Rudy Campos v. City of Irwindale , 593 F. App'x 703 ( 2015 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT FEB 19 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
RUDY CAMPOS, No. 13-55439
Plaintiff - Appellant, D.C. No. 2:12-cv-05805-JGB-
MRW
v.
CITY OF IRWINDALE, a municipal MEMORANDUM*
corporation; and MARIO CAMACHO,
individually and as Lieutenant for the
Irwindale Police Department,
Defendants - Appellees.
Appeal from the United States District Court
for the Central District of California
Jesus G. Bernal, District Judge, Presiding
Submitted February 12, 2015**
Pasadena, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: GRABER and WARDLAW, Circuit Judges, and MOLLOY,*** Senior
District Judge.
Rudy Campos appeals the district court’s grant of summary judgment in
favor of Mario Camacho and the City of Irwindale in this § 1983 action. Campos
claims that Camacho and the City of Irwindale wrongfully retaliated against him
for exercising his First Amendment rights at a meeting of the Irwindale Police
Officers’ Association (IPOA) on July 3, 2008. Campos asserts that the retaliatory
acts took two forms: (1) poor performance evaluations, and (2) withholding of
overtime shifts. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
1. The district court properly excluded the asserted adverse employment
actions that occurred before July 5, 2010, due to California’s two-year statute of
limitations for § 1983 claims. Action Apartment Ass’n v. Santa Monica Rent
Control Bd., 509 F.3d 1020, 1026-27 (9th Cir. 2007). Campos did not file his
complaint until July 5, 2012, even though he claims to have experienced discrete
retaliatory acts as early as August 2008. While Campos describes a series of
discrete retaliatory acts, spanning several years, only those acts occurring within
the two-year statute of limitations are actionable. See Nat’l R.R. Passenger Corp.
v. Morgan, 536 U.S. 101, 114 (2002).
***
The Honorable Donald W. Molloy, Senior District Judge for the U.S.
District Court for the District of Montana, sitting by designation.
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2. The district court did not err in holding that Campos failed to provide any
evidence demonstrating a connection between his votes at the July 3, 2008 IPOA
meeting and his performance evaluations. Huskey v. City of San Jose, 204 F.3d
893, 899-900 (9th Cir. 2000). Campos presented no evidence that Camacho was
involved in or influenced his 2010 or 2011 performance evaluations.
3. With respect to overtime pay, the district court correctly held, based on
Campos’s deposition testimony, that Camacho withdrew overtime from Campos
only once, and that this overtime had been assigned to Campos in error. Thus, this
withdrawal was not in retaliation for protected First Amendment activity because it
was not “of a nature that would stifle someone from speaking out.” Blair v. Bethel
Sch. Dist., 608 F.3d 540, 544 (9th Cir. 2010). Moreover, the undisputed evidence
showed that Campos was consistently one of the highest earners of overtime
wages.
4. Nor did Campos present evidence showing that he was “injured pursuant
to an expressly adopted official policy, a long-standing practice or custom, or the
decision of a final policymaker.” Ellins v. City of Sierra Madre, 710 F.3d 1049,
1066 (9th Cir. 2013) (internal quotation marks omitted). Campos provided no
evidence of an official policy or custom of giving negative performance
evaluations or withholding overtime shifts in retaliation. Nor has Campos
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provided evidence that his asserted injury is attributable to a final policymaker. Id.
at 1066-67. Thus, the City of Irwindale is not liable under a Monell theory of
liability. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978).
Because Campos is not able to show that he was subjected to adverse
employment action sufficient for recovery under § 1983, the district court properly
granted summary judgment in favor of Camacho and the City of Irwindale.
AFFIRMED.
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