                           NOT FOR PUBLICATION                           FILED
                                                                          JUL 10 2018
                    UNITED STATES COURT OF APPEALS
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

TRAVIS WILLIAMS; AMANDA                          No. 16-35306
WILLIAMS, husband and wife,
                                                 D.C. No.
             Plaintiffs-Appellees,               4:12-cv-00561-JCC-CWD

 v.
                                                 MEMORANDUM*
MADISON COUNTY, IDAHO;
MADISON COUNTY SHERIFF’S
DEPARTMENT, a political subdivision of
Madison County, Idaho,

             Defendants-Appellants.



TRAVIS WILLIAMS; AMANDA                          No. 16-35372
WILLIAMS, husband and wife,
                                                 D.C. No.
             Plaintiffs-Appellants,              4:12-cv-00561-JCC-CWD

 v.

MADISON COUNTY, IDAHO;
MADISON COUNTY SHERIFF’S
DEPARTMENT, a political subdivision of
Madison County, Idaho,

             Defendants-Appellees.


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
                    Appeals from the United States District Court
                              for the District of Idaho

                   John C. Coughenour, District Judge, Presiding

                      Argued and Submitted April 10, 2018
                Submission Withdrawn and Deferred April 12, 2018
                            Resubmitted July 3, 2018
                              Seattle, Washington


Before: TASHIMA and GRABER, Circuit Judges, and MIHM,** District Judge.


      Madison County (Idaho) appeals (1) the district court’s decision to instruct

the jury that Plaintiff Travis Williams had a property right in his employment as a

matter of law; (2) the district court’s order denying its Rule 50 motion finding that

Sheriff Klinger was not an impartial decision-maker in the termination of

Plaintiff’s employment; (3) the district court’s decision denying Madison County’s

Rule 50(b) motion requesting judgment as a matter of law on Plaintiff’s negligent

infliction of emotional distress claim and his wife’s loss of consortium claim, and

to instruct the jury on the claims; (4) the district court’s calculation of the award of

attorney’s fees; and (5) the district court’s order finding Madison County in

contempt of court for failing to pay the judgment or file a bond within the time set


**
 The Honorable Michael M. Mihm, United States District Judge for the Central
District of Illinois, sitting by designation.
                                           2
by the court. Williams appeals the district court’s order awarding him $0 in front

pay. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm in part,

reverse and vacate in part, and remand.

       1. We review de novo the district court’s decision to instruct the jury that

Plaintiff had a property right in his employment as a matter of law. See Mockler

v. Multnomah County, 140 F.3d 808, 812 (9th Cir. 1998) (applying de novo review

of civil jury instructions that misstate the law). We hold that the district court

erred by instructing the jury that Plaintiff had a property right in his employment as

a matter of law. The record demonstrates Madison County did not waive this

issue prior to, or at, trial. Madison County’s failure to object to the magistrate

judge’s report and recommendation did not strip it of its right to appeal. Miranda

v. Anchondo, 684 F.3d 844, 848 (9th Cir. 2012). Madison County also raised the

issue in its trial brief and objected to the jury instruction ultimately given by the

district court.

       Additionally, there is an issue of fact as to whether Plaintiff had a property

right in his continued employment, given the many provisions in the personnel

manual, including those disclaiming contractual obligations and reserving

management rights, and in light of Mitchell v. Zilog, Inc., 874 P.2d 520 (Idaho



                                           3
1994). Accordingly, the judgment for Plaintiff on the procedural due process

claim must be vacated, and the claim remanded for further proceedings.

      2. Having ruled that the district court erred in giving the instruction, we

need not address Madison County’s challenge to the district court’s order denying

its Rule 50 motion. Furthermore, because of our disposition of this claim, the

award of attorneys’ fees and the order on front pay must be vacated.

       3. The district court erred in not dismissing Plaintiff’s claim for negligent

infliction of emotional distress. Idaho law does not recognize a claim for

negligent infliction of emotional distress in the absence of special fragility.

Frogley v. Meridian Joint Sch. Dist. No. 2, 314 P.3d 613, 624 (Idaho 2013). The

record in this case contains no such evidence. Accordingly, the judgment for

Williams must be reversed. For the same reasons, judgment in favor of his wife,

Amanda Williams, for her loss of consortium, must also be reversed.

      4. Finally, the district court did not abuse its discretion in finding Madison

County in contempt for failure to pay the judgment or file a bond within the time

set by the court. The record supports the district court’s determination that

Madison County did not take all reasonable steps to comply with the order

requiring it to pay the judgment or file a bond.



                                           4
     AFFIRMED in part, REVERSED and VACATED in part, and

REMANDED. The parties shall bear their own costs on appeal.




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