William Bourland v. Humboldt County , 699 F. App'x 679 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 23 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
WILLIAM BOURLAND, No. 16-15792
Plaintiff-Appellant, D.C. No.
3:13-cv-00660-MMD-WGC
v.
HUMBOLDT COUNTY, a political MEMORANDUM*
subdivision of the State of Nevada,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Nevada
Miranda M. Du, District Judge, Presiding
Submitted October 18, 2017**
San Francisco, California
Before: HAWKINS, W. FLETCHER, and TALLMAN, Circuit Judges.
Plaintiff William Bourland appeals the district court’s adverse grant of
summary judgment. Bourland raises several claims under 42 U.S.C. § 1983 related
to his support of Andy Rorex, who was unsuccessful as a candidate in the
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
November 2010 election for Humboldt County Sheriff in Nevada. He claims First
Amendment retaliation, defamation-plus, and seeks to hold the County liable. We
have jurisdiction under 28 U.S.C. § 1291, and we affirm.
1. The district court properly granted summary judgment against
Bourland on his First Amendment retaliation claim. Bourland fails to demonstrate
that his political support for Rorex was a substantial or motivating factor in the
alleged adverse employment action—the district attorney’s transmission of a
“Brady letter” to Bourland’s employer, the Winnemucca Police Department, in
June 2013 regarding Bourland’s April 2013 harassment conviction. See
Desrochers v. City of San Bernardino, 572 F.3d 703, 708–09 (9th Cir. 2009).
Bourland campaigned for Rorex more than two years before the letter was written.
Compare Keyser v. Sacramento City Unified Sch. Dist., 265 F.3d 741, 752 (9th
Cir. 2001) (finding two years was too remote to find causation) with Allen v.
Iranon, 283 F.3d 1070, 1078 (9th Cir. 2002) (holding an 11–month gap between
the protected speech and denial of a government benefit “is within the range that
has been found to support an inference than an employment decision was
retaliatory.”). The political activity was not sufficiently “proximate in time” to
give rise to an inference of retaliation. Coszalter v. City of Salem, 320 F.3d 968,
977 (9th Cir. 2003). Bourland fails to establish a prima facie case for First
Amendment retaliation, and summary judgment was warranted.
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2. The district court properly granted summary judgment against
Bourland on his defamation-plus claim. Defamation-plus requires the plaintiff to
“allege that the injury to reputation was inflicted in connection with a federally
protected right; or . . . the injury to reputation caused the denial of a federally
protected right.” Herb Hallman Chevrolet, Inc. v. Nash-Holmes, 169 F.3d 636,
645 (9th Cir. 1999) (emphasis in original). Bourland’s right to free speech was not
denied. Therefore, his defamation-plus claim fails as well.
3. We do not reach the issues of municipal liability or the scope of Nevada’s
Anti-SLAPP statute because Bourland has not established a constitutional
violation. See Pembaur v. City of Cincinnati, 475 U.S. 469, 480 (1986).
Plaintiff shall bear all costs of appeal. See Fed. R. App. P. 39(a)(2).
AFFIRMED.
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