                                                                              FILED
                           NOT FOR PUBLICATION                                 JUN 29 2015

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



                            FOR THE NINTH CIRCUIT


DOMINIC HEATH, guardian ad litem,                No. 13-55946
personal representative for Andrea Heath
and KENDALL JOHNSON, guardian ad                 D.C. No. 2:12-cv-02318-PSG-OP
litem, personal representative for Andrea
Heath,
                                                 MEMORANDUM*
              Plaintiffs - Appellants,

 v.

CITY OF DESERT HOT SPRINGS; et al.,

              Defendants - Appellees.


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

                        Argued and Submitted June 1, 2015
                              Pasadena, California

Before: THOMAS, Chief Judge, CALLAHAN, Circuit Judge and KORMAN,**
Senior District Judge.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Edward R. Korman, Senior District Judge for the U.S.
District Court for the Eastern District of New York, sitting by designation.
      Dominic Heath and Kendall Johnson, guardians ad litem for minor J.M.J.,

appeal the district court’s dismissal of an action brought by J.M.J’s predecessor in

interest, Andrea Heath. Heath, a police officer with the City of Desert Hot Springs,

brought a § 1983 claim and state law claims alleging that Defendants retaliated

against her for exercising her First Amendment free speech and petition rights. We

reverse and remand. Because the parties are familiar with the history of this case,

we need not recount it here.

      We review a district court’s dismissal of a complaint for failure to state a

claim under Rule 12(b)(6) de novo. Knievel v. ESPN, 393 F.3d 1068, 1072 (9th

Cir. 2005). In undertaking this review, we “accept all factual allegations of the

complaint as true and draw all reasonable inferences in favor of the nonmoving

party.” Pub. Lands for the People, Inc. v. U.S. Dep’t of Agric., 697 F.3d 1192,

1196 (9th Cir. 2012) (internal quotation marks omitted). “Dismissal under Rule

12(b)(6) is inappropriate unless [the plaintiff’s] complaint fails to ‘state a claim to

relief that is plausible on its face.’” Dahlia v. Rodriguez, 735 F.3d 1060, 1066 (9th

Cir. 2013) (en banc) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007)). We review a district court’s decision to decline to exercise supplemental

jurisdiction over state law claims after all federal claims were dismissed for abuse




                                           2
of discretion. Costanich v. Dep’t of Soc. & Health Servs., 627 F.3d 1101, 1107

(9th Cir. 2010).

                                           I

      The district court erred in dismissing Heath’s § 1983 claims because she

could not establish a constitutional violation because Heath’s reporting of illegal

police acts did not constitute constitutionally protected speech.

      It is well settled that the government is not permitted to stifle “the First

Amendment rights [employees] would otherwise enjoy as citizens to comment on

matters of public interest . . . .” Pickering v. Bd. of Ed. of Twp. High Sch. Dist. 205,

Will Cnty., Illinois, 391 U.S. 563, 568 (1968). In First Amendment retaliation

cases involving public employees, courts are required to strike “a balance between

the interests of the [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.” Id.

      We have employed a five-step test to determine whether a public employee’s

speech is protected, namely:

      (1) whether the plaintiff spoke on a matter of public concern; (2)
      whether the plaintiff spoke as a private citizen or public employee; (3)
      whether the plaintiff’s protected speech was a substantial or
      motivating factor in the adverse employment action; (4) whether the
      state had an adequate justification for treating the employee


                                           3
      differently from other members of the general public; and (5) whether
      the state would have taken the adverse employment action even absent
      the protected speech.

Eng v. Cooley, 552 F.3d 1062, 1070 (9th Cir. 2009).

      In dismissing the claims, the district court relied on Huppert v. City of

Pittsburg, 574 F.3d 696 (9th Cir. 2009), and held Heath’s reporting of illegal acts

did not constitute constitutionally protected speech. Huppert had reasoned that

because reporting illegal acts was part of an officer’s duty, such speech was private

and therefore unprotected. 574 F.3d at 707-08.

      However, Huppert was overruled by Dahlia v. Rodriguez, 735 F.3d 1060

(9th Cir. 2013) (en banc). In Dahlia, we articulated three guiding principles for

evaluating whether an individual speaks as a private citizen or as a public

employee. 735 F.3d at 1074-75. We instructed courts to consider whether the

employee confined her communications to the chain of command; whether the

employee spoke about routine issues or raised broad concerns about, for example,

systemic abuse or corruption; and whether the employee spoke in direct

contravention to a supervisor’s orders. Id. Application of the Dahlia principles

compels the conclusion that Heath spoke as a private individual and not as a public

employee.




                                          4
      First, Heath did not confine her communications to her chain of command.

She repeatedly contacted individuals outside of her command to inform them of the

abuses that occurred within the police department. She met with an FBI agent and

an assistant United States Attorney on multiple occasions, and she filed a formal

complaint with Internal Affairs. Thus, she satisfied the first Dahlia factor.

      Second, Heath’s speech concerned systemic police abuse and corruption,

satisfying Dahlia’s second factor that the subject matter of the speech content not

be of routine administrative matters, but be of broad concerns, such as

departmental corruption or abuse.

      Third, Heath spoke in direction contravention of her supervisor’s orders, and

was repeatedly harassed for speaking out against police abuse and corruption.

Thus, her speech satisfied the third Dahlia factor.

      Therefore, under Dahlia, Heath spoke as a private citizen on a matter of

public concern, a conclusion that the Defendants do not challenge on appeal.

Accordingly, the district court erred in dismissing her § 1983 First Amendment

retaliation claims.

                                          II

      The Defendants urge us to affirm the dismissal of the complaint on alternate

grounds, not contained in the district court decision. We decline to do so.


                                          5
                                          A

      Contrary to the City’s assertion, Heath’s complaint adequately states a claim

for relief for § 1983 liability under Monell v. Department of Social Services, 436

U.S. 658 (1978). Under the familiar Monell analysis, a plaintiff may establish

municipal liability by establishing that (1) the constitutional violation was the

result of a governmental policy or a longstanding practice or custom; (2) the

individual who committed the constitutional violation was an official with final

policy-making authority; or (3) an official with final policy-making authority

ratified the unconstitutional act. Gillette v. Delmore, 979 F.2d 1342, 1346-47 (9th

Cir. 1992).

      Heath’s complaint alleged liability under all three Monell theories. Because

the complaint provides the City with fair notice of her theories and the facts that

underlie them and plausibly suggest an entitlement to relief, she has satisfied the

minimal pleading requirements to survive a motion to dismiss under Rule 12(b)(6).

See Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011) (outlining pleading

requirements applicable to civil actions); AE ex rel. Hernandez v. Cnty. of Tulare,

666 F.3d 631, 637 (9th Cir. 2012) (applying Starr pleading principles to a Monell

liability claim). On appeal, Heath indicates that she would likely seek leave to

amend her complaint to add additional factual allegations, which she should be


                                           6
granted on remand. Moss v. U.S. Secret Serv., 572 F.3d 962, 972 (9th Cir. 2009)

(“Courts are free to grant a party leave to amend whenever ‘justice so requires,’

Fed.R.Civ.P. 15(a)(2), and requests for leave should be granted with ‘extreme

liberality.’”) (quoting Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708,

712 (9th Cir. 2001)).

                                          B

      The individual officers ask us to grant them qualified immunity on appeal,

contending the law was not clearly established at the time of their conduct. See

Saucier v. Katz, 533 U.S. 194, 201 (2001) (qualified immunity does not attach if

the facts alleged demonstrate a violation of a constitutional right that was clearly

established at the time of the defendant’s misconduct). However, Heath alleges

that different individual Defendants engaged in different retaliatory acts over a

period of multiple years, so the question of what “clearly established” law applies

to each specific act of each individual is far from clear on this undeveloped record.1




      1
        However, the fact that Dahlia overruled Huppert is, on its face, an
insufficient basis to conclude the law was not “clearly established” as a general
matter applicable to all Defendants because Huppert post-dated some of the
alleged incidents, and the question of whether the law was “clearly established”
must be determined as of the time of the alleged constitutional violation. Anderson
v. Creighton, 483 U.S. 635, 640 (1987).
                                          7
Therefore, we decline to reach the question of qualified immunity for the first time

on appeal without the benefit of a fully developed record and an analysis

by the district court in the first instance. We remand for the district court to

consider whether Defendants are entitled to qualified immunity.

                                          III

      The district court did not abuse its discretion when it declined to exercise

supplemental jurisdiction over Heath’s state law claims after dismissing the federal

claims. See United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966).

However, because we reverse the district court’s dismissal of Heath’s federal

claims, we vacate the district court’s order declining supplemental jurisdiction to

permit the court to reconsider the question of whether to exercise supplemental

jurisdiction over the state law claims.

                                          IV

      In sum, we reverse the district court’s dismissal of Heath’s § 1983 claims.

We conclude that Heath has pleaded a Monell claim against the City sufficiently to

withstand a Rule 12(b)(6) motion to dismiss. We decline to rule on the individual

Defendants’ assertions of qualified immunity for the first time on appeal. We

vacate the district court’s order declining supplemental jurisdiction over the state

law claims to permit the district court to reconsider that question.


                                           8
      We deny all pending motions as moot. We need not, and do not, reach any

other issue urged by the parties on appeal.



      REVERSED AND REMANDED.




                                          9
