## F I L E D United States Court of Appeals Tenth Circuit 

### APR 19 1999 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

TIMOTHY JOHN GREENE,

Plaintiff - Appellant,

v. PATRICK C. BARRETT, in his official capacity as Sheriff of Laramie County, Wyoming, and in his individual capacity,

Defendant - Appellee. No. 98-8048

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF WYOMING (D. Ct. No. 97-CV-004-J)
Mitchell E. Osborn, Grant & Osborn, Cheyenne, Wyomi ng, appearing for Plaintiff-Appellant. Terry L. Armitage, Cheyenne, Wyoming, appearing forDefendant-Appellee.

Before PORFILIO , McKAY , and TACHA , Circuit Judges.

TACHA , Circuit Judge.

Plaintiff-Appellant Timothy John Greene, a deputy s heriff of Laramie County, Wyoming, brought this civil rights action u nder 42 U.S.C. § 1983,- 2 -

claiming that defendant reduced his rank without du e process of law. The district court granted summary judgment in favor of defendant on the ground that he was entitled to qualified immunity. We exercise jurisd iction pursuant to 28 U.S.C. § 1291 and affirm. Immediately prior to the events giving rise to this action, Mr. Greene held the position of Administrative Lieutenant with the Laramie County Sheriff’s Department. On January 3, 1995, just days after Mr . Barrett took office as sheriff, Mr. Greene received a letter from defendan t stating that he was being “reassigned,” without a right of review, to a new p osition with a reduced rank of sergeant. Mr. Barrett did not, however, discharge plaintiff from employment, and Mr. Greene continues to work for the Laramie CountySheriff’s Department. Mr. Barrett asserts that the employment action take n with respect to Mr. Greene was part of a reorganization prompted by a c onsulting firm study completed shortly before he took office. Laramie C ounty retained the consulting firm, Personnel Concepts, Inc., to review its effic iency and to recommend revisions to the county’s governmental structure an d staffing. The sheriff’s department had four lieutenant positions, each invo lving different responsibilities. Personnel Concepts recommended elimination of two l ieutenant positions, including plaintiff’s. Prior to implementing the r ecommendation, Mr. Barrett sought legal advice from the Laramie County Attorne y’s Office and the Wyoming- 3 -

Attorney General’s Office regarding the legality of the reorganization plan. Mr. Greene, on the other hand, presents a far diffe rent impression of the events in the case. Before Mr. Barrett was elected sheriff, he held a position subordinate to Mr. Greene. Mr. Greene claims that during the years preceding defendant’s election, relations between them became strained. This rift was exacerbated when Mr. Greene chose to support an opp osing candidate in the 1994 sheriff election. Mr. Greene also asserts that Mr. Barrett openly promised to take adverse action against him if elected. Thus, accor ding to plaintiff, the “reorganization” constituted a subterfuge for defen dant’s primary objective of retaliating against him and forcing him out of the sheriff’s department. On January 3, 1997, Mr. Greene brought a § 1983 act ion against the defendant, claiming that defendant reduced his rankin violation of the Fourteenth Amendment. Mr. Barrett moved for summary judgment, arguing that he was entitled to qualified immunity. The district courtgranted defendant’s motion. This appeal followed.
Standard of Review We review the district court’s grant of summary jud gment de novo, applying the same legal standard used by the distri ct court. See Byers v. City of Albuquerque 150 F.3d 1271, 1274 (10th Cir. 1998). Summary jud gment is appropriate “if the pleadings, depositions, answers to interrogatories, and1 The Due Process Clause has two components: procedur al due process and

substantive due process. See Archuleta v. Colorado Dep’t of Insts., Div. of Youth Servs. , 936 F.2d 483, 490 (10th Cir. 1991). Plaintiff ma kes only a procedural due process claim. - 4 - admissions on file, together with the affidavits, i f any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c ). When applying this standard, we view the evidence and draw reasonable inferences therefrom in the light most favorable to the nonmoving party. See Byers , 150 F.3d at 174. If there is no genuine issue of material fact in di spute, we determine whether the district court correctly applied the substantive law. See Kaul v. Stephan , 83 F.3d 1208, 1212 (10th Cir. 1996).
I. The Fourteenth Amendment protects individuals from deprivations of “life, liberty, or property, without due process of law.” U.S. Const. amend. XIV. Mr. Greene contends that defendant deprived him of a pr operty interest without sufficient process. 1 This court engages in a two-step inquiry to determine if a plaintiff has been denied procedural due process. First, we determine whether the individual had a protected interest under the Due P rocess Clause. See, e.g. , Watson v. University of Utah Med. Ctr. , 75 F.3d 569, 577 (10th Cir. 1996). If so, we examine whether he or she received an appropriat e level of process. See id.- 5 -

Plaintiff argues that under Wyo. Stat. Ann. § 18-3- 611, he had a protected property interest in continued employment at his rank of lieutenant. We agree. “Property interests . . . are not created by the Co nstitution. Rather they are created and their dimensions are defined by existin g rules and understandings that stem from an independent source such as state law . . . that secure certain benefits and that support claims of entitlement to those ben efits.” Board of Regents of State Colleges v. Roth , 408 U.S. 564, 577 (1972); accordCleveland Bd. of Educ. v. Loudermill , 470 U.S. 532, 538 (1985); Driggins v. City of Okl ahoma City , 954 F.2d 1511, 1513 (10th Cir. 1992). In order to create a property interest, the state statute or regulation must give the recipient “a le gitimate claim of entitlement to [the benefit],” in this case, the benefit of contin ued employment at a particular rank. Roth , 408 U.S. at 577. Detailed procedures in a state statute or regulation are not, by themselves, sufficient to create a prop erty interest. See Hennigh v. City of Shawnee , 155 F.3d 1249, 1254 (10th Cir. 1998); Stiesberg v . California , 80 F.3d 353, 357 (9th Cir. 1996). However, we rece ntly held that a state statute or regulation can create a protected property inter est in a particular employment status or rank if it “places substantive restrictio ns on the discretion to demote an employee, such as providing that discipline may onl y be imposed for cause.”2 This conclusion is in accord with that of other cir cuits. See, e.g. , Kelly v.

Borough of Sayreville , 107 F.3d 1073, 1077 (3d Cir. 1997) (finding that New Jersey law preventing reduction in rank except for just cause undoubtedly created a property interest in police officer’s position); Williams v. Kentucky , 24 F.3d 1526, 1537-38 (6th Cir. 1994) (finding a Kentucky statute that prevented demotion except for cause created a property intere st in higher-ranking job); Sowers v. City of Fort Wayne , 737 F.2d 622, 624 (7th Cir. 1984) (holding that state statute and local ordinance created a property interest which “entitle a fire fighter not only to continued employment, but to ho ld his rank unless and until the Board [of Public Safety], after a hearing, finds ca use other than politics for his demotion”).

3 We note that § 18-3-611 only applies to sheriff’s departments that have at least twenty sworn, nonprobationary, full-time deputy sheriffs. See id. § 18-3- - 6 - Hennigh , 155 F.3d at 1254; 2 cf. Anglemyer v. Hamilton County Hosp. , 58 F.3d 533, 539 (10th Cir. 1995) (stating that a statutoryprovision or contract qualifying an employer’s discretion to reassign or transfer th e employee may create a property interest in employee’s position); Melton v . City of Oklahoma City , 879 F.2d 706, 719 (10th Cir. 1989) (finding a property interest in police officer’s retired status because state statute and the city’s operation manual provided benefits to retired officers). In Hennigh , we found that a collective bargaining agreement entered into pursuant to state law gave t he plaintiff, a police lieutenant, a property right in his rank with the police depart ment. See 155 F.3d at 1255. We face an analogous situation here. Under Wyoming law, “[a] deputy sheriff shall not be discharged, reduced in rank or suspended without pay except for cause and after notice and opportunity for a hearing.” Wyo. Stat. Ann. § 18-3-611(b) (emp hasis added). 3 Thus, § 18-3-611(a). No party raised the issue of whether this threshold requirement was met

at the time plaintiff was reassigned. Indeed, all the parties and the court below assumed the applicability of the statute. Therefor e, we do the same. - 7 - 611(b) imposes a substantive limitation on a sherif f’s discretion to reduce the rank of a deputy sheriff. Moreover, this limitatio n is unaffected in this case by the three exceptions to the otherwise unqualified l anguage of § 18-3-611(b). First, § 18-3-611(c) states that “a deputy sheriff accused of a matter for which the sheriff may discharge him may be suspended with payfor a reasonable length of time necessary to investigate and take final action on the matter.” This first exception does not apply because this case does notinvolve a disciplinary matter. Section 18-3-611(d), which states that “[a] sheriff may in his discretion reduce in rank a member of the executive staff but shall not terminate him without cause,” is also inapplicable. Plaintiff contends that he i s not a member of the executive staff as defined by § 18-3-611(a), and the defendant does not dispute this fact. The final exception, contained in § 18-3-611(e), ap plies to office reorganizations and states: “This section does not prohibit or restrict discharges from employment , in order of lowest ranking deputies first, for th e purposes of reorganization of the sheriff’s office or for the r eason of lack of funds.” Id. § 18- 3-611(e) (emphasis added). While § 18-3-611(e) cle arly applies to office reorganizations such as the one at issue here, the provision speaks only to discharges, not reductions in rank. Thus, we find this final exception also4 “Cause” for the purpose of § 18-3-611 is defined a s “a cause or

justification which bears a reasonable relationship to the deputy sheriff’s ability and fitness to perform and discharge the duties of his or her position.” Lucero v. Mathews , 901 P.2d 1115, 1123 (Wyo. 1995). - 8 - inapplicable. Because defendant’s action in reducing plaintiff’s rank comes squarely under § 18-3-611(b) and does not fit one of the statute’s qualifications, plaintiff has shown that he had a legitimate expectation of c ontinued employment at his rank of lieutenant. Consequently, we find that Wyo ming law creates a property interest in the plaintiff’s rank. Having found that Mr. Greene had a property interes t in his rank under the Due Process Clause, we turn our attention to whethe r defendant afforded plaintiff a sufficient amount of process prior to reducing pl aintiff’s rank. We easily conclude this inquiry here because plaintiff was de prived of his property interest without cause 4 and absent any process. The record indicates thatplaintiff received no hearing before his reduction in rank. Indeed, Mr. Barrett notified Mr. Greene that he would have no right of review of the decision even after the reassignment had taken effect. Whatever level of p rocess was required in this situation under the Due Process Clause, plaintiff c learly did not receive it. Therefore, Mr. Greene has established that he was d eprived of his property interest in his rank without due process of law in violation of the Fourteenth5 To the extent that Mr. Greene also asserts on appe al that defendant

infringed upon his liberty interest in his good nam e and reputation by wrongfully reducing his rank and making defamatory statements about him, his argument fails. “Damage to one’s reputation alone . . . is not enough to implicate due process protections.” Jensen v. Redevelopment Agen cy of Sandy City , 998 F.2d 1550, 1558 (10th Cir. 1993) (citing Paul v. Davis , 424 U.S. 693, 701 (1976)). Among other requirements, the alleged stigmatizatio n must harm some other interest, such as established business relationship s or existing employment opportunities. See Workman v. Jordan , 32 F.3d 475, 481 (10th Cir. 1994); Jensen , 998 F.2d at 1558-59. Mr. Greene provided no evid ence supporting his claim that he has lost his ability to work in his c hosen field. To the contrary, the parties concede that plaintiff not only continues t o work for the Laramie County Sheriff’s Department, he currently occupies a highe r rank than he did prior to Mr. Barrett becoming sheriff. In sum, Mr. Greene fails to allege facts sufficient to establish that he has been deprived of a liberty in terest in violation of the Due Process Clause. - 9 - Amendment. 5
II. Defendant contends that even if plaintiff’s procedu ral due process rights were violated, his defense of qualified immunity no netheless entitles him to summary judgment. The qualified immunity doctrine “shields government officials performing discretionary functions from i ndividual liability under 42 U.S.C. § 1983 unless their conduct violates ‘clearl y established statutory or constitutional rights of which a reasonable person would have known.’” Baptiste v. J.C. Penney Co., Inc. , 147 F.3d 1252, 1255 (10th Cir. 1998) (quoting Har low v. Fitzgerald , 457 U.S. 800, 818 (1982)). As recently stated bythis court, the law grants government officials qualified immunity in s uch circumstances because- 10 -

“it is impossible to know whether the claim is well -founded until the case has been tried,” and “to submit all officials, the innocent as well as the guilty, to the burden of a trial and to the inevitable danger of its outcome, would dampen the ardor of all but the most resolute, or the most irresponsible, in the unflinching discharg e of their duties.” Horstkoetter v. Department of Pub. Safety , 159 F.3d 1265, 1277 (10th Cir. 1998) (quoting Gregoire v. Biddle , 177 F.2d 579, 581 (2d Cir. 1949)); see also Hunter v. Bryant , 502 U.S. 224, 229 (1991) (per curiam) (noting that the qualified immunity doctrine “gives ample room for mistaken judgments b y protecting all but the plainly incompetent or those who knowingly violate the law” (internal quotation marks and citations omitted)). In essence, the doc trine of qualified immunity “strik[es] a balance between compensating those who have been injured by official conduct and protecting government’s ability to perform its traditional functions.” Lawmaster v. Ward , 125 F.3d 1341, 1347 (10th Cir. 1997). When a defendant pleads qualified immunity, the pla intiff has the heavy burden of establishing: (1) that the defendant’s ac tions violated a federal constitutional or statutory right; and (2) that the right violated was clearly established at the time of the defendant’s actions. See Horstkoetter , 159 F.3d at 1277-78 (10th Cir. 1998). As discussed above, plai ntiff has satisfied the first part of his burden by establishing that defendant’s acti ons violated the Fourteenth Amendment. We therefore need only consider whetherMr. Greene’s due process property right was clearly established at the time of defendant’s actions.- 11 -

For a right to be clearly established, “[t]he conto urs of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.” Anderson v. Creighton , 483 U.S. 635, 640 (1987); accord Horstkoetter , 159 F.3d at 1278. Although the very action in qu estion need not have been previously declared unlawful, “in the lig ht of pre-existing law the unlawfulness must be apparent.” Anderson , 483 U.S. at 640. This is generally accomplished when there is controlling authority onpoint or when the clearly established weight of authority from other courts s upports plaintiff’s interpretation of the law. See Medina v. City & County of Denver , 960 F.2d 1493, 1498 (10th Cir. 1992). To prove that his asserted property right was clear ly established, plaintiff relies entirely on the language of Wyo. Stat. Ann. § 18-3-611 and a Wyoming Supreme Court opinion decided after plaintiff’s rea ssignment, Lucero v. Mathews , 901 P.2d 1115 (Wyo. 1995). In Lucero , the court found that a deputy terminated without cause “had a statutorily and constitutional ly protected property interest in continued public employment and that a reasonable s heriff should have known and understood this.” Id. at 1120. Even if we were to rely on Lucero , we find that it does not adequately address the crux of the problem in this case. Despite the fact that the plaintiff in Lucero was demoted before he was terminated, the court addressed exclusively the discharge from empl oyment issue. See id. at- 12 -

1117, 1119-20. Also, the plaintiff was discharged for allegedly mishandling cases, not as a result of a departmental reorganization. See id. at 1117. Lucero thus dealt only with the protections of § 18-3-611( b) and did not address § 18-3- 611(e), which sets forth the proper handling of dis charges made pursuant to a sheriff’s office reorganization. In the case before us, the employment decision, a r eduction in rank, was allegedly made pursuant to a reorganization. This raises the question of whether the reorganization exception of § 18-3-611(e) appli es in the case of rank reductions, a question that, as discussed above, th e Wyoming Supreme Court did not address in Lucero . We therefore turn our attention to the language of § 18-3- 611. While § 18-3-611(e) expressly addresses reorg anization discharges, it is silent with respect to how sheriffs should institut e reductions in rank. We find the statute ambiguous in this regard. In light of this ambiguity, § 18-3-611 can be interpreted in at least three ways. First, as plaintiff asserts, § 18-3-611(e) c ould apply not only to discharges, but also to reductions in rank. Plaintiff contends this requires a sheriff to implement rank reductions made pursuant to an offic e reorganization by seniority. Second, as defendant asserts, § 18-3-611(e) may app ly to rank reductions made pursuant to an office reorganization, but it dictat es that such decisions be made in order of “lowest ranking deputies first,” id. , rather than by seniority. According- 13 -

to defendant, Greene had the same rank as the otherthree lieutenants and therefore had no superior right to his position vis -a-vis the others. Finally, § 18- 3-611(e)’s silence on rank reductions could represe nt the legislature’s decision not to grant an exception from the protections of § 18-3-611(b) for these decisions. Under this interpretation, all reductio ns in rank must be made for cause and after an opportunity for a hearing, wheth er disciplinary or made as part of an office reorganization. Although we have conc luded that the unqualified language of § 18-3-611(b) makes the third interpret ation the most persuasive, it was not clear that this was the only acceptable int erpretation at the time plaintiff was reassigned. The fact that Mr. Greene himself u rges a different interpretation of the law than we adopt above only underscores thi s conclusion. Consequently, neither the language of § 18-3-611 nor Lucero clearly established a property interest in a deputy sheriff’s rank in the case of a reorganization. In addition, our own research uncovered no clearly established weight of authority from other courts pertaining to this question. We therefore h old that plaintiff has failed to show that the asserted property right was clearly e stablished at the time defendant reduced his rank. Accordingly, the defendant is en titled to qualified immunity from plaintiff’s § 1983 claim.
Conclusion For the reasons discussed above, we AFFIRM the orde r of the district court- 14 -

granting summary judgment in favor of defendant.