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.v. CITY AND COUNTY OF SAN FRANCISCO; et al. Defendants.
No. C 95-2824 TEH
April 22, 1996 Decided
For MICHAEL MACKIN Plaintiff: Andrean L. Kalemis Davis Reno & Courtney San Francisco CA.
For SAN FRANCISCO CITY & COUNTY THE CIVIL SERVICE COMMISSION OF THE CITY AND COUNTY OF SAN FRANCISCO POLICE COMMISSION OF THE CITY & COUNTY OF SAN FRANCISCO POLICE DEPARTMENT OF THE CITY AND COUNTY OF SAN FRANCISCO ANTHONY RIBERA in his capacity as Chief of Police for the City and County of San Francisco JULIE GONZALEZ in her capacity as Coordinator of the Consent Decree Division of the Police Department of the City and County of San Francisco defendants: Cheryl Adams City Counsel's Office San Francisco CA.
Thelton E. Henderson Chief Court United States District Court. Chief Mag. Court F. Steele Langford
The Hon. Justice Thelton E. Henderson

This matter came before Court on April 1, 1996 on defendants' motion for summary judgment. After careful consideration of the parties' oral and written arguments Court for the reasons set forth below GRANTS defendants' motion.


Plaintiff Michael Mackin submitted an application for employment as a Q-2 police officer with defendant San Francisco Police Department "SFPD"). Plaintiff successfully completed the written examination oral examination and physical agility tests required for all Q-2 police officers. Plaintiff was subsequently placed on the E-106 civil service list from which Q-2 applicants were to be hired subject to further training testing and investigation including a psychological evaluation and background investigation.

Plaintiff's psychological evaluation was conducted in November 1994. In December 1994 defendant SFPD notified plaintiff that he had failed the psychological evaluation and was thereby disqualified from further consideration as a Q-2 officer. Plaintiff implemented the appeal process by undergoing a second psychological evaluation performed by Dr. Randall Smith who is not employed by defendants. Plaintiff received and submitted Dr. Smith's evaluation to defendant SFPD in December 1994. SFPD sustained plaintiff's disqualification in March 1995 and advised him of his right to further appeal and to undergo a third psychological evaluation by another doctor.

In April 1995 plaintiff submitted to this third evaluation by Dr. Elliot Henderson a specialist referred by defendant City's Employee Retirement System. Defendant [ILLEGIBLE WORD] retained and paid Dr. Henderson to evaluate plaintiff. [ILLEGIBLE WORDS] 1995 SFPD notified plaintiff that Dr. Henderson had [ILLEGIBLE WORD] the disqualifying findings that plaintiff's appeal was denied and that plaintiff's name had been removed from the Q-2 eligibility list.

Plaintiff alleges that Dr. Henderson admitted that plaintiff's negative evaluation was based on information and opinion provided to him by a SFPD background investigator including information regarding plaintiff's education alcohol rehabilitation and the failure of certain of his professional references to respond to SFPD's inquiries. This information was compiled by defendant SFPD as part of a standard background investigation conducted on all Q-2 applicants. SFPD did not provide plaintiff with any of the information or materials that Dr. Henderson relied on for the evaluation nor was plaintiff given an opportunity to respond to that information. Plaintiff claims that the background investigation allegations are false. He further alleges that he has been stigmatized by his psychological disqualification and is thereby precluded from obtaining employment in his chosen career as a police officer. Based on the above allegations plaintiff claims that he was denied due process in violation of 42 U.S.C. SEC. 1983.

In addition plaintiff raises an equal protection claim alleging on information and belief that defendants intentionally arbitrarily and maliciously manipulated the application process in such a manner as to disqualify plaintiff without due process of law. Plaintiff claims that defendant SFPD does not subject similarly situated applicants to the same intentional arbitrary and malicious conduct.

Defendants filed the instant motion for summary judgment on February 26, 1996. They contend that plaintiff's due process claims are legally barred because plaintiff lacks the constitutionally cognizable liberty interest necessary to assert such claims. Furthermore defendants argue plaintiff's complaint fails to state a claim under the Equal Protection clause of the United States Constitution.


Summary judgment is appropriate when there is no genuine dispute as to material facts and the moving party is entitled to judgment as a matter of law. Jung v. FMC Corp. 755 F.2d 708 710 (9th Cir.1985); Fed. R. Civ. P. 56(c). Material facts are those which may affect the outcome of the case. Anderson v. Liberty Lobby Inc. 477 U.S. 242 248 91 L. Ed. 2d 202 106 S. Ct.2505 (1986). A dispute as to a material fact is "genuine" if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving party. Id. Court may not weigh the evidence and is required to view the evidence in the light most favorable to the nonmoving party. Id.

A party seeking summary judgment bears the initial burden of informing Court of the basis for its motion and of identifying those portions of the pleadings and discovery responses which demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett 477 U.S. 317 323 91 L. Ed. 2d 265 106 S. Ct.2548 (1986). Where the moving party will have the burden of proof on an issue at trial it must affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party. However on an issue for which the non-moving party will have the burden of proof at trial the moving party can prevail merely by "pointing out to the District Court that there is an absence of evidence to support the nonmoving party's case." Id.

If the moving party meets its initial burden the opposing party must produce evidence "setting forth specific facts showing that there is some genuine issue for trial" in order to defeat the motion. Anderson 477 U.S. at 250; Fed. R. Civ. P. 56(e).


I. Due Process Claim

Due process is not violated unless one is deprived of a "property" *fn1 or "liberty" interest. Board of Regents v. Roth 408 U.S. 564 33 L. Ed. 2d 548 92 S. Ct.2701 (1972). An applicant for government employment such as plaintiff may have his or her liberty interests implicated when the government makes any "charge" against the applicant that might (1) seriously damage his or her standing or association in the community or (2) impose on him or her a stigma or other disability that forecloses his or her freedom to take advantage of other employment opportunities. Roth 408 U.S. at 573-74; Perry v. FBI 759 F.2d 1271 1276-1282 (7th Cir.1985). In other words to prevail on a claim that a liberty interest has been denied without due process he or she must plead and prove both that the government's charges were published or publicly disseminated and that the charges were stigmatizing. Bishop v. Wood 426 U.S. 341 348 48 L. Ed. 2d 684 96 S. Ct.2074 (1976); Yatvin v. Madison Metropolitan School District 840 F.2d 412 417 (7th Cir.1988). Although plaintiff alleges both publication and stigmatization Court concludes as a matter of law that plaintiff cannot demonstrate that the "charges" against him (the adverse background information) were published or publicly disseminated. *fn2

Plaintiff alleges that defendant SFPD published the charges against him in two ways: 1) that defendant published plaintiff's background information to Dr. Henderson; and 2) that the "charges" will be published in the future to law enforcement agencies to which plaintiff will apply. Each will be discussed in turn.

A. Publication to Dr. Henderson

Plaintiff contends that defendant's disclosure of plaintiff's background investigation information to Dr. Henderson constituted a public disclosure because Dr. Henderson does not hold a position with defendant City and County of San Francisco. Court concludes however that this argument must fail in light of Bishop v. Wood 426 U.S. 341 48 L. Ed. 2d 684 96 S. Ct.2074. In Bishop the petitioner a police officer was terminated without a hearing based on "a failure to follow orders poor attendance at police training classes causing low morale and conduct unsuited to an officer." Id. at 343. This information which petitioner alleged was false was communicated from the Police Chief to the City Manager who fired petitioner. Although the stigmatizing information was communicated from the Police Chief to the City Manager an individual in a different governmental department Court found no publication and consequently no liberty interest. Id. at 348; Cf. Ratliff v. City of Milwaukee 795 F.2d 612 627 (7th Cir.1986) (communication within police department's chain of command is not sufficient publication for deprivation of liberty claim). The Bishop Court did not expressly discuss the communication between the Police Chief and the City Manager. Instead Court focused on the communication between the City Manager and petitioner and concluded that no publication was made. Id. However the necessary implication of Court's decision is that communications between governmental agents that are used to carry out basic governmental functions are not public disclosures even when the agents are affiliated with different agencies within the City.

The communication at issue in this case between the SFPD background investigation unit and Dr. Henderson the doctor retained and paid by the SFPD to evaluate plaintiff was in furtherance of a necessary governmental function. [ILLEGIBLE WORDS] SFPD is required by law to perform psychological evaluations of all persons it hires as police officers. Cal. Gov't Code SEC. 1031. To the extent that Dr. Henderson felt it was appropriate to utilize background information in developing his psychological assessment there is no constitutional basis for requiring him (or the city of San Francisco) to create a background file anew when the City already has this information compiled. In short the Police Department's act of providing its standard background investigation file to Dr. Henderson simply conveyed information from one governmental agent to another for the purpose of carrying out a necessary governmental function. Therefore applying the Bishop Court's rationale to the communication in the instant case defendant's disclosure to Dr. Henderson did not amount to a public disclosure.

Plaintiff attempts to distinguish Bishop on the ground that the petitioner in Bishop did not specifically claim that the publication would make it difficult to find a new job in his field. Rather the petitioner based his liberty interest claim only on the falsity of the charges and the resulting damage to petitioner's reputation in the community. This is a false distinction however since damage to reputation in the community is in fact what could cause plaintiff difficulty obtaining a new job in his field. Therefore under Bishop Court concludes that there was no publication in this case.

Plaintiff also cites to Willbanks v. Smith County Texas et al. 661 F. Supp.212 218 (S.D. Tex. 1987) for the proposition that ". . . communication of the false charges to any person outside the governmental agency constitutes 'public disclosure' for the purposes of a liberty interest claim." Even if Court followed Willbanks (which is not binding on this Court) it would not require a different result than that reached above since Dr. Henderson was not a person 'outside the governmental agency' for the purposes of conducting plaintiff's psychological evaluation. Although Dr. Henderson does not hold a permanent position with defendant SFPD it is undisputed that he was retained and paid by the SFPD to evaluate plaintiff's psychological fitness for the position of Q-2 police officer. Under the circumstances presented in this case it is not appropriate to categorize Dr. Henderson as 'outside the governmental agency.' Thus at least in relation to plaintiff's case Dr. Henderson is not 'outside' the SFPD and therefore disclosure to him did not amount to a publication for the purposes of plaintiff's liberty interest claim.

B. Future Publication

Plaintiff also argues that the "charges" (the false background information and failed psychological evaluation) will be published in the future to law enforcement agencies to which plaintiff will apply. Although the Ninth Circuit has not addressed the issue of future publication in this context the Seventh Circuit has in Koch v. Stanard 962 F.2d 605 (7th Cir.1992). In that case six applicants for police officer positions asserted a SEC. 1983 liberty claim when they were rejected for hire on the basis of negative psychological evaluations. The applicants argued that future employers would inevitably learn about their failure to meet the psychological requirements because they would ask the applicants why they had not been hired. Like plaintiff in this case the applicants in Koch failed to allege either that another police force had inquired as to why the applicant was not hired or that any derogatory information had been divulged. Thus noting that "[a] potential for future questions and answers is just that--a potential " Court rejected the applicants' argument. Koch 962 F.2d at 607; Johnson v. Martin 943 F.2d 15 (7th Cir.1991) (officer terminated for failing drug test could not sue until information was actually published); Ratliff 795 F.2d at 627 (Absent proof that defendants disseminated stigmatizing information to future potential employers or the community at large plaintiff cannot show liberty interest deprivation). The rationale is simple: until the stigmatizing information is publicly disclosed plaintiff has not suffered an injury to his reputation. Applying Koch to the instant case the Court finds plaintiff's assertion of potential future publication legally insufficient to meet the publication requirement of a liberty interest claim.

Plaintiff's future publication argument relies primarily on Duck v. Jacobs 739 F. Supp. 1545 (S.D. Ga. 1990) and Buxton v. City of Plant City Fla. 871 F.2d 1037 (11th Cir. 1989). In both cases Court held that publication had occurred where a defendant police department reported false and stigmatizing information regarding plaintiffs' termination to another agency which was required by law to make the information public. Both cases are easily distinguishable from the instant case. In this case plaintiff has not alleged that defendant SFPD reported its findings to anyone other than Dr. Henderson. Neither Dr. Henderson nor the SFPD has a legal obligation to make the information public; indeed the SFPD refused to release the files to plaintiff. Thus plaintiff's reliance on Duck and Buxton is misplaced.

Although plaintiff has alleged a publication he cannot establish that a publication to either Dr. Henderson or future employers actually occurred. Therefore plaintiff's liberty interest claim fails as a matter of law. *fn3

II. Equal Protection Claim

Equal protection claims are proper where the government treats similarly situated people differently. Mlikotin v. City of Los Angeles 643 F.2d 652 654 (9th Cir.1981). In his amended complaint plaintiff makes the conclusory allegation that because he was denied due process he was treated differently than similarly situated applicants. This allegation without more neither supports an equal protection claim nor constitutes evidence of a dispute as to a material fact. Berg v. Kincheloe 794 F.2d 457 459 (9th Cir.1986); United States v. Allen 578 F.2d 236 (9th Cir. 1978). Furthermore as described above plaintiff cannot establish a due process violation which is the basis of his equal protection claim. Therefore plaintiff fails to state an equal protection claim.


Court concludes as a matter of law that plaintiff cannot demonstrate that a publication occurred as to either Dr. Henderson or plaintiff's future employers and therefore plaintiff has not been denied a constitutionally protected liberty interest. In addition since plaintiff's equal protection claim rests solely upon his liberty interest claim it too must fail. In conclusion and for the reasons stated above defendant's motion for summary judgment is GRANTED.


Thelton E. Henderson Chief Court

United States District Court.


*fn1 Plaintiff does not claim a property interest in employment as a San Francisco police officer.

*fn2 At oral argument plaintiff's Counsel conceded that publication was the critical issue in this motion.

*fn3 Plaintiff's proposed amended complaint which he submitted along with his opposition papers contains no allegations that would alter Court's analysis discussed above.

In his Opposition Brief and pursuant to FRCP 56(f) plaintiff also requests a continuance of this summary judgment motion until such time as he has had the opportunity to conduct discovery. Indeed summary judgment may not be granted until the Court first determines the merits of plaintiff's request for continuance under Rule 56(f). Garrett v. City and County of San Francisco 818 F.2d 1515 1518-19 (9th Cir.1987).

To obtain postponement of a summary judgment motion for further discovery plaintiff's affidavit(s) must demonstrate among other things facts establishing a likelihood that controverting evidence may exist as to a material fact. Fed R. Civ. P. 56(f); VISA v. Bankcard Holders of America 784 F.2d 1472 (9th Cir.1986). In his Declaration in Support [ILLEGIBLE WORD] Plaintiff's Opposition to Defendant's Motion for Summary Judgment plaintiff's Counsel merely states that without further discovery plaintiff will be at a disadvantage in arguing the veracity and stigmatizing effect of the backup and unit's conclusions and representations to Dr. Henderson Counsel's statement does not allege or establish a like [ILLEGIBLE WORDS] that the contents of the files might reveal a publication [ILLEGIBLE WORD] public dissemination. Thus further discovery is not necessary to determine the legal issue of publication.