                                                                            FILED
                           NOT FOR PUBLICATION                              APR 05 2016

                                                                         MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


KAY ANNE RILEY,                                  No. 14-15395

              Plaintiff - Appellee,              D.C. No. 3:11-cv-08123-JAT

 v.
                                                 MEMORANDUM*
CITY OF PRESCOTT, Arizona, a political
subdivision; et al.,

              Defendants - Appellants.


                   Appeal from the United States District Court
                            for the District of Arizona
                James A. Teilborg, Senior District Judge, Presiding

                       Argued and Submitted March 14, 2016
                            San Francisco, California

Before: BYBEE and N.R. SMITH, Circuit Judges and KORMAN,** Senior District
Judge.

      Former Prescott, Arizona Mayor, Marlin Kuykendall, filed this interlocutory

appeal seeking reversal of the district court’s order, which denied Kuykendall’s


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Edward R. Korman, Senior District Judge for the U.S.
District Court for the Eastern District of New York, sitting by designation.
motion for summary judgment and denied him qualified immunity. We review de

novo, Cunningham v. City of Wenatchee, 345 F.3d 802, 810 (9th Cir. 2003), and

affirm.

                                            I

      As a threshold issue, to the extent Kuykendall argues that Riley’s evidence is

insufficient to create material issues of fact as to Kuykendall’s involvement in

Riley’s termination, we lack jurisdiction. “[A]n appellate court lacks jurisdiction

over an interlocutory appeal challenging the sufficiency of the evidence supporting

the trial court’s conclusion that an issue of fact exists.” Jeffers v. Gomez, 267 F.3d

895, 903 (9th Cir. 2001); see also Behrens v. Pelletier, 516 U.S. 299, 313 (1996).

Where the district court’s denial of summary judgment is based both on the

existence of triable issues of fact and the lack of qualified immunity, we have

jurisdiction only to “resolve all factual disputes in favor of the plaintiff and look at

the purely legal question of whether the defendant's alleged conduct violated the

plaintiff's clearly established constitutional rights.” Cunningham, 345 F.3d at 807

(emphasis added). That is what we must do here.

                                            II

      Kuykendall is not entitled to qualified immunity. Qualified immunity is

assessed in two steps. First we ask whether the facts (assumed in the plaintiff’s


                                            2
favor) demonstrate a constitutional violation; and second, if so, whether it was

“clearly established” at the time that such conduct was unconstitutional.

Cunningham, 345 F.3d at 810 (citing Saucier v. Katz, 533 U.S. 194 (2001)).

      Resolving all factual disputes in Riley’s favor, Riley has shown a

constitutional violation. See id. at 807. First, Riley’s protest was on a matter of

public concern. It was closely covered by local media and centered on city

officials’ high-profile (and allegedly retaliatory) treatment, termination, and arrest

of a former city employee. See Clairmont v. Sound Mental Health, 632 F.3d 1091,

1103–05 (9th Cir. 2011) (noting that speech that “bring[s] to light potential or

actual discrimination, corruption, or other wrongful conduct by government

agencies or officials” when given to a broad audience rather than in private

grievance form will make the speech “a matter of public concern”). Second, Riley

was not speaking as a part of her job, but rather as a private citizen. See id. at

1105–06 (government contractor’s employee testifying as an expert was acting as

private citizen where it was not a part of his official job duties to do so). And third,

Riley’s protected speech was a substantial or motivating factor in the adverse

employment action. See id. at 1106 (plaintiff established this factor where

“[s]everal emails . . . viewed in the light most favorable to [the plaintiff],

reasonably could support a finding that [the plaintiff] was fired because of” the


                                            3
probation office’s concerns over his testimony rather than complaints about the

plaintiff’s job performance).

      Riley has thus shifted the burden to Kuykendall to show that there was “an

adequate justification for treating [Riley] differently from other members of the

general public” and whether there would have been “adverse employment action

even absent the protected speech.” Id. at 1102–03. Yet Kuykendall has failed to

do anything more than dispute the sufficiency of the evidence to permit a jury to

rule in Riley’s favor on these elements—something we don’t have jurisdiction to

address. Accordingly, Riley has demonstrated a constitutional violation.

      Riley’s constitutional rights were clearly established at the time of the

violation. As Kuykendall concedes, we denied qualified immunity under similar

circumstances in Clairmont for events that predated Riley’s termination by several

years. See 632 F.3d at 1101–02, 1109–10. It is also a given that at the time of

Riley’s termination, it was clearly established that Kuykendall could not have

terminated YHS’s contract based on YHS’s speech. See Bd. of Cty. Comm’rs v.

Umbehr, 518 U.S. 668, 684 (1996); Rivero v. City & Cty. of San Francisco, 316

F.3d 857, 864 (9th Cir. 2002); Hyland v. Wonder, 117 F.3d 405 (1997) (Hyland II);

Hyland v. Wonder, 972 F.2d 1129 (9th Cir. 1992) (Hyland I). Yet Kuykendall fails

to offer any persuasive reason why it would be reasonable for him to nonetheless


                                          4
believe he could cause YHS to fire Riley based on her speech. We hold that her

rights were also clearly established at the time.

      Our decision in Clairmont squarely controls the outcome here. We therefore

AFFIRM the district court’s denial of summary judgment.




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