                                                                           FILED
                            NOT FOR PUBLICATION                             MAR 24 2011

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




                            FOR THE NINTH CIRCUIT

PAUL PESQUEIRA,                                  No. 09-56749

              Plaintiff - Appellant,             D.C. No. 2:05-cv-02955-SJO-E

  v.
                                                 MEMORANDUM *
CITY OF LOS ANGELES; LOS
ANGELES POLICE DEPARTMENT;
WILLIAM J. BRATTON, in his individual
and official capacity; JAMES
MCDONNELL, in his official and
individual capacity; GEORGE GASCON,
in his individual and official capacity;
SHARON K. PAPA, in her individual and
official capacity,

              Defendants - Appellees.




                    Appeal from the United States District Court
                        for the Central District of California
                     S. James Otero, District Judge, Presiding

                       Argued and Submitted March 9, 2011
                              Pasadena, California



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

      Construing the disputed facts in the light most favorable to Paul Pesqueira,

see Eng v. Cooley, 552 F.3d 1062, 1071–72 (9th Cir. 2009), and applying the five-

part test for a First Amendment retaliation claim under 42 U.S.C. § 1983, see

Desrochers v. City of San Bernardino, 572 F.3d 703, 708–09 (9th Cir. 2009), we

hold that Pesqueira has failed to allege a cognizable retaliation claim under § 1983.

See Garcetti v. Ceballos, 547 U.S. 410, 422–23 (2006). Pesqueira conceded that

his responsibilities included supervising employees. He filed the complaint against

Captain Ortega within the Los Angeles Police Department. And he signed the

complaint as Captain Ortega’s “Commanding Officer.” Given these undisputed

facts, we conclude that Pesqueira’s complaint was made in his professional

supervisory capacity as a Captain III at the Hollenbeck Division. See Freitag v.

Ayers, 468 F.3d 528, 546 (9th Cir. 2006). Because there is no genuine issue of

material fact as to whether Pesqueira was speaking as a private citizen, as is

required for a § 1983 claim, see Ceballos, 547 U.S. at 422–23, the district court

properly granted summary judgment to Appellees, see Huppert v. City of

Pittsburgh, 574 F.3d 696, 698 (9th Cir. 2009).

      Because we hold that Pesqueira has not alleged a violation of his First

Amendment rights, we do not address his claims for Monell liability and


                                          2
constructive discharge. See City of Los Angeles v. Heller, 475 U.S. 796, 799

(1986) (per curiam); Brooks v. City of San Mateo, 229 F.3d 917, 930 (9th Cir.

2000).

         AFFIRMED.




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