UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

RICHARD KEITH PATTON,

Plaintiff-Appellant,

v.

ED HOLLAND, Doctor, Chairman of

the Franklin County Board of

Health; B. L. PATTERSON, Doctor,

Member, Franklin County Board of

Health; MARGUERITE MOORE,

Member, Franklin County Board of

Health; CECILA BOONE, Member,

Franklin County Board of Health;

P. G. MURPHY, JR., Member,

No. 95-1699

Franklin County Board of Health;

REBECCA DEAN, Vice Chairman,

Franklin County Board of Health;

LEE CURRIN, Doctor, Member,

Franklin County Board of Health;

ELYSE GOLDMAN, Doctor, Member,

Franklin County Board of Health;

FRANK FREEMAN, Member, Franklin

County Board of Health; BETTY

STRICKLAND, Member, Franklin

County Board of Health; ROBERT L.

SWANSON, Member, Franklin County

Board of Health;
FRANKLIN COUNTY BOARD OF HEALTH,

as a body politic, and administrative

organization existing under the laws

of the State of North Carolina and

duly appointed in Franklin County,

North Carolina; JAMES G. HARDY,

Doctor, Chairman, Franklin County

Board of Commissioners; RONNIE

GOSWICK, Franklin County Board of

Commissioners; HARRY L. FOY, JR.,

Franklin County Board of

Commissioners; GEORGE T. WYNNE,

Franklin County Board of

Commissioners; ROBERT L.

SWANSON, Franklin County Board of

Commissioners; JIM MOSS, Franklin

County Board of Commissioners;

FRANKLIN COUNTY BOARD OF

COMMISSIONERS, as a body politic

formed and existing under the laws

of the state of North Carolina and

in Franklin County, North Carolina,

Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of North Carolina, at Raleigh.

Terrence W. Boyle, District Judge.

(CA-93-85-5-BO)

Argued: December 6, 1995

Decided: January 8, 1996

Before RUSSELL, WILKINS, and HAMILTON,

Circuit Judges.

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Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: David Peter Voerman, VOERMAN & CARROLL, New

Bern, North Carolina, for Appellant. David R. Guin, BATTON &

GUIN, Louisburg, North Carolina, for Appellees. ON BRIEF: Darnell A. Batton, BATTON & GUIN, Louisburg, North Carolina, for

Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Richard Keith Patton (Patton) appeals the district court's dismissal

of his complaint, see Fed. R. Civ. P. 12(b)(6), alleging claims of constitutional deprivation protected by 42 U.S.C. § 1983 and state law

tort claims. We affirm.

I

Patton is employed as the Health Director of the Franklin County

Health Department (Health Department) in Louisburg, North Carolina. The Franklin County Board of Health (Board of Health) is a

body appointed by the Franklin County Board of Commissioners

(Board of Commissioners) and is charged with the general responsibility of overseeing the Health Department.

Before November 1991, Patton assisted in the formation of a nonprofit corporation known as the Home Health Alliance (Alliance).

This corporation was formed to be operated by home health care pro-

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viders so that Franklin County would not have to subcontract with

more expensive home health businesses. One of the nurses who

worked for Alliance was Patton's mother-in-law.

The records and billing for Alliance were handled by a corporation

known as DataTrac. DataTrac was owned and operated by an administrative assistant of Patton's in the Health Department, and Patton's

wife also performed work for DataTrac.

The activities of Patton, his wife, and his administrative assistant

resulted in the Board of Commissioners requesting an investigation

by the Office of the State Auditor. An audit report was completed and

sent to the Board of Commissioners. Sometime after the receipt of the

audit report by the Board of Commissioners, the audit report was forwarded to the Board of Health. The chairman of the Board of Commissioners requested that the audit report be made public and

requested its immediate release. The audit report made the following

findings:

(1) Patton entered into a contract for the Health Department with a corporation that he organized and of

which his mother-in-law was employed;

(2) A conflict of interest exists as to Patton's control over

Alliance;

(3) A conflict of interest exists due to Patton's wife's

employment with DataTrac and his administrative

assistant's ownership of DataTrac;

(4) Alliance does not have a nursing pool license;

(5) Patton failed to disclose that his mother-in-law was

employed by Alliance on the Franklin County Home

Health Agency Cost Report;

(6) The administrative assistant did not properly report her

secondary employment;

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(7) The contract awarded to Alliance by the Health

Department was not put out for bid and we question

whether Alliance is the most cost effective way of providing home health services; and

(8) Alliance nurses may be visiting county patients who

are no longer eligible and providing inadequate or

inappropriate services.

(J.A. 105).

After the audit report was made public, the Board of Health issued

Patton a notice of disciplinary action. Patton was informed that this

disciplinary action could result in his discharge. The grounds for the

disciplinary action were those listed in the audit report.

After a series of meetings with the Board of Health, in which Patton was represented by counsel and contested the validity of the audit

report's findings, the Board of Health issued a letter of warning to

Patton for his failure to fully disclose the relationship of his administrative assistant to Alliance as the owner of DataTrac and for work his

wife had performed for DataTrac. The Board of Health took no further disciplinary action.

On February 16, 1993, Patton filed a complaint in the United States

District Court for the Eastern District of North Carolina alleging that

the Board of Commissioners, the Board of Health, and each respective member of the Board of Commissioners and the Board of Health

had deprived him of his constitutional rights to procedural and substantive due process in violation of 42 U.S.C. § 1983. Patton also

sought relief under North Carolina law for intentional and negligent

infliction of emotional distress. Patton also sought to enjoin the Board

of Commissioners and the Board of Health from any further interference with his employment as Health Director.

The defendants filed a motion to dismiss, see Fed. R. Civ. P.

12(b)(6), which the district court granted. Patton appeals from this

ruling.

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II

Dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure is properly granted where, construing the allegations of the complaint in the light most favorable to the plaintiff and assuming the

facts in the complaint are true, it is clear as a matter of law that no

relief could be granted under any set of facts that could be proven

consistent with the allegations. Hishon v. King & Spalding, 467 U.S.

69, 73 (1984). This Court reviews a Rule 12(b)(6) dismissal de novo.

Revene v. Charles County Comm'rs, 882 F.2d 870, 872 (4th Cir.

1989).

III

Reduced to its essentials, Patton's complaint raises two procedural

due process claims, one substantive due process claim, and two state

law tort claims. We shall address each of these claims in turn.

A

Patton argues that he was deprived of his property interest in continued employment. We disagree.

Initially, we agree with the defendants' concession and the district

court's conclusion that North Carolina law provides Patton with a

cognizable property interest in continued employment. See N.C. Gen.

Stat. § 126-35.

Having established the existence of a cognizable property interest,

to succeed on his claim, Patton must establish that he was deprived

of that property interest. See Pinar v. Dole, 747 F.2d 899, 913 (4th

Cir. 1984), cert. denied, 471 U.S. 1016 (1985). Patton has made no

such showing.

Most fundamentally, this claim fails because no break in Patton's

employment ever occurred. See Elbert v. Board of Educ., 630 F.2d

509, 512 (7th Cir. 1980) (no deprivation of property interest where

plaintiff's contract was renewed and no break in employment

occurred), cert. denied, 450 U.S. 1031 (1981). Indeed, to this day,

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Patton remains the Health Director. Accordingly, Patton was not

deprived of his property interest in continued employment.

In any event, Patton was afforded all the process he was due. Prior

to depriving a public employee of his property interest in continued

employment, due process entitles the public employee to "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 Educ. v. Loudermill, 470 U.S. 532, 546 (1985).

Here, Patton was given notice of the specific allegations of misconduct that could result in his termination. After the notice of disciplinary action was issued, Patton, represented by counsel, was given an

opportunity to present his side of the story during two lengthy meetings with the Board of Health. The result of these meetings did not

result in Patton's termination, but rather resulted in the Board of

Health's issuance of a letter of warning. Patton was provided all the

protection due process affords.

B

Patton also claims he was deprived of his property interest in

recouping the attorney's fees he expended in contesting the proposed

disciplinary action against him. We disagree.

North Carolina General Statute section 126-4(11) identifies the

instances in which the State Personnel Commission may adopt rules

that authorize payment of attorney's fees. Section nine of the State

Personnel Manual, codified in North Carolina Administrative Code

section 1B.0414, specifically sets out the situations when attorney's

fees may be awarded. Under section nine, attorney's fees are permitted if the employee is: (1) reinstated to the same or similar position

following a demotion or a dismissal; (2) awarded back pay following

a demotion or a dismissal; (3) determined to have been discriminated

against in violation of North Carolina General Statute section 126-16;

or (4) awarded back pay as a result of a successful grievance alleging

a violation of North Carolina General Statute section 126-7.1.

Here, it is clear that none of these situations apply. Because Patton

was not demoted or removed from his position as Health Director,

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was not deprived of any pay, was not found to have been discriminated against, and did not file a grievance alleging a violation of section 126-7.1, he has no property interest in attorney's fees.

Accordingly, the district court properly dismissed this claim.

C

Patton also contends that the actions of the defendants deprived

him of his liberty interest to pursue his occupation in the health field.1

We disagree.

Injury to reputation, standing alone, does not implicate a protected

liberty interest. See Paul v. Davis, 424 U.S. 693, 711-12 (1976);

Siegert v. Gilley, 111 S. Ct. 1789, 1794 (1991). In addition, loss of

future employment prospects which flow from the damage to a plaintiff's reputation does not create a liberty interest. See Siegert, 111 S.

Ct. at 1794. Defamation, which is the essence of Patton's claim, is

redressable in state court, but not as a deprivation of a liberty interest.

See Paul, 424 U.S. at 712.

Patton's substantive due process claim is really a run-of-the-mill

defamation claim--the claim involves an attempt by Patton to remedy

his perceived injury to his reputation. The claim belongs in state

court. There are no allegations which could support a claim for a

deprivation of a liberty interest.2

_________________________________________________________________

1 To support this claim, Patton cites to alleged instances in which he

has been unable to find comparable work in the health field.

2 In any event, in the absence of a termination, there is no claim for

deprivation of a protected liberty interest, despite evidence of stigmatizing behavior by state officials. See Paul, 424 U.S. at 709-10; see also

Elbert, 630 F.2d at 513. As the court in Elbert explained:

It would be an unduly technical reading of Paul v. Davis to conclude that, as long as the defamation was accompanied by an

official decision to terminate the plaintiff, a claim for a loss of

a liberty interest could be made out, even though in fact no loss

of employment ever occurred.

630 F.2d at 513.

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D

Finally, Patton argues that the district court erred in dismissing his

state law claims for intentional and negligent infliction of emotional

distress. We disagree.

Under North Carolina law, the elements for a claim for intentional

infliction of emotional distress include extreme and outrageous conduct. See Harris v. NCNB, 355 S.E.2d 838, 844 (N.C. Ct. App. 1987).

The "extreme and outrageous conduct" necessary for recovery is conduct that "exceeds all bounds usually tolerated by decent society." Id.

(citation and internal quotes omitted).

In this case, the defendants' alleged conduct fails to reach a level

that could be regarded as so outrageous in character, and so extreme

in degree, as to go beyond all possible bounds of decency. Accordingly, the district court correctly dismissed Patton's claim for intentional infliction of emotional distress.

Patton fares no better on his negligent infliction of emotional distress claim. Even assuming that the defendants were negligent in such

a way that could be reasonably foreseen to cause emotional distress,

defendants are public officials and are not liable for mere negligence

in the performance of their duties. See Shaw v. Stroud, 13 F.3d 791,

803 (4th Cir.), cert. denied, 115 S. Ct. 67, 68 (1994); see also Wiggins

v. City of Monroe, 326 S.E.2d 39, 43 (N.C. Ct. App. 1985). Accordingly, the district court correctly dismissed the negligent infliction of

emotional distress claim.

IV

For the reasons stated herein, the judgment of the district court is

affirmed.

AFFIRMED

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