Greg Occhionero v. City of Fresno

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The Honorable Raner C. Collins, United States District Judge for the**
District of Arizona, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GREG OCCHIONERO,
Plaintiff - Appellant,
v.
CITY OF FRESNO,
Defendant - Appellee.
No. 08-16592
D.C. No. 1:05-cv-01184-LJO-SMS
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, District Judge, Presiding
Argued and Submitted April 16, 2010
San Francisco, California
Before: SCHROEDER and RAWLINSON, Circuit Judges; and COLLINS, District
Judge.**
Appellant Greg Occhionero (Occhionero) appeals the district court’s grant of
summary judgment in favor of the City of Fresno (the City). Occhionero argues
FILED
JUL 12 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

-- 1 of 3 --

2
that the City violated his constitutional rights to due process and free speech when
Israel Trejo (Trejo), a city planner, seized Occhionero’s stored property while
summarily abating a nuisance.
1. To survive summary judgment, a plaintiff alleging a First Amendment
retaliation claim must produce evidence that the governmental actor had
knowledge of his protected speech. See Dietrich v. John Ascuaga’s Nugget, 548
F.3d 892, 901 (9th Cir. 2008). Occhionero’s only evidence that Trejo was aware of
Occhionero’s protected speech is an e-mail sent by the City’s tax department to
other city officials inquiring into whether Occhionero was in compliance with
building and fire regulations. The e-mail did not contain any reference to
Occhionero’s protected speech and was not sent to Trejo or anyone in his
department. In his deposition Trejo affirmatively denied any knowledge of
Occhionero’s previous comments to City officials. Because Occhionero failed to
offer evidence that Trejo knew of his speech, summary judgment in favor of the
City on this claim was appropriate. See Keyser v. Sacramento City Unified School
District., 265 F.3d 741, 750-51 (9th Cir. 2001), as amended (concluding that
summary judgment was appropriate where “there [was] no evidence in the record

-- 2 of 3 --

3
to contradict [the actor’s] statement in his declaration that he was unaware [of the
speech].”)
2. Contrary to Occhionero’s assertion, the district court did not err in rejecting
his due process claim. In his complaint, Occhionero explicitly tethered his due
process claim to the City’s alleged retaliatory animus. As Occhionero failed to
present evidence of a retaliatory animus, his due process claim necessarily fails.
3. Because Occhionero asserted no viable constitutional claims, we need not
address whether the City would have been liable for Trejo’s actions under Monell
v. New York City Dept’t of Soc. Servs., 436 U.S. 658 (1978).
AFFIRMED.

-- 3 of 3 --