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LEROY L. JOHNSON Plaintiff-Appellant
vs.
LEROY MARTIN Superintendent CITY OF CHICAGO DEPARTMENT OF POLICE The CITY OF CHICAGO THE CITY OF CHICAGO DEPARTMENT OF POLICE and THE AMERICAN INSTITUTE OF DRUG DETECTION Defendants-Appellees
 
Case:
No. 90-2155
 
Location:
UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
 
Date:
September 12 1991 Decided
 
Attorneys:
Melvyn M. Weisberg Weisberg & Associates Chicago Illinois Phillip A. Turner Peter J. Latz Turner Latz & Olmstead Chicago Illinois for
Plaintiff-Appellant. Kelly R. Welsh ACC Jay M. Kertez Nancy V. Allen Office of the Corporation Counsel Chicago Illinois Nina Puglia ACC Office of the Corporation Counsel Appeals Division Chicago Illinois for Leroy Martin. William J. Judge Thomas G. Gardiner McBride Baker & Coles Chicago Illinois for American Institute of Drug Detection.
 
Court:
Coffey Easterbrook and Kanne Circuit Judges.
 
Author:
The Hon. Justice Kanne
 

It is the policy of the Chicago Police Department to require random drug screening for its probationary officers. As a probationary police officer Leroy Johnson was required to provide a urine sample for drug testing. The results of the test showed positive for the presence of morphine and codeine. Following disciplinary proceedings in which Johnson denied using drugs he was discharged from the department. Two years later Johnson filed suit under 42 U.S.C. SEC. 1983 alleging among other things that the action of the police department in discharging him and placing that discharge information in his personnel file damaged his reputation in the community. Thus he claimed his constitutionally protected liberty interest in his reputation in the community was violated. The district court dismissed the case pursuant to Federal Rule of Civil Procedure 12(b)(6).

We review the grant of a motion to dismiss de novo. Rothner v. City of Chicago 929 F.2d 297 302 (7th Cir. 1991). When reviewing the grant of a motion to dismiss we must take as true all well-pleaded factual allegations and make all possible inferences in favor of the plaintiff. Janowsky v. United States 913 F.2d 393 395 (7th Cir. 1990). A complaint should not be dismissed "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson 355 U.S. 41 45-46 2 L. Ed. 2d 80 78 S. Ct. 99 (1957).

Although as a probationary officer of the police department Johnson had no protected property interest in his position he may assert the deprivation of a liberty interest. In order to state a claim for deprivation of a liberty interest in one's post-employment reputation a plaintiff is required to show that (1) he was stigmatized by the defendant's conduct (2) the stigmatizing information was publicly disclosed and (3) he suffered a tangible loss of other employment opportunities as a result of public disclosure. Paul v. Davis 424 U.S. 693 701 96 S. Ct. 1155 47 L. Ed. 2d 405 (1976); Ratliff v. City of Milwaukee 795 F.2d 612 625-27 (7th Cir. 1986).

We need only focus on the second requirement regarding public disclosure for we agree with the district court that Johnson cannot satisfy his burden of proving that there was "public disclosure" of the allegedly stigmatizing information. Bishop v. Wood 426 U.S. 341 348-49 96 S. Ct. 2074 2079 48 L. Ed. 2d 684 (1976).

Johnson concedes that the drug testing results have not been disseminated to any potential future employers. He argues however that the stigmatizing information contained in his personnel file "will as a matter of logic and common sense have an adverse effect on [his] ability to obtain future employment in the field of law enforcement as well as other areas." Thus it is Johnson's position that his burden is only to plead and prove that there is a likelihood that the stigmatizing information will be made public. Johnson in support of his position relies on Brandt v. Board of Cooperative Educational Services 820 F.2d 41 43-45 (2nd Cir. 1987) which holds that a plaintiff satisfies the public disclosure requirement of constitutional defamation merely by showing that stigmatizing information is placed in his or her personnel file.

The Second Circuit's decision in Brandt holding that "public disclosure" actually means "likelihood of public disclosure" is directly contrary to the existing Seventh Circuit precedent set forth in Ratliff. We also believe that Brandt is inconsistent with the Supreme Court's explanation in Bishop.

A deprivation of liberty is not implicated when an at-will public employee is discharged and "there is no public disclosure of the reasons for discharge." Bishop v. Wood 426 U.S. at 349 96 S. Ct. at 2079. It is axiomatic that in order to succeed on a constitutional defamation claim the allegedly defamatory statement must actually be "made public."

Since the former communication was not made public it cannot properly form the basis for a claim that petitioner's interest in his 'good name reputation honor or integrity' was thereby injured.

Bishop v. Wood 426 U.S. at 348-49 96 S. Ct. at 2079 (quoting Wisconsin v. Constantineau 400 U.S. 433 437 27 L. Ed. 2d 515 91 S. Ct. 507 (1971)).

Defining "public disclosure" in a way which encompasses "no public disclosure" is an exercise we choose not to embrace. In Ratliff v. City of Milwaukee 795 F.2d at 625-627 we held that absent proof that any of the defendants disseminated the stigmatizing information beyond the proper chain of command within the police department plaintiff could not succeed on his due process liberty claim. Johnson attempts to distinguish Ratliff by arguing that this court did not specifically delineate exactly how plaintiffs must prove dissemination. While that may be true we have no problem determining that potentially stigmatizing information which remains in a discharged employee's personnel file and has not been disseminated beyond the proper chain of command within the police department has not been made public. In this case there was no public disclosure as required in Bishop and Ratliff.

The plain fact is that the mere existence of damaging information in Johnson's personnel file cannot give rise to a due process challenge. In Clark v. Maurer 824 F.2d 565 566 (7th Cir. 1987) this court addressed the argument that "it is reasonable to believe that these [stigmatizing] charges continue in the [plaintiffs'] personnel files a time bomb waiting to explode when sent to a prospective employer." Id. We stated that "until the time bomb goes off the plaintiffs will sustain no injury to their reputations. . . ." Id. Likewise Johnson's "time bomb" claim -- that "as a matter of logic and common sense" the information in his personnel file will likely reach the public -- has yet to detonate.

The district court was correct in finding that the allegations of the complaint did not give rise to a constitutional violation of Leroy Johnson's liberty interest in his reputation in the community. The remaining issues involving conspiracy and pendent jurisdiction were directly related to the alleged deprivation of liberty interest and were properly dismissed as well. Accordingly the judgment of dismissal is AFFIRMED.