FILED NOT FOR PUBLICATION NOV 20 2024 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DENISE A. CANZONERI, No. 21-16615
Plaintiff-Appellant, D.C. No. 3:20-cv-08033-SMB
v. MEMORANDUM* PRESCOTT UNIFIED SCHOOL DISTRICT; et al.,
Defendants-Appellees,
and
ARIZONA DEPARTMENT OF EDUCATION,
Defendant.
Appeal from the United States District Court for the District of Arizona Susan M. Brnovich, District Judge, Presiding
Argued and Submitted November 5, 2024 Phoenix, Arizona
Before: HAWKINS, TASHIMA, and OWENS, Circuit Judges.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Appellant Denise Canzoneri (“Canzoneri”) appeals the dismissal of her First
Amended Complaint (“FAC”) against Appellees Prescott Unified School District
(“PUSD”) and several of its employees. We have jurisdiction under 28 U.S.C. §
1291. For the reasons that follow, we affirm in part and reverse and remand in part.
BACKGROUND
Canzoneri is a former school librarian who was informed that her position was
being eliminated due to budget constraints. Upon learning this, Canzoneri began
speaking to other employees at work about forming a committee to address the
library’s future. Canzoneri then attended a school board meeting after hours in her
personal capacity to voice concerns about changes to the library. The next day she
was placed on administrative leave and told her employment would not be renewed.
Canzoneri subsequently filed a FAC against PUSD and several of its
employees, alleging violations of her First Amendment rights under 42 U.S.C. §
1983. The district court found that Canzoneri pled insufficient facts to state a claim
against PUSD for municipal liability under Monell v. Department of Social Services
of City of New York, 436 U.S. 658, 694 (1978) (“Monell”), and that the individual
defendants were entitled to qualified immunity. Canzoneri timely appealed.
DISCUSSION
1. The district court erred in dismissing Canzoneri’s § 1983 claim against
PUSD. Dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6) is reviewed
2 de novo. Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002).
Government entities may be subject to liability under § 1983 when “a policy,
practice, or custom of the entity can be shown to be a moving force behind a violation
of constitutional rights.” Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir.
2011) (citing Monell, 436 U.S. at 694). Though proof of a single incident is
insufficient to establish an unconstitutional custom, see City of Oklahoma City v.
Tuttle, 471 U.S. 808, 823‒24 (1985), liability may be predicated on a single violation
if it was the result of an unconstitutional policy. See Pembaur v. City of Cincinnati,
475 U.S. 469, 480–81 (1986); see also Lowry v. City of San Diego, 818 F.3d 840,
855 (9th Cir. 2016) (distinguishing “official municipal policy” from “custom”),
rev’d on other grounds, 858 F.3d 1248 (2017) (en banc). In such instances, the
municipal policy “need only cause a constitutional violation; it need not be
unconstitutional per se.” Jackson v. Gates, 975 F.2d 648, 654 (9th Cir. 1992).
Here, the FAC states that PUSD “had a policy to deprive Plaintiff explicitly
of free speech . . . .” Specifically, Canzoneri alleges that she was placed on
administrative leave and ultimately not re-hired in retaliation for her participation in
the school board meeting. The FAC also alleges that PUSD justified this adverse
employment action under Policy GBEA. Indeed, the letters from PUSD to
Canzoneri cite Policy GBEA. Therefore, the FAC plausibly alleges that Policy
GBEA was the “moving force” behind the adverse employment action which
3 Canzoneri experienced. Dougherty, 654 F.3d at 900. This is sufficient to state a
claim for municipal liability under Monell. 436 U.S. at 708 (a local government may
be held liable “when implementation of its official policies or established customs
inflicts the constitutional injury”). Whether Canzoneri was disciplined because of
her participation in the school board meeting, or due to her conversations at work, is
a disputed question of fact inappropriately resolved at the pleadings stage.
2. Dismissal of the individual defendants under the doctrine of qualified
immunity was appropriate. Reviewing the grant of qualified immunity de novo,
Thompson v. Mahre, 110 F.3d 716, 721 (9th Cir. 1997), our task is to determine:
“(1) whether the alleged misconduct violated a [constitutional] right and (2) whether
the right was clearly established at the time of the alleged misconduct.” Maxwell v.
City of San Diego, 708 F.3d 1075, 1082 (9th Cir. 2013) (citing Pearson v. Callahan,
555 U.S. 223, 232 (2009)). “As the Pickering1 analysis ‘requires a fact-sensitive,
context-specific balancing of competing interests, the law regarding public-
employee free speech claims will rarely, if ever, be sufficiently clearly established
to preclude qualified immunity.’” Dodge v. Evergreen Sch. Dist. #114, 56 F.4th
767, 784 (9th Cir. 2022) (quoting Brewster v. Bd. of Educ. of Lynwood Unified Sch.
Dist., 149 F.3d 971, 980 (9th Cir. 1998)).
1 Pickering v. Bd. of Ed. of Twp. High Sch. Dist. 205, Will Cnty., Ill., 391 U.S. 563 (1968) (“Pickering”).
4 Canzoneri has not demonstrated that her right to be free from retaliation was
clearly established in this instance. The FAC alleges several facts which indicate
that the individual Appellees may have taken the same adverse employment action
even if the protected speech had not occurred. For example, the FAC states that
Canzoneri was told she was being placed on administrative leave for soliciting
teachers to join her committee. A subsequent letter to Canzoneri states that she
violated Policy GBEA by “trying to form a committee to continue operating the
library” during work hours. Given this alternative justification, it cannot be said that
“the outcome of the Pickering balance so clearly favors [Canzoneri] that it would
have been unreasonable for the [Appellees] to believe that their actions were lawful.”
Lytle v. Wondrash, 182 F.3d 1083, 1089 (9th Cir. 1999). Canzoneri points to no
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FILED NOT FOR PUBLICATION NOV 20 2024 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DENISE A. CANZONERI, No. 21-16615
Plaintiff-Appellant, D.C. No. 3:20-cv-08033-SMB
v. MEMORANDUM* PRESCOTT UNIFIED SCHOOL DISTRICT; et al.,
Defendants-Appellees,
and
ARIZONA DEPARTMENT OF EDUCATION,
Defendant.
Appeal from the United States District Court for the District of Arizona Susan M. Brnovich, District Judge, Presiding
Argued and Submitted November 5, 2024 Phoenix, Arizona
Before: HAWKINS, TASHIMA, and OWENS, Circuit Judges.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Appellant Denise Canzoneri (“Canzoneri”) appeals the dismissal of her First
Amended Complaint (“FAC”) against Appellees Prescott Unified School District
(“PUSD”) and several of its employees. We have jurisdiction under 28 U.S.C. §
1291. For the reasons that follow, we affirm in part and reverse and remand in part.
BACKGROUND
Canzoneri is a former school librarian who was informed that her position was
being eliminated due to budget constraints. Upon learning this, Canzoneri began
speaking to other employees at work about forming a committee to address the
library’s future. Canzoneri then attended a school board meeting after hours in her
personal capacity to voice concerns about changes to the library. The next day she
was placed on administrative leave and told her employment would not be renewed.
Canzoneri subsequently filed a FAC against PUSD and several of its
employees, alleging violations of her First Amendment rights under 42 U.S.C. §
1983. The district court found that Canzoneri pled insufficient facts to state a claim
against PUSD for municipal liability under Monell v. Department of Social Services
of City of New York, 436 U.S. 658, 694 (1978) (“Monell”), and that the individual
defendants were entitled to qualified immunity. Canzoneri timely appealed.
DISCUSSION
1. The district court erred in dismissing Canzoneri’s § 1983 claim against
PUSD. Dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6) is reviewed
2 de novo. Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002).
Government entities may be subject to liability under § 1983 when “a policy,
practice, or custom of the entity can be shown to be a moving force behind a violation
of constitutional rights.” Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir.
2011) (citing Monell, 436 U.S. at 694). Though proof of a single incident is
insufficient to establish an unconstitutional custom, see City of Oklahoma City v.
Tuttle, 471 U.S. 808, 823‒24 (1985), liability may be predicated on a single violation
if it was the result of an unconstitutional policy. See Pembaur v. City of Cincinnati,
475 U.S. 469, 480–81 (1986); see also Lowry v. City of San Diego, 818 F.3d 840,
855 (9th Cir. 2016) (distinguishing “official municipal policy” from “custom”),
rev’d on other grounds, 858 F.3d 1248 (2017) (en banc). In such instances, the
municipal policy “need only cause a constitutional violation; it need not be
unconstitutional per se.” Jackson v. Gates, 975 F.2d 648, 654 (9th Cir. 1992).
Here, the FAC states that PUSD “had a policy to deprive Plaintiff explicitly
of free speech . . . .” Specifically, Canzoneri alleges that she was placed on
administrative leave and ultimately not re-hired in retaliation for her participation in
the school board meeting. The FAC also alleges that PUSD justified this adverse
employment action under Policy GBEA. Indeed, the letters from PUSD to
Canzoneri cite Policy GBEA. Therefore, the FAC plausibly alleges that Policy
GBEA was the “moving force” behind the adverse employment action which
3 Canzoneri experienced. Dougherty, 654 F.3d at 900. This is sufficient to state a
claim for municipal liability under Monell. 436 U.S. at 708 (a local government may
be held liable “when implementation of its official policies or established customs
inflicts the constitutional injury”). Whether Canzoneri was disciplined because of
her participation in the school board meeting, or due to her conversations at work, is
a disputed question of fact inappropriately resolved at the pleadings stage.
2. Dismissal of the individual defendants under the doctrine of qualified
immunity was appropriate. Reviewing the grant of qualified immunity de novo,
Thompson v. Mahre, 110 F.3d 716, 721 (9th Cir. 1997), our task is to determine:
“(1) whether the alleged misconduct violated a [constitutional] right and (2) whether
the right was clearly established at the time of the alleged misconduct.” Maxwell v.
City of San Diego, 708 F.3d 1075, 1082 (9th Cir. 2013) (citing Pearson v. Callahan,
555 U.S. 223, 232 (2009)). “As the Pickering1 analysis ‘requires a fact-sensitive,
context-specific balancing of competing interests, the law regarding public-
employee free speech claims will rarely, if ever, be sufficiently clearly established
to preclude qualified immunity.’” Dodge v. Evergreen Sch. Dist. #114, 56 F.4th
767, 784 (9th Cir. 2022) (quoting Brewster v. Bd. of Educ. of Lynwood Unified Sch.
Dist., 149 F.3d 971, 980 (9th Cir. 1998)).
1 Pickering v. Bd. of Ed. of Twp. High Sch. Dist. 205, Will Cnty., Ill., 391 U.S. 563 (1968) (“Pickering”).
4 Canzoneri has not demonstrated that her right to be free from retaliation was
clearly established in this instance. The FAC alleges several facts which indicate
that the individual Appellees may have taken the same adverse employment action
even if the protected speech had not occurred. For example, the FAC states that
Canzoneri was told she was being placed on administrative leave for soliciting
teachers to join her committee. A subsequent letter to Canzoneri states that she
violated Policy GBEA by “trying to form a committee to continue operating the
library” during work hours. Given this alternative justification, it cannot be said that
“the outcome of the Pickering balance so clearly favors [Canzoneri] that it would
have been unreasonable for the [Appellees] to believe that their actions were lawful.”
Lytle v. Wondrash, 182 F.3d 1083, 1089 (9th Cir. 1999). Canzoneri points to no
case which clearly establishes that government employees must disregard a valid
motive for disciplinary action given the presence of outside protected speech.
Contrary to Canzoneri’s assertions, Greisen v. Hanken, 925 F.3d 1097 (9th
Cir. 2019), does not address the Pickering balancing analysis. Canzoneri’s blanket
appeal to Pickering also fails as any asserted First Amendment right in the public
employment context must be “defined at a more specific level tied to the factual and
legal context of a given case.” Riley’s Am. Heritage Farms v. Elsasser, 32 F.4th
707, 729 (9th Cir. 2022). Thus, Canzoneri has failed to point to “existing precedent”
that would have placed this specific “constitutional question beyond debate” for the
5 individual Appellees. Kisela v. Hughes, 584 U.S. 100, 104 (2018) (citation omitted).
Additionally, we may affirm the grant of qualified immunity at the motion to dismiss
stage having determined “based on the complaint itself, that qualified immunity
applies.” Polanco v. Diaz, 76 F.4th 918, 925 (9th Cir. 2023) (citation omitted).
Doing so at the motion to dismiss stage reflects “the importance of resolving
immunity questions at the earliest possible stage in litigation.” Pearson, 555 U.S. at
232 (citation omitted).
3. We choose not to consider Canzoneri’s argument that the district court
erred by dismissing her claims for equitable relief against the individual Appellees
as this issue has been waived. See In re Mortg. Elec. Registration Sys., Inc., 754
F.3d 772, 780 (9th Cir. 2014) (“[A]rguments not raised in the district court will not
be considered for the first time on appeal.”).
The matter is remanded to the district court for proceedings consistent with
this disposition.
AFFIRMED IN PART AND REVERSED AND REMANDED IN PART.
Each party shall bear its own costs on appeal. Fed. R. App. P. 39(a)(4).