Richard Holbrook v. Glen Whorton

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAY 18 2012
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
RICHARD HOLBROOK, No. 10-15348
Plaintiff - Appellant, D.C. No. 3:06-cv-00215-LRH-
VPC
v.
GLEN WHORTON; JACKIE MEMORANDUM*
CRAWFORD; STATE OF NEVADA
DEPARTMENT OF CORRECTIONS;
DONNY GILCREASE; ALOIS HANKE;
JERAMY BRANAHAN; ADOLPH
STANKUS; ROBERT SCHOBER; ERIC
FANCHER; SCOTT BURCHETT; JEFF
MCTEE; GREG MADEIORS; GARY
DUTTON; ABRAHAM LOPEZ,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding
Submitted May 15, 2012**
San Francisco, 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: THOMAS, McKEOWN, and W. FLETCHER, Circuit Judges.
Richard Holbrook is a former senior correctional officer for the Nevada
Department of Corrections (“NDOC”). He appeals the district court’s grant of
judgment on the pleadings and summary judgment against his First Amendment
retaliation and defamation claims. We review those rulings de novo. Lyon v.
Chase Bank USA, N.A., 656 F.3d 877, 883 (9th Cir. 2011) (judgment on the
pleadings); Anthoine v. N. Cent. Cntys. Consortium, 605 F.3d 740, 747 (9th Cir.
2010) (summary judgment).
In a First Amendment retaliation claim against a government employer, the
plaintiff bears the initial burden of showing that his speech addressed a matter of
public concern. Eng v. Cooley, 552 F.3d 1062, 1070 (9th Cir. 2009). Holbrook
stated in his complaint that he informed the NDOC director about procedural
violations by other officers “in the context of seeking an accommodation for his
[employment] predicament.” “ Looking to the ‘content, form, and context’” of
Holbrook’s conversation with the director, we agree with the district court that the
speech addressed a personal grievance and employment dispute, rather than a
matter of public concern. Brownfield v. City of Yakima, 612 F.3d 1140, 1149 (9th
Cir. 2010) (quoting Connick v. Myers, 461 U.S. 138, 147-48 (1983)). We therefore
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affirm the district court’s grant of judgment on the pleadings against Holbrook’s
First Amendment claim.
All of the allegedly defamatory statements that Holbrook challenges on
appeal were made to other officers or investigators. The district court held that
these statements fall within the common interest privilege. Holbrook does not
challenge that holding on appeal. Instead, he argues that he has raised a triable
issue that Defendants abused the privilege by making defamatory statements with
actual malice. However, Holbrook’s own deposition testimony about his actions
during the riot does not suffice because the test for actual malice is subjective,
relying on “what the defendant believed and intended to convey.” Pegasus v. Reno
Newspapers, Inc., 57 P.3d 82, 92 (Nev. 2002) (internal quotation marks omitted).
Nor has Holbrook demonstrated that Defendant Alois Hanke made inconsistent
statements. As a result, Holbrook has not presented any evidence indicating that
the Defendants knew their statements were false or acted with reckless disregard
for the truth. See id. at 93. We therefore affirm the district court’s grant of
summary judgment against Holbrook’s defamation claim.
AFFIRMED.
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