                                                                              FILED
                           NOT FOR PUBLICATION                                 FEB 25 2015

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



                            FOR THE NINTH CIRCUIT


PHYLLIS SMITH,                                   No. 13-35382

              Plaintiff - Appellant,             D.C. No. 1:10-cv-00618-WBS

  v.
                                                 MEMORANDUM*
NORTH STAR CHARTER SCHOOL,
INC., an administratively dissolved Idaho
non-profit corporation; et al.,

              Defendants - Appellees.


                  Appeal from the United States District Court
                            for the District of Idaho
                William B. Shubb, Senior District Judge, Presiding

                      Argued and Submitted February 4, 2015
                               Seattle Washington

Before: FISHER, BEA, and MURGUIA, Circuit Judges.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

                                          1
      Phyllis Smith, the former principal of North Star Charter School, appeals

from the district court’s grant of summary judgment to all defendants in this §

1983 action. We affirm.

      1. The district court granted summary judgment to defendants Baird & Co.,

Blandford, Buck, and Buck Financial Advisors LLC on the grounds that they were

not state actors and thus not subject to § 1983 liability. We review that

determination de novo. Caviness v. Horizon Cmty. Learning Ctr., Inc., 590 F.3d

806, 811 (9th Cir. 2010) (citing Lee v. Katz, 276 F.3d 550, 553 (9th Cir. 2002)).

Smith argues that these defendants’ conduct satisfies the “joint action” test for state

actor liability. We disagree. The joint action test requires that the private parties

have participated in the “activity which deprive[d] [Smith] of constitutional

rights.” Brunette v. Humane Soc’y of Ventura Cnty., 294 F.3d 1205, 1211 (9th Cir.

2002) (citation omitted). As Smith’s complaint makes clear, that activity was the

defendant school board’s firing of Smith. There is no evidence to support the

conclusion that these defendants participated in the decision to fire Smith. Smith

points to a letter that directed the school’s board of directors to cut costs, even if




                                            2
that required firing administrators, but that letter did not even mention Smith.1

Thus, the district court correctly concluded that there was no genuine issue of

material fact as to the liability of these defendants.

      2. The remaining defendants claim a qualified immunity defense. The

district court’s decision to grant summary judgment on the basis of qualified

immunity is reviewed de novo. Ellins v. Sierra Madre, 710 F.3d 1049, 1056 (9th

Cir. 2013). Qualified immunity protects an official who “reasonably but

mistakenly believed that his or her conduct did not violate a clearly established

constitutional right.” Hunt v. Cnty. of Orange, 672 F.3d 606, 615–16 (9th Cir.

2012) (quoting Greene v. Camreta, 588 F.3d 1011, 1031 (9th Cir. 2009),

abrogated on other grounds by Camreta v. Greene, 131 S.Ct. 2020 (2011)).

Government employees have no First Amendment right to speak without

retaliation if their speech “owes its existence to [the] employee’s professional

responsibilities.” Anthoine v. N. Cent. Cntys. Consortium, 605 F.3d 740, 749 (9th

Cir. 2010) (quoting Garcetti v. Ceballos, 547 U.S. 410, 421 (2006)). Thus, Smith




      1
         The district court excluded this letter from its analysis on the grounds that
it was not admissible evidence. Because we conclude that the letter would not
create a genuine issue of material fact, we do not decide whether the district court
erred by excluding it. See Lambert v. Blodgett, 393 F.3d 943, 965 (9th Cir. 2004)

                                            3
must show that it was not reasonable for the school board to mistakenly believe

that her attempted speech was pursuant to her professional responsibilities.

      Smith cannot show this as to her attempts to speak before being placed on

administrative leave. At that time, Smith had financial duties that included

preparation of the very information that her attempted speech included. Therefore,

that speech owed its existence to her job duties.

      Smith’s attempts to speak after having lost her financial duties also do not

require reversal. First, Smith asked for access as principal to the school newsletter

and to set up, as principal, a meeting where she would speak to the school’s

stakeholders. A reasonable school board member could conclude that when an

employee uses her title to speak, without going through the process for members of

the public who wish to speak in that forum, she is speaking in her capacity as

government employee. Second, though Smith’s attempts to speak did not relate to

her contemporary job duties, they related to her former job duties. A reasonable

school board member might conclude that speech which was created pursuant to an

employee’s job duties, and therefore lacks First Amendment protection, does not

gain First Amendment protection when the employee’s job duties are scaled back.

      Thus, the district court’s grant of summary judgment was not erroneous, and

its judgment in favor of the defendants is

                                             4
AFFIRMED.




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