Dominic Heath, guardian ad litem, personal representative for Andrea Heath v. City of Desert Hot Springs;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DOMINIC HEATH, guardian ad litem,
personal representative for Andrea Heath
and KENDALL JOHNSON, guardian ad
litem, personal representative for Andrea
Heath,
Plaintiffs - Appellants,
v.
CITY OF DESERT HOT SPRINGS; et al.,
Defendants - Appellees.
No. 13-55946
D.C. No. 2:12-cv-02318-PSG-OP
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Philip S. Gutierrez, District Judge, Presiding
Argued and Submitted June 1, 2015
Pasadena, California
Before: THOMAS, Chief Judge, CALLAHAN, Circuit Judge and KORMAN, **
Senior District Judge.
FILED
JUN 29 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The Honorable Edward R. Korman, Senior District Judge for the U.S.
District Court for the Eastern District of New York, sitting by designation.

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Dominic Heath and Kendall Johnson, guardians ad litem for minor J.M.J.,
appeal the district court’s dismissal of an action brought by J.M.J’s predecessor in
interest, Andrea Heath. Heath, a police officer with the City of Desert Hot Springs,
brought a § 1983 claim and state law claims alleging that Defendants retaliated
against her for exercising her First Amendment free speech and petition rights. We
reverse and remand. Because the parties are familiar with the history of this case,
we need not recount it here.
We review a district court’s dismissal of a complaint for failure to state a
claim under Rule 12(b)(6) de novo. Knievel v. ESPN, 393 F.3d 1068, 1072 (9th
Cir. 2005). In undertaking this review, we “accept all factual allegations of the
complaint as true and draw all reasonable inferences in favor of the nonmoving
party.” Pub. Lands for the People, Inc. v. U.S. Dep’t of Agric., 697 F.3d 1192,
1196 (9th Cir. 2012) (internal quotation marks omitted). “Dismissal under Rule
12(b)(6) is inappropriate unless [the plaintiff’s] complaint fails to ‘state a claim to
relief that is plausible on its face.’” Dahlia v. Rodriguez, 735 F.3d 1060, 1066 (9th
Cir. 2013) (en banc) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). We review a district court’s decision to decline to exercise supplemental
jurisdiction over state law claims after all federal claims were dismissed for abuse
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of discretion. Costanich v. Dep’t of Soc. & Health Servs., 627 F.3d 1101, 1107
(9th Cir. 2010).
I
The district court erred in dismissing Heath’s § 1983 claims because she
could not establish a constitutional violation because Heath’s reporting of illegal
police acts did not constitute constitutionally protected speech.
It is well settled that the government is not permitted to stifle “the First
Amendment rights [employees] would otherwise enjoy as citizens to comment on
matters of public interest . . . .” Pickering v. Bd. of Ed. of Twp. High Sch. Dist. 205,
Will Cnty., Illinois, 391 U.S. 563, 568 (1968). In First Amendment retaliation
cases involving public employees, courts are required to strike “a balance between
the interests of the [employee], as a citizen, in commenting upon matters of public
concern and the interest of the State, as an employer, in promoting the efficiency of
the public services it performs through its employees.” Id.
We have employed a five-step test to determine whether a public employee’s
speech is protected, namely:
(1) whether the plaintiff spoke on a matter of public concern; (2)
whether the plaintiff spoke as a private citizen or public employee; (3)
whether the plaintiff’s protected speech was a substantial or
motivating factor in the adverse employment action; (4) whether the
state had an adequate justification for treating the employee
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differently from other members of the general public; and (5) whether
the state would have taken the adverse employment action even absent
the protected speech.
Eng v. Cooley, 552 F.3d 1062, 1070 (9th Cir. 2009).
In dismissing the claims, the district court relied on Huppert v. City of
Pittsburg, 574 F.3d 696 (9th Cir. 2009), and held Heath’s reporting of illegal acts
did not constitute constitutionally protected speech. Huppert had reasoned that
because reporting illegal acts was part of an officer’s duty, such speech was private
and therefore unprotected. 574 F.3d at 707-08.
However, Huppert was overruled by Dahlia v. Rodriguez, 735 F.3d 1060
(9th Cir. 2013) (en banc). In Dahlia, we articulated three guiding principles for
evaluating whether an individual speaks as a private citizen or as a public
employee. 735 F.3d at 1074-75. We instructed courts to consider whether the
employee confined her communications to the chain of command; whether the
employee spoke about routine issues or raised broad concerns about, for example,
systemic abuse or corruption; and whether the employee spoke in direct
contravention to a supervisor’s orders. Id. Application of the Dahlia principles
compels the conclusion that Heath spoke as a private individual and not as a public
employee.
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First, Heath did not confine her communications to her chain of command.
She repeatedly contacted individuals outside of her command to inform them of the
abuses that occurred within the police department. She met with an FBI agent and
an assistant United States Attorney on multiple occasions, and she filed a formal
complaint with Internal Affairs. Thus, she satisfied the first Dahlia factor.
Second, Heath’s speech concerned systemic police abuse and corruption,
satisfying Dahlia’s second factor that the subject matter of the speech content not
be of routine administrative matters, but be of broad concerns, such as
departmental corruption or abuse.
Third, Heath spoke in direction contravention of her supervisor’s orders, and
was repeatedly harassed for speaking out against police abuse and corruption.
Thus, her speech satisfied the third Dahlia factor.
Therefore, under Dahlia, Heath spoke as a private citizen on a matter of
public concern, a conclusion that the Defendants do not challenge on appeal.
Accordingly, the district court erred in dismissing her § 1983 First Amendment
retaliation claims.
II
The Defendants urge us to affirm the dismissal of the complaint on alternate
grounds, not contained in the district court decision. We decline to do so.
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A
Contrary to the City’s assertion, Heath’s complaint adequately states a claim
for relief for § 1983 liability under Monell v. Department of Social Services, 436
U.S. 658 (1978). Under the familiar Monell analysis, a plaintiff may establish
municipal liability by establishing that (1) the constitutional violation was the
result of a governmental policy or a longstanding practice or custom; (2) the
individual who committed the constitutional violation was an official with final
policy-making authority; or (3) an official with final policy-making authority
ratified the unconstitutional act. Gillette v. Delmore, 979 F.2d 1342, 1346-47 (9th
Cir. 1992).
Heath’s complaint alleged liability under all three Monell theories. Because
the complaint provides the City with fair notice of her theories and the facts that
underlie them and plausibly suggest an entitlement to relief, she has satisfied the
minimal pleading requirements to survive a motion to dismiss under Rule 12(b)(6).
See Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011) (outlining pleading
requirements applicable to civil actions); AE ex rel. Hernandez v. Cnty. of Tulare,
666 F.3d 631, 637 (9th Cir. 2012) (applying Starr pleading principles to a Monell
liability claim). On appeal, Heath indicates that she would likely seek leave to
amend her complaint to add additional factual allegations, which she should be
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granted on remand. Moss v. U.S. Secret Serv., 572 F.3d 962, 972 (9th Cir. 2009)
(“Courts are free to grant a party leave to amend whenever ‘justice so requires,’
Fed.R.Civ.P. 15(a)(2), and requests for leave should be granted with ‘extreme
liberality.’”) (quoting Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708,
712 (9th Cir. 2001)).
B
The individual officers ask us to grant them qualified immunity on appeal,
contending the law was not clearly established at the time of their conduct. See
Saucier v. Katz, 533 U.S. 194, 201 (2001) (qualified immunity does not attach if
the facts alleged demonstrate a violation of a constitutional right that was clearly
established at the time of the defendant’s misconduct). However, Heath alleges
that different individual Defendants engaged in different retaliatory acts over a
period of multiple years, so the question of what “clearly established” law applies
to each specific act of each individual is far from clear on this undeveloped record.1
1 However, the fact that Dahlia overruled Huppert is, on its face, an
insufficient basis to conclude the law was not “clearly established” as a general
matter applicable to all Defendants because Huppert post-dated some of the
alleged incidents, and the question of whether the law was “clearly established”
must be determined as of the time of the alleged constitutional violation. Anderson
v. Creighton, 483 U.S. 635, 640 (1987).
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Therefore, we decline to reach the question of qualified immunity for the first time
on appeal without the benefit of a fully developed record and an analysis
by the district court in the first instance. We remand for the district court to
consider whether Defendants are entitled to qualified immunity.
III
The district court did not abuse its discretion when it declined to exercise
supplemental jurisdiction over Heath’s state law claims after dismissing the federal
claims. See United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966).
However, because we reverse the district court’s dismissal of Heath’s federal
claims, we vacate the district court’s order declining supplemental jurisdiction to
permit the court to reconsider the question of whether to exercise supplemental
jurisdiction over the state law claims.
IV
In sum, we reverse the district court’s dismissal of Heath’s § 1983 claims.
We conclude that Heath has pleaded a Monell claim against the City sufficiently to
withstand a Rule 12(b)(6) motion to dismiss. We decline to rule on the individual
Defendants’ assertions of qualified immunity for the first time on appeal. We
vacate the district court’s order declining supplemental jurisdiction over the state
law claims to permit the district court to reconsider that question.
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We deny all pending motions as moot. We need not, and do not, reach any
other issue urged by the parties on appeal.
REVERSED AND REMANDED.
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