Huskey v. City of San Jose

• Decision Date: 24 February 2000
• Docket Number: No. 99-15123,99-15123
• Parties: (9th Cir. 2000) DAVID K. HUSKEY, Plaintiff-Appellee, v. CITY OF SAN JOSE; JOAN GALLO; GEORGE RIOS; RALPH GREENE, Defendants-Appellants
• Court: U.S. Court of Appeals — Ninth Circuit

Page 893

204 F.3d 893 (9th Cir. 2000)

DAVID K. HUSKEY, Plaintiff-Appellee, v. CITY OF SAN JOSE; JOAN GALLO; GEORGE RIOS; RALPH GREENE, Defendants-Appellants.

No. 99-15123

U.S. Court of Appeals for the Ninth Circuit

Argued and Submitted January 10, 2000

Filed February 24, 2000

[Copyrighted Material Omitted]

COUNSEL: Christian B. Nielsen, Office of the City Attorney, San Jose, California, for the defendants-appellants.

Nora Rousso (on the briefs) and James McManis (argued). McManis, Faulkner & Morgan, San Jose, California, for the plaintiff-appellee.

Appeal from the United States District Court for the Northern District of California; James Ware, District Judge, Presiding. D.C. No.CV-97-20785-JW

Before: Ellsworth A. Van Graafeiland,¹ Arthur L. Alarcon, and Barry G. Silverman, Circuit Judges.

OPINION

ALARCON, Circuit Judge:

Defendants Joan Gallo ("Gallo"), George Rios ("Rios"), and Ralph Greene ("Greene") (collectively,"the individual defendants") appeal from the denial of their motion for a summary judgment on the basis of qualified immunity in David Huskey's ("Huskey") 42 U.S.C. S 1983 action against them and the City of San Jose ("City"). We have jurisdiction over the interlocutory appeal filed by the individual defendants pursuant to Mitchell v. Forsyth, 472 U.S. 511, 530 (1985). We conclude that the facts Huskey alleged were insufficient as a matter of law to support his S 1983 claims. We therefore reverse the denial of the individual defendants' motion for a summary judgment on Huskey's S 1983 claims on the basis of qualified immunity. Because the denial of the City's motion for a summary judgment on the S 1983 claims is inextricably intertwined with the constitutional issues presented in the appeal of the individual defendants, we conclude that we have jurisdiction over the City's interlocutory appeal and reverse.

I

"[A] district court's denial of a claim of qualified immunity, to the extent that it turns on an issue of law, is an appealable `final decision' within the meaning of 28 U.S.C. S 1291 notwithstanding the absence of a final judgment. " Mitchell 472 U.S. at 530. Even though the parties dispute some of the facts, this court has jurisdiction over the legal question the individual defendants have raised regarding whether Huskey's version of the facts can sustain a claim that his clearly established constitutional rights have been violated. See Brewster v. Board of Educ., 149 F.3d 971, 976-77 (9th Cir. 1998) (citing Mitchell, 472 U.S. at 528 n.9). We accept as true for purposes of this appeal Huskey's version of the facts. See id. at 977 ("In resolving the appeal, we simply assume the disputed facts in the light most favorable to [the plaintiff], and then decide, under those facts, whether the [government] officials violated any of [the plaintiff's] clearly established constitutional rights." (citing Johnson v. Jones, 515 U.S. 304, 319 (1995)).

II

In January 1986 Huskey began work as a Deputy City Attorney in the San Jose City Attorney's office ("the Office"). In 1993, he was promoted to Senior Deputy City Attorney. During the time period in issue, Gallo was the City Attorney, Rios was the Assistant City Attorney, and Greene was Chief Trial Attorney. Greene was Huskey's direct supervisor.

In March 1994, Huskey and Greene worked together in the Office on Ward v. City of San Jose, which was considered to be an important case by Huskey and Greene. Approximately one week before the trial was scheduled to begin, Gallo called Huskey at home one night and told him that Greene was an alcoholic. Gallo told Huskey she feared Greene might be in the midst of a relapse. Gallo said that Greene had been convicted of driving under the influence of alcohol roughly one year before and that his driver's license had been suspended. She expressed concern about Greene's well-being and also expressed her respect for Greene's ability as a lawyer. She asked Huskey to report to her any suspicion he may have that Greene had been drinking. Huskey informed Gallo that she was putting him in an awkward position. He was reluctant to monitor Greene's drinking because he feared that Greene might find out and resent Huskey's role as an informer.

During the Ward trial, Greene participated in a conference with Huskey and an expert witness. Greene appeared giddy and acted inappropriately. Huskey took Greene aside and suggested that he go home to get ready for the next day's trial proceedings. The situation was extremely awkward, but Greene did leave. Because Huskey believed that Greene had been drinking, he called Gallo that night and told her about the incident. Gallo thanked Huskey for letting her know and told him that she would "take care of it." Greene did not appear intoxicated to Huskey for the rest of the Ward trial.

Huskey did not immediately notice a change in his relationship with Greene. In fact, Huskey received what he viewed as an "excellent" annual performance evaluation from Greene in late 1994. The two men did not again work or try another major case together.

In the spring of 1995, Huskey began to detect subtle changes in his relationship with Greene. For example, Greene attempted to withdraw one week before trial from active participation in a case he was to try with Huskey. Greene also began to trivialize Huskey's cases, suggesting that they were "B.S." cases.

In early November 1995, Greene met with Huskey to discuss his annual performance evaluation. The evaluation was somewhat less favorable than Huskey's previous evaluation, with a decrease in his average rating on a number of different aspects of performance from 8.3 to 7.7 on a 10-point scale. When Huskey asked for an explanation, Greene responded that there had been a problem of grade inflation in the past.

In an e-mail addressed to Huskey and Gallo dated November 14, 1995, Greene harshly criticized a motion for a summary judgment that Huskey had drafted. Greene called the motion "burdensome, oppressive and unintelligible." Greene pointed to specific problems with the motion, noted changes he had previously instructed Huskey to make that Huskey had not made, and criticized Huskey for timing his work on the case in such a manner that neither Greene nor Gallo would have an opportunity to make editorial suggestions.

In an April 1996 conference call, Huskey told Greene that he was concerned that a witness for the City might lie on the stand in an upcoming trial. Huskey reported that he had told the witness he could not lie, Greene asked: "Why not?" and then laughed. Greene began to yell at Huskey: "Why can't you act like an attorney? Why can't you be more of an advocate?" Huskey inferred from this criticism that Greene would be very angry at him if the witness testified adversely to the City.

In July 1996, because of his concern over Greene's growing hostility, Huskey interviewed with a law firm. He informed Gallo by e-mail that he had done so. She responded with an e-mail thanking him for informing her and stating: "Of course we want you to stay!" Based on this reassurance, Huskey did not pursue his efforts to obtain employment with the firm. He did not receive an offer of employment from the firm.

On October 7, 1996, Huskey attended a meeting of the settlement conference committee to discuss one of his cases. During the meeting, Gallo told Huskey she was reassigning the case to Greene. When Huskey called her at home that night to ask why, Gallo informed him that she had lost confidence in him. He asked her why she had lost confidence in him. Gallo informed Huskey that he had made mistakes in how he handled his cases, specifically citing two instances where Huskey allowed cases to proceed before a magistrate judge when he could have elected to proceed before a federal district judge. When Huskey asked if this meant that he should leave the Office, Gallo responded affirmatively. Huskey told her he would begin to look for another job. It was Huskey's understanding that he would be allowed to stay with the Office until he found suitable employment.

The next morning, Huskey told Rios about his conversation with Gallo. He informed Rios that he would be looking for another job. Rios then began reassigning Huskey's police misconduct cases to other lawyers. Huskey was assigned minor subrogation and contract cases. Huskey was also asked to perform what he viewed to be the menial task of sitting through a four-day trial in order to be able to report the judge's decision to Gallo. When Huskey confronted Rios about the change in his assignments, Rios told him that management had "lost confidence" in him and was concerned about the way he evaluated his cases. Even with the reassignments, Huskey still had three cases set for trial in January 1997.

Huskey alleged that he found the situation in the Office "very stressful" and was troubled that Gallo, Greene, and Rios were "turning such a cold shoulder" to him. On November 20, 1996, he wrote a memorandum to Gallo, Greene, and Rios stating that he knew Greene had turned against him because of what he had told Gallo about Greene during the Ward trial but that he did not know why Gallo and Rios had done so. Huskey requested an explanation.

On December 3, 1996, Gallo responded with a memorandum in which she stated that she, Rios, and Greene had criticized Huskey for many years about his approach to cases. Gallo praised Huskey's writing and research skills as "excellent" but noted that his work had recently included excessive and irrelevant detail and required too much editing by others. She also noted that his files reflected a "pattern of sloppiness as well as a failure to call issues to our attention in a timely manner." Gallo concluded:

David, in sum, you are a good person, a hard worker, and you have a number of skills and talents. On the other hand, you seem to be paralyzed by a fear of losing, you focus only on the weaknesses and not the strengths of your cases. You regularly get caught up in...