                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                              FEB 19 2015

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

RUDY CAMPOS,                                     No. 13-55439

              Plaintiff - Appellant,             D.C. No. 2:12-cv-05805-JGB-
                                                 MRW
  v.

CITY OF IRWINDALE, a municipal                   MEMORANDUM*
corporation; and MARIO CAMACHO,
individually and as Lieutenant for the
Irwindale Police Department,

              Defendants - Appellees.


                   Appeal from the United States District Court
                       for the Central District of California
                    Jesus G. Bernal, District Judge, Presiding

                          Submitted February 12, 2015**
                              Pasadena, 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: GRABER and WARDLAW, Circuit Judges, and MOLLOY,*** Senior
District Judge.

      Rudy Campos appeals the district court’s grant of summary judgment in

favor of Mario Camacho and the City of Irwindale in this § 1983 action. Campos

claims that Camacho and the City of Irwindale wrongfully retaliated against him

for exercising his First Amendment rights at a meeting of the Irwindale Police

Officers’ Association (IPOA) on July 3, 2008. Campos asserts that the retaliatory

acts took two forms: (1) poor performance evaluations, and (2) withholding of

overtime shifts. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

      1. The district court properly excluded the asserted adverse employment

actions that occurred before July 5, 2010, due to California’s two-year statute of

limitations for § 1983 claims. Action Apartment Ass’n v. Santa Monica Rent

Control Bd., 509 F.3d 1020, 1026-27 (9th Cir. 2007). Campos did not file his

complaint until July 5, 2012, even though he claims to have experienced discrete

retaliatory acts as early as August 2008. While Campos describes a series of

discrete retaliatory acts, spanning several years, only those acts occurring within

the two-year statute of limitations are actionable. See Nat’l R.R. Passenger Corp.

v. Morgan, 536 U.S. 101, 114 (2002).

        ***
             The Honorable Donald W. Molloy, Senior District Judge for the U.S.
District Court for the District of Montana, sitting by designation.

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      2. The district court did not err in holding that Campos failed to provide any

evidence demonstrating a connection between his votes at the July 3, 2008 IPOA

meeting and his performance evaluations. Huskey v. City of San Jose, 204 F.3d

893, 899-900 (9th Cir. 2000). Campos presented no evidence that Camacho was

involved in or influenced his 2010 or 2011 performance evaluations.

      3. With respect to overtime pay, the district court correctly held, based on

Campos’s deposition testimony, that Camacho withdrew overtime from Campos

only once, and that this overtime had been assigned to Campos in error. Thus, this

withdrawal was not in retaliation for protected First Amendment activity because it

was not “of a nature that would stifle someone from speaking out.” Blair v. Bethel

Sch. Dist., 608 F.3d 540, 544 (9th Cir. 2010). Moreover, the undisputed evidence

showed that Campos was consistently one of the highest earners of overtime

wages.

      4. Nor did Campos present evidence showing that he was “injured pursuant

to an expressly adopted official policy, a long-standing practice or custom, or the

decision of a final policymaker.” Ellins v. City of Sierra Madre, 710 F.3d 1049,

1066 (9th Cir. 2013) (internal quotation marks omitted). Campos provided no

evidence of an official policy or custom of giving negative performance

evaluations or withholding overtime shifts in retaliation. Nor has Campos


                                          3
provided evidence that his asserted injury is attributable to a final policymaker. Id.

at 1066-67. Thus, the City of Irwindale is not liable under a Monell theory of

liability. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978).

      Because Campos is not able to show that he was subjected to adverse

employment action sufficient for recovery under § 1983, the district court properly

granted summary judgment in favor of Camacho and the City of Irwindale.

      AFFIRMED.




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