NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS NOV 30 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARK PETERSON, No. 20-35070

Plaintiff-Appellee, D.C. No. 1:18-cv-03136-RMP

v.

MEMORANDUM*

CITY OF YAKIMA, a local governmental entity; TONY O’ROURKE,

Defendants,

and

MARK SOPTICH; ANTHONY DOAN,

Defendants-Appellants.

Appeal from the United States District Court for the Eastern District of Washington Rosanna Malouf Peterson, District Judge, Presiding

Submitted November 18, 2020** Seattle, Washington

Before: GOULD and FRIEDLAND, Circuit Judges, and CHEN,*** District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Edward M. Chen, United States District Judge for the In this interlocutory appeal, Defendants/Appellants Anthony Doan and Mark

Soptich challenge the district court’s denial of qualified immunity in a First

Amendment retaliation case. We dismiss for lack of jurisdiction.

Any “portion of a district court’s summary judgment order that, though

entered in a ‘qualified immunity’ case, determines only a question of ‘evidence

sufficiency,’ i.e., which facts a party may, or may not, be able to prove at trial . . .

is not appealable.” Johnson v. Jones, 515 U.S. 304, 313 (1995). Under Johnson,

“[a]ny decision by the district court ‘that the parties’ evidence presents genuine

issues of material fact is categorically unreviewable on interlocutory appeal.’”

George v. Morris, 736 F.3d 829, 834 (9th Cir. 2013) (quoting Eng v. Cooley, 552

F.3d 1062, 1067 (9th Cir. 2009)). Interlocutory review jurisdiction, instead, is

“confined to the question of ‘whether the defendant[] would be entitled to qualified

immunity as a matter of law, assuming all factual disputes are resolved, and all

reasonable inferences are drawn, in plaintiff’s favor.’” Id. at 836 (quoting Karl v.

City of Mountlake Terrace, 678 F.3d 1062, 1068 (9th Cir. 2012)).

Appellants contend that they cannot be liable for retaliation because there is

no evidence that either of them had any knowledge of Plaintiff/Appellee Mark

Peterson’s protected First Amendment activities. The record in this case, however,

certainly contains evidence that could support a fact-finder’s determination that

Northern District of California, sitting by designation.

2 both Appellants did in fact have knowledge of Peterson’s protected activities.

Appellants thus mischaracterize an issue of fact (namely, whether the evidence is

sufficient to find that they had knowledge of Peterson’s protected activities) as an

issue of law that is premised on a lack of evidence of such knowledge. Appellants’

true dispute concerns sufficiency of the evidence. We have no jurisdiction over it.

DISMISSED.

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