                                                                           FILED
                            NOT FOR PUBLICATION                            APR 04 2014

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



                            FOR THE NINTH CIRCUIT


RICK PRANCEVIC,                                  No. 11-56798

              Plaintiff - Appellee,              D.C. No. 2:10-cv-03667-JHN-
                                                 AGR
  v.

DANNY MACAGNI, Individually and as               MEMORANDUM*
Chief of Police for the Santa Maria Police
Department; CITY OF SANTA MARIA,

              Defendants - Appellants,

______________________

COUNTY OF SANTA BARBARA, a
municipal corporation; DAVID
SAUNDERS, Individually; ANN
BRAMSEN, Individually,

              Defendants.



RICK PRANCEVIC,                                  No. 11-56953

              Plaintiff - Appellee,              D.C. No. 2:10-cv-03667-JHN-
                                                 AGR
  v.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
DAVID SAUNDERS, Individually; ANN
BRAMSEN, Individually,

              Defendants - Appellants,

_________________________

DANNY MACAGNI, Individually and as
Chief of Police for the Santa Maria Police
Department; CITY OF SANTA MARIA;
COUNTY OF SANTA BARBARA, a
municipal corporation,

              Defendants.


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

                      Argued and Submitted February 4, 2014
                               Pasadena, California

Before: PREGERSON and BERZON, Circuit Judges, and AMON, Chief District
Judge.**

      Defendants appeal the district court’s denial of qualified immunity. Because

the parties are familiar with the factual background and procedural history of this

case, we need not discuss them here. We have jurisdiction under 28 U.S.C.

§ 1291.


       **
             The Honorable Carol Bagley Amon, Chief District Judge for the U.S.
District Court for the Eastern District of New York, sitting by designation.

                                          2
      We review de novo a district court’s order denying summary judgment on

the ground of qualified immunity. Rodis v. City & Cnty. of S.F., 558 F.3d 964, 968

(9th Cir. 2009). “[O]ur review is limited to the ‘purely legal issue whether the

facts [adduced by the plaintiff] . . . support a claim of clearly established law.’”

Alston v. Read, 663 F.3d 1094, 1098 (9th Cir. 2011) (citations omitted).

      (1)    We affirm the denial of qualified immunity with respect to Defendants

Danny Macagni, Chief of the Santa Maria Police Department, and the City of Santa

Maria. The evidence adduced by Plaintiff Rick Prancevic would support a finding

that Chief Macagni banned him from the police department, and did so to punish

him for protected speech. Such conduct would violate Prancevic’s clearly

established First Amendment rights. See Soranno’s Gasco, Inc. v. Morgan, 874

F.2d 1310, 1319 (9th Cir. 1989) (plaintiff “had a clearly established right to be free

of intentional retaliation by government officials based upon that individual’s

constitutionally protected expression”). We cannot decide in this qualified

immunity appeal whether there would be a First Amendment violation even if the

facts submitted by Chief Macagni and the City were determined to be true. See

Jeffers v. Gomez, 267 F.3d 895, 903 (9th Cir. 2001).

      (2)    We likewise affirm the denial of qualified immunity with respect to

the Santa Barbara County District Attorney (“DA”) officials. Prancevic has


                                            3
adduced evidence that would support a finding that his First Amendment protected

speech was a substantial or motivating factor in the DA’s decision to transfer his

work assignment from Santa Maria to Lompoc. For example, the Chief Trial

Deputy of the DA’s office testified that Defendant David Saunders was

“infuriated” by Prancevic’s letter, and “[i]n the meeting,” in which Prancevic’s

transfer was ordered, “the context was obviously punishment.” The DA officials

are therefore not entitled to qualified immunity at this stage of the case. See Eng v.

Cooley, 552 F.3d 1062, 1071 (9th Cir. 2009); Yartzoff v. Thomas, 809 F.2d 1371,

1376 (9th Cir. 1987) (holding that a transfer of job duties can constitute an adverse

employment action). Again, whether there would be a First Amendment violation,

or qualified immunity, on the defendants’ version of the facts are issues we cannot

decide at this juncture.

      AFFIRMED.




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