                                                                           FILED
                            NOT FOR PUBLICATION                             JUL 12 2010

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




                            FOR THE NINTH CIRCUIT



GREG OCCHIONERO,                                 No. 08-16592

              Plaintiff - Appellant,             D.C. No. 1:05-cv-01184-LJO-SMS

  v.
                                                 MEMORANDUM *
CITY OF FRESNO,

              Defendant - Appellee.



                   Appeal from the United States District Court
                       for the Eastern District of California
                   Lawrence J. O’Neill, District Judge, Presiding

                       Argued and Submitted April 16, 2010
                            San Francisco, California

Before: SCHROEDER and RAWLINSON, Circuit Judges; and COLLINS, District
Judge.**


       Appellant Greg Occhionero (Occhionero) appeals the district court’s grant of

summary judgment in favor of the City of Fresno (the City). Occhionero argues


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Raner C. Collins, United States District Judge for the
District of Arizona, sitting by designation.
that the City violated his constitutional rights to due process and free speech when

Israel Trejo (Trejo), a city planner, seized Occhionero’s stored property while

summarily abating a nuisance.




1.    To survive summary judgment, a plaintiff alleging a First Amendment

retaliation claim must produce evidence that the governmental actor had

knowledge of his protected speech. See Dietrich v. John Ascuaga’s Nugget, 548

F.3d 892, 901 (9th Cir. 2008). Occhionero’s only evidence that Trejo was aware of

Occhionero’s protected speech is an e-mail sent by the City’s tax department to

other city officials inquiring into whether Occhionero was in compliance with

building and fire regulations. The e-mail did not contain any reference to

Occhionero’s protected speech and was not sent to Trejo or anyone in his

department. In his deposition Trejo affirmatively denied any knowledge of

Occhionero’s previous comments to City officials. Because Occhionero failed to

offer evidence that Trejo knew of his speech, summary judgment in favor of the

City on this claim was appropriate. See Keyser v. Sacramento City Unified School

District., 265 F.3d 741, 750-51 (9th Cir. 2001), as amended (concluding that

summary judgment was appropriate where “there [was] no evidence in the record




                                          2
to contradict [the actor’s] statement in his declaration that he was unaware [of the

speech].”)




2.    Contrary to Occhionero’s assertion, the district court did not err in rejecting

his due process claim. In his complaint, Occhionero explicitly tethered his due

process claim to the City’s alleged retaliatory animus. As Occhionero failed to

present evidence of a retaliatory animus, his due process claim necessarily fails.




3.    Because Occhionero asserted no viable constitutional claims, we need not

address whether the City would have been liable for Trejo’s actions under Monell

v. New York City Dept’t of Soc. Servs., 436 U.S. 658 (1978).




      AFFIRMED.




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