                                                                           FILED
                           NOT FOR PUBLICATION
                                                                            SEP 21 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


LARRY REINLASODER,                               No. 14-35253

              Plaintiff - Appellant,             D.C. No. 1:12-cv-00107-SEH

 v.

CITY OF COLSTRIP; MAYOR ROSE                     MEMORANDUM*
HANSER, In her Individual and Official
Capacity,

              Defendants - Appellees.


                    Appeal from the United States District Court
                            for the District of Montana
                     Sam E. Haddon, District Judge, Presiding

                          Submitted September 1, 2016**
                              Seattle, Washington

Before: SCHROEDER, McKEOWN, and DAVIS,*** Circuit Judges.

      Appellant Larry Reinlasoder brought this action pursuant to 42 U.S.C.

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
       ***
             The Honorable Andre M. Davis, Senior Circuit Judge for the United
States Court of Appeals for the Fourth Circuit, sitting by designation.
§ 1983 against the City of Colstrip, Montana, and its mayor, Rose Hanser (collectively

“the City”), after he was fired from his job as Colstrip’s chief of police. The district

court granted summary judgment for the City as to Reinlasoder’s federal due process

claims, declined to exercise supplemental jurisdiction over Reinlasoder’s remaining

state law claims, and denied his motion to file a second amended complaint. For the

reasons stated below, we affirm.

      1. We review de novo a district court’s grant of summary judgment. Oswalt

v. Resolute Indus., Inc., 642 F.3d 856, 859 (9th Cir. 2011). “We determine,

viewing the evidence in the light most favorable to the nonmoving party, whether

there are any genuine issues of material fact and whether the district court correctly

applied the relevant substantive law.” Id. (quoting Wallis v. Princess Cruises, Inc.,

306 F.3d 827, 832 (9th Cir. 2002)).

      2. On the undisputed record, Reinlasoder received adequate pretermination

process as a matter of law. The Due Process Clause requires a public employer

who seeks to terminate an employee to provide the employee with a pretermination

hearing or “some opportunity for the employee to present his side of the case . . .

before the termination takes effect.” Cleveland Bd. of Educ. v. Loudermill, 470

U.S. 532, 543 (1985). Such a “pretermination ‘hearing,’ though necessary, need

not be elaborate.” Id. at 545. “The essential requirements of due process . . . are


                                           2
notice and an opportunity to respond.” Id. at 546. Thus, due process requires no

more than “oral or written notice of the charges against [the employee], an

explanation of the employer’s evidence, and an opportunity to present [the

employee’s] side of the story.” Id.

      Here, the City provided Reinlasoder with written notice of the charges

against him, an explanation of the evidence supporting those charges, and multiple

opportunities to respond in person or in writing. Reinlasoder therefore received

constitutionally adequate pretermination process, and the district court properly

granted summary judgment for the City on this claim.

      3. Reinlasoder also received legally adequate post-termination process, as

demonstrated by the undisputed record. The Supreme Court has held that “all the

process that is due is provided by a pretermination opportunity to respond, coupled

with post-termination administrative procedures as provided by [state law].” Id. at

547–48. Even though Reinlasoder chose not to attend the post-termination

hearing, the Police Commission conducted a public hearing that complied with the

procedures prescribed by Montana law. See, e.g., Mont. Code Ann. § 7-32-4164

(providing the right to appeal a termination decision to the Police Commission); id.

§ 7-32-4157 (outlining the appealing police officer’s right to be present, to be

represented by counsel, and to present evidence at the hearing); id. § 7-32-4158


                                          3
(establishing the right to a public hearing); id. § 7-32-4155(2) (explaining that the

appeal shall follow the rules of evidence); cf. Correa v. Nampa Sch. Dist. No. 131,

645 F.2d 814, 817 (9th Cir. 1981) (“[W]here adequate administrative procedures

exist, a person cannot state a claim for denial of procedural rights when he has

elected to forego a complete hearing.”).

      Reinlasoder asserts that he and his counsel chose not attend the post-

termination hearing because the Police Commission was biased against him,

rendering the hearing a sham. Reinlasoder suggests that Mayor Hanser

purposefully reconstituted the Commission specifically to ensure that it would

consistently affirm disciplinary actions against him, as the formerly constituted

Commission had not. But the record, even when viewed in Reinlasoder’s favor,

contains no evidence to support this speculation. Cf. Vanelli v. Reynolds Sch. Dist.

No. 7, 667 F.2d 773, 780 (9th Cir. 1982) (holding that a teacher appealing his

termination failed to demonstrate that a member of the school board was biased or

deprived the teacher of a fair hearing where the board member’s son was dating

one of the students who had filed charges against the teacher). Reinlasoder

identifies no instances of bias or inadequacy in the Commission’s hearing or

ultimate decision. Because Reinlasoder received pretermination opportunities to

respond to the charges against him, and because the Police Commission complied


                                           4
with the post-termination administrative procedures prescribed by Montana law,

the district court properly held that the City was entitled to judgment as a matter of

law on Reinlasoder’s procedural due process claims.

      4. The district court likewise did not err in granting summary judgment for

the City with respect to Reinlasoder’s substantive due process claim. Reinlasoder

argues on appeal that the City’s statements to the media about his termination and

his alleged proclivity for viewing pornography have prevented him from finding

employment. This allegation does not appear in Reinlasoder’s amended complaint

except insofar as the complaint contains a bare assertion that the City “defamed

Mr. Reinlasoder.” Moreover, this Court has not recognized conduct of the kind

that Reinlasoder now alleges as constituting a deprivation of substantive due

process rights. See, e.g., Engquist v. Or. Dep’t of Agric., 478 F.3d 985, 997–98

(9th Cir. 2007) (noting that a substantive due process claim for a public employer’s

deprivation of occupational liberty may lie only in “extreme cases, such as a

‘government blacklist . . .’ [or a] legislative action that effectively ban[s] a person

from a profession”) (citation omitted). Summary judgment for the City on this

matter was appropriate.

      5. Further, the district court did not abuse its discretion in denying

Reinlasoder’s motion for leave to file a second amended complaint. We review a


                                            5
district court’s denial of leave to amend “for an abuse of discretion, keeping in

mind the strong policy in favor of allowing amendment, and considering four

factors: bad faith, undue delay, prejudice to the opposing party, and the futility of

the amendment.” Royal Ins. Co. of Am. v. Sw. Marine, 194 F.3d 1009, 1016 (9th

Cir. 1999) (quoting Kaplan v. Rose, 49 F.3d 1363, 1370 (9th Cir. 1994)).

However, “[l]ate amendments to assert new theories are not reviewed favorably

when the facts and the theory have been known to the party seeking amendment

since the inception of the cause of action.” Id. at 1016–17 (quoting Acri v. Int’l

Ass’n of Machinists & Aerospace Workers, 781 F.2d 1393, 1398 (9th Cir. 1986)).

         Reinlasoder sought leave to file a second amended complaint for two

reasons. First, he wished to specifically allege a substantive due process claim

regarding the City’s publication of false statements about him that deprived him of

his liberty interest in working in his chosen profession. Second, he sought to plead

factual allegations regarding the City’s destruction of evidence, allegations that

Reinlasoder argued would support his pretermination procedural due process

claim.

         The district court did not abuse its discretion in denying this motion. In

addition to presenting issues of undue delay and prejudice, the proposed

amendments would have been futile. As explained above, viable claims for


                                             6
violations of substantive due process rights from deprivations of occupational

liberty arise only in extreme cases with circumstances that differ materially from

those Reinlasoder wished to allege in this case. And additional facts regarding the

alleged destruction of evidence would not have altered the fate of Reinlasoder’s

procedural due process claim, as Reinlasoder still received notice of the charges

against him, an explanation of the City’s evidence supporting the charges, and

several opportunities to respond.

      6. The parties also dispute whether we may consider certain pieces of

evidence. We need not resolve this dispute, as the evidence in question is

unrelated to the adequacy of the process that Reinlasoder received or whether he

was deprived of a constitutionally recognized liberty interest in his chosen

profession. In other words, whether or not we consider the evidence does not

affect our holdings above.

      7. Finally, the City filed a motion to dismiss this appeal based on principles

of claim preclusion. The motion arises from the reversal by the Montana Supreme

Court of a judgment on a jury verdict in favor of Reinlasoder, who litigated his

state law claims in state court after their dismissal without prejudice in this case.

Because we affirm the judgment of the district court on the merits, we deny the

motion to dismiss as moot.


                                            7
AFFIRMED.




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