                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            MAR 24 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


EUGENE MURGUIA,                                  No.   15-15720

              Plaintiff-Appellant,               D.C. No.
                                                 3:12-cv-00347-MMD-WGC
 v.

JACK PALMER; ADAM WATSON;                        MEMORANDUM*
DAMON HAYCOCK; STATE OF
NEVADA, Department of Corrections,

              Defendants-Appellees.


                    Appeal from the United States District Court
                             for the District of Nevada
                     Miranda M. Du, District Judge, Presiding

                            Submitted March 16, 2017**
                             San Francisco, California

Before: TALLMAN and WATFORD, Circuit Judges, and GUIROLA,*** Chief
District Judge.



      *
             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. See Fed. R. App. P. 34(a)(2).
      ***
             The Honorable Louis Guirola, Jr., Chief United States District Judge
for the Southern District of Mississippi, sitting by designation.
      Murguia, an employee of the state of Nevada, appeals from the district

court’s grant of summary judgment dismissing his First Amendment retaliation

claim under 42 U.S.C. § 1983. We have jurisdiction under 28 U.S.C. § 1291. We

review de novo. Ventura Packers, Inc. v. F/V Jeanine Kathleen, 305 F.3d 913, 916

(9th Cir. 2002). We affirm.

      A First Amendment retaliation claim requires balancing “the interests of the

public employee, as a citizen, in commenting upon matters of public concern and

the interest of the State, as an employer, in promoting the efficiency of the public

services it performs through its employees.” Huppert v. City of Pittsburg, 574 F.3d

696, 702 (9th Cir. 2009) (quotation marks and alteration omitted) (overruled on

other grounds by Dahlia v. Rodriguez, 735 F.3d 1060, 1070 (9th Cir. 2013) (en

banc)). The Ninth Circuit employs a sequential five-step test – the “Eng” factors –

to evaluate these claims.1 All of the Eng “factors are necessary, in the sense that



      1
         The first three factors require the plaintiff to show (1) that he spoke on a
matter of public concern; (2) that he spoke as a private citizen rather than a public
employee; and (3) that the relevant speech was “a substantial or motivating factor
in the adverse employment action.” Eng v. Cooley, 552 F.3d 1062, 1070-71 (9th
Cir.2009). If the plaintiff establishes such a prima facie case, the burden of proof
shifts to the government to show that (4) “the state had an adequate justification for
treating the employee differently from other members of the general public”; or (5)
“the state would have taken the adverse employment action even absent the
protected speech.” Id. at 1070-72.


                                           2
failure to meet any one of them is fatal to the plaintiff’s case.” Coomes v.

Edmonds Sch. Dist. No. 15, 816 F.3d 1255, 1260 (9th Cir. 2016) (quoting Dahlia,

735 F.3d at 1067 n.4).

      The first Eng factor requires the employee to show that he spoke on a matter

of public concern. The district court properly found no question of material fact

because neither of the two alleged instances of Murguia’s speech was on a matter

of public concern. Turner v. City & Cty. of San Francisco, 788 F.3d 1206, 1211

(9th Cir. 2015) (explaining that speech that deals with individual personnel

disputes and grievances and that would be of no relevance to the public’s

evaluation of the performance of governmental agencies is generally not of public

concern). Unless it is on a matter of public concern, a public employee’s speech

enjoys no First Amendment protection. Id. at 1212. Murguia’s First Amendment

retaliation claim under 42 U.S.C. § 1983 therefore fails as a matter of law.

      Each party shall bear its own costs on appeal.

      AFFIRMED.




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