                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 09-1250


STACY C. HARRELL,

                Plaintiff - Appellant,

           v.

CITY OF GASTONIA; TERRY L. SULT, individually and in his
capacity as Chief of Police; ED TURAS,

                Defendants - Appellees.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Carl Horn, III, Chief
Magistrate Judge. (3:07-cv-00396-CH)


Argued:   March 25, 2010                   Decided:   August 24, 2010


Before MICHAEL and DAVIS, Circuit Judges, and James A. BEATY,
Jr., Chief United States District Judge for the Middle District
of North Carolina, sitting by designation.


Affirmed by unpublished per curiam opinion.


ARGUED: James M. Harrington, THE HARRINGTON PRACTICE, PLLC,
Charlotte, North Carolina, for Appellant.       Patrick Houghton
Flanagan, CRANFILL, SUMNER & HARTZOG, LLP, Charlotte, North
Carolina, for Appellees. ON BRIEF: Bradley P. Kline, CRANFILL,
SUMNER & HARTZOG, LLP, Charlotte, North Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

     Plaintiff-Appellant Stacy C. Harrell (AHarrell@) appeals a

decision by the district court granting Defendants= motion for

summary judgment and dismissing Harrell=s claims brought under 42

U.S.C. ' 1983 and state libel law.               Harrell=s claims in this case

are related to his former probationary employment as a police

officer    with    the   Gastonia,       North   Carolina       Police   Department.

Specifically,        Harrell      contends       that     allegations         of    poor

performance were placed in his personnel file at the time he was

recommended       for    termination,      and     that    the    allegedly         false

statements in his personnel file have impaired his ability to

obtain employment with another law enforcement agency, depriving

him of a constitutionally-protected liberty interest without due

process of law.          However, for the reasons discussed below, we

conclude      that       even      if      Harrell        could      establish         a

constitutionally-protected            liberty    interest,       Harrell      has   been

provided with sufficient due process by way of a name-clearing

hearing.      Therefore,        the     district    court=s      grant   of    summary

judgment will be affirmed.



                                          I.

     Prior     to       his     employment       with     the     Gastonia         Police

Department, Harrell was employed as a police officer with the
                                           3
Rocky Mount, North Carolina Police Department for four years.

In August 2006, Harrell left the Rocky Mount Police Department

and    was     hired     by    the   Gastonia     Police     Department    as    a

Aprobationary employee@ subject to Asummary termination without

recourse@ during the first year of his employment.                      Harrell=s

transition into the Gastonia Police Department was not a smooth

one.       Harrell contends that he was expected to engage in what he

perceived       as    Acivil   rights    violations,@      which   resulted     in

disagreements between Harrell and other officers.                  For example,

Harrell contends that he was directed to assist in a vehicle

search that was conducted with the driver=s consent but that

Harrell believed was invalid.                In addition, Harrell contends

that he was directed to Afalsify@ a police report in which he

described his warrantless search of a vehicle and one of its

occupants based on Aprobable cause.@              A senior officer, Sergeant

Ed Turas, advised Harrell that Harrell could have conducted a

Apat down@ safety frisk of the individual, but should not have

conducted a full search of the individual absent a warrant or

consent, unless it was a search incident to arrest.                       Harrell

perceived      this    conversation     as   a   direction   to    Afalsify@    the

report regarding the search. 1


       1
       The district court reviewed the evidence on this issue, in
(Continued)
                                4
      On April 10, 2007, approximately eight months after Harrell

was   hired,     and   still        within       his   probationary       period      of

employment, Chief of Police Terry L. Sult met with Harrell to

advise   him   that    he    was    being       suspended    and   recommended       for

termination.      The reasons for his suspension and recommended

termination     were   set    out    in   a     written     Memorandum    (the      ASult

Memorandum@) that was given to Harrell during the meeting.                            At

the meeting, Chief of Police Sult advised Harrell that in his

view, Harrell=s Aintegrity is in question,@ and that Harrell had

Ademonstrated a repeated failure to follow the orders of [his]

supervisors,@    citing      four    examples      that     were   set   out   in    the

Memorandum.      The examples all relate to general concerns that

Harrell tended not to follow or accept instructions from his



particular a recorded telephone call between Harrell and
Sergeant Turas, and concluded that Sergeant Turas was Aadvis[ing]
the Plaintiff in a general sense how to conduct traffic stops
and searches, including counseling the Plaintiff that absent
obtaining the subject=s consent or a search warrant, he should
not search the passengers,@ but Aat no point did he instruct, or
even suggest, that the Plaintiff should falsify his report.@
Harrell continues to contend on appeal that he was directly
instructed to falsify the report and was ordered to engage in
other Acivil rights violations.@ As noted by the district court,
Harrell apparently had a mistaken understanding of certain
aspects of search and seizure law.       In any event, although
Harrell continues to debate these issues before this court, we
need not address these issues further since these disputes do
not affect the resolution of the actual claims asserted by
Harrell in this appeal.


                                            5
superiors, was argumentative with his superiors, and attempted

to subvert the advice of his superiors.                  The four examples set

out in the Sult Memorandum are (1) that Harrell ignored an order

from Sergeant Turas not to pursue a speeding vehicle, (2) that

Harrell independently contacted federal immigration officials to

question the legitimacy of an order by Sergeant Turas not to

seize cash that was discovered during a traffic stop; (3) that

Harrell    contacted     the    police        attorney     at    her    home    and

misrepresented a deadline to her; and (4) that Harrell failed to

report    damage   to   his   assigned       police   vehicle.     As   to     these

allegations in the Sult Memorandum, Harrell contends (1) that he

did not ignore Sergeant Turas= order to disregard the speeding

vehicle, and that he only stopped the vehicle later after being

given permission to do so when the driver of the vehicle engaged

in additional reckless driving that endangered other motorists;

(2) that he did not question Sergeant Turas= order not to seize

the cash, and that he contacted federal officials at Sergeant

Turas= direction; (3) that he contacted the police attorney on

her cell phone at the suggestion of her secretary to make sure

the attorney had received information he left for her, and that

he did not misrepresent any deadlines; and (4) that he brought

his police vehicle in to the city=s garage for repair, and that

he did not fail to report any damage of which he was aware.
                                         6
     Chief of Police Sult went over each of these items with

Harrell at the meeting on April 10, 2007, and advised Harrell of

his recommendation to terminate Harrell=s employment.                       Harrell

signed the Memorandum, indicating that he had received a copy.

Harrell     then     asked     if    he   could    resign    instead   of    being

terminated, and Chief of Police Sult informed Harrell that he

could resign up until the time that the City Manager approved

the recommendation for termination.                 Harrell therefore elected

to resign.       The Sult Memorandum was placed in Harrell=s personnel

file.     The next day, Chief of Police Sult completed a state form

AReport of Separation,@ which was sent to the Criminal Justice

Standards       Division     in     Raleigh,    indicating    that   Harrell   had

resigned       and   that    the    Gastonia    Police   Department    would   not

consider Harrell for reappointment.

        In September 2007, Harrell filed the present suit.                  Harrell

filed     an    Amended      Complaint     in     October    2007,   specifically

alleging that the Afalse information@ in the Sult Memorandum was

placed in his file to stigmatize him Awith knowledge that such

information would be seen by any law enforcement agency with

which Harrell might seek employment.@ 2              At the time the suit was


     2
       Harrell also initially alleged that Chief of Police Sult
and Sergeant Turas published Afalse rumors@ about Harrell to
other police departments, although in his deposition Harrell
(Continued)
                               7
filed, the contents of Harrell=s personnel file, including the

Sult   Memorandum,   had   not   been    made   available     to   the   public

generally or to any other person or agency, nor is there any

evidence that the personnel file had been requested by any other

person or agency at the time the suit was filed.

       Harrell   subsequently    applied   to   return   to    his   previous

position with the Rocky Mount Police Department.              As part of his

application, on November 29, 2007, after the present suit had

been   filed,    Harrell   signed   an   Authorization      for    Release   of

Records as follows:

       In order to determine my suitability for employment,
       the   Rocky  Mount   Human   Resources  Department is
       conducting a personal background investigation.

       I, Stacy C. Harrell, do hereby authorize any military
       organization, educational institutions, governmental
       agencies, banks and credit agencies, former and
       present employers, and individuals to furnish to the
       Human Resources Director, City of Rocky Mount, NC or
       her   authorized  agent,   all   available information
       regarding me, whether or not it is in their records.
       I hereby release them from civil or criminal liability
       whatsoever for issuing the same.

       I understand that all information gathered during the
       course of this investigation is to be held in the
       strictest of confidence.




admitted he had no evidence of Chief of Police Sult or Sergeant
Turas starting or repeating any rumors about him.

                                     8
As    a    result,    Harrell=s          personnel      files,     including       the      Sult

Memorandum, were provided from the Gastonia Police Department to

the   Rocky       Mount   Human      Resources        Department        pursuant      to    this

Authorization.          Harrell was not hired by the Rocky Mount Police

Department and instead returned to his hometown of Pinetops,

North Carolina and was hired by the police department there.

However, Harrell contends that he cannot obtain employment other

than at the small department in Pinetops, and Ahis hopes of a

significant        career      in    law     enforcement         have    been    impaired.@

Appellant=s Brief at 9.                  Other than the release to the Rocky

Mount      Human   Resources        Department,        the    undisputed     evidence         is

that the Sult Memorandum has not been released to any other

person or agency.

          In his Complaint, Harrell originally brought claims under

42 U.S.C. ' 1983 for violation of his equal protection and due

process       rights,     as    well       as       state    law   claims       for    libel,

blacklisting, and intentional infliction of emotional distress.

Harrell asserted his claims against the City of Gastonia, Chief

of Police Sult, and Sergeant Turas, and sought monetary damages,

expunction of the Afalse information@ from his personnel file,

and to be rehired with back pay and benefits.                              On Defendants=

Motion      for    Judgment         on    the   Pleadings,         the    district         court

dismissed Harrell=s state law claims for Ablacklisting@ and for
                                                9
intentional infliction of emotional distress, and also dismissed

Harrell=s ' 1983 claim based on equal protection, but allowed

Harrell=s state law libel claim to go forward.                 With respect to

the ' 1983 due process claim, the district court noted that

Harrell    had    not   sufficiently     alleged     a   likelihood   that   the

challenged information in his personnel file would be released

to prospective employers or the public generally, but Harrell

was given leave to file a Second Amended Complaint as to this

claim.     Therefore, in July 2008, Harrell filed a Second Amended

Complaint adding the allegation that AHarrell=s personnel file,

including the false information, has been disseminated and is

likely to continue to be disseminated to any prospective law

enforcement agency to which Harrell may apply for employment.@

Second Amended Complaint & 41.

      In   September     2008,    approximately      two   months   after    this

Second Amended Complaint was filed, the City offered to conduct

a formal Aname-clearing hearing@ for Harrell.                  The hearing was

ultimately held on October 9, 2008.                The hearing was conducted

by James Palenick, City Manager for the City of Gastonia, who

had not been employed with the City at the time of Harrell=s

suspension and recommended termination.              Under the rules adopted

by   the   City,   Harrell,      who   was   represented    by    counsel,    was

permitted    to    present    evidence       and   testimony     regarding    any
                                        10
information       that    he     felt       was      false    or   misleading      in      his

personnel       file.      Harrell          presented        evidence   and      testimony

regarding the four incidents in the Sult Memorandum, and both

Harrell and his counsel asked questions of Chief of Police Sult

regarding each of these incidents.                       Following the hearing, Mr.

Palenick    determined         that    none       of   the   statements     in    the     Sult

Memorandum should be stricken or revised.                          Harrell was advised

of this decision by letter dated October 15, 2008.

        Defendants subsequently filed a Motion for Summary Judgment

on the remaining ' 1983 due process claim and state law libel

claim.      The    district       court         granted      the   Motion   for    Summary

Judgment    and    dismissed          the    remaining        claims.       Harrell        now

appeals that summary judgment determination.



                                              II.

                                                A.

     Section       1983    provides          a       cause   of    action    for    public

employees who are deprived of their constitutionally-protected

property or liberty interests without due process of law.                                 This

court     has   recognized       that       a     probationary       employee      Ahas     no

protected >property= interest in his employment,@ but Aa public

employer cannot deprive a probationary employee of his >freedom

to take advantage of other employment opportunities.=@ Sciolino
                                                11
v. City of Newport News, 480 F.3d 642, 645 (4th Cir. 2007)

(quoting Board of Regents v. Roth, 408 U.S. 564, 573 (1972)).

Thus, even for probationary public employees such as Harrell, a

constitutionally-protected             Aliberty        interest          is    implicated   by

public    announcement         of   reasons          for    an    employee=s      discharge.@

Johnson v. Morris, 903 F.2d 996, 999 (4th Cir. 1990).

     As     noted    in    Sciolino,        a    '    1983       claim    in    this   context

involves a combination of two constitutional rights: A(1) the

liberty     to    engage       in     any       of    the        common       occupations   of

life . . .; and (2) the right to due process where a person=s

good name, reputation, honor, or integrity is at stake because

of what the government is doing to him.@                           Sciolino, 480 F.3d at

646 (internal quotations omitted).                          To establish a protected

liberty interest, a plaintiff must establish that the charges

against him A(1) placed a stigma on his reputation; (2) were made

public by the employer; (3) were made in conjunction with his

termination or demotion; and (4) were false.@                            Sciolino, 480 F.3d

at 646 (citing Stone v. Univ. of Md. Med. Sys. Corp., 855 F.2d

167, 172 n.5 (4th Cir. 1988)).

     If the public employee can establish a protected liberty

interest under this framework, the employee is entitled to due

process,     which        in   this     context            involves       a    Aname-clearing

hearing.@        In this regard, the Due Process Clause A>is not a
                                                12
guarantee against incorrect or ill-advised personnel decisions.=@

Sciolino, 480 F.3d at 649 (quoting Bishop v. Wood, 426 U.S. 341,

350     (1976)).         Instead,       due        process   requires         simply   the

opportunity to be heard Aat a meaningful time and in a meaningful

manner.@       Mathews v. Eldridge, 424 U.S. 319, 333 (1976).                          ADue

process obviously does not require more than a fair opportunity@

even if the former employee=s efforts to refute and clear his

name    are    ultimately       unsuccessful.          Boston    v.    Webb,    783    F.2d

1163, 1166 (4th Cir. 1986); see also Codd v. Velger, 429 U.S.

624,    627     (1977)   (A[T]he       hearing      required    where     a    nontenured

employee has been stigmatized in the course of a decision to

terminate his employment is solely >to provide the person an

opportunity to clear his name.=@ (quoting Board of Regents v.

Roth,     408     U.S.     at    573     n.12)).         Thus,        ultimately,      Athe

constitutional harm is not the defamation itself; rather it is

the denial of a hearing at which the dismissed employee has an

opportunity to refute the public charge.@                      Sciolino, 480 F.3d at

649 (internal quotations omitted).

                                              B.

       In the present case, the district court determined that

summary judgment should be granted because Harrell had failed to

present       sufficient    evidence      to       establish    a   constitutionally-

protected liberty interest.               This Court agrees that there are
                                              13
substantial questions regarding whether Harrell has established

a protected liberty interest.        For example, to the extent that

Harrell chose to resign rather than face possible termination

for cause, this court has previously noted that a finding that

an employee Awas not discharged from his public employment but

resigned voluntarily@ would Aeffectively dispose[] of any liberty

interest claim he might assert.@          Stone, 855 F.2d at 172-74 and

n.5 (noting that a resignation may be voluntary Aeven where the

only alternative to resignation is facing possible termination

for cause, unless the employer actually lacked good cause to

believe that grounds for termination existed@).          In addition, the

district court in this case concluded that Harrell had failed to

present sufficient evidence of falsity as to at least three of

the four incidents cited in the Sult Memorandum.           Moreover, the

district court also concluded that Harrell had failed to present

any specific evidence regarding the City=s policy for releasing

the   information   contained   in    his    personnel   file   to   other

agencies or to the public.      With respect to the requirement that

the stigmatizing information have been Amade public,@ this court

has noted that when the stigmatizing information is placed in a

personnel file, Aan employee must allege (and ultimately prove) a

likelihood that prospective employers (i.e., employers to whom

he will apply) or the public at large will inspect the file.@
                                     14
Sciolino, 480 F.3d at 650.           In the present case, it is unclear

under what circumstances, if any, Defendants will release the

Sult Memorandum to any other person or entity going forward.

Thus, as noted above, there are significant issues with respect

to whether Harrell could establish a constitutionally-protected

liberty interest in this case.

                                         C.

     However, we need not resolve these issues in the present

case,    because    even   if     Harrell     could   establish    a     protected

liberty    interest,     Harrell   has    been   provided   with   all     of   the

process that is due him. 3         Specifically, the undisputed evidence

establishes that Harrell was initially presented with the Sult

Memorandum during a meeting with the Chief of Police at the time

of   his    suspension      and     recommended       termination,       and    was

ultimately provided with a full hearing before the City Manager.

At the hearing before the City Manager, Harrell was represented

by   counsel,      was   allowed    to      present   evidence     and    examine

witnesses, and was given a full opportunity to present his side

     3
       As noted above, the district court concluded that Harrell
could   not   establish  a   constitutionally-protected  liberty
interest in this case.      However, A[w]e are not limited to
evaluation of the grounds offered by the district court to
support its decision, but may affirm on any grounds apparent
from the record.@ United States v. Smith, 395 F.3d 516, 519 (4th
Cir. 2005).


                                         15
of the story.      In contesting the sufficiency of the hearing that

was provided, Harrell raises two issues: (1) alleged bias of the

tribunal, based on the fact that the hearing was held before the

City    Manager;   and    (2)     delay    in     the    time        period   between     his

recommended termination and the full hearing.

       With respect to Harrell=s allegations of bias, A[t]he due

process requirement of an impartial tribunal is not violated

simply because the ultimate decisionmaker was involved in an

earlier         stage      of          investigative            or         administrative

proceedings. . . .             Rather,     there        is     a      presumption       that

governmental       officials        can         and     will         decide     particular

controversies         conscientiously           and      fairly        despite     earlier

involvement in their investigation.                     This presumption can only

be overcome by demonstrations of >extrajudicial= bias stemming

from    other     influences       than     the       investigative           involvement.@

Boston v. Webb, 783 F.2d at 1166; see also Morris v. Danville,

744    F.2d   1041,     1045    (4th     Cir.    1984)       (A>To    be   disqualifying,

personal bias must stem from a source other than knowledge a

decision maker acquired from participating in a case.=@ (quoting

Bowens v. N.C. Dep=t of Human Resources, 710 F.2d 1015, 1020 (4th

Cir. 1983))).      The burden is on the individual to establish that

the    decisionmaker     was     biased    and        that   the      hearing    failed   to

provide him the minimal process constitutionally required.                                In
                                           16
addition, any alleged bias must have been alleged at the time of

hearing     or     Apromptly       after      knowledge        of     the         alleged

disqualification,@      or    it   is   waived.       Satterfield       v.    Edenton-

Chowan Board of Education, 530 F.2d 567, 575 (4th Cir. 1975).

     In this case, the City Manager was not involved in any way

in Harrell=s termination and was not even employed by the City

while Harrell was working there.                  Moreover, Harrell does not

contend that the City Manager was personally biased against him.

Instead,    Harrell     contends     that     the    City    Manager    was        biased

against him because the City Manager was an employee of the

City.     Harrell=s contention in this regard is that bias should be

imputed    to    the   City   Manager      because    a     finding    by    the     City

Manager in Harrell=s favor would have, in Harrell’s view, exposed

the City to potential liability for damages in this litigation.

However,    governmental      officials       conducting      such    hearings       will

often be employed by the same governmental entity that made the

decision     being     challenged,      and     those       officials       are    still

presumed to be fair and impartial in conducting proceedings.

This presumption of impartiality applies even if the official is

not only employed by the governmental entity, but was directly

involved in the investigation.             Harrell=s general contentions are

therefore insufficient to overcome the presumption that the City

Manager was fair and impartial.                Moreover, at the time of the
                                         17
hearing, Harrell did not raise this objection regarding alleged

bias, and therefore Harrell waived this objection by failing to

raise it in a timely manner.

      With     respect       to       Harrell=s         allegations            of     delay    and      his

contention         that     he        was     not       provided            with       a     meaningful

opportunity to be heard, Adue process is flexible and calls for

such procedural protections as the particular situation demands.@

Mathews      v.    Eldridge,          424     U.S.        at        334    (internal          quotation

omitted).          This    includes          consideration            of       the    nature    of      the

interest, the risk of an erroneous deprivation of that interest

through the procedures used, and the Government=s interests.                                            Id.

For   a   probationary           employee,          the    protected             interest       is      not

against the termination itself; instead, the protected interest

is    against       the     release           of    allegedly              false,          stigmatizing

information without the opportunity for a name-clearing hearing.

      In the present case, Harrell’s name-clearing hearing was

held within a few weeks after Harrell filed his Second Amended

Complaint         alleging        a     likelihood             of     dissemination            of       the

allegedly         false     information.                 Significantly,                there       is    no

evidence that the challenged information was released to any

entity    or      otherwise       made       public       prior           to    the    name-clearing

hearing,     other        than    the       disclosure         to     the      Rocky       Mount    Human

Resources Department.                 With respect to the disclosure to Rocky
                                                   18
Mount, the Sult Memorandum was provided to the Rocky Mount Human

Resources Department only after Harrell signed an Authorization

for    Release     of    Records.         The    language    of     this      Authorization

specifically        releases      all     of    Harrell=s    former      employers      from

Acivil     or    criminal    liability           whatsoever@      for      providing    Aall

available information regarding me.@                     At the time Harrell signed

this     Authorization,        he    was       represented     by    counsel      and   had

already filed the present lawsuit.                       Thus, Harrell clearly knew

what his rights were based on the claims asserted in the present

suit, and he knew of the presence of the Sult Memorandum in his

personnel file.           By its unambiguous terms, this Authorization

operates as a waiver and release of Harrell=s claims related to

the City=s disclosure of Harrell=s personnel information to Rocky

Mount.        A[P]rocedural rights under ' 1983, like other federal

constitutional and statutory rights, are subject to voluntary

waiver.@        Pee Dee Health Care, P.A. v. Sanford, 509 F.3d 204, 212

(4th Cir. 2007) (citing Town of Newton v. Rumery, 480 U.S. 386,

398 (1987) and Lake James Community Volunteer Fire Dep=t v. Burke

County, 149 F.3d 277 (4th Cir. 1998)).                            Thus, based on the

Authorization,          Harrell     has    waived    and    released       any    potential

claim under ' 1983 related to the Rocky Mount disclosure.

         In     these    circumstances,          where     Harrell      has    waived   and

released any claims related to the disclosure to Rocky Mount,
                                                19
and where the Sult Memorandum was not disclosed to any other

entity or individual prior to the name-clearing hearing, the

hearing     before    the   City    Manager      provided   a     Ameaningful

opportunity    to    be   heard,@   since   it   gave   Harrell    the   full

opportunity to present his evidence and arguments prior to any

further dissemination of the Sult Memorandum.           Thus, Harrell was

provided with all of the process to which he was entitled.

     Nevertheless, Harrell contends that he is entitled to have

the Sult Memorandum removed from his personnel file.                  In his

Opening Brief, Harrell states that:

     [t]he Court=s jurisprudence suggests that due process
     considerations will be satisfied in a name-clearing
     hearing if the employee merely has the opportunity to
     counter the charges on the record as a supplement, not
     to have the false information removed.         Harrell=s
     position is that if the false information is allowed
     to remain in the file, his ability to supplement the
     record with his own views is insufficient to protect
     him from the effect of the false information. As has
     often been said, a bell cannot be un-rung.     The only
     meaningful protection would be to prevent it from
     ringing in the first place by removing the false
     information from the file prior to dissemination.

Appellant=s Brief at 27-28 n.6.       However, as discussed above, due

process requires the opportunity to be heard, which has now been

provided.     Due process does not entitle Harrell to have the

information removed from his file.          Therefore, under established

case law, Harrell is simply not entitled to the relief he is

requesting.

                                     20
       Thus,    for   all    of    the     reasons         noted,    we        conclude     that

summary judgment was appropriate with respect to Harrell=s claim

under ' 1983 for alleged violation of his due process rights, and

Harrell=s ' 1983 due process claim was properly dismissed.



                                           III.

       Harrell also brings a claim for libel per se under state

law.     To state a claim for libel per se, Aa plaintiff must allege

that   the     defendant     caused      injury       to    the    plaintiff         by   making

false,    defamatory       statements      of     or       concerning      the       plaintiff,

which were published to a third person.@                      Boyce & Isley, PLLC v.

Cooper, 153 N.C. App. 25, 29, 568 S.E.2d 893, 897-98 (2002).

ALibel per se@ is Aa publication which, when considered alone

without explanatory circumstances: (1) charges that a person has

committed an infamous crime; (2) charges a person with having an

infectious      disease;     (3)       tends     to    impeach       a    person       in   that

person=s trade or profession; or (4) otherwise tends to subject

one to ridicule, contempt or disgrace.@                        Id.       In an action for

libel per se, malice and damages are presumed.                                 Id.     However,

placing      information     in    a    personnel          file    does    not       amount   to

publication      of   that    information,            even    if    the    information        is

passively      available      to       others    to        read.         See    Pressley      v.

Continental Can Co., 39 N.C. App. 467, 250 S.E.2d 676 (1979).
                                            21
In addition, A[a] publication of a libel, procured or invited by

the    plaintiff,   is    not   sufficient     to    support   an   action    for

defamation.@     Pressley, 39 N.C. App. at 469, 250 S.E.2d at 678;

see also Restatement of Torts (Second) ' 583 (A[T]he consent of

another to the publication of defamatory matter concerning him

is a complete defense to his action for defamation.@).

       In this case, Defendants contend on appeal that Harrell

cannot establish his libel claim because everything in the Sult

Memorandum was, in fact, true.          Even if Harrell could establish

some genuine issue of fact regarding the falsity of some part of

the Sult Memorandum, Defendants further contend that Harrell has

failed to establish an actual publication of the Sult Memorandum

to a third party.

       With respect to the Apublication@ of the Sult Memorandum,

there is no evidence that the Sult Memorandum has been published

to    any   individual,   police    agency,    or    entity,   other   than   the

Rocky Mount Human Resources Department.               The publication to the

Rocky Mount Human Resources Department was at Harrell=s request

and    with   Harrell=s   consent   pursuant    to    the   Authorization     for

Release of Records.        Under North Carolina law, if the libel was

Aprocured or invited@ by the plaintiff, it cannot support an

action for defamation.          See Pressley, 39 N.C. App. at 469, 250

S.E.2d at 678.      Thus, because Harrell requested and consented to
                                      22
the   release      of    his   personnel      file       to   the    Rocky    Mount    Human

Resources     Department,          knowing    that       the    Sult     Memorandum     was

contained in that file, Harrell cannot establish a claim for

libel based on the disclosure of the information to the Rocky

Mount Human Resources Department.

      No    other       publication     has       been     established        by   Harrell.

Thus, even if some dispute remains regarding the alleged falsity

of portions of the Sult Memorandum, no other publication of the

Sult Memorandum has been shown, and Harrell therefore cannot

establish a claim for libel under state law.                           As such, summary

judgment was appropriate on the state law claim, and Harrell=s

libel claim was properly dismissed.



                                             IV.

      For    all        of   the   reasons         discussed        herein,    the     court

concludes     that       summary     judgment        was      properly       granted    with

respect to Harrell=s claims under 42 U.S.C. ' 1983 and state

libel law, and Harrell=s claims were properly dismissed.                                 The

conclusion of the district court is, therefore,

                                                                                   AFFIRMED.




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