                                                                              FILED
                           NOT FOR PUBLICATION                                 JUL 30 2014

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



                            FOR THE NINTH CIRCUIT


DAVID MANGO,                                     No. 12-57019

              Plaintiff - Appellee,              D.C. No. 2:11-cv-05641-GW-FFM

  v.
                                                 MEMORANDUM*
CITY OF MAYWOOD, a municipal
corporation,

              Defendant,

  And

LILIAN MYERS,

              Defendant - Appellant.


                   Appeal from the United States District Court
                      for the Central District of California
                    George H. Wu, District Judge, Presiding

                        Argued and Submitted July 9, 2014
                              Pasadena, California

Before: SILVERMAN, TALLMAN, and RAWLINSON, Circuit Judges.


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

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      Defendant-Appellant Lilian Myers appeals from the district court’s denial of

qualified immunity in David Mango’s 42 U.S.C. § 1983 action alleging First

Amendment retaliation. We have jurisdiction pursuant to 28 U.S.C. § 1291, and

we affirm.

      A government official is entitled to qualified immunity “unless a plaintiff

pleads facts showing (1) that the official violated a statutory or constitutional right,

and (2) that the right was ‘clearly established’ at the time of the challenged

conduct.” Wood v. Moss, 134 S. Ct. 2056, 2059 (2014) (quoting Ashcroft v. al-

Kidd, 131 S. Ct. 2074, 2080 (2011)).

      Myers contends that she is entitled to qualified immunity because Mango’s

constitutional right was not clearly established. A right is clearly established if

“the state of the law at the time [of the adverse action] g[ave] officials fair warning

that their conduct [was] unconstitutional.” Ellins v. City of Sierra Madre, 710 F.3d

1049, 1064 (9th Cir. 2013) (quoting Bull v. City & Cnty. of S.F., 595 F.3d 964,

1003 (9th Cir. 2010) (en banc)). This is an objective standard and the defendant’s

subjective understanding of the constitutionality of her conduct is irrelevant. Karl

v. City of Mountlake Terrace, 678 F.3d 1062, 1073 (9th Cir. 2012).

       To demonstrate that the right was not clearly established, Myers first

contends that she had no fair warning that releasing Mango was unconstitutional

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because there is no existing case with similar facts. But, “closely analogous

preexisting case law is not required” for fair notice because “officials can still be

on notice that their conduct violates established law even in novel factual

circumstances.” Id.; see also Brosseau v. Haugen, 543 U.S. 194, 199 (2004) (“[I]n

an obvious case, [general] standards can ‘clearly establish’ the answer, even

without a body of relevant case law.”). “It is well settled that a State cannot

condition public employment on a basis that infringes the employee’s

constitutionally protected interest in freedom of expression.” Garcetti v. Ceballos,

547 U.S. 410, 413 (2006) (internal quotation marks omitted). So, under Mango’s

version of the facts, which we must take as true, Eng v. Cooley, 552 F.3d 1062,

1064 (9th Cir. 2009), Myers should have known her actions were unconstitutional.

      To the degree that Myers contends that Mango was not a Maywood

employee, that is a dispute of material fact that will have to be resolved at trial.

See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986). Myers may

very well prove and prevail on her version of the facts, but she cannot now

demonstrate that she is entitled to qualified immunity.

      AFFIRMED.




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