George Gearhart v. Raymond Thorne Robert Keilbach William Sager Ed Northcutt and Libby Leonard

Gearhart appeals from an adverse judgment on the pleadings in his section 1983 action pursuant to Fed.R.Civ.P. 12(c). We have jurisdiction under 28 U.S.C. § 1291 , and we affirm.

Gearhart, an Oregon state employee, raises two claims in this action brought under 42 U.S.C. § 1983 : (1) that his superiors violated his first amendment rights by infringing his rights to maintain grievance actions, and (2) that his due process rights were abridged because his superiors brought false charges against him in retaliation for his grievances, resulting in demotion, lost salary, and poor evaluations. We review a rule 12(c) dismissal de novo. Cf. Fort Vancouver Plywood Co. v. United States, 747 F.2d 547, 552 (9th Cir.1984) (rule 12(b)(6) dismissals reviewed de novo). We conclude that Gearhart has failed to state a claim under section 1983 on either theory.

In a section 1983 action based on the first amendment, the plaintiff has the burden of alleging constitutionally protected speech. See Mount Healthy School District Board of Education v. Doyle, 429 U.S. 274, 287 , 97 S.Ct. 568, 576 , 50 L.Ed.2d 471 (1977). The “speech” at issue here is Gearhart’s unrestricted right to use the internal…