                       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 of
                                      * 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.

     Defendants appeal the district court's denial of their motion for summary
judgment based on qualified immunity in this 42 U.S.C. § 1983 action. We reverse.
I. BACKGROUND

       In November 1992, Mark Merritt filled out a pre-employment questionnaire with
the Arkansas Department of Correction (ADC) stating that he could perform the job
functions of a correctional officer. He was hired for a position with the ADC Varner
Unit and placed on probationary status while in training. At the ADC training
academy, Merritt informed an instructor that he could not run, jog, or jump, pursuant
to his doctor's orders. On December 15, 1992, Merritt was discharged from
employment for providing false information on his job questionnaire. He then sought
other employment. During his job search, Merritt alleges 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 Varner Unit personnel officer; and the ADC.
Merritt alleged defendants violated his due process rights by terminating him from
employment as a correctional officer without giving him an opportunity to respond to
the charges, thereby affecting his good name within the employment community.1
Defendants moved for summary judgment based on qualified immunity, arguing that
Merritt was not deprived of a liberty interest because there was no public disclosure of
the reason for his discharge. The motion was supported by Lanehart's affidavit stating
that, as a matter of policy, the ADC does not give reasons for an employee's
termination to prospective employers, even upon request from those employers. In
response, Merritt submitted evidence that defendants placed the reason for the
dismissal in his personnel file, and that a former ADC employee disclosed the reason
to a possible employer.




      1
       Merritt also brought an equal protection claim as to which the district court
granted summary judgment for all defendants. That dismissal was not appealed.

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      The district court granted summary judgment to ADC and the individual
defendants in their official capacities. The court denied summary judgment, however,
to defendants Reed and Lanehart in their individual capacities. Reed and Lanehart
appeal.

II. DISCUSSION

       We review the district court's denial 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 officials from suit unless their conduct violates
a clearly established constitutional or statutory right of which a reasonable person
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 clearly
established at the time of the violation, and whether a reasonable official would have
known that the alleged action 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 constitutional or statutory
right.2 Merritt was entitled to procedural due process upon termination only if he was
deprived of a constitutionally protected property or liberty interest. Shands v. City of
Kennett, 993 F.2d 1337, 1347 (8th Cir. 1993). Merritt asserts that he has a liberty
interest in his good name and reputation in the employment community and that


       2
         Ordinarily, denial of a motion for summary judgment would not be an
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 the alternative inquiry of whether a constitutional or statutory claim is stated
and, if so, whether it is barred by the doctrine of qualified immunity. Siegert v. Gilley,
500 U.S. 226, 231 (1991). In this case, we terminate the action after the initial inquiry.

                                             -3-
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 must
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, 791
F.2d 1318, 1322 (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 for 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 this
case show that neither Reed nor Lanehart informed any prospective employers of the
reasons for 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, stating the reason for his dismissal. If publication occurred, it occurred at
the hands of Cannon, not those of Reed or Lanehart. Cf. Brockell v. Norton, 688 F.2d
588, 592 n.5 (8th Cir. 1982) (publication not attributable to defendants, and therefore,
insufficient to establish liberty interest). Because Merritt has failed to show that
defendants Reed or Lanehart published the reasons for his dismissal, he has failed to
establish a violation of a liberty interest. Consequently, the defendants' motion for
summary judgment should have been granted.3 See Waddell v. Forney, 108 F.3d 889,

      3
        Merritt points to cases from other circuits which found public disclosure where
the reasons for discharge were placed in the employee's personnel file and were likely
to be disclosed to prospective employers. E.g., Brandt v. Board of Coop. Educ. Servs.,
820 F.2d 41, 45 (2d Cir. 1987); Burris v. Willis Indep. Sch. Dist., 713 F.2d 1087, 1092
(5th Cir. 1983). We have previously noted that a personnel file replete with
wrongdoing is "potentially sufficient" to satisfy the publication requirement if the
defendants made that file available to prospective employers. Hogue, 791 F.2d at 1322
n.7. In this case, however, Merritt has failed to make such a showing in light of
defendant Lanehart's testimony that as a matter of policy, discharge reasons are not
given to prospective employers.

                                          -4-
896 (8th Cir. 1997) (reversing denial of summary judgment after qualified immunity
inquiry where plaintiff failed to show violation of constitutionally protected liberty
interest). We have considered the remainder of Merritt's arguments and find them to
be without merit.

III. CONCLUSION

      Because the defendants did not violate a constitutionally protected right, we
reverse the district court's denial of defendants' motion for summary judgment.

      A true copy.

             ATTEST:

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




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