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Marshall v. University of Hawaii12/9/1991
fourteenth amendment to the United States Constitution. Marshall's claim is utterly without merit, and summary judgment was properly granted.
The first inquiry in a claim under § 1983 "is whether the plaintiff has been deprived of a right 'secured by the Constitution and laws' of the United States." Martinez v. California, 444 U.S. 277, 284, 100 S. Ct. 553, 558, 62 L. Ed. 2d 481, 488, reh'g denied, 445 U.S. 920, 100 S. Ct. 1285, 63 L. Ed. 2d 606 (1980). It is well settled that "a probationary University employee has no 'property' interest in obtaining tenure." Beitzell v. Jeffrey, 643 F.2d 870, 875 (1st Cir. 1981) (citations omitted). Since Marshall had no property interest in obtaining tenure, he has not been deprived of a cognizable fourteenth amendment right in this case, since the award was merely delayed.
Marshall also claims that the investigation and the alleged disclosures of confidential information damaged his reputation and "stigmatized" him. Again, Marshall has no claim for relief under § 1983. In Paul v. Davis, 424 U.S. 693, 96 S. Ct. 1155, 47 L. Ed. 2d 405, reh'g denied, 425 U.S. 985, 96 S. Ct. 2194, 48 L. Ed. 2d 811 (1976), the Supreme Court held that reputation alone, apart from some tangible interest such as employment, does not implicate any "liberty" or "property" interest sufficient to invoke the protection of the due process clause. See id. at 701-02, 96 S. Ct. at 1165-66, 47 L. Ed. 2d at 414.
Paul also bars any claim Marshall may be deemed to have asserted in Count VII for any violation of his substantive due process right to privacy resulting from the alleged unauthorized release of confidential information, since his claim does not fit within any of the primary rights recognized by the Supreme Court as being protected under the Federal Constitution. See id. at 712-14, 96 S. Ct. at 1166, 47 L. Ed. 2d at 420-21.
Conclusion
1. We vacate the summary judgment in favor of UH on Marshall's breach of the Policy claim in Count I, and on Count V.
2. We vacate the summary judgment in favor of Kopecky, Kormondy and Fullerton on Counts III, IV and V.
3. We affirm the summary judgment in favor of UH on Marshall's claim for breach of the Agreement in Counts I and II, and on Counts III and IV.
4. We affirm the summary judgment in favor of Defendants in Counts VI and VII.
This matter is remanded to the lower court for further proceedings.
James S. Burns
Walter M. Heen
Wendell K. Huddy
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