UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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.
23