                                                                            FILED
                           NOT FOR PUBLICATION
                                                                             FEB 16 2018
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                           FOR THE NINTH CIRCUIT

HASSAN H HASHEMI,                                No. 16-56000

              Plaintiff-Appellant,               D.C. No.
                                                 8:14-cv-01184-JAK-CW
 v.

RAMAN UNNIKRISHNAN; et al.,                      MEMORANDUM*

              Defendants-Appellees.


                    Appeal from the United States District Court
                       for the Central District of California
                    John A. Kronstadt, District Judge, Presiding

                           Submitted February 8, 2018**
                              Pasadena, California

Before: GRABER and HURWITZ, Circuit Judges, and MARBLEY,*** District
Judge.

      Hassan H. Hashemi, a tenured professor in the College of Engineering and

Computer Science (“ECS”) at California State University, Fullerton (“CSUF”),

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
      ***
            The Honorable Algenon L. Marbley, United States District Judge for
the Southern District of Ohio, sitting by designation.
appeals the district court’s dismissal of his complaint asserting claims for First

Amendment retaliation and intentional infliction of emotional distress, as well as

its denial of his motion for leave to amend. “This [c]ourt reviews de novo the

district court’s dismissal for failure to state a claim under Federal Rule of Civil

Procedure 12(b)(6).” O’Brien v. Welty, 818 F.3d 920, 929 (9th Cir. 2016). A

complaint must be dismissed if it does not contain “enough facts to state a claim to

relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007). “We review a district court’s denial of leave to amend for abuse of

discretion.” Walker v. Beard, 789 F.3d 1125, 1131 (9th Cir. 2015). Dismissal

without leave to amend is proper if “it is clear, upon de novo review, that the

complaint could not be saved by any amendment.” Manzarek v. St. Paul Fire &

Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008) (internal quotation marks

omitted).

      1. The district court did not err in ruling that Plaintiff failed to state a claim

for retaliation under the First Amendment. “In evaluating the First Amendment

rights of a public employee, the threshold inquiry is whether the statements at issue

substantially address a matter of public concern.” Roe v. City of San Francisco,

109 F.3d 578, 584 (9th Cir. 1997). Plaintiff’s memorandum urging the faculty to

compare Dean Unnikrishnan’s “megalomanic statements” to “humble statements”


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made by other deans is “speech that deals with individual personnel disputes and

grievances and . . . would be of no relevance to the public’s evaluation of the

performance of governmental agencies.” Desrochers v. City of San Bernardino,

572 F.3d 703, 710 (9th Cir. 2009) (internal quotation marks omitted). The crux of

the memorandum is Plaintiff’s grievance with the Dean. In context, the mere

mention of why student enrollment increased, as part of Hashemi’s personal

critique of the Dean’s competence or behavior, does not alter the main message of

the memorandum, which was to disparage the Dean in the eyes of his colleagues.

Thus, the memorandum is not a matter of public concern and is not constitutionally

protected. See Connick v. Myers, 461 U.S. 138, 148-49 (1983).

      2. The district court also correctly dismissed Hashemi’s claim for

intentional infliction of emotional distress. Defendants’ conduct of placing

reprimands and a negative evaluation in Plaintiff’s personnel file is not “so extreme

as to exceed all bounds of that usually tolerated in a civilized community.”

Corales v. Bennett, 567 F.3d 554, 571 (9th Cir. 2009) (internal quotation marks

omitted).

      3. Finally, the district court did not abuse its discretion in denying Plaintiff

leave to amend. Taken as true, Dean Unnikrishnan’s past “megalomanic

statements” that Plaintiff seeks to add do not change the conclusion that the content


                                           3
of the memorandum concerns an internal grievance and does not substantially

involve matters of public concern. Thus, amendment would be futile. See Thinket

Ink Info. Res., Inc. v. Sun Microsystems, Inc., 368 F.3d 1053, 1061 (9th Cir.

2004). Leave to amend the claim for intentional infliction of emotional distress, to

add allegations of defamation, would also be futile and was therefore properly

denied. See Walker v. Boeing Corp., 218 F. Supp. 2d 1177, 1191 (C.D. Cal.

2002).

      AFFIRMED.




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