Ray CORBITT, Plaintiff-Appellee, v. Brent ANDERSEN, in his official capacity and individually, Defendant-Appellant, 778 F.2d 1471

McWILLIAMS, Circuit Judge. This civil rights action arises out of interaction between two practicing psychologists residing in Rock Springs, Wyoming. Dr. Ray Corbitt, who has a doctorate degree in psychology from the University of Wyoming, brought suit under 42 U.S.C. § 1983 in the United States District Court for the District of Wyoming against Dr. Brent Andersen, who has a doctorate degree in psychology from Utah State University. A co-defendant was Southwest Counseling Service, a non-profit Wyoming corporation and a political subdivision of Sweetwater County, Wyoming.

Joined with the § 1983 claim was a pendant claim based on Wyoming law relating to tortious interference with a contractual relationship. Corbitt sought actual damages and punitive damages. Trial by jury resulted in a verdict in favor of Corbitt and against Andersen only in a total amount of $111,843, i.e., $68,309 on Corbitt’s civil rights claim and $43,534 on his pendant state claim. Judgment was entered, and Andersen now appeals therefrom. From the complaint we learn that Corbitt was employed in 1977 by School District Number One, Sweetwater County, Wyoming as a school psychologist.

From that date to the date when the complaint was filed, Corbitt, with the knowledge and permission of his employer, the school district, rendered professional services during out-of-school hours to private parties for compensation. In this regard, in addition to individual private clients, Corbitt entered into numerous contracts for private treatment of clients within his field of professional expertise with the Department of Public Assistance and Social Services (DPASS) in Sweetwater County, and with the Department of Vocational Rehabilitation (DVR) of the State of Wyoming.

As above stated, the Southwest Counseling service was also a named defendant in the present proceeding, but the jury, by its answers to certain special interrogatories, found for Southwest. Southwest, a nonprofit Wyoming corporation funded by state and county funds, was a “competitor” of Corbitt’s in the sense that it, too, sought “referrals” from DPASS and DVR.

Andersen, the defendant, became the director of Southwest in July, 1979, and the gravamen of the complaint is that immediately thereafter Andersen embarked on a continuing campaign to discredit Corbitt’s professional standing and that, as a result thereof, Corbitt was defamed and his private practice of psychology suffered, particularly when DPASS and DVR ceased making referrals to him and began making referrals, which he might have ordinarily expected, to Southwest.

By answer, Andersen generally denied liability, and, at trial, his theory of defense was that under the psychologists’ code of professional responsibility he had the duty to “speak out” when he felt that Corbitt was rendering professional services in cases outside or beyond his particular area of expertise. Andersen also argued that although he had relayed to DPASS and DVR, and others, his concerns regarding Corbitt, any cessation, or slowing down, of referrals to Corbitt by DPASS or DVR was not the result of his actions, but resulted from a change of policy within DPASS and DVR.

Trial of this matter took some ten days, during the course of which Corbitt called some fourteen witnesses, and Andersen himself called seven witnesses. The case was then submitted to the jury with a series of special interrogatories. The interrogatories as they related to Andersen were as follows: 1. Do you find, by a preponderance of the evidence, that the Plaintiff, Ray Corbitt, on or after June 24, 1980, had a liberty interest of which he was deprived by any action taken by the Defendant Brent Andersen? 2.

If you have found that the Plaintiff was deprived of a liberty interest as a result of Defendant Andersen’s actions, and if you further find by a preponderance of the evidence that notice and a hearing would have accorded the Plaintiff due process of law, do you find by a preponderance of the evidence that the Plaintiff was given such notice and a hearing as to constitute due process? 3. Do you find by a preponderance of the evidence that the Defendant Andersen was acting under color of state law with regard to the actions complained of by the Plaintiff? 4.

Do you find, by a preponderance of the evidence, that the Defendant Andersen is entitled to immunity from liability for damages arising out of a violation of Plaintiff’s civil rights? 5. If you have found that any actions of the Defendant Brent Andersen deprived the Plaintiff of a liberty interest, do you find, by a preponderance of the evidence, that the actions of Defendant Andersen were a proximate cause of any damages suffered by the Plaintiff? 6.

Do you find, by a preponderance of the evidence, that the Defendant Brent Andersen, on or after March 29, 1980, intentionally and improperly interfered with any contractual relations involving the Plaintiff and any third parties, which caused any third party to breach a contract with the Plaintiff? 7. If you have found that the Defendant Andersen intentionally and improperly interfered with contracts involving the Plaintiff, do you find, by a preponderance of the evidence, that the Defendant Andersen was acting within the scope of his employment at the time he committed such action or actions?

The jury answered “yes” to interrogatories numbered 1, 3, 5, and 6, and answered “no” to interrogatories numbered 2, 4, and 7. It then assessed Corbitt’s damages at $111,843.00. On appeal, Andersen argues, inter alia, that there is insufficient evidence to support any of the jury’s answers to any of the interrogatories, and further that, in reality, the district judge should have ruled in his favor on each of the interrogatories, as a matter of law. Such is not our reading of the record. We believe the record supports the jury’s answers to all the special interrogatories.

In a case of this sort, evidence pertaining to ultimate facts is frequently circumstantial in nature, involving the drawing of inferences. Such is the prerogative of the fact finder, not an appellate court. Initially, Andersen argues that Corbitt’s civil rights claim is time-barred by Wyoming’s two-year statute of limitations. W.S. § 1-3-115. Spiegel v. School District No. 1, Laramie County, Wyoming, 600 F.2d 264 (10th Cir.1979). The complaint in the instant case was filed on June 24, 1982.

Andersen became director of Southwest in July, 1979, and, according to Corbitt’s theory of the case, shortly thereafter embarked on a campaign to destroy his professional standing. It is Corbitt’s position, however, that this was a series of actions on the part of Andersen which continued on after June 24, 1980, which would bring the claim within the two-year period. See, e.g., Page v. United States, 729 F.2d 818, 821-22 (D.C.Cir.1984); Taylor v. Meirick, 712 F.2d 1112, 1118-19 (7th Cir.1983).

The jury was properly instructed on this matter, and the record supports Corbitt’s position that Andersen’s contacts with others regarding Corbitt’s lack of professional expertise and ethics continued after June 24, 1980, and that Corbitt’s legal injury, or at least a part thereof, did not occur until after June 24, 1980. We find no error in this regard. The central issue in this case is whether Corbitt made out a prima facie case that a liberty interest had been violated by Andersen’s actions.

The district judge ruled that Corbitt had failed to establish, prima facie, any violation of a property interest, but that the question of a liberty interest should go to the jury. We find no error. In this regard, Andersen relies heavily on Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1975). In that case, the Supreme Court held that a damaged reputation “alone, apart from some more tangible interests such as employment,” is neither liberty nor property “by itself sufficient to invoke the procedural protection of the Due Process Clause.” Id. at 701, 96 S.Ct. at 1160.

Under Corbitt’s theory of the case, we are dealing with something more than a damaged reputation. The right to pursue one’s chosen profession unfettered by state action which does not comport with the 14th Amendment, is referred to in Schware v. Board of Bar Examiners, 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796 (1957). Further, under Corbitt’s theory of the case, Andersen interfered with his right to contract with DPASS and DVR. In other words, Andersen not only defamed Corbitt, but created a stigma that “foreclosed his freedom to take advantage of other employment opportunities.” Board of Regents v.

Roth, 408 U.S. 564, 573, 92 S.Ct. 2701, 2707, 33 L.Ed.2d 548 (1972). We reject the suggestion that this is, at best, only a garden-variety state libel case masquerading as a civil rights case. The jury heard sufficient evidence regarding the initial health and worth of Corbitt’s private practice and could reasonably conclude that Andersen’s actions weakened and devalued it.

The record, in our view, also amply supports the jury’s conclusion that Andersen was acting under color of state law when he went “behind Corbitt’s back,” as counsel frames it, to DPASS, DVR, the state board of examiners, and others to suggest that Corbitt was not professionally qualified to handle cases. Andersen testified himself that he considered the contacts he made to be part of his job. A former DVR official testified that Andersen’s contacts were especially disturbing because of the potential development of interagency conflict.

His concern was heightened because of Andersen’s position as director of Southwest. In addition, Andersen’s written communications were executed on Southwest stationery and signed in his capacity as director. One letter, sent to Corbitt’s school district supervisor, opened with: “As the director of mental health servics for the County, I work with a number of other professionals ____ lam very disturbed about some of the practices and skills of Dr.

Ray Corbitt____” It was reasonable for the jury to find that Andersen did not present himself as merely a concerned professional or any other respected member of the community, as the dissent suggests, but rather as a person acting under color of state law. Andersen’s communications represent the antithesis of due process, which requires “some form of hearing” (Logan v. Zimmerman Brush Co., 455 U.S. 422, 433, 102 S.Ct. 1148, 1156, 71 L.Ed.2d 265 (1982)), when an individual is to be deprived of a liberty or property interest by state action.

Here the jury found reasonably that Corbitt received no due process before accusations regarding his competence and ethics were used to deprive him not only of respect but of employment. We see no need for any extended discussion concerning the remaining matters raised on appeal by Andersen. Although witnesses differed on Corbitt’s qualifications and the causality issue, officials at both DPASS and DVR testified that, as a result of Andersen’s complaints, there was a reduction in referrals to Corbitt.

Despite state policy favoring mental health centers, other referrals continue to be made by DVR and DPASS to outside psychologists, including Andersen, who has entered private practice. The jury was instructed on the immunity question in accord with Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982), and found, in effect, that Andersen, as a reasonable person, should have known that by his action he was violating established constitutional rights. There was no error in this regard.

Corbitt’s pendant claim involves a consideration of the Wyoming Governmental Claims Act, W.S. § 1-39-104 and the four-year Wyoming Statute of Limitations, W.S. § l-3-105(a)(iv)(C). We are disinclined to disturb the district judge’s application of Wyoming law to the facts underlying Corbitt’s pendant claim. The views of a resident federal district judge concerning the local law of his home state are entitled to some deference by an appellate court, whose members are all non-resident of the state in question. Colonial Park Country Club v. Joan of Arc, 746 F.2d 1425, 1429 (10th Cir.1984).

Pursuant to applicable statute, the district judge awarded Corbitt attorneys’ fees and costs in the amount of $46,471.11. 46 U.S.C. § 1988. A prevailing plaintiff in a § 1983 action is ordinarily entitled to attorneys’ fees, unless special circumstances would render it unjust. We find no such special circumstances. See Love v. Mayor, City of Cheyenne, Wyo., 620 F.2d 235 (10th Cir.1980). Judgment affirmed. The instant case was tried before Garcia v. Wilson, 731 F.2d 640 (10th Cir.1984), aff’d — U.S.-, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985) and Jackson v. City of Bloomfield, 731 F.2d 652, 655 (10th Cir.1984).

Under Garcia, it would appear that Wyoming’s four-year statute would apply to the instant case if it were being tried now. W.S. § l-3-105(a)(iv)(C). Jackson held that Garcia would not be applied retroactively so as to bar a civil rights action. In view of our disposition of the statute of limitations issue in the instant case, we need not here decide whether Garcia would be applied retroactively so as to permit a civil rights action which otherwise would be time barred.