PETERSON v. Mark Soptich; Anthony Doan, Defendants-Appellants. (2020)
United States Court of Appeals, Ninth Circuit.
Mark PETERSON, Plaintiff-Appellee, v. CITY OF YAKIMA, a local governmental entity; Tony O'Rourke, Defendants, Mark Soptich; Anthony Doan, Defendants-Appellants.
Decided: November 30, 2020
Before: GOULD and FRIEDLAND, Circuit Judges, and CHEN,** District Judge.
Casey Bruner, Attorney, Matthew Alphonse Mensik, Witherspoon Kelley, Spokane, WA, Matthew Zachary Crotty, Esquire, Attorney, Crotty & Son Law Firm, PLLC, Spokane, WA, for Plaintiff-Appellee Robert Christie, Attorney, Christie Law Group, PLLC, Seattle, WA, for Defendants-Appellants
In this interlocutory appeal, Defendants/Appellants Anthony Doan and Mark Soptich challenge the district court's denial of qualified immunity in a First Amendment retaliation case. We dismiss for lack of jurisdiction.
Any “portion of a district court's summary judgment order that, though entered in a ‘qualified immunity’ case, determines only a question of ‘evidence sufficiency,’ i.e., which facts a party may, or may not, be able to prove at trial ․ is not appealable.” Johnson v. Jones, 515 U.S. 304, 313, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995). Under Johnson, “[a]ny decision by the district court ‘that the parties’ evidence presents genuine issues of material fact is categorically unreviewable on interlocutory appeal.’ ” George v. Morris, 736 F.3d 829, 834 (9th Cir. 2013) (quoting Eng v. Cooley, 552 F.3d 1062, 1067 (9th Cir. 2009)). Interlocutory review jurisdiction, instead, is “confined to the question of ‘whether the defendant[ ] would be entitled to qualified immunity as a matter of law, assuming all factual disputes are resolved, and all reasonable inferences are drawn, in plaintiff's favor.’ ” Id. at 836 (quoting Karl v. City of Mountlake Terrace, 678 F.3d 1062, 1068 (9th Cir. 2012)).
Appellants contend that they cannot be liable for retaliation because there is no evidence that either of them had any knowledge of Plaintiff/Appellee Mark Peterson's protected First Amendment activities. The record in this case, however, certainly contains evidence that could support a fact-finder's determination that both Appellants did in fact have knowledge of Peterson's protected activities. Appellants thus mischaracterize an issue of fact (namely, whether the evidence is sufficient to find that they had knowledge of Peterson's protected activities) as an issue of law that is premised on a lack of evidence of such knowledge. Appellants’ true dispute concerns sufficiency of the evidence. We have no jurisdiction over it.
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