BACKGROUND

Canzoneri is a former school librarian who was informed that her position was

being eliminated due to budget constraints. Upon learning this, Canzoneri began

speaking to other employees at work about forming a committee to address the

library’s future. Canzoneri then attended a school board meeting after hours in her

personal capacity to voice concerns about changes to the library. The next day she

was placed on administrative leave and told her employment would not be renewed.

Canzoneri subsequently filed a FAC against PUSD and several of its

employees, alleging violations of her First Amendment rights under 42 U.S.C. §

1983. The district court found that Canzoneri pled insufficient facts to state a claim

against PUSD for municipal liability under Monell v. Department of Social Services

of City of New York, 436 U.S. 658, 694 (1978) (“Monell”), and that the individual

defendants were entitled to qualified immunity. Canzoneri timely appealed.

DISCUSSION

1. The district court erred in dismissing Canzoneri’s § 1983 claim against

PUSD. Dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6) is reviewed

2 de novo. Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002).

Government entities may be subject to liability under § 1983 when “a policy,

practice, or custom of the entity can be shown to be a moving force behind a violation

of constitutional rights.” Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir.

2011) (citing Monell, 436 U.S. at 694). Though proof of a single incident is

insufficient to establish an unconstitutional custom, see City of Oklahoma City v.

Tuttle, 471 U.S. 808, 823‒24 (1985), liability may be predicated on a single violation

if it was the result of an unconstitutional policy. See Pembaur v. City of Cincinnati,

475 U.S. 469, 480–81 (1986); see also Lowry v. City of San Diego, 818 F.3d 840,

855 (9th Cir. 2016) (distinguishing “official municipal policy” from “custom”),

rev’d on other grounds, 858 F.3d 1248 (2017) (en banc). In such instances, the

municipal policy “need only cause a constitutional violation; it need not be

unconstitutional per se.” Jackson v. Gates, 975 F.2d 648, 654 (9th Cir. 1992).

Here, the FAC states that PUSD “had a policy to deprive Plaintiff explicitly

of free speech . . . .” Specifically, Canzoneri alleges that she was placed on

administrative leave and ultimately not re-hired in retaliation for her participation in

the school board meeting. The FAC also alleges that PUSD justified this adverse

employment action under Policy GBEA. Indeed, the letters from PUSD to

Canzoneri cite Policy GBEA. Therefore, the FAC plausibly alleges that Policy

GBEA was the “moving force” behind the adverse employment action which

3 Canzoneri experienced. Dougherty, 654 F.3d at 900. This is sufficient to state a

claim for municipal liability under Monell. 436 U.S. at 708 (a local government may

be held liable “when implementation of its official policies or established customs

inflicts the constitutional injury”). Whether Canzoneri was disciplined because of

her participation in the school board meeting, or due to her conversations at work, is

a disputed question of fact inappropriately resolved at the pleadings stage.

2. Dismissal of the individual defendants under the doctrine of qualified

immunity was appropriate. Reviewing the grant of qualified immunity de novo,

Thompson v. Mahre, 110 F.3d 716, 721 (9th Cir. 1997), our task is to determine:

“(1) whether the alleged misconduct violated a [constitutional] right and (2) whether

the right was clearly established at the time of the alleged misconduct.” Maxwell v.

City of San Diego, 708 F.3d 1075, 1082 (9th Cir. 2013) (citing Pearson v. Callahan,

555 U.S. 223, 232 (2009)). “As the Pickering1 analysis ‘requires a fact-sensitive,

context-specific balancing of competing interests, the law regarding public-

employee free speech claims will rarely, if ever, be sufficiently clearly established

to preclude qualified immunity.’” Dodge v. Evergreen Sch. Dist. #114, 56 F.4th

767, 784 (9th Cir. 2022) (quoting Brewster v. Bd. of Educ. of Lynwood Unified Sch.

Dist., 149 F.3d 971, 980 (9th Cir. 1998)).

1 Pickering v. Bd. of Ed. of Twp. High Sch. Dist. 205, Will Cnty., Ill., 391 U.S. 563 (1968) (“Pickering”).

4 Canzoneri has not demonstrated that her right to be free from retaliation was

clearly established in this instance. The FAC alleges several facts which indicate

that the individual Appellees may have taken the same adverse employment action

even if the protected speech had not occurred. For example, the FAC states that

Canzoneri was told she was being placed on administrative leave for soliciting

teachers to join her committee. A subsequent letter to Canzoneri states that she

violated Policy GBEA by “trying to form a committee to continue operating the

library” during work hours. Given this alternative justification, it cannot be said that

“the outcome of the Pickering balance so clearly favors [Canzoneri] that it would

have been unreasonable for the [Appellees] to believe that their actions were lawful.”

Lytle v. Wondrash, 182 F.3d 1083, 1089 (9th Cir. 1999). Canzoneri points to no

case which clearly establishes that government employees must disregard a valid

motive for disciplinary action given the presence of outside protected speech.

Contrary to Canzoneri’s assertions, Greisen v. Hanken, 925 F.3d 1097 (9th

Cir. 2019), does not address the Pickering balancing analysis. Canzoneri’s blanket

appeal to Pickering also fails as any asserted First Amendment right in the public

employment context must be “defined at a more specific level tied to the factual and

legal context of a given case.” Riley’s Am. Heritage Farms v. Elsasser, 32 F.4th

707, 729 (9th Cir. 2022). Thus, Canzoneri has failed to point to “existing precedent”

that would have placed this specific “constitutional question beyond debate” for the

5 individual Appellees. Kisela v. Hughes, 584 U.S. 100, 104 (2018) (citation omitted).

Additionally, we may affirm the grant of qualified immunity at the motion to dismiss

stage having determined “based on the complaint itself, that qualified immunity

applies.” Polanco v. Diaz, 76 F.4th 918, 925 (9th Cir. 2023) (citation omitted).

Doing so at the motion to dismiss stage reflects “the importance of resolving

immunity questions at the earliest possible stage in litigation.” Pearson, 555 U.S. at

232 (citation omitted).

3. We choose not to consider Canzoneri’s argument that the district court

erred by dismissing her claims for equitable relief against the individual Appellees

as this issue has been waived. See In re Mortg. Elec. Registration Sys., Inc., 754

F.3d 772, 780 (9th Cir. 2014) (“[A]rguments not raised in the district court will not

be considered for the first time on appeal.”).

The matter is remanded to the district court for proceedings consistent with

this disposition.

AFFIRMED IN PART AND REVERSED AND REMANDED IN PART.

Each party shall bear its own costs on appeal. Fed. R. App. P. 39(a)(4).

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