United States v. 2010-09-16 | 09-35974 | BRYAN BRASWELL V. SHORELINE FIRE DEPARTMENT | precedential |…

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 BRYAN BRASWELL, a married
person but filing in his individual
capacity,
Plaintiff-Appellant, No. 09-35974
v. D.C. No.
 CV 08-00924-RSMSHORELINE FIRE DEPARTMENT,
formerly known as King County OPINION
Fire District No. 4; and GARY
SOMERS,
Defendants-Appellees. 
Appeal from the United States District Court
for the Western District of Washington
Ricardo S. Martinez, District Judge, Presiding
Argued and Submitted
July 16, 2010—Seattle, Washington
Filed September 16, 2010
Before: Susan P. Graber and Richard A. Paez,
Circuit Judges, and Larry A. Burns, District Judge.*
Opinion by Judge Graber
*The Honorable Larry A. Burns, United States District Judge for the
Southern District of California, sitting by designation.
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COUNSEL
W. Mitchell Cogdill, Cogdill Nichols Rein Wartelle Andrews,
Everett, Washington, for the plaintiff-appellant.
Kara R. Masters, Skellenger Bender, P.S., Seattle, Washing-
ton; and Christi C. Goeller and Clarence C. Jones, Jr., Gierke,
Curwen, Dynan & Jones, P.S., Tacoma, Washington, for the
defendants-appellees.
Paul A. Olsen, Assistant City Attorney, Seattle City Attor-
ney’s Office, Seattle, Washington, and Taya Briley, General
Legal Counsel, Washington State Hospital Association, Seat-
tle, Washington, for the amicus curiae.
OPINION
GRABER, Circuit Judge:
Plaintiff Bryan Braswell, a firefighter employed by Defen-
dant Shoreline Fire Department (“Shoreline”) who formerly
practiced as a paramedic with Shoreline under Defendant
Gary Somers’ medical license, filed this action under 42
U.S.C. § 1983. Plaintiff alleges that he had a property interest
in his employment with Shoreline and a liberty interest in pur-
suing his profession as a paramedic and that Defendants
deprived him of those interests without due process when they
removed him from his paramedic position without providing
adequate notice and a hearing. Plaintiff also alleges that Dr.
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Somers tortiously interfered with his employment. The district
court granted summary judgment to Defendants. Reviewing
de novo, Dietrich v. John Ascuaga’s Nugget, 548 F.3d 892,
896 (9th Cir. 2008), we affirm except with respect to the
alleged liberty interest. As to that claim, we reverse and
remand.
Plaintiff was first employed by Shoreline in 1987 as a fire-
fighter. In 2002, he applied to Shoreline’s paramedic training
program. Plaintiff became certified as a paramedic in 2003.
This certification qualified him to practice as a paramedic.
Wash. Rev. Code § 18.71.200(3). The certificates are valid for
three years, after which time a paramedic must recertify. Id.
§ 18.71.205(2), (3); Wash. Admin. Code § 246-976-141(3).
Washington law provides that, even though an individual is
certified as a paramedic, he or she cannot practice paramedi-
cine except while working under the license and supervision
of a qualified medical doctor. Wash. Rev. Code
§§ 18.71.030(13), 18.71.205(6).
Paramedics employed by Shoreline work under the medical
license of Dr. Somers, a Program Medical Director for King
County Emergency Medical Services who is in charge of the
Shoreline area. Plaintiff worked as a paramedic for Shoreline
from 2003 until December 2005, when the incident occurred
that gave rise to this litigation.
On November 30, 2005, Plaintiff and his paramedic partner
were dispatched to the residence of Tommy Davis, who had
called emergency services complaining of chest pain. As part
of the examination, Plaintiff asked whether Mr. Davis had
used any recreational drugs that evening. Mr. Davis became
agitated. Plaintiff administered a lung exam and instructed
Mr. Davis to breathe deeply. However, Mr. Davis either
would not or could not comply. Plaintiff bent down and spoke
directly into Mr. Davis’ face, instructing him repeatedly to
breathe deeply. After several requests, Mr. Davis became
angry and asked Plaintiff what his problem was. Plaintiff
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repeated his instructions and asked Mr. Davis to give him “a
little less attitude.”
The exchange between Plaintiff and Mr. Davis led to a ver-
bal altercation. Mr. Davis stood up and threw a file folder on
a desk so forcefully that papers and objects flew off the desk.
Mr. Davis told the paramedics to leave. Plaintiff asked Mr.
Davis to fill out a release form stating that he did not consent
to treatment. Mr. Davis replied, using profanities, that he
would not sign the form. In the course of the altercation,
Plaintiff asked whether he should call the police, and Mr.
Davis responded that he would give Plaintiff a reason to
throw him in jail. Feeling physically threatened and suspect-
ing that Mr. Davis, who was rummaging through desk draw-
ers, might be looking for a weapon, Plaintiff and his partner
left without treating Mr. Davis or obtaining a release form.
The next day, Plaintiff met with his fire department super-
visors and two union representatives to discuss the incident.
Several days later, Plaintiff met with the chief of the fire
department, the deputy chief, and Dr. Somers. Dr. Somers,
after having reviewed written statements from witnesses,
stated that Plaintiff had an anger management problem, that
he failed to identify medically significant symptoms in Mr.
Davis, and that he abandoned Mr. Davis. Dr. Somers told
Plaintiff that Plaintiff was no longer authorized to practice
paramedicine under Dr. Somers’ medical license.
Because Dr. Somers had revoked Plaintiff’s ability to prac-
tice under his medical license, Plaintiff could not legally prac-
tice paramedicine with Shoreline. See Wash. Rev. Code
§§ 18.71.030(13), 18.71.205(6). For that reason, Shoreline
reassigned Plaintiff from a paramedic position back to a fire-
fighter position. Shoreline froze Plaintiff’s salary at the higher
paramedic level until his firefighter salary caught up to that
level. Plaintiff’s paramedic certification was not revoked, but
it lapsed in 2007 when Plaintiff failed to seek recertification.
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Plaintiff brought this action, alleging that Defendants vio-
lated his due process rights. The district court dismissed
Plaintiff’s claims on summary judgment after holding that
Plaintiff had neither a property nor a liberty interest in his job
and that, as a matter of law, Dr. Somers did not commit tor-
tious interference. Plaintiff timely appeals.
Plaintiff first argues that, as a certified paramedic, he has
a protected property interest in his employment as a parame-
dic with Shoreline. Specifically, Plaintiff claims a property
right both in his paramedicine certificate and in the statutorily
required supervision by Dr. Somers. Defendants concede that
a property interest does attach to a professional license, but
they argue that it does not attach to any specific job just
because that job requires a license or certificate.
[1] The United States Supreme Court has defined the
boundaries of a “property interest” in the context of the Four-
teenth Amendment:
To have a property interest in a benefit, a person
clearly must have more than an abstract need or
desire for it. He must have more than a unilateral
expectation of it. He must, instead, have a legitimate
claim of entitlement to it. . . .
Property interests, of course, are not created by the
Constitution. Rather, they are created and their
dimensions are defined by existing rules or under-
standings that stem from an independent source such
as state law—rules or understandings that secure cer-
tain benefits and that support claims of entitlement
to those benefits.
Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577
(1972); see also Brady v. Gebbie, 859 F.2d 1543, 1547-48
(9th Cir. 1988). State law creates a “legitimate claim of enti-
tlement” giving rise to a protected property interest if it “im-
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pose[s] ‘significant limitation[s] on the discretion of the
decision maker.’ ” Nunez v. City of Los Angeles, 147 F.3d
867, 873 n.8 (9th Cir. 1998) (second alteration in original)
(quoting Goodisman v. Lytle, 724 F.3d 818, 820 (9th Cir.
1984)).
[2] Plaintiff fails to demonstrate that Washington law
creates a property interest in the statutorily required supervi-
sion by Dr. Somers. Plaintiff points to no Washington statute
or regulation that limits a medical director’s discretion to
revoke a paramedic’s permission to practice under his or her
license. Without such a limit on a medical director’s authority
to revoke a paramedic’s permission to practice, Plaintiff could
not have a “legitimate claim of entitlement” to that permis-
sion.
[3] Plaintiff argues, however, that because he has a prop-
erty interest in his paramedicine certificate, he also has a
property interest in any position he obtains with that certifi-
cate. This does not follow. In support of his argument, Plain-
tiff cites two Washington Supreme Court cases, Nguyen v.
State, 29 P.3d 689 (Wash. 2001), and Ongom v. State, 148
P.3d 1029 (Wash. 2006), that hold that the state must prove
violations by clear and convincing evidence before revoking
a medical license (Nguyen) or a nursing license (Ongom). We
agree with Defendants’ concession that Washington courts
would treat a paramedicine certification similarly. But neither
case even suggests that the fact that an individual has a pro-
tected interest in a paramedicine certification means that he
also has a property interest in a specific paramedic position or
with a specific entity.
[4] Because Plaintiff’s paramedic certificate did not give
him a protected property interest in his particular employment
as a paramedic with Shoreline, and because we find no state
law that did, we affirm the district court’s grant of summary
judgment in favor of Defendants with regard to that issue.
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Plaintiff also argues that Defendants violated his liberty
interest in pursuing his profession as a paramedic when they
revoked his permission to practice in a way that damaged his
reputation, thereby effectively precluding him from ever find-
ing other employment in his field. On this issue, we reverse
the grant of summary judgment and remand for further pro-
ceedings.
[5] A person “has a liberty interest in employment pro-
tected by the Due Process Clause” if “the dismissal effec-
tively precludes future work in the individual’s chosen
profession.”1 Merritt v. Mackey, 827 F.2d 1368, 1373 (9th
Cir. 1987). To establish a violation of such a liberty interest,
Plaintiff must show that his dismissal “destroyed [his] free-
dom to take advantage of other employment opportunities”
and that, because of the dismissal, it is “virtually impossible
for [him] to find new employment in his chosen field.” Eng-
quist v. Or. Dep’t of Agric., 478 F.3d 985, 998 (9th Cir. 2007)
(internal quotation marks omitted). Here, Chief Marcus Krag-
ness provided deposition testimony that Plaintiff would not
likely be hired as a paramedic by any other fire department
because of his removal from the Shoreline paramedic posi-
tion. That testimony raises a triable issue of fact as to whether
Plaintiff has suffered a deprivation of his liberty interest in
pursuing his paramedical career.
[6] Finally, Plaintiff argues that Dr. Somers tortiously
interfered with his employment relationship with Shoreline by
“failing to provide due process rights and recommending
immediate removal . . . from his [p]aramedic position.” Under
Washington law, to prove tortious interference, one must
1A person’s liberty interest is also implicated if “the dismissal is for rea-
sons that might seriously damage his standing in the community.” Merritt
v. Mackey, 827 F.2d 1368, 1373 (9th Cir. 1987) (internal quotation marks
omitted). Plaintiff does not allege a deprivation of any liberty interest in
his reputation untethered from his liberty interest in pursuing his profes-
sion.
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show: “(1) a business expectancy, (2) knowledge of the rela-
tionship, (3) intentional interference which results in the ter-
mination of the expectancy, (4) improper purpose or means,
and (5) damage.” Woody v. Stapp, 189 P.3d 807, 811 (Wash.
Ct. App. 2008). The district court rejected Plaintiff’s tortious
interference claim on the ground that no evidence exists that
Dr. Somers acted with an improper purpose in withdrawing
Plaintiff’s privileges. We agree that Plaintiff failed to raise a
triable issue on that element.
[7] Plaintiff points to no evidence, and we find none in the
record, that Dr. Somers had an improper purpose or used
wrongful means. Dr. Somers was charged with ensuring
appropriate care to King County through his oversight of
Shoreline’s paramedics. No evidence suggests that Dr.
Somers had any improper or wrongful motivation for his deci-
sion. Thus, we affirm the district court’s holding that Plain-
tiff’s tortious interference claim fails as a matter of law.
In summary, there is a triable issue of fact as to whether
Plaintiff was deprived of a liberty interest. We therefore
remand that claim for further proceedings.2 As to the remain-
ing claims, we affirm.
AFFIRMED in part; REVERSED in part and
REMANDED. The parties shall bear their own costs on
appeal.
2We note that the district court concluded only that Plaintiff had no con-
stitutional right and that Dr. Somers did not tortiously interfere with Plain-
tiff’s employment. It did not consider whether Dr. Somers might be
entitled to qualified immunity on the remaining federal claim on the
ground that the law was not clearly established, nor did the court rule on
other legal issues that the parties raised. Those issues remain open on
remand.
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