American Federation of State v. Nevada Ex Rel. Department of Corrections

Ninth Circuit

American Federation of State v. Nevada Ex Rel. Department of Corrections

460 F. App'x 688

CourtCourt of Appeals for the Ninth Circuit

DecidedDecember 5, 2011

Docket10-17046

StatusUnpublished

Cited by2 cases

This text of 460 F. App'x 688 (American Federation of State v. Nevada Ex Rel. Department of Corrections) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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American Federation of State v. Nevada Ex Rel. Department of Corrections, 460 F. App'x 688 (9th Cir. 2011).

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Opinion

AMENDED MEMORANDUM **

Robert Bianchi (“Bianchi”), a lieutenant at the Nevada State Prison with the Nevada Department of Corrections (“NDOC”), appeals the summary judgment dismissal of his § 1983 action, alleging that he was retaliated against by the NDOC in violation of his First Amendment rights. We have jurisdiction under 28 U.S.C. § 1291, and affirm.

Bianchi contends that NDOC demoted him in retaliation for his involvement in a no-confidence petition regarding the Assistant Warden of Operations, Walter Donat, and issued him a letter of reprimand in retaliation for testifying regarding the petition at a trial. However, Bianchi successfully appealed each disciplinary action, was reinstated to his former rank as a lieutenant, and the letter of reprimand was removed from his file. NDOC alleges that it had legitimate reasons for reprimanding Bianchi: he had failed to report on or properly supervise a misbehaving subordinate, and had misused a sick day and had given misleading statements about it.

Reviewing the grant of summary judgment de novo, we conclude Bianchi has not provided evidence sufficient to show any genuine issue of material fact. Retaliation claims against government employers must be supported by proof that protected speech was a “substantial or motivating factor in the adverse employment action.” *690 Eng v. Cooley, 552 F.3d 1062, 1070-72 (9th Cir.2009). To do so, a plaintiff must first present evidence the defendant had knowledge of the plaintiffs protected speech. Alpha Energy Savers, Inc. v. Hansen, 381 F.3d 917, 928 (9th Cir.2004) (citing Keyser v. Sacramento City Unified Sch. Dist., 265 F.3d 741, 750-52 (9th Cir.2001)). Bianchi relies on allegations in his complaint as well as in his affidavit — conclusory, self-serving, and lacking any supporting evidence — which fail to establish a genuine issue of material fact on summary judgment review. F.T.C. v. Publ’g Clearing House, Inc., 104 F.3d 1168, 1171 (9th Cir.1997) (citations omitted).

AFFIRMED.

**

This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

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AMENDED MEMORANDUM **

Robert Bianchi (“Bianchi”), a lieutenant at the Nevada State Prison with the Nevada Department of Corrections (“NDOC”), appeals the summary judgment dismissal of his § 1983 action, alleging that he was retaliated against by the NDOC in violation of his First Amendment rights. We have jurisdiction under 28 U.S.C. § 1291, and affirm.

Bianchi contends that NDOC demoted him in retaliation for his involvement in a no-confidence petition regarding the Assistant Warden of Operations, Walter Donat, and issued him a letter of reprimand in retaliation for testifying regarding the petition at a trial. However, Bianchi successfully appealed each disciplinary action, was reinstated to his former rank as a lieutenant, and the letter of reprimand was removed from his file. NDOC alleges that it had legitimate reasons for reprimanding Bianchi: he had failed to report on or properly supervise a misbehaving subordinate, and had misused a sick day and had given misleading statements about it.

Reviewing the grant of summary judgment de novo, we conclude Bianchi has not provided evidence sufficient to show any genuine issue of material fact. Retaliation claims against government employers must be supported by proof that protected speech was a “substantial or motivating factor in the adverse employment action.” *690 Eng v. Cooley, 552 F.3d 1062, 1070-72 (9th Cir.2009). To do so, a plaintiff must first present evidence the defendant had knowledge of the plaintiffs protected speech. Alpha Energy Savers, Inc. v. Hansen, 381 F.3d 917, 928 (9th Cir.2004) (citing Keyser v. Sacramento City Unified Sch. Dist., 265 F.3d 741, 750-52 (9th Cir.2001)). Bianchi relies on allegations in his complaint as well as in his affidavit — conclusory, self-serving, and lacking any supporting evidence — which fail to establish a genuine issue of material fact on summary judgment review. F.T.C. v. Publ’g Clearing House, Inc., 104 F.3d 1168, 1171 (9th Cir.1997) (citations omitted).

AFFIRMED.

**

This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

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