Mary Zeitchick; Joe Zeitchick v. Carol Lucey; Helaine Jesse; Western Nevada Community College Foundation; David Rollings

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously concludes this case is suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARY ZEITCHICK; JOE ZEITCHICK,
Plaintiffs - Appellants,
v.
CAROL LUCEY; HELAINE JESSE;
WESTERN NEVADA COMMUNITY
COLLEGE FOUNDATION; DAVID
ROLLINGS,
Defendants - Appellees.
No. 10-16631
D.C. No. 3:06-cv-00138-ECR-
VPC
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Edward C. Reed, Senior District Judge, Presiding
Submitted June 29, 2012**
San Francisco, California
Before: HUG, FARRIS, and LEAVY, Circuit Judges.
FILED
OCT 26 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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Because the parties are familiar with the facts underlying this appeal, we1
do not recount the facts here.
2
Plaintiff Joe Zeitchick appeals various decisions of the district court in his
42 U.S.C. § 1983 action against Western Nevada Community College (“WNCC”)
officials alleging retaliation in violation of the First Amendment. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.1
I
Zeitchick first challenges the district court’s grant of partial summary
judgment on qualified immunity grounds for his First Amendment claim that
defendants ceased negotiations with him in retaliation for his protected speech.
We review de novo a grant of summary judgment on the grounds of qualified
immunity. McSherry v. City of Long Beach, 584 F.3d 1129, 1134 (9th Cir. 2009).
Summary judgment is appropriate if, when the evidence is viewed in the light most
favorable to the non-moving party, there are no genuine issues of material fact and
the moving party is entitled to judgment as a matter of law. Id. at 1135. “We may
affirm on the basis of any ground supported by the record.” Id.
“The doctrine of qualified immunity protects government officials from
liability for civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person would

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have known.” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (internal quotation
marks omitted). An official is entitled to qualified immunity unless: 1) the plaintiff
shows that the government official violated a constitutional right; and 2) that right
was clearly established at the time of the alleged misconduct. Saucier v. Katz, 533
U.S. 194, 201 (2001), modified by Pearson, 555 U.S. at 233.
Here, the district court held that the cessation of negotiations was not a
violation of a First Amendment right and that there was not a clearly established
right to be free from retaliatory cessation of negotiations. We hold that there is no
clearly established First Amendment right against the retaliatory cessation of
negotiations.
For a right to be clearly established, the contours of that right must be
sufficiently clear such that a reasonable official would understand that his action
violates that right. Wilson v. Layne, 526 U.S. 603, 615 (1999). In other words, the
right in question must not be a broad general proposition; rather, it “must be
defined at the appropriate level of specificity before a court can determine if it was
clearly established.” Id. (holding that the general Fourth Amendment prohibition
on warrantless entries into the home did not clearly establish that an officer would
violate that right by allowing a media observer to enter a home during the
execution of a warrant). Therefore, where a case “does not involve the mere

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application of settled law to a new factual permutation” and involves “unsettled
questions about the First Amendment interests implicated,” the law is not clearly
established. See Porter v. Bowen, 496 F.3d 1009, 1026 (9th Cir. 2007) (holding
that the application of First Amendment doctrine to vote swapping was not clearly
established where no court had ever addressed the issue and the area of the law was
unsettled).
In the context of the First Amendment, a government official is prohibited
from denying a person a valuable government benefit on a basis that infringes his
constitutionally protected interest in freedom of speech. Perry v. Sindermann, 408
U.S. 593, 597 (1972). However, the contours of what constitutes a valuable
government benefit are not clear. This Court and the Supreme Court have held that
employment and quasi-employment contracts are valuable government benefits.
See Bd. of Cnty. Comm’rs, Wabaunsee Cnty., Kan. v. Umbehr, 518 U.S. 668, 674
(1996) (independent government contractor); O’Hare Truck Serv., Inc. v. City of
Northlake, 518 U.S. 712, 714-15 (1996) (independent government contractor);
Rivero v. City & Cnty. of San Francisco, 316 F.3d 857, 863 (9th Cir. 2002)
(independent government contractor); Hyland v. Wonder, 117 F.3d 405, 410, 412
(9th Cir. 1997) (highly-placed government volunteer). But, in Umbehr, the
Supreme Court expressly limited its holding regarding valuable government

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benefits to situations where there was a pre-existing commercial relationship. 518
U.S. at 685. Furthermore, there is no case that has since clarified whether such a
relationship is necessary to trigger First Amendment liability. Therefore, this case
does not involve the mere application of settled law to a new factual situation and
involves unsettled questions about the First Amendment interests implicated here.
Accordingly, the law is not clearly established regarding whether the cessation of
negotiations or designs for the government to build a sound wall on its property is
the denial of a valuable government benefit when there is no pre-existing
commercial or employment-like relationship.
We therefore affirm the district court’s grant of partial summary judgment.
II
The district court properly granted summary judgment in defendants’ favor
on Zeitchick’s claim that defendants deliberately increased the running of an air
conditioning unit near his home in retaliation for his protected First Amendment
activities. Defendants produced evidence that the increase in the air conditioner’s
operation was the result of a WNCC employee’s oversight and not deliberately
intended to harass Zeitchick. Zeitchick did not produce evidence to controvert
defendants’ evidence that the air conditioner’s increased operation was a mistake.
The evidence therefore does not create a genuine issue of material fact, and

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summary judgment therefore was proper. See Celotex Corp. v. Catrett, 477 U.S.
317, 322-23 (1986).
III
The district court did not abuse its discretion in denying Zeitchick’s motion
under Federal Rule of Civil Procedure 60(b) because Zeitchick failed to file it
“within a reasonable time.” See Fed. R. Civ. P. 60(c); Ashford v. Steuart, 657 F.2d
1053, 1055 (9th Cir. 1981) (upholding district court’s denial of a Rule 60(b)
motion filed “more than 30 days” after the relevant order). In addition, the district
court correctly concluded that Zeitchick’s Rule 60(b) motion was not the proper
vehicle for presenting arguments and evidence that should have been raised in his
initial opposition to summary judgment. See United Nat. Ins. Co. v. Spectrum
Worldwide, Inc., 555 F.3d 772, 780 (9th Cir. 2009).
IV
The district court properly denied Zeitchick’s motion in limine asking the
court to preclude defendants from presenting evidence that Zeitchick’s $2,750
check and $50,000 pledge to WNCC were gifts. Whether Zeitchick had formed a
contract with WNCC was a question of fact, and the central issue in resolving that
factual question was whether Zeitchick’s monetary contributions were charitable
donations or consideration for a valid contract. See Certified Fire Prot. Inc. v.

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Precision Constr., 283 P.3d 250, 255 (Nev. 2012) (holding that consideration is
required in order to form an enforceable contract and that the issue of whether a
contract exists is a question of fact). Defendants had the right to present evidence
concerning this issue for the jury to decide whether there was consideration. See
Geurin v. Winston Industries, Inc., 316 F.3d 879, 884-85 (9th Cir. 2002) (holding
that defendant has a right to introduce evidence to negate an essential element of
plaintiff’s cause of action).
Finally, the jury instructions“fairly and correctly” covered the applicable
substantive law. See Gambini v. Total Renal Care, Inc., 486 F.3d 1087, 1092-93
(9th Cir. 2007).
AFFIRMED.

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