concluding that a non-governmental employee, an independent contractor, who held staff privileges at a city-owned ice rink, had a liberty interest in his reputation on the basis that there was a “mutually beneficial business relationship in which the governmental benefit, the right to use the city’s rink, -16- Case No. 1-18-70 played an integral role”
How later courts described this case
- concluding that a non-governmental employee, an independent contractor, who held staff privileges at a city-owned ice rink, had a liberty interest in his reputation on the basis that there was a “mutually beneficial business relationship in which the governmental benefit, the right to use the city’s rink, -16- Case No. 1-18-70 played an integral role”
- explaining that, when a plaintiff alleges “loss, infringement or denial of a government benefit previously enjoyed ... coupled with communications by government officials, having a stigmatizing effect, a claim for deprivation of liberty without due process of law will lie”
- finding that plaintiff sufficiently alleged deprivation of liberty interest, in part by showing “roughly contemporaneous” publication of reasons for ban of plaintiff from city facilities
- providing that such a “claim is directed at official acts which may not occur regardless of the procedural safeguards accompanying them. The test for substantive due process claims of this type is whether the conduct complained of ‘shocks the conscience’ of the court.”
Written by the judges who cited it.
The opinion
KENNEDY, Circuit Judge,
concurring in part and dissenting in part.
I agree with the majority that Mrs. Mer-tik has a property interest under the contract analysis of Brock v. Roadway Express, Inc., 481 U.S. 252 , 107 S.Ct. 1740 , 95 L.Ed.2d 239 (1987). Defendants have interfered with plaintiff’s contract with her students and Greenbrier Club. I also agree that she has a property interest in continued access to public facilities required for her employment. She had enjoyed this privilege in the past and could legitimately rely on the continuation so long as the rink continued to be used by Greenbrier. I also agree that the plaintiff had a liberty interest. The withdrawal of her privilege to teach students at the rink deprived her of “a right previously held under state law.” Paul v. Davis, 424 U.S. 693, 708 , 96 S.Ct. 1155, 1164 , 47 L.Ed.2d 405 (1976). That “altered her status as a matter of state law, and it was that alteration of legal status which, combined with the injury resulting from the defamation, justified the invocation of procedural safeguards.” Id. (distinguishing Wisconsin v. Constantineau, 400 U.S. 433 , 91 S.Ct. 507 , 27 L.Ed.2d 515 (1971)).
However, I agree with the District Court that no failure of procedural due process occurred since the deprivation was random and unauthorized so that a pre-deprivation hearing was impracticable and thus not required. The existence of post-deprivation state law remedies is acknowledged in the first four counts of plaintiff’s complaint. Plaintiff has not alleged that the acts com *1369 plained of or similar acts had ever occurred before or that any policy of the City of Parma deals with the type of situation that occurred here. The case is thus distinguishable from Zinermon v. Burch, 494 U.S. 113 , 110 S.Ct. 975 , 108 L.Ed.2d 100 (1990). In Zinermon , it was the policy and practice of the state mental health facility to routinely permit admission clerks, without guidance as to standards to be used, to decide whether persons were competent to give knowing and informed consent to be committed. This routinely-followed procedure resulted in persons being confined who were incompetent to consent. The alleged error in accepting the plaintiffs consent to be admitted when he was incompetent to give such consent resulted from the procedure the hospital had put in place, and was not random, but as the court pointed out, to be expected. Here the acts of Blalock and Tal Jr. are alleged to be malicious and intentional; they are not alleged to be in accordance with what is ordinarily done. The chance that a skating instructor will be charged with sexual misconduct is remote and thus unpredictable. The allegation that Blalock and Tal Jr.’s acts were not unauthorized is conclusionary and contrary to the facts alleged in the complaint. As the District Court pointed out “Mertik does not allege in any of the pleadings that the actions were undertaken pursuant to established procedures. She alleges no policy of the City of Parma,” nor is it alleged that Parma had procedures or a policy whereby its employees would screen or exclude persons using the rink. Rather, she is alleging the malicious type of act involved in Hudson v. Palmer, 468 U.S. 517 , 104 S.Ct. 3194 , 82 L.Ed.2d 393 (1984). There, a prison guard was alleged to have intentionally destroyed the prisoner’s property. The Court held that the state could not anticipate and control in advance such random and unauthorized conduct. Similarly, here the state could not control in advance the slanderous statements alleged to be made by its employees which is the foundation of the liberty interest claim. That claim, at least, is based on random acts.
I concur in Circuit Judge JOINER’S substantive due process analysis and in the dismissal of Greenbrier Figure Skating Club.