FILED
NOT FOR PUBLICATION
FEB 16 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HASSAN H HASHEMI, No. 16-56000
Plaintiff-Appellant, D.C. No.
8:14-cv-01184-JAK-CW
v.
RAMAN UNNIKRISHNAN; et al., MEMORANDUM*
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
John A. Kronstadt, District Judge, Presiding
Submitted February 8, 2018**
Pasadena, California
Before: GRABER and HURWITZ, Circuit Judges, and MARBLEY,*** District
Judge.
Hassan H. Hashemi, a tenured professor in the College of Engineering and
Computer Science (“ECS”) at California State University, Fullerton (“CSUF”),
*
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. Fed. R. App. P. 34(a)(2).
***
The Honorable Algenon L. Marbley, United States District Judge for
the Southern District of Ohio, sitting by designation.
appeals the district court’s dismissal of his complaint asserting claims for First
Amendment retaliation and intentional infliction of emotional distress, as well as
its denial of his motion for leave to amend. “This [c]ourt reviews de novo the
district court’s dismissal for failure to state a claim under Federal Rule of Civil
Procedure 12(b)(6).” O’Brien v. Welty, 818 F.3d 920, 929 (9th Cir. 2016). A
complaint must be dismissed if it does not contain “enough facts to state a claim to
relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). “We review a district court’s denial of leave to amend for abuse of
discretion.” Walker v. Beard, 789 F.3d 1125, 1131 (9th Cir. 2015). Dismissal
without leave to amend is proper if “it is clear, upon de novo review, that the
complaint could not be saved by any amendment.” Manzarek v. St. Paul Fire &
Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008) (internal quotation marks
omitted).
1. The district court did not err in ruling that Plaintiff failed to state a claim
for retaliation under the First Amendment. “In evaluating the First Amendment
rights of a public employee, the threshold inquiry is whether the statements at issue
substantially address a matter of public concern.” Roe v. City of San Francisco,
109 F.3d 578, 584 (9th Cir. 1997). Plaintiff’s memorandum urging the faculty to
compare Dean Unnikrishnan’s “megalomanic statements” to “humble statements”
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made by other deans is “speech that deals with individual personnel disputes and
grievances and . . . would be of no relevance to the public’s evaluation of the
performance of governmental agencies.” Desrochers v. City of San Bernardino,
572 F.3d 703, 710 (9th Cir. 2009) (internal quotation marks omitted). The crux of
the memorandum is Plaintiff’s grievance with the Dean. In context, the mere
mention of why student enrollment increased, as part of Hashemi’s personal
critique of the Dean’s competence or behavior, does not alter the main message of
the memorandum, which was to disparage the Dean in the eyes of his colleagues.
Thus, the memorandum is not a matter of public concern and is not constitutionally
protected. See Connick v. Myers, 461 U.S. 138, 148-49 (1983).
2. The district court also correctly dismissed Hashemi’s claim for
intentional infliction of emotional distress. Defendants’ conduct of placing
reprimands and a negative evaluation in Plaintiff’s personnel file is not “so extreme
as to exceed all bounds of that usually tolerated in a civilized community.”
Corales v. Bennett, 567 F.3d 554, 571 (9th Cir. 2009) (internal quotation marks
omitted).
3. Finally, the district court did not abuse its discretion in denying Plaintiff
leave to amend. Taken as true, Dean Unnikrishnan’s past “megalomanic
statements” that Plaintiff seeks to add do not change the conclusion that the content
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of the memorandum concerns an internal grievance and does not substantially
involve matters of public concern. Thus, amendment would be futile. See Thinket
Ink Info. Res., Inc. v. Sun Microsystems, Inc., 368 F.3d 1053, 1061 (9th Cir.
2004). Leave to amend the claim for intentional infliction of emotional distress, to
add allegations of defamation, would also be futile and was therefore properly
denied. See Walker v. Boeing Corp., 218 F. Supp. 2d 1177, 1191 (C.D. Cal.
2002).
AFFIRMED.
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