710 F.3d 1049 (9th Cir. 2013), 11-55213, Ellins v. City of Sierra Madre

Docket Nº:11-55213.
Citation:710 F.3d 1049
Opinion Judge:WARDLAW, Circuit Judge:
Party Name:John ELLINS, Plaintiff-Appellant, v. CITY OF SIERRA MADRE, A Municipality; Marilyn Diaz, Individually and as Chief of Police, Defendants-Appellees.
Attorney:Michael A. Morguess, and Carolina V. Diaz, Lackie, Dammeier & McGill, APC, Upland, CA, for Plaintiff-Appellant. Elizabeth M. Kessel and Scott E. Boyer, Kessel & Associates, Los Angeles, CA, for Defendants-Appellees.
Judge Panel:Before: KIM McLANE WARDLAW, RICHARD A. PAEZ, and JOHNNIE B. RAWLINSON, Circuit Judges. Opinion by Judge WARDLAW; Concurrence by Judge RAWLINSON. RAWLINSON, Circuit Judge, concurring in the judgment:
Case Date:March 22, 2013
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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710 F.3d 1049 (9th Cir. 2013)

John ELLINS, Plaintiff-Appellant,

v.

CITY OF SIERRA MADRE, A Municipality; Marilyn Diaz, Individually and as Chief of Police, Defendants-Appellees.

No. 11-55213.

United States Court of Appeals, Ninth Circuit.

March 22, 2013

Argued and Submitted May 8, 2012.

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Michael A. Morguess, and Carolina V. Diaz, Lackie, Dammeier & McGill, APC, Upland, CA, for Plaintiff-Appellant.

Elizabeth M. Kessel and Scott E. Boyer, Kessel & Associates, Los Angeles, CA, for Defendants-Appellees.

Appeal from the United States District Court for the Central District of California, Consuelo B. Marshall, Senior District Judge, Presiding. D.C. No. 2:09-cv-03971-CBM-RZ.

Before: KIM McLANE WARDLAW, RICHARD A. PAEZ, and JOHNNIE B. RAWLINSON, Circuit Judges.

Opinion by Judge WARDLAW; Concurrence by Judge RAWLINSON.

OPINION

WARDLAW, Circuit Judge:

John Ellins, a police officer for the City of Sierra Madre, led a no-confidence vote of the police officers' union against the Chief of Police, Marilyn Diaz. Diaz subsequently delayed signing an application for a certification that, when issued, would have entitled Ellins to a five percent salary increase. Ellins brought suit under 42 U.S.C. § 1983 against Diaz and the City of Sierra Madre (collectively, " Defendants" ), alleging that Diaz's delay was unconstitutional retaliation for the exercise of his First Amendment rights. The district court granted summary judgment in favor of Defendants, concluding that Ellins had failed to meet his burden under Garcetti v. Ceballos, 547 U.S. 410, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006), to show that he undertook his act as a private citizen and not pursuant to his official duties. We disagree, and further hold that Ellins has established a prima facie case of First Amendment retaliation. We thus reverse the grant of summary judgment in favor of Diaz and remand for further proceedings. We affirm the district court's grant of summary judgment to the City of Sierra Madre because Ellins did not adduce sufficient

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evidence to defeat summary judgment on his Monell claim. Monell v. Dept. of Soc. Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).

I.

Ellins served as President of the Sierra Madre Police Association (SMPA) from late 2006 to January 2010. According to the Memorandum of Understanding (MOU) between the City and the SMPA, the SMPA is the recognized employee's organization for all classified employees of the Sierra Madre Police Department except the Chief of Police and the Lieutenant. The SMPA's bylaws provide that " [t]he President shall be the executive officer of the Association and, subject to the control of the membership, shall have general supervision, direction and control of the affairs of the Association. He/She shall preside at meetings of its members."

Early in Ellins's tenure as SMPA president, Chief Diaz instituted " two-on-two" meetings with the SMPA, designed to " facilitate open communication" and resolve issues between the Department and the SMPA before they became grievances or lawsuits. According to Diaz, Ellins occasionally expressed disagreement with her decisions, but the tone of the meetings was generally " very cordial." At some point Ellins stopped attending the two-on-twos. Thereafter, Diaz learned of grievances and lawsuits filed by the SMPA against the City, as well as two SMPA press releases critical of her leadership. One of the press releases announced a vote of no confidence taken against Diaz by the SMPA membership.

Ellins led the SMPA in the vote of no confidence in 2008. According to Ellins, the union membership initiated the vote because of Diaz's " lack of leadership, wasting of citizens' tax dollars, hypocrisy, expensive paranoia, and damaging inability to conduct her job." SMPA conducted the vote by secret ballot, and 100% of its membership voted. Ellins testified that he led the vote because " as President [of the SMPA], you would have to lead the vote of no confidence." The SMPA then issued the two press releases that Diaz read: one about the vote, and another that criticized Diaz's management style. The press release about the vote listed examples of Diaz's purported incompetence and lack of leadership, including allegations that she wasted taxpayers' money, fell asleep at City Council and other meetings, violated the MOU between the city and the SMPA, and generally harassed her employees.

Diaz testified that when she learned of the SMPA " no confidence" press release she felt " disappointment" and " disbelief that this could have occurred." After the second SMPA press release issued, she felt " disappointed and disheartened that the [SMPA] had chosen what I thought was a counter-productive action." She also testified that she was " disappointed" in Ellins, as SMPA president, for what she presumed was his involvement in the press releases. She expressed this disappointment to her captain and to several members of the police department.

At the time of the no-confidence vote, Ellins had been the subject of three internal affairs investigations.1 In November 2006, he was investigated for associating

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with a convicted narcotics offender and attempting to dissuade a sergeant from issuing a parking ticket to the ex-convict. He received a 125-hour suspension without pay for this incident, which he did not serve. In August 2008, Ellins was investigated for not citing or arresting a theft suspect in whose car Ellins had found marijuana. In May 2008, he was investigated for telling the City Finance Director that residents who did not want to be evacuated during a serious wildfire near Sierra Madre were " stupid" and " deserved to die." Ellins received a reprimand for this statement in December 2008. Finally, in October 2008, Diaz initiated a criminal investigation by the Los Angeles County District Attorney's office into Ellins's alleged misconduct. She provided the District Attorney's office with information about Ellins's alleged sales and use of anabolic steroids, assault with his duty weapons, and other matters " relating to sexual misconduct while on duty." Diaz says she received the information about the alleged misconduct from " another Police Chief." No charges resulted from the District Attorney's criminal investigation of Ellins's alleged misconduct.

On February 29, 2009, Ellins submitted an application to Diaz for an Advanced Peace Officer Standards and Training (P.O.S.T.) certificate. The application for certification required a signature from a " Department Head" or " Authorized Designee." In a paragraph above the signature line, the application reads, " Recommendation to Award Certificate: In my opinion, the applicant is of good moral character and worthy of the award(s), based on personal knowledge." Under the MOU between the City and the SMPA, Ellins would receive a five percent pay raise if he received an Advanced P.O.S.T. certificate. While Ellins's P.O.S.T. application was pending before Diaz, Ellins served his suspension for the August 2008 incident, from May 3 to June 3, 2009.

Diaz testified that when Ellins submitted the application to her, she did not immediately sign it because of her concern that Ellins lacked the requisite good moral character. Diaz consulted with seven other people regarding her decision against signing Ellins's P.O.S.T. application, all of whom agreed with her decision.2 Diaz had not delayed signing any of the four other P.O.S.T. applications from other officers that she had previously signed. However, unlike Ellins, none of the prior applicants had ever received discipline more severe than a written warning.

On June 3, 2009, with his application for a P.O.S.T. certificate still unsigned, Ellins filed this lawsuit in the United States District Court for the Central District of California seeking damages and injunctive relief, based on alleged retaliation for his exercise of individual civil rights, free expression and association, and labor, social, and political activities. Ellins contends that Diaz retaliated against him by delaying the approval of the P.O.S.T. application out of anger because of " [his] outspokenness, the vote of no confidence, and [his] union activities." He also alleged a Monell claim against the City.

On September 14, 2010, Diaz and the City moved for summary judgment. In support of the motion, Diaz declared that she learned that the District Attorney would not file criminal charges against Ellins in October 2009. Two months later, although she had not received written confirmation of this fact from the District

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Attorney's office, on December 3, 2009, Diaz signed Ellins's P.O.S.T. application " rather than delay the process any longer." Diaz also declared that " because [Ellins] had commenced this litigation, it was hoped that if he was given a retroactive pay raise to the date he filed this lawsuit ... he would forego [sic] this litigation." The P.O.S.T. Commission issued the certificate on December 7, 2009, and Ellins was given the five percent pay raise retroactive to June 3, 2009, the date on which he both returned from the 160-hour suspension and filed this lawsuit.

On January 5, 2011, the district court granted Defendants' motion for summary judgment on the ground that Ellins had not satisfied his burden of establishing a prima facie claim of First Amendment retaliation. The district court further held that Diaz, individually, was entitled to qualified immunity, and that the City did not bear Monell liability. See Monell, 436 U.S. 658, 98 S.Ct. 2018.

II.

We review a grant of summary...

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