FILED
NOT FOR PUBLICATION MAY 04 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RICK EATON, No. 09-17907
Plaintiff - Appellee, D.C. No. 2:07-cv-00315-FCD-
KJM
v.
MARK J. SIEMENS; CARLOS A. MEMORANDUM*
URRUTIA; CITY OF ROCKLIN,
Defendants - Appellants.
Appeal from the United States District Court
for the Eastern District of California
Frank C. Damrell, Senior District Judge, Presiding
Argued and Submitted April 14, 2011
Pasadena, California
Before: REINHARDT, HAWKINS, and GOULD, Circuit Judges.
Rick Eaton, a former Rocklin Police Department sergeant, was subjected to
discipline and termination because, he alleges, he was part of a group of employees
that was uncooperative with, or declined to join, prevalent misconduct in the
department. Eaton sued Mark Siemens, the police chief, Carlos Urrutia, the city
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
manager, and the City of Rocklin, pursuant to 42 U.S.C. § 1983, alleging
deprivation of equal protection, among other things. Siemens and Urrutia sought
summary judgment on the ground of qualified immunity, and the City sought
summary judgment on the ground that Eaton lacked evidence to establish liability
under Monell v. Department of Social Services, 436 U.S. 658 (1978). The district
court denied the motions. Eaton v. Siemens, No. 07-315, 2009 WL 4929262, at
*2–7 (E.D. Cal. Dec. 14, 2009). Defendants appeal pursuant to our jurisdiction
under 28 U.S.C. § 1291, as interpreted by Mitchell v. Forsyth, 472 U.S. 511, 527
(1985). We affirm.
Siemens and Urrutia argue that they are entitled to qualified immunity.
First, they contend that Eaton’s allegations do not establish an actionable
constitutional violation because, they say, the class of employees that Eaton claims
was subjected to discrimination—dubbed “non-team players” by the district
court—is not a “discrete and objectively identifiable” group. But Engquist v.
Oregon Department of Agriculture, 553 U.S. 591 (2008), on which Siemens and
Urrutia rely, does not provide that only discrimination against discrete and
objectively identifiable groups can give rise to a public employee’s equal
protection claim. Rather, Engquist holds that public employees cannot assert
“class of one” equal protection claims against their employers. See id. at 607
2
(“[T]he class-of-one theory of equal protection has no application in the public
employment context—and that is all we decide . . . .” (emphasis added)). The
class of employees allegedly singled out for punishment because they were
perceived as being uncooperative with department misconduct do not lack an equal
protection remedy merely because their circumstances vary. Cf. Navarro v. Block,
72 F.3d 712, 717 (9th Cir. 1996) (holding that for equal protection purposes,
victims of domestic violence are a cognizable class, discrimination against which is
subjected to rational basis review, notwithstanding variability within the class).
Second, Siemens and Urrutia argue that the law does not clearly establish
that their alleged misconduct violates equal protection. But reasonable officials
would surely know that they are acting unlawfully by subjecting employees
perceived as being uncooperative with department misconduct to discriminatory
discipline and termination.1 See Elliot-Park v. Manglona, 592 F.3d 1003, 1008–09
(9th Cir. 2010) (“‘The constitutional right to be free from such invidious
discrimination is so well established and so essential to the preservation of our
constitutional order that all public officials must be charged with knowledge of
it.’” (quoting Flores v. Pierce, 617 F.2d 1386, 1392 (9th Cir. 1980))). Further, the
1
For purposes of this analysis, we assume the truth of Eaton’s allegations.
See Crawford-El v. Britton, 523 U.S. 574, 598 (1998).
3
novel arguments of Siemens and Urrutia that are based on Engquist, which does
not govern this case, do not render the controlling law unclear or in flux. See Groh
v. Ramirez, 540 U.S. 551, 565 (2004) (“Absent any support for such an exception
in our cases, he cannot reasonably have relied on an expectation that we would
[create one].”).
We take no position on the merits of Eaton’s claims. Our jurisdiction over
this interlocutory appeal is limited to the “purely legal issue[s]” of whether Eaton’s
allegations make out an equal protection claim and what law is clearly established.
Ortiz v. Jordan, 131 S. Ct. 884, 891 (2011) (internal quotation omitted). We do
not review the district court’s determination that Eaton’s evidence of his individual
capacity claims against Siemens and Urrutia and of his Monell claim against the
City is sufficient to raise genuine issues of material fact, for we consider those
issues to be beyond our present jurisdiction.2
AFFIRMED.
2
“[W]here the district judge identifies disputes of fact or makes inferences
from the record, we do not have jurisdiction to evaluate those determinations by
making an independent review of the record.” Collins v. Jordan, 110 F.3d 1363,
1372 n.7 (9th Cir. 1997). Although we may exercise pendent jurisdiction over
such issues when they are “inextricably intertwined” with the qualified immunity
issues presented for interlocutory appeal, Swint v. Chambers Cnty. Comm’n, 514
U.S. 35, 51 (1995), we conclude that the fact issues here are not inextricably
intertwined with the legal issues on qualified immunity that we resolve.
4