David Mango v. Lilian Myers

FILED
NOT FOR PUBLICATION JUL 30 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID MANGO, No. 12-57019
Plaintiff - Appellee, D.C. No. 2:11-cv-05641-GW-FFM
v.
MEMORANDUM*
CITY OF MAYWOOD, a municipal
corporation,
Defendant,
And
LILIAN MYERS,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
George H. Wu, District Judge, Presiding
Argued and Submitted July 9, 2014
Pasadena, California
Before: SILVERMAN, TALLMAN, and RAWLINSON, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
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Defendant-Appellant Lilian Myers appeals from the district court’s denial of
qualified immunity in David Mango’s 42 U.S.C. § 1983 action alleging First
Amendment retaliation. We have jurisdiction pursuant to 28 U.S.C. § 1291, and
we affirm.
A government official is entitled to qualified immunity “unless a plaintiff
pleads facts showing (1) that the official violated a statutory or constitutional right,
and (2) that the right was ‘clearly established’ at the time of the challenged
conduct.” Wood v. Moss, 134 S. Ct. 2056, 2059 (2014) (quoting Ashcroft v. al-
Kidd, 131 S. Ct. 2074, 2080 (2011)).
Myers contends that she is entitled to qualified immunity because Mango’s
constitutional right was not clearly established. A right is clearly established if
“the state of the law at the time [of the adverse action] g[ave] officials fair warning
that their conduct [was] unconstitutional.” Ellins v. City of Sierra Madre, 710 F.3d
1049, 1064 (9th Cir. 2013) (quoting Bull v. City & Cnty. of S.F., 595 F.3d 964,
1003 (9th Cir. 2010) (en banc)). This is an objective standard and the defendant’s
subjective understanding of the constitutionality of her conduct is irrelevant. Karl
v. City of Mountlake Terrace, 678 F.3d 1062, 1073 (9th Cir. 2012).
To demonstrate that the right was not clearly established, Myers first
contends that she had no fair warning that releasing Mango was unconstitutional
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because there is no existing case with similar facts. But, “closely analogous
preexisting case law is not required” for fair notice because “officials can still be
on notice that their conduct violates established law even in novel factual
circumstances.” Id.; see also Brosseau v. Haugen, 543 U.S. 194, 199 (2004) (“[I]n
an obvious case, [general] standards can ‘clearly establish’ the answer, even
without a body of relevant case law.”). “It is well settled that a State cannot
condition public employment on a basis that infringes the employee’s
constitutionally protected interest in freedom of expression.” Garcetti v. Ceballos,
547 U.S. 410, 413 (2006) (internal quotation marks omitted). So, under Mango’s
version of the facts, which we must take as true, Eng v. Cooley, 552 F.3d 1062,
1064 (9th Cir. 2009), Myers should have known her actions were unconstitutional.
To the degree that Myers contends that Mango was not a Maywood
employee, that is a dispute of material fact that will have to be resolved at trial.
See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986). Myers may
very well prove and prevail on her version of the facts, but she cannot now
demonstrate that she is entitled to qualified immunity.
AFFIRMED.
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