Freitag

dissenting:

As the Supreme Court acknowledged in its 5-4 decision in Garcetti v. Ceballos, 547 U.S. 410 , 126 S.Ct. 1951 , 164 L.Ed.2d 689 (2006), it has been difficult to differentiate between citizen speech and employee speech “that has some potential to affect the entity’s operation.” Difficult, delicate as the differentiation is, it seems to me that Freitag wrote Terhune as a professional prison employee.

MEMORANDUM **

This case returns to us after a limited remand to the district court. Freitag v. Ayers, 468 F.3d 528 (9th Cir.2006) [hereinafter Freitag I ].

I.

We agree with the district court that Freitag’s letter to Terhune was made as a citizen and not as a government employee. First, unlike in Garcetti v. Ceballos, Freitag’s speech did not “owe[] its existence to [Freitag’s] professional responsibilities” as a correctional officer. 547 U.S. 410 , 126 S.Ct. 1951, 1960 , 164 L.Ed.2d 689 (2006). Neither party contends that Freitag’s letter was part of the grievance process. Indeed, both Freitag’s union representative and Defendant Ayers acknowledged during trial that they did not construe the letter as a grievance. Second, Freitag’s letter was written outside of working hours, on her personal stationary, and listing her home address. The private nature of the correspondence is further evidenced by the fact that Terhune responded to the letter by calling Freitag at home to discuss its contents. Third, Freitag’s letter did not request any specific remedy, such as a job reassignment. Rather, it described the events taking place at Pelican Bay, criticized the supervisors’ failure…