                                                                              FILED
                           NOT FOR PUBLICATION                                AUG 10 2011

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


BRUCE DOUGHERTY,                                 No. 09-56239

              Plaintiff - Appellant,             D.C. No. 2:08-cv-01149-PA-CT

  v.
                                                 MEMORANDUM*
GLORIA CORTEZ and NORMAN J.
KIRSCHENBAUM,

              Defendants - Appellees.


                   Appeal from the United States District Court
                      for the Central District of California
                    Percy Anderson, District Judge, Presiding

                        Argued and Submitted June 9, 2011
                              Pasadena, California

Before: B. FLETCHER and N.R. SMITH, Circuit Judges, and BREWSTER,
Senior District Judge.**

       Brian Dougherty appeals the district court’s grant of summary judgment in

favor of Gloria Cortez and Norman Kirschenbaum in their supervisory capacity, in


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
            The Honorable Rudi M. Brewster, District Judge for the U.S. District
Court for Southern California, San Diego, sitting by designation.
his 42 U.S.C. § 1983 claim. Dougherty argues that California Education Code

§ 44938 creates a property interest sufficient to guarantee him a hearing before

derogatory information is placed in his personnel file. Dougherty brought claims

other than his 42 U.S.C. § 1983 due process claim. However, he has not appealed

the grant of summary judgment as to any other claim. We have jurisdiction

pursuant to 28 U.S.C. § 1291 and we AFFIRM.

      To prevail in a § 1983 claim premised on a procedural due process violation,

a plaintiff must show deprivation of a protected property or liberty interest without

being given due process. Bd. of Regents v. Roth, 408 U.S. 564, 569 (1972).

“Property interests . . . are not created by the Constitution. Rather they are created

and their dimensions are defined by existing rules or understandings that stem from

an independent source such as state law-rules or understandings that secure certain

benefits and that support claims of entitlement to those benefits.” Id. at 577.

      California Education Code § 44938 does not create a property interest

entitling Dougherty to a hearing prior to derogatory information being placed in his

file. Rather, the statute guarantees that a teacher will be given written notice of

unprofessional conduct and at least 45 days as an “opportunity to correct his or her

faults and overcome the grounds for the charge” before being discharged. Cal.

Educ. Code § 44938(a); Crowl v. Comm’n on Prof’l Competence, 275 Cal. Rptr.


                                           2
86, 88, 92 (Ct. App. 1990). It is undisputed that Dougherty was given written

notice of and an opportunity to correct his conduct. It is also undisputed that

Dougherty was not discharged. California has created a property interest to the

extent of allowing a rebuttal letter to be placed in a personnel file alongside any

derogatory information. See Cal. Educ. Code § 44031; Miller v. Chico Unified

Sch. Dist., 597 P.2d 475, 480 (Cal. 1979). Dougherty was allowed to place a

rebuttal letter in his personnel file, which was adequate under the statute. See

Roth, 408 U.S. at 577.

      Dougherty did not raise the argument that the Appellees violated his liberty

interest in his reputation to the district court. The district court did not address this

issue in its order. Therefore, Dougherty waived this issue. See Broad v. Sealaska

Corp., 85 F.3d 422, 430 (9th Cir. 1996).

      AFFIRMED.




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