Amjad Abudiab v. Elias Georgopoulos

FILED
NOT FOR PUBLICATION NOV 27 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
AMJAD ABUDIAB, No. 11-18016
Plaintiff - Appellee, D.C. No. 3:09-cv-01778-JSW
v.
ELIAS GEORGOPOULOS, MEMORANDUM*
Defendant - Appellant.
And
CITY AND COUNTY OF SAN
FRANCISCO; ANTONIO PARA,
Defendants.
Appeal from the United States District Court
for the Northern District of California
Jeffrey S. White, District Judge, Presiding
Submitted November 6, 2013
San Francisco, California
Before: W. FLETCHER and NGUYEN, Circuit Judges, and DUFFY, District
Judge.***
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36–3.
** The Honorable Kevin Thomas Duffy, United States District Judge for the
Southern District of New York, sitting by designation.
Appellant Elias Georgopoulos appeals the district court’s summary
judgment order, which denied him qualified immunity on Appellee Amjad
Abudiab’s First Amendment retaliation and Fourth Amendment malicious
prosecution claims. We review a denial of qualified immunity de novo, Johnson v.
Bay Area Rapid Transit Dist., 724 F.3d 1159, 1168 (9th Cir. 2013), and affirm
here.
Qualified immunity is determined by a two-step inquiry: (1) Are the facts
that a plaintiff has alleged or shown sufficient to demonstrate a violation of a
constitutional right?; and (2) Was the right at issue “clearly established” at the time
of the defendant’s alleged misconduct? Saucier v. Katz, 533 U.S. 194, 201 (2001),
receded from by Pearson v. Callahan, 555 U.S. 223, 236 (2009). If the answer to
both questions is yes, then qualified immunity should be denied. Id.
The district court properly denied Georgopoulos qualified immunity on
Abudiab’s First Amendment retaliation claim because (1) Abudiab raised an issue
of fact over whether Georgopoulos violated his First Amendment rights by
punching him and spraying him with pepper spray, and (2) the right to be free from
First Amendment retaliation by a government official was clearly established at the
time of Georgopoulos’s alleged misconduct. See United States v. Poocha, 259
F.3d 1077, 1080–82 (9th Cir. 2001); Saranno’s Gasco, Inc. v. Morgan, 874 F.2d
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1310, 1319 (9th Cir. 1989). Likewise, the district court properly denied
Georgopoulos qualified immunity on Abudiab’s Fourth Amendment malicious
prosecution claim because (1) Abudiab raised an issue of fact as to whether
Georgopoulos, using his status as a city parking officer, lied to the police to have
Abudiab arrested, and (2) the right to be free from malicious prosecution by a
government official was clearly established at the time of Georgopoulos’s alleged
misconduct. See Awabdy v. City of Adelanto, 368 F.3d 1062, 1066 (9th Cir. 2004);
Harris v. Roderick, 126 F.3d 1189, 1198 (9th Cir. 1997).
In contrast to a denial of qualified immunity, which is an appealable “final
decision,” Mitchell v. Forsyth, 472 U.S. 511, 530 (1985), a grant of qualified
immunity is generally not independently appealable on an interlocutory basis, see
Eng v. Cooley, 552 F.3d 1062, 1067 (9th Cir. 2009). We thus decline to consider
Abudiab’s argument that the district court improperly granted Georgopoulos
qualified immunity on Abudiab’s Fourth Amendment excessive force claim.
Also pending before the Court is Appellee’s Motion for Sanctions and
Appellant’s Opposition to Sanctions Motion/Motion to Strike Portions of
Abudiab’s Brief. Both motions are DENIED.
AFFIRMED.
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