                                                                          FILED
                           NOT FOR PUBLICATION                            NOV 27 2013

                                                                       MOLLY C. DWYER, CLERK
                   UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                           FOR THE NINTH CIRCUIT

AMJAD ABUDIAB,                                No. 11-18016

             Plaintiff - Appellee,            D.C. No. 3:09-cv-01778-JSW

  v.

ELIAS GEORGOPOULOS,                           MEMORANDUM*

             Defendant - Appellant.
And


CITY AND COUNTY OF SAN
FRANCISCO; ANTONIO PARA,

             Defendants.

                  Appeal from the United States District Court
                     for the Northern District of California
                   Jeffrey S. White, District Judge, Presiding

                           Submitted November 6, 2013
                             San Francisco, California

Before: W. FLETCHER and NGUYEN, Circuit Judges, and DUFFY, District
Judge.***




*     This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36–3.
**    The Honorable Kevin Thomas Duffy, United States District Judge for the
Southern District of New York, sitting by designation.
        Appellant Elias Georgopoulos appeals the district court’s summary

judgment order, which denied him qualified immunity on Appellee Amjad

Abudiab’s First Amendment retaliation and Fourth Amendment malicious

prosecution claims. We review a denial of qualified immunity de novo, Johnson v.

Bay Area Rapid Transit Dist., 724 F.3d 1159, 1168 (9th Cir. 2013), and affirm

here.

        Qualified immunity is determined by a two-step inquiry: (1) Are the facts

that a plaintiff has alleged or shown sufficient to demonstrate a violation of a

constitutional right?; and (2) Was the right at issue “clearly established” at the time

of the defendant’s alleged misconduct? Saucier v. Katz, 533 U.S. 194, 201 (2001),

receded from by Pearson v. Callahan, 555 U.S. 223, 236 (2009). If the answer to

both questions is yes, then qualified immunity should be denied. Id.

        The district court properly denied Georgopoulos qualified immunity on

Abudiab’s First Amendment retaliation claim because (1) Abudiab raised an issue

of fact over whether Georgopoulos violated his First Amendment rights by

punching him and spraying him with pepper spray, and (2) the right to be free from

First Amendment retaliation by a government official was clearly established at the

time of Georgopoulos’s alleged misconduct. See United States v. Poocha, 259

F.3d 1077, 1080–82 (9th Cir. 2001); Saranno’s Gasco, Inc. v. Morgan, 874 F.2d


                                           2
1310, 1319 (9th Cir. 1989). Likewise, the district court properly denied

Georgopoulos qualified immunity on Abudiab’s Fourth Amendment malicious

prosecution claim because (1) Abudiab raised an issue of fact as to whether

Georgopoulos, using his status as a city parking officer, lied to the police to have

Abudiab arrested, and (2) the right to be free from malicious prosecution by a

government official was clearly established at the time of Georgopoulos’s alleged

misconduct. See Awabdy v. City of Adelanto, 368 F.3d 1062, 1066 (9th Cir. 2004);

Harris v. Roderick, 126 F.3d 1189, 1198 (9th Cir. 1997).

      In contrast to a denial of qualified immunity, which is an appealable “final

decision,” Mitchell v. Forsyth, 472 U.S. 511, 530 (1985), a grant of qualified

immunity is generally not independently appealable on an interlocutory basis, see

Eng v. Cooley, 552 F.3d 1062, 1067 (9th Cir. 2009). We thus decline to consider

Abudiab’s argument that the district court improperly granted Georgopoulos

qualified immunity on Abudiab’s Fourth Amendment excessive force claim.

      Also pending before the Court is Appellee’s Motion for Sanctions and

Appellant’s Opposition to Sanctions Motion/Motion to Strike Portions of

Abudiab’s Brief. Both motions are DENIED.

      AFFIRMED.




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