,

we cannot say with any certainty that the court's decisions can or cannot be

harmonized. We therefore find it necessary to remand this case to the district court

to make specific findings of fact and conclusions of law explaining the basis for the

City's liability and explaining the basis for Mayor Green's dismissal. See Boatmen's

First Nat'l Bank v. Kansas Pub. Employees Ret. Sys., 57 F.3d 638, 640 n.5 (8th Cir.

1995). ("Appellate review absent specific findings and conclusions from the district

court may proceed only when (1) the record itself sufficiently informs the court of the

basis for the trial court's decision on the material issues, or (2) the contentions raised

on appeal do not turn on findings of fact." (quotations omitted)). On remand, the

district court should specifically determine who denied Speer the opportunity to clear

his name and whether that person had final policymaking authority over City

employment decisions.3

 

B.

Speer cross-appeals the district court's grant of summary judgment in favor of

Glover. Glover moves to dismiss the cross-appeal, arguing that we lack appellate

jurisdiction in this case. We agree. The district court issued its order granting

summary judgment to Glover on November 25, 1998. In its order, the district court

stated, "[p]ursuant to Fed. R. Civ. Pro. 54(b), the Court finds no reason to delay

entering judgment for Glover on all claims raised in [Speer's] Complaint; therefore,

judgment will be entered accordingly." (Speer's Add. at 5.) The district court issued

judgment in favor of Glover the same day, but Speer did not file his notice of appeal

until October 16, 2000. 
12

Generally, an order that adjudicates less than all claims involved in an action

does not constitute a final appealable order. See Fed. R. Civ. P. 54(b). Rule 54(b)

provides an exception where the district court makes an "express determination" that

there is no just reason to delay entering judgment despite the fact that all the claims

in the action have not been resolved. Where the district court's intent to enter a partial

final judgment under Rule 54(b) is clear, the order is considered appealable. See

Kocher v. Dow Chem. Co., 132 F.3d 1225, 1228-29 (8th Cir. 1997). We conclude

that the district court expressed a clear intention to enter a partial final judgment on

the claim against Glover and did so on November 25, 1998. As a consequence,

Speer's notice was untimely under Fed. R. App. P. 4(a)(1)(A) because it was not filed

with the district court within 30 days after the district court entered judgment in favor

of Glover. Accordingly, we grant Glover's motion to dismiss Speer's cross-appeal for

lack of appellate jurisdiction. 

II.

For the reasons stated, we reverse in part and remand for further development

of the record and for further proceedings consistent with this opinion in the case

against the City, and we dismiss Speer's cross-appeal for lack of jurisdiction.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.