FILED

UNITED STATES COURT OF APPEALS DEC 22 2011

MOLLY C. DWYER, CLERK

FOR THE NINTH CIRCUIT U.S . CO U RT OF AP PE A LS

AMERICAN FEDERATION OF STATE, No. 10-17046

COUNTY AND MUNICIPAL

EMPLOYEES LOCAL 4041, in its D.C. No. 3:09-cv-00235-LRH- individual capacity and its representative RAM capacity on behalf of its members; District of Nevada, RANDY LEE COOK, Reno

Plaintiffs,

ORDER

and

ROBERT LEE BIANCHI,

Plaintiff - Appellant,

v.

STATE OF NEVADA, ex rel its Department of Corrections; HOWARD SKOLNIK, individually and in his official capacity as Director of the Nevada Department of Corrections; CARLA CREVLING, individually and in her capacity as Personnel Officer of the Nevada Department of Corrections; PAT CONMAY, individually and in his official capacity as Inspector General for the Nevada Department of Corrections; WILLIAM DONAT, individually and in his official capacity as Warden for the Nevada State Prison,

Defendants - Appellees. Before: HAWKINS, McKEOWN, and M. SMITH, Circuit Judges.

Appellant Bianchi's Petition for Panel Re-hearing, filed on December 15, 2011,

is granted in part, without further oral argument.

The Memorandum disposition, filed on December 5, 2011, is amended per the

Amended Memorandum filed concurrently with this Order.

No subsequent petitions for rehearing or rehearing en banc will be accepted

for filing.

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FILED

NOT FOR PUBLICATION DEC 22 2011

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS

FOR THE NINTH CIRCUIT

AMERICAN FEDERATION OF STATE, No. 10-17046

COUNTY AND MUNICIPAL

EMPLOYEES LOCAL 4041, in its D.C. No. individual capacity and its representative 3:09-cv-00235-LRH-RAM capacity on behalf of its members;

RANDY LEE COOK,

AMENDED MEMORANDUM *

Plaintiffs,

and

ROBERT LEE BIANCHI,

Plaintiff - Appellant,

v.

STATE OF NEVADA, ex rel its Department of Corrections; HOWARD SKOLNIK, individually and in his official capacity as Director of the Nevada Department of Corrections; CARLA CREVLING, individually and in her capacity as Personnel Officer of the Nevada Department of Corrections; PAT CONMAY, individually and in his official capacity as Inspector General for the Nevada Department of Corrections;

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. WILLIAM DONAT, individually and in his official capacity as Warden for the Nevada State Prison,

Defendants - Appellees.

Appeal from the United States District Court for the District of Nevada Larry R. Hicµs, District Judge, Presiding

Submitted November 16, 2011** San Francisco, California

Before: HAWKINS, McKEOWN, and M. SMITH, Circuit Judges.

Robert Bianchi ('Bianchi'), a lieutenant at the Nevada State Prison with the

Nevada Department of Corrections ('NDOC'), appeals the summary judgment

dismissal of his y 1983 action, alleging that he was retaliated against by the NDOC

in violation of his First Amendment rights. We have jurisdiction under 28 U.S.C.

y1291, and affirm.

Bianchi contends that NDOC demoted him in retaliation for his involvement

in a no-confidence petition regarding the Assistant Warden of Operations, Walter

Donat, and issued him a letter of reprimand in retaliation for testifying regarding the

petition at a trial. However, Bianchi successfully appealed each disciplinary action,

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

2 was reinstated to his former ranµ as a lieutenant, and the letter of reprimand was

removed from his file. NDOC alleges that it had legitimate reasons for reprimanding

Bianchi: he had failed to report on or properly supervise a misbehaving subordinate,

and had misused a sicµ day and had given misleading statements about it.

Reviewing the grant of summary judgment de novo, we conclude Bianchi has

not provided evidence sufficient to show any genuine issue of material fact.

Retaliation claims against government employers must be supported by proof that

protected speech was a 'substantial or motivating factor in the adverse employment

action.' Eng v. Cooley, 552 F.3d 1062, 1070-72 (9th Cir. 2009). To do so, a plaintiff

must first present evidence the defendant had µnowledge of the plaintiff's protected

speech. Alpha Energy Savers, Inc. v. Hansen, 381 F.3d 917, 928 (9th Cir. 2004)

(citing Keyser v. Sacramento City Unified Sch. Dist., 265 F.3d 741, 750-52 (9th Cir.

2001)). Bianchi relies on allegations in his complaint as well as in his

affidavit--conclusory, self-serving, and lacµing any supporting evidence--which fail

to establish a genuine issue of material fact on summary judgment review. F.T.C. v.

Publ'g Clearing House, Inc., 104 F.3d 1168, 1171 (9th Cir. 1997) (citations omitted).

AFFIRMED.

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