The opinion
FILED
NOT FOR PUBLICATION
NOV 09 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
J. MICHAEL MURRAY, No. 14-16952
Plaintiff-Appellee, D.C. No.
2:10-cv-00968-JAD-GWF
v.
BRYAN WILLIAMS; CHERYL MEMORANDUM*
BURSON; TONYA HILL,
Defendants-Appellants.
Appeal from the United States District Court
for the District of Nevada
Jennifer A. Dorsey, District Judge, Presiding
Submitted October 21, 2016**
San Francisco, California
Before: BEA and IKUTA, Circuit Judges, and RESTANI,*** Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Jane A. Restani, Judge for the United States Court of
International Trade, sitting by designation.
The plaintiff, J. Michael Murray, brought claims against Bryan Williams,
Cheryl Burson, and Tonya Hill (collectively, the “Defendants”) for, inter alia, First
Amendment retaliation under 42 U.S.C. § 1983 and constructive discharge in
violation of Title VII of the Civil Rights Act of 1964 (“Title VII”).1 The
Defendants filed a motion for summary judgment on all of Murray’s claims, but
the district court denied the motion. The Defendants appeal the district court’s
denial of their motion as to Murray’s First Amendment retaliation claim, but not as
to his Title VII constructive-discharge claim.
Because the Defendants asserted the defense of qualified immunity in their
summary judgment motion, this Court has jurisdiction to review the denial of that
motion under 28 U.S.C. § 1291. See Mitchell v. Forsyth, 472 U.S. 511, 530 (1985).
The Court’s review, however, is limited to questions of law. Id.
The district court committed legal error when it concluded that Murray’s
statements addressed matters of “public concern” and were therefore entitled to
First Amendment protection. Eng v. Cooley, 552 F.3d 1062, 1070 (9th Cir. 2009)
(holding that whether a plaintiff spoke on a matter of “public concern” is a legal
1
Murray also brought a § 1983 claim alleging discrimination on the basis of
his race (white) and gender (male) in violation of the Equal Protection Clause of
the Fourteenth Amendment, but he later sought and was granted leave to withdraw
that claim.
2
question that this Court reviews de novo). Murray’s statements were “only
marginally related to issues of public concern.” Johnson v. Multnomah County, 48
F.3d 420, 425 (9th Cir. 1995). Moreover, they “arose primarily out of . . .
[Murray’s] dissatisfaction with his status” as a caseworker at the Southern Desert
Correctional Center, Turner v. City & County of S.F., 788 F.3d 1206, 1211 (9th
Cir. 2015), and they were addressed “to co-workers rather than to the press.”
Johnson, 48 F.3d at 425. Thus, the “content, form, and context” of Murray’s
statements suggest that they did not address matters of public concern and
therefore were not entitled to First Amendment protection. Id. at 422.
Moreover, even if Murray’s First Amendment rights were violated, those
rights were not “clearly established” at the time that the Defendants took adverse
employment action against him. Pearson v. Callahan, 555 U.S. 223, 232 (2009);
Moran v. Washington, 147 F.3d 839, 847–48 (9th Cir. 1998) (“[B]ecause the
underlying determination . . . [of] whether a public employee’s speech is
constitutionally protected turns on a context-intensive, case-by-case balancing
analysis, the law regarding such claims will rarely, if ever, be sufficiently ‘clearly
established’ to preclude qualified immunity.”). The Defendants are therefore
entitled to qualified immunity on Murray’s First Amendment retaliation claim.
3
To the extent that it denied the Defendants’ motion for summary judgment
as to Murray’s First Amendment retaliation claim, we reverse the district court’s
order. Because the Defendants did not appeal the district court’s denial of their
summary judgment motion as to Murray’s Title VII constructive-discharge claim,
we have not considered that portion of the district court’s order.
REVERSED.
4