                                                                          FILED
                            NOT FOR PUBLICATION                            MAR 05 2013

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



CHRISSY MAZZEO,                                 No. 10-17551

              Plaintiff - Appellee,             D.C. No. 2:08-cv-01387-RLH-
                                                PAL
  v.

BILL YOUNG,                                     MEMORANDUM *

              Defendant - Appellant,

  and

JAMES ARTHUR GIBBONS; SIGMUND
ROGICH; LAS VEGAS
METROPOLITAN POLICE
DEPARTMENT,

              Defendants.




                   Appeal from the United States District Court
                            for the District of Nevada
                  Roger L. Hunt, Senior District Judge, Presiding

                     Argued and Submitted February 13, 2013
                            San Francisco, California



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: SCHROEDER, HAWKINS, and MURGUIA, Circuit Judges.

      Former Clark County, Nevada Sheriff Bill Young appeals the denial of his

motion for summary judgment on his qualified immunity defense in this 42 U.S.C.

§ 1983 action brought by Chrissy Mazzeo.           We have jurisdiction over this

interlocutory appeal under 28 U.S.C. § 1291, see Mitchell v. Forsyth, 472 U.S. 511,

530 (1985), and review the question of qualified immunity de novo, Karl v. City of

Mountlake Terrace, 678 F.3d 1062, 1068 (9th Cir. 2012). For the reasons that follow,

we affirm the district court’s order denying summary judgment.

      Young is entitled to qualified immunity unless “taking all facts and inferences

therefrom in favor of the plaintiff,” Jeffers v. Gomez, 267 F.3d 895, 905 (9th Cir.

2001), the record shows Young violated Mazzeo’s constitutional rights and that the

allegedly violated right was “clearly established” at the time of Young’s conduct.

Saucier v. Katz, 533 U.S. 194, 201 (2001), overruled in part by Pearson v. Callahan,

555 U.S. 223, 235–36 (2009).

      Viewing the record in the light most favorable to Mazzeo, we consider the facts

the district court identified as examples of adverse action—Young’s statements to the




                                         2
press1 and Sigmund Rogich’s involvement in directing a witness to craft a misleading

statement—along with other facts in the record that the district court likely relied on,

including the conduct of Young’s co-conspirators.2 See Johnson v. Jones, 515 U.S.

304, 319 (1995) (where a district court does not state those facts it assumed when

denying summary judgment, this court may be required to “undertake a cumbersome

review of the record to determine what facts the district court, in the light most

favorable to the nonmoving party, likely assumed”).

      Young’s speech-based actions may not, alone, be sufficient to constitute

adverse action, see, e.g., Nunez v. City of Los Angeles, 147 F.3d 867, 875 (9th Cir.




      1
         The district court’s suggestion that Young’s statement about the reasons that
Mazzeo declined to pursue the investigation was false because she “instead” told
police other reasons for declining to prosecute is belied by evidence in Mazzeo’s
deposition testimony. Because such an examination of the record contrasts with the
practice of “tak[ing], as given, the facts the district court assumed when it denied
summary judgment,” Johnson, 515 U.S. at 319, and because the record contains
allegations of adverse action adequately supported by the record, we need not address
the impact of the district court’s reliance on this fact, see, e.g., Scott v. Harris, 550
U.S. 372, 380 (2007) (reversing court of appeals for relying on disputed issue of fact
that was clearly contradicted by the record).
      2
         The district court found that a triable issue of fact existed as to whether
defendants Jim Gibbons, Sigmund Rogich, and Bill Young, among others, acted in a
conspiracy to retaliate against Mazzeo for her exercise of her First Amendment rights,
a determination of fact we cannot review in the context of this interlocutory appeal,
Johnson, 515 U.S. at 318. If these allegations are correct, Young may be liable for the
acts of other members of the conspiracy. See Lacey v. Maricopa Cnty., 693 F.3d 896,
935 (9th Cir. 2012) (en banc).

                                           3
1998), particularly in light of Young’s own First Amendment rights, see, e.g., New

York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964). But, taken together, the

conduct attributable to Young constitutes adverse action sufficient to sustain a

retaliation claim as it suggests a “campaign[ ] of harassment and humiliation,”

Coszalter v. City of Salem, 320 F.3d 968, 975–76 (9th Cir. 2003), and evidences

“coercion, persuasion, and intimidation,” White v. Lee, 227 F.3d 1214, 1228 (9th Cir.

2000), sufficient to “chill or silence a person of ordinary firmness” in continuing in

their First Amendment activities. Mendocino Envtl. Cent. v. Mendocino Cnty., 192

F.3d 1283, 1300 (9th Cir. 1999).

      The relevant legal principles were also clearly established at the time of

Young’s actions, as it was “beyond debate,”Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083

(2011), that “campaigns of harassment or intimidation,” Coszalter, 320 F.3d at 975,

or “other means of coercion, persuasion, and intimidation,” White, 227 F.3d at 1228,

if proven, could constitute adverse action sufficient to support First Amendment

retaliation claims.

      Thus, because the record, viewed in the light most favorable to Mazzeo,

“support[s] a claim of violation of clearly established law,” Mitchell, 472 U.S. at 528

n.9, the district court did not err in denying Young’s motion for summary judgment

on his qualified immunity defense.

      AFFIRMED.

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