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ORDER DENYING DEFENDANTS’ 

MOTION TO DISMISS

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

GEORGE HENDERSON,

Plaintiff,

vs.

WHATCOM COUNTY FIRE

PROTECTION DISTRICT NO. 18; DONNA

COLE, in her official and individual

capacities; MICHAEL ELLIS, in his official

and individual capacities; and ALLAN

MACKAY, in his official and individual

capacities, 

Defendants.

Case No. C05-1722RSL

ORDER DENYING DEFENDANTS’

MOTION TO DISMISS FOR

FAILURE TO STATE A CAUSE OF

ACTION

This matter comes before the Court on defendants’ “Motion to Dismiss for Failure to

State a Cause of Action” (Dkt. # 8).

Pursuant to Fed. R. Civ. P. 12(b)(6), claims may be dismissed only if it appears beyond

doubt that plaintiff will be unable to prove a set of facts entitling him to relief. Wyler Summit

Partnership v. Turner Broadcasting Sys., Inc., 135 F.3d 658, 661 (9th Cir. 1998). Limiting its

review to the contents of the complaint, Campanelli v. Bockrath, 100 F.3d 1476, 1479 (9th Cir.

1996), the Court accepts the allegations as true and construes them in the light most favorable to

the plaintiff. In re Syntex Corp. Sec. Litig., 95 F.3d 922, 925-926 (9th Cir. 1996); LSO, Ltd. V.

Stroh, 205 F.3d 1146, 1150 n.2 (9th Cir. 2000). 

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ORDER DENYING DEFENDANTS’ 

MOTION TO DISMISS

Defendants Whatcom County Fire Protection District No. 18, Donna Cole, and Allan

Mackay argue that plaintiff George Henderson fails to state a claim pursuant to 42 U.S.C. §

1983 because he does not assert the violation of a right independently secured by the

Constitution and laws of the United States of America. Dkt. # 8 at 2. Although defendants

correctly identify the limited scope of 42 U.S.C. § 1983, they misstate the source of plaintiff’s

cause of action.

Section 1983 protects “rights, privileges, or immunities secured by the Constitution and

laws...” of the United States of America, 42 U.S.C. § 1983, and creates no independent cause of

action. Gonzaga University v. Doe, 536 U.S. 273, 285 (2002). Because the Constitution and

laws of the United States do not protect a person’s right to not be defamed, the common law tort

of defamation cannot form the basis of a claim under 42 U.S.C. § 1983. However, plaintiff

asserts a claim under the Fourteenth Amendment rather than the tort of defamation.

Plaintiff claims that he has been deprived, without due process, of his Fourteenth

Amendment right to his reputation and good name. Dkt. # 10 at 2. The Fourteenth Amendment

protects liberty and property interests. Board of Regents v. Roth, 408 U.S. 564, 569 (1972). 

Liberty interests are violated when three conditions are met, “(1) the accuracy of the charge is

contested; (2) there is some public disclosure of the charge; and (3) the charge is made in

connection with termination of employment.” Mathews v. Harney County, 819 F.2d 889, 891-

892 (9th Cir. 1987). When a public employee’s liberty interests are violated during the

termination of his employment, he must be provided with a forum within which he may defend

himself. Codd v. Velger, 429 U.S. 624, 627 (1977); Mustafa v. Clark County School Dist., 157

F.3d 1169, 1179 (9th Cir. 1998). In his claim, plaintiff provides facts that, if proved true, could

support a finding of the violation of his liberty interests without the requisite opportunity for him

to defend himself. 

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ORDER DENYING DEFENDANTS’ 

MOTION TO DISMISS

For all of the foregoing reasons, defendants’ Motion to Dismiss (Dkt. # 8) is DENIED.

 

DATED this 20th day of January, 2006.

A

Robert S. Lasnik

United States District Judge

Case 2:05-cv-01722-RSL Document 14 Filed 01/20/06 Page 3 of 3