                                                                           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                             NOT FOR PUBLICATION                            JAN 27 2014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
