John Ellins v. City of Sierra Madre

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOHN ELLINS, No. 11-55213 Plaintiff-Appellant, D.C. No. v. 2:09-cv-03971-

CBM-RZ

CITY OF SIERRA MADRE , A

Municipality; MARILYN DIAZ, Individually and as Chief of Police, OPINION Defendants-Appellees.

Appeal from the United States District Court for the Central District of California Consuelo B. Marshall, Senior District Judge, Presiding

Argued and Submitted May 8, 2012—Pasadena, California

Filed March 22, 2013

Before: Kim McLane Wardlaw, Richard A. Paez, and Johnnie B. Rawlinson, Circuit Judges.

Opinion by Judge Wardlaw; Concurrence by Judge Rawlinson ELLINS V . CITY OF SIERRA MADRE

SUMMARY*

Civil Rights

The panel affirmed in part and reversed in part the district court’s summary judgment and remanded in this 42 U.S.C. § 1983 action brought by a police officer who alleged that his salary increase was delayed in retaliation for the exercise of his First Amendment rights.

The panel held that: (1) plaintiff’s speech, which involved leading a no-confidence vote of the police officers’ union against the Chief of Police, involved a…

Opinion by Judge WARDLAW; Concurrence by Judge RAWLINSON.

OPINION

John Ellins, a police officer for the City of Sierra Madre, led a no-confidence vote of the police officers’ union against the Chief of Police, Marilyn Diaz. Diaz subsequently delayed signing an application for a certification that, when issued, would have entitled Ellins to a five percent salary increase. Ellins brought suit under 42 U.S.C. § 1983 against Diaz and the City of Sierra Madre (collectively, “Defendants”), alleging that Diaz’s delay was unconstitutional retaliation for the exercise of his First Amendment rights. The district court granted summary judgment in favor of Defendants, concluding that Ellins had failed to meet his burden under Garcetti v. Ceballos, 547 U.S. 410 , 126 S.Ct. 1951 , 164 L.Ed.2d 689 (2006), to show that he undertook his act as a private citizen and not pursuant to his official duties. We disagree, and further hold that Ellins has established a prima facie case of First Amendment retaliation. We thus reverse the grant of summary judgment in favor of Diaz and remand for further proceedings. We affirm the district court’s grant of summary judgment to the City of Sierra Madre…

concurring in the judgment:

I concur in the judgment reversing the district court’s entry of summary judgment in favor of defendant Marilyn Diaz. I also agree that entry of summary judgment in favor of the City of Sierra Madre was warranted due to the lack of material issues of fact regarding a city policy that resulted in the alleged constitutional violations. I write separately to clarify that this case was decided on summary judgment and no definitive rulings on the factual issues should have been made by the district court or should be made by us. On summary judgment review, we determine whether material issues of fact were raised by the party opposing summary judgment after reviewing the evidence in the light most favorable to that opposing party. See Fairbank v. Wunderman Cato Johnson, 212 F.3d 528, 531 (9th Cir.2000). Resolution of those factual issues is reserved for trial before a factfinder. For that reason, we should limit our discussion to whether Ellins raised material issues of fact, thereby rendering entry of summary judgment inappropriate.

At the summary judgment stage, the non-moving party need only raise a material issue of fact rather than carrying the…