United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 96-2582

___________ Mark A. Merritt, * * Appellee, * * v. * * Appeal from the United States District M.D. Reed; Charles Lanehart, * Court for the Eastern District o f * Arkansas. Appellants, * * Arkansas Department of Correction, * * Defendant. *

___________ Submitted: April 16, 1997 Filed: July 15, 1997

___________ Before BOWMAN, WOLLMAN, and BEAM, Circuit Judges.

___________ BEAM, Circuit Judge.
De fendants appeal the district court's denial of their motion for summar y judgment based on qualified immunity in this 42 U.S.C. § 1983 action. We reverse.Merr itt also brought an equal protection claim as to which the district cour t 1 granted summary judgment for all defendants. That dismissal was not appealed. -2- I. BACKGROUND In November 1992, Mark Merritt filled out a pre-employment qu estionnaire with the Arkansas Department of Correction (ADC) stating that he could perform the jo b functions of a cor

rectional officer. He was hired for a position with the ADC Varner Unit and pla ced on probationary status while in training. At the ADC trainin g a c ademy, Merritt informed an instructor that he could not run, jog, or jump, pursuant to h is doctor's orders. On December 15, 1992, Merritt was discharged fro m employment

for providing false information on his job questionnaire. He then sought other employment. During his job search, Merritt al leges that prison officials informed prospective employers of the reason for his termination as a correctional officer. Merritt brought this section 1983 action against M.D. Reed, the former warden of the Varner Unit; Charles Lanehart, the Va rner Unit personnel officer; and the ADC. Merr itt alleged defendants violated his due process rights by terminating him fro m employme nt as a correctional officer without giving him an opportunity to respond to the charges, thereby affecting his good name within the employment community. 1 Def endants moved for summary judgment based on qualified immunity, arguing tha t Merritt was not deprived of a liberty interest because there was no public disclosure of the reason for his discharge. The m otion was supported by Lanehart's affidavit stating that, as a matter of policy, the ADC does not give reasons for an employee' s termina tion to prospective employers, even upon request from those employers. I n respons e, Merritt submitted evidence that defendants placed the reason for th e dismiss al in his personnel file, and that a former ADC employee disclosed the reason to a possible employer.Or dinarily, denial of a motion for summary judgment would not be a n 2 appealable order. Here, Reed and Lanehart assert the affirmative defense of qualified immunity, making the district court ruling appealable on an interlocutory basis. Allison v. Dep 't of Corrections , 94 F.3d 494, 496 (8th Cir. 1996). The review, however , involves th e alternative inquiry of whether a constitutional or statutory claim is stated and, if so, whether it is barred by the doctr ine of qualified immunity. Siegert v. Gilley , 500 U.S. 226, 231 (1991). In this case, we terminate the a ction after the initial inquiry. -3- The district court granted summary judgment to ADC and the individua l defendants in their official

capacities. The court denied summary judgment, however, to defenda nts Reed and Lanehart in their individual capacities. Reed and Lanehar t appeal.
II. DISCUSSION
We review the district court's d enial of qualified immunity de novo. Henderson
v. Baird , 29 F.3d 464, 467 (8th Cir. 1994), cert. denied , 115 S. Ct. 2584 (1995)

. Qualified immunity shields government offic ials from suit unless their conduct violates
a cl early established constitutional or statutory right of which a reasonable perso n would have known. Harlow v. Fitzgerald , 457 U.S. 800, 818 (1982). In considering whether defendants are entitled to qualified immunity, we must consider whether the plaintiff has asserted a violation of a constitutional or statutory right that was clearl y established at the time of the violation, and whether a reasonable official would have known that the alleged a ction violated that right. Yowell v. Combs , 89 F.3d 542, 544 (8th Cir. 1996).
In this case, Merritt has failed to assert a violation of a c onstitutional or statutory right. Merritt was ent

itled to procedural due process upon termination only if he was 2 deprived of a con stitutionally protected property or liberty interest. Shands v. City of Kennet t , 993 F.2d 1337, 1347 (8th Cir. 1993). Merritt asserts that he has a libert y interest in his good name and reputation in the employment community and thatMerritt points to cases from other circuits which found public disclosure where 3 the reasons for discharge w ere placed in the employee's personnel file and were likely to be disclosed to prospective employers. E.g. , Brandt v. Board o f Coop. Educ. Servs. , 820 F.2d 41, 45 (2d Cir. 1987); Burris v. Willis Indep. Sch. D ist. , 713 F.2d 1087, 1092 (5th C ir. 1983). We have previously noted that a personnel file replete with wrongdo ing is "potentially sufficient" to satisfy the publication requirement if th e defendants made that file available to prospective employers. H ogue , 791 F.2d at 1322 n.7. In this c ase, however, Merritt has failed to make such a showing in light o f defendant Lanehart's testimony that as a matter of policy, discharge reasons are no t given to prospective employers. -4- defendants deprived him of this interest without due process. See Codd v. Velger , 429 U.S. 624, 627 (1977). To establish a liberty interest in his good name, Merritt mus t show that the reasons for discharge stigmatized him and that the defendants made the
reasons public. Bishop v. Wood , 426 U.S. 341, 349 (1976); Hogue v. Clinton , 79 1 F.2d 1318, 132 2 (8th Cir. 1986) (citing Payne v. Ballard , 761 F.2d 491, 493 (8th Cir. 1985)). On the facts of this case, Merritt failed to make such a showing. Merritt presented no evidence to establish that either defendant Reed or Lanehart made the reasons fo r his termination public. See Kentucky v. Graham , 473 U.S. 159, 166 (1985) (to establish personal liability in section 1983 action, plaintiff must show that defendant official caused deprivation of right). The uncontroverted facts of thi s case s how that neither Reed nor Lanehart informed any prospective employers of the reasons fo r Merritt's termination. Merritt introduced a letter, signed by Jean Cannon, a former ADC assistant personnel officer, and addressed to one of Merritt's prospective employers, stat

ing the reason for his dismissal. If publication occurred, it occurred at the hands of Cannon, not those of Reed or L anehart. Cf. Brockell v. Norton , 688 F.2d 588, 592 n.5 (8th Cir. 1982) (publication not attributable to defendants, and therefore, insuff icient to establish liberty interest). Because Merritt has failed to show tha t defendants Reed or Lanehart published the reasons for his dismissal, he has failed to estab lisha violation of a liberty interest. Consequently, the defendants' motion fo r summary judgment should have been granted. See Waddell v. Forney , 108 F.3d 889,

3-5-

896 (8th Cir. 1997) (reversing denial of summary judgment after qualified immunity inquir y where plaintiff failed to show violation of constitutionally protected libert y interest). We have considered the remainder of Merritt's arguments and find them to be without merit.
III. CONCLUSION

Bec ause the defendants did not violate a constitutionally protected right, w e reverse the district court's denial of defendants' motion for summary judgment. A true copy.

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