FILED
NOT FOR PUBLICATION FEB 04 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS
FOR THE NINTH CIRCUIT
TONY BONNEY, No. 09-35108
Plaintiff - Appellant, D.C. No. 2:08-cv-00046-RFC
v.
MEMORANDUM *
JOHN VAN DAVEER; JEAN
PENTECOST; BUTTE SILVER BOW
COUNTY; JOHN AND JANE DOES, 1-
10,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Montana
Richard F. Cebull, Chief District Judge, Presiding
Submitted January 14, 2010**
Seattle, Washington
Before: KLEINFELD, TASHIMA, and TALLMAN, Circuit Judges.
Plaintiff Tony Bonney ('Bonney') brought this action under 42 U.S.C.
y 1983 against Defendants John VanDaveer ('VanDaveer'), Jean Pentecost
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously finds this case is suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2)(C).
('Pentecost'), and Butte Silver Bow County ('BSBC') (collectively,
'Defendants'), alleging violation of his constitutional right to due process.
Pentecost and VanDaveer discovered Bonney using BSBC equipment for personal
use and confronted him on the spot; he acµnowledged the violation of worµ rules
and was terminated the following day. Bonney's union pursued a grievance on his
behalf and an arbitrator agreed that Bonney had violated the rules but found that
termination was too harsh a penalty and ordered a sixty-day suspension instead.
Bonny was reinstated to his position with bacµ pay, less the amount of wages for
the suspension period.
The district court granted summary judgment in favor of Defendants, and
Bonney timely appealed. We have jurisdiction under 28 U.S.C. y 1291, and we
affirm.
Bonney's y 1983 claim alleges that he was deprived of his constitutionally-
protected right to continued employment without due process. See Knappenberger
v. City of Phoenix, 566 F.3d 936, 940 (9th Cir. 2009). However, Bonney received
all the pre-termination process to which he was due for the temporary suspension
he received. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546 (1985).
When confronted by his superiors, Bonney acµnowledged that he was caught and
indicated that he was willing to 'taµe his lumps,' thus, Bonney clearly understood
2
that he could be disciplined. VanDaveer specifically asµed Bonney what he was
doing, whether the jacµhammer he was using belonged to BSBC, and whether
Bonney had permission to use it at his home. Bonney admitted that he was using
the BSBC equipment without permission and acµnowledged that he µnew it was
wrong. The following day, the Defendants provided Bonney with a termination
letter, which detailed again the rules that Bonney had violated. The termination
was later set aside.
We need not decide whether, had he been terminated permanently, the pre-
termination procedures would have been sufficient under Matthews v. Harney
County, Or., Sch. Dist. No. 4, 819 F.2d 889 (9th Cir. 1987). We hold that the
Defendants provided Bonney with sufficient pre-termination due process as
required by Loudermill and Matthews. We also consider the post-termination
remedies which were available and utilized by Bonney in assessing the validity of
the claimed constitutional violation. Loudermill, 470 U.S. at 547-48. We are
satisfied there was no constitutional violation sufficient to sustain a civil rights
claim.
AFFIRMED.
3
FILED
Bonney v. VanDaveer, No. 09-35108 FEB 04 2010
MOLLY C. DWYER, CLERK
TASHIMA, Circuit Judge, dissenting: U.S . CO U RT OF AP PE A LS
Constitutional due process requires that an employee with a property interest
in his employment be provided adequate procedures prior to termination.1
Pre-termination procedures are adequate only if the employee is provided: (1)
adequate notice; (2) an explanation of the evidence; and (3) a meaningful
opportunity to respond. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546
(1985); see also Matthews v. Harney County, Or., Sch. Dist. No. 4, 819 F.2d 889,
892 (9th Cir. 1987) (clarifying that notice must be adequate and that the
opportunity to respond must be meaningful). Here, Bonney did not receive due
process because he was not provided adequate notice or given a meaningful
opportunity to respond as required by Matthews. It is also uncontested that his
employment was terminated and that he was required to pursue union grievance
procedures to overturn that termination. Therefore, I would reverse the grant of
summary judgment.
The majority errs by treating Bonney's reinstatement as effectively erasing
his termination for purposes of due process analysis. Cf. Loudermill, 470 U.S. at
536-37, 548 (finding a valid due process claim where a public employee was not
1
The district court apparently assumed that Bonney had a protectible
property interest in his continued employment under state law and so do I.
provided adequate pre-termination process even though he was later reinstated).
Adequate post-termination process cannot maµe up for the inadequacy of pre-
termination proceedings. See Matthews, 819 F.2d at 892.
Accordingly, I respectfully dissent.
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