                                                                              FILED
                           NOT FOR PUBLICATION                                NOV 07 2013

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



                            FOR THE NINTH CIRCUIT


ROBERT BOGGS,                                    No. 12-35515

              Plaintiff - Appellant,             D.C. No. 3:07-cv-00954-ST

  v.
                                                 MEMORANDUM*
MICHAEL SCHRUNK and
MULTNOMAH COUNTY,

              Defendants - Appellees.


                  Appeal from the United States District Court
                           for the District of Oregon
                  Marco A. Hernandez, District Judge, Presiding

                    Argued and Submitted November 4, 2013
                               Portland, Oregon

Before: ALARCÓN, M. SMITH, and HURWITZ, Circuit Judges.

       Robert Boggs appeals from the district court’s order denying his motion for

partial summary judgment and granting the motions for summary judgment filed

by Defendants-Appellees District Attorney Michael Schrunk and Multnomah


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
County on his § 1983 and state law claims. We have jurisdiction to review the

district court’s decision under 28 U.S.C. § 1291, and we affirm.

                                          I

      Boggs contends that the district court erred in granting qualified immunity to

District Attorney Schrunk because it was clearly established that his due process

rights were violated by publishing stigmatizing statements about him without first

providing him with a name-clearing hearing. That same issue was rejected by

another panel of this court in Boggs v. Hoover (Boggs II), 506 F. App’x 668 (9th

Cir. 2013). Issue preclusion prevents the parties from now relitigating this

contention before us. See 9th Cir. R. 36-3(a) (“Unpublished dispositions . . . of this

Court are not precedent, except when relevant under . . . rules of claim preclusion

or issue preclusion.”); Steen v. John Hancock Mut. Life Ins. Co., 106 F.3d 904,

910–13 (9th Cir. 1997) (holding that issue preclusion applies to issues decided by

this Court in an unpublished decision).

                                          II

      Boggs also asserts that the district court erred in holding that any omissions

and inadequacies in Multnomah County’s policies regarding the provision of a

name-clearing hearing did not amount to deliberate indifference.




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      “[T]he policy of inaction must be more than mere negligence; it must be a

conscious or deliberate choice among various alternatives.” Berry v. Baca, 379

F.3d 764, 767 (9th Cir. 2004) (internal citations omitted). Boggs has not

demonstrated that the failure of Multnomah County to enact specific policies

regarding the right of an employee to a name-clearing hearing was a conscious or

deliberate choice. Boggs also did not present evidence of any prior constitutional

violations. See Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1145 (9th Cir. 2012)

(“[T]he absence here of any evidence of a pattern [of similar constitutional

violations] makes it far less likely that [the plaintiff] can prove [the defendant] was

on actual or constructive notice that its policy would lead to constitutional

violations.” (internal citations and quotation marks omitted)).

      Viewing the evidence in the light most favorable to Boggs, he has failed to

raise a genuine issue of material fact that Multnomah County was deliberately

indifferent to omissions or inadequacies in its policies.

                                          III

      Boggs contends that the district court erred in failing to rule on his

contention that Multnomah County was liable because District Attorney Schrunk

was a policymaker. Boggs did not properly preserve this claim because he first

raised it in his opposition to Multnomah County’s motion for summary judgment.


                                           3
See Trishan Air, Inc. v. Fed. Ins. Co., 635 F.3d 422, 435 & n.19 (9th Cir. 2011) (A

plaintiff’s claim, raised for the first time in its opposition to summary judgment,

“[is] not properly before the district court.”).

                                           IV

      Lastly, Boggs challenges the district court’s grant of summary judgment in

favor of District Attorney Schrunk and Multnomah County on his state law claims

for intentional interference with employment and violation of Oregon’s wage claim

statute. He contends that District Attorney Schrunk, acting alone, had no authority

to terminate his employment or force his resignation over the objections of the

State Medical Examiner, Dr. Karen Gunson.

      Although the Oregon Revised Statutes are ambiguous with respect to a

district attorney’s authority to terminate the employment of deputy medical

examiners, the Multnomah County Personnel Rules (“MCPR”) provide that the

district attorney has the authority to fire executive, unclassified employees. MCPR

§§ 1-10-040, 2-15-060, 4-70-030. The evidence shows that Boggs, in his position

as Chief Deputy Medical Examiner, was an executive, unclassified employee.

(Dkt. No. 72-2 at 1, 3). In addition, the 1997 letter agreement regarding the

placement of the District Medical Examiner’s Office within the District Attorney’s

Office is silent with respect to who has the authority to terminate deputy medical


                                            4
examiners. See Or. Rev. Stat. § 42.230 (2007) (“In the construction of an

instrument, the office of the judge is simply to ascertain and declare what is, in

terms or in substance, contained therein, not to insert what has been omitted, or to

omit what has been inserted . . . .”).

      Because District Attorney Schrunk had the authority to terminate Boggs’

employment under the Multnomah County Personnel Rules, Boggs’ state law

claims fail. The district court did not err in granting summary judgment in favor of

District Attorney Schrunk and Multnomah County on these claims.

AFFIRMED.




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