James D. Wallace v. City of San Diego City of San Diego Police Department

479 F.3d 616 James D. WALLACE, Plaintiff-Appellant, v. CITY OF SAN DIEGO; City of San Diego Police Department, Defendants-Appellees. No. 03-56552. United States Court of Appeals, Ninth Circuit. Argued and Submitted May 4, 2005. Filed August 25, 2006. Amended February 12, 2007. Carolyn Chapman, Coronado, CA, for the appellant. Mark Stiffler, Deputy City Attorney, San Diego, CA, for the appellee. Appeal from the United States District Court for the Southern District of California; Jeffrey T. Miller, District Judge, Presiding. D.C. No. CV-01-00703-JM/RBB. Before: JAMES R. BROWNING, RAYMOND C. FISHER, and JAY S. BYBEE, Circuit Judges. ORDER 1 We have before us petitions for rehearing from both Appellee the City of San Diego and Appellant Wallace. I. 2 Judge Browning and Judge Fisher vote to deny the City of San Diego's petition for panel rehearing. Judge Fisher votes to deny the petition for rehearing en banc, and Judge Browning so recommends. Judge Bybee votes to grant the petition for panel rehearing and the petition for rehearing en banc. The petition for rehearing en banc was circulated to the full court and no judge has requested a vote on whether to rehear the matter en banc.…

ORDER

We have before us petitions for rehearing from both Appellee the City of San Diego and Appellant Wallace.

I.

Judge Browning and Judge Fisher vote to deny the City of San Diego’s petition for panel rehearing. Judge Fisher votes to deny the petition for rehearing en banc, and Judge Browning so recommends. Judge Bybee votes to grant the petition for panel rehearing and the petition for rehearing en banc. The petition for rehearing en banc was circulated to the full court and no judge has requested a vote on whether to rehear the matter en banc. Fed. RApp. P. 35.

APPELLEE’S PETITION FOR PANEL REHEARING AND REHEARING EN BANC DENIED.

II.

The opinion filed August 25, 2006, slip op. 10171 [ 460 F.3d 1181 ], and appearing *620 at 460 F.3d 1181 , is amended to replace all of the text within part V of the opinion (slip op. at 10194, 460 F.3d at 1196 ) with the following:

With this amendment, the panel unanimously votes to deny Wallace’s petition for panel rehearing.

No further petitions for rehearing will be entertained.

APPELLANT’S PETITION FOR PANEL REHEARING DENIED.

OPINION

Plaintiff-Appellant James D. Wallace appeals the district court’s order granting the…

dissenting:

James Wallace had a checkered past with the San Diego Police Department (“SDPD”). On numerous occasions, he had been reprimanded, disciplined, and suspended. Wallace was convinced that SDPD had it in for him, or at least that his supervisors, Captain Myers and Lieutenant Guevara, wanted to see him removed from the force. Wallace was further convinced that Myers and Guevara’s disapproval of him was related to his service in the United States Naval Reserves. On May 19, 2000, after being suspended for multiple rules violations, Wallace was warned that he was receiving his last chance and that any future violations would be taken seriously.

In July of 2000, SDPD transferred Wallace to a much more favorable work assignment — the Northern Division — which was the assignment Wallace had been seeking. Wallace’s new work assignment was closer to Wallace’s home and Wallace was no longer under the supervision of Myers or Guevara. In his new work assignment, Wallace reported to two well-liked and well-respected officers with whom Wallace had not experienced any problems. In fact, Wallace testified that he did not have any difficulties in his new assignment and that his working…