                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             MAY 18 2012

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

RICHARD HOLBROOK,                                No. 10-15348

              Plaintiff - Appellant,             D.C. No. 3:06-cv-00215-LRH-
                                                 VPC
  v.

GLEN WHORTON; JACKIE                             MEMORANDUM*
CRAWFORD; STATE OF NEVADA
DEPARTMENT OF CORRECTIONS;
DONNY GILCREASE; ALOIS HANKE;
JERAMY BRANAHAN; ADOLPH
STANKUS; ROBERT SCHOBER; ERIC
FANCHER; SCOTT BURCHETT; JEFF
MCTEE; GREG MADEIORS; GARY
DUTTON; ABRAHAM LOPEZ,

              Defendants - Appellees.


                   Appeal from the United States District Court
                            for the District of Nevada
                    Larry R. Hicks, District Judge, Presiding

                             Submitted May 15, 2012**
                              San Francisco, California


        *
             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).
Before: THOMAS, McKEOWN, and W. FLETCHER, Circuit Judges.

      Richard Holbrook is a former senior correctional officer for the Nevada

Department of Corrections (“NDOC”). He appeals the district court’s grant of

judgment on the pleadings and summary judgment against his First Amendment

retaliation and defamation claims. We review those rulings de novo. Lyon v.

Chase Bank USA, N.A., 656 F.3d 877, 883 (9th Cir. 2011) (judgment on the

pleadings); Anthoine v. N. Cent. Cntys. Consortium, 605 F.3d 740, 747 (9th Cir.

2010) (summary judgment).

       In a First Amendment retaliation claim against a government employer, the

plaintiff bears the initial burden of showing that his speech addressed a matter of

public concern. Eng v. Cooley, 552 F.3d 1062, 1070 (9th Cir. 2009). Holbrook

stated in his complaint that he informed the NDOC director about procedural

violations by other officers “in the context of seeking an accommodation for his

[employment] predicament.” “ Looking to the ‘content, form, and context’” of

Holbrook’s conversation with the director, we agree with the district court that the

speech addressed a personal grievance and employment dispute, rather than a

matter of public concern. Brownfield v. City of Yakima, 612 F.3d 1140, 1149 (9th

Cir. 2010) (quoting Connick v. Myers, 461 U.S. 138, 147-48 (1983)). We therefore




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affirm the district court’s grant of judgment on the pleadings against Holbrook’s

First Amendment claim.

      All of the allegedly defamatory statements that Holbrook challenges on

appeal were made to other officers or investigators. The district court held that

these statements fall within the common interest privilege. Holbrook does not

challenge that holding on appeal. Instead, he argues that he has raised a triable

issue that Defendants abused the privilege by making defamatory statements with

actual malice. However, Holbrook’s own deposition testimony about his actions

during the riot does not suffice because the test for actual malice is subjective,

relying on “what the defendant believed and intended to convey.” Pegasus v. Reno

Newspapers, Inc., 57 P.3d 82, 92 (Nev. 2002) (internal quotation marks omitted).

Nor has Holbrook demonstrated that Defendant Alois Hanke made inconsistent

statements. As a result, Holbrook has not presented any evidence indicating that

the Defendants knew their statements were false or acted with reckless disregard

for the truth. See id. at 93. We therefore affirm the district court’s grant of

summary judgment against Holbrook’s defamation claim.

      AFFIRMED.




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