Martin v. Naval Criminal Investigative Service

dissenting:

I have scoured the complaint and I have drawn all reasonable inferences in plaintiffs favor. Yet I still fail to see where plaintiff has plausibly alleged that anything this particular defendant supposedly did — even assuming he acted unprofessionally, improperly, or overzealously — was in retaliation for the exercise of her First Amendment rights, as opposed to being in furtherance of an investigation into plaintiffs reported misuse of her credentials, an investigation that he was summoned to and did not initiate. Because plaintiff failed to state a plausible constitutional violation, defendant Martin was entitled to qualified immunity. I would reverse the district court’s denial of the motion to dismiss and direct the district court to grant plaintiff leave to amend her complaint.

FILED

NOT FOR PUBLICATION SEP 05 2013

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

CAROLYN MARTIN, No. 11-56717

Plaintiff - Appellee, D.C. No. 3:10-cv-01879-WQH-

MDD

v.

NAVAL CRIMINAL INVESTIGATIVE MEMORANDUM*

SERVICE; et al.,

Defendants,

and

GERALD MARTIN, “Jerry,” NCIS Special Agent,

Defendant - Appellant.

Appeal from the United States District Court for the Southern District of California William Q. Hayes, District Judge, Presiding

Argued and Submitted August 5, 2013 Pasadena, California

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. Before: SILVERMAN and WARDLAW, Circuit Judges, and CEDARBAUM, Senior District Judge.**

Naval Criminal Investigative Service Special Agent Gerald Martin appeals

the partial denial of his motion to dismiss, on qualified immunity grounds, this

constitutional tort suit under Bivens v. Six Unknown Named Agents of Federal

Bureau of Narcotics, 403 U.S. 388 (1971), alleging retaliation in violation of…

MEMORANDUM **

Naval Criminal Investigative Service Special Agent Gerald Martin appeals the partial denial of his motion to dismiss, on qualified immunity grounds, this constitutional tort suit under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 , 91 S.Ct. 1999 , 29 L.Ed.2d 619 (1971), alleging retaliation in violation of the First Amendment. We have jurisdiction under 28 U.S.C. § 1291 pursuant to the collateral order doctrine, see Wilkie v. Robbins, 551 U.S. 537 , 549 n. 4, 127 S.Ct. 2588 , 168 L.Ed.2d 389 (2007); Mitchell v. Forsyth, 472 U.S. 511, 530 , 105 S.Ct. 2806 , 86 L.Ed.2d 411 (1985), and we affirm.

1. The complaint adequately pleads a violation of the First Amendment. Taken as a whole, the allegations in the complaint establish that Special Agent Martin “took action that ‘would chill or silence a person of ordinary firmness from future First Amendment activities.’ ” Skoog v. Cnty. of Clackamas, 469 F.3d 1221 , 1232 (9th Cir.2006) (quoting Mendocino Envtl. Ctr. v. Mendocino Cnty., 192 F.3d 1283 , 1300 (9th Cir.1999)). The alleged early-morning confrontation at Plaintiff Carolyn Martin’s home, which could not have served any valid law…