The opinion
FILED
NOT FOR PUBLICATION JAN 27 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PETER GONZALEZ, No. 12-56610
Plaintiff - Appellee, D.C. No. 3:09-cv-01080-W-MDD
v.
MEMORANDUM*
J. GARIBAY, Correctional Officer,
Defendant - Appellant,
And
M. A. SMELOSKI, Warden; N.
GRANNIS, Chief Inmate Appeals,
Defendants.
Appeal from the United States District Court
for the Southern District of California
Thomas J. Whelan, District Judge, Presiding
Submitted January 21, 2014**
Before: CANBY, SILVERMAN, and PAEZ, Circuit Judges.
*
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).
J. Garibay, a California state correctional officer, appeals from the district
court’s order denying him qualified immunity in Peter Gonzalez’s 42 U.S.C.
§ 1983 action alleging that Garibay retaliated against Gonzalez because Gonzalez
filed a grievance against Garibay. We dismiss for lack of appellate jurisdiction.
We lack jurisdiction to consider this interlocutory appeal because “an order
denying qualified immunity on the ground that a genuine issue of material fact
exists is not a final, immediately appealable order.” Maropulos v. County of Los
Angeles, 560 F.3d 974, 975 (9th Cir. 2009) (per curiam), citing Johnson v. Jones,
515 U.S. 304, 313-20 (1995). The district court denied qualified immunity to
Garibay after determining that there were genuine disputes of material fact as to
whether Garibay’s negative work evaluation and transfer recommendation were
retaliatory, and that those facts, if proven, would establish a violation of
Gonzalez’s clearly established First Amendment rights. Accordingly, we dismiss
this appeal for lack of jurisdiction.
DISMISSED.
2 12-56610