Amjad ABUDIAB, Plaintiff-Appellee, v. Elias GEORGOPOULOS, Defendant-Appellant. and City and County of San Francisco; Antonio Para, Defendants.
No. 11-18016.
United States Court of Appeals, Ninth Circuit.
Submitted Nov. 6, 2013.* Filed Nov. 27, 2013.
685
Joseph Samuel May, Esquire, Law Office of Joseph S. May, San Francisco, CA, for Plaintiff-Appellee. Blake Loebs, Deputy City, San Francisco City Attorney‘s Office, San Francisco, CA, for Defendant-Appellant.
MEMORANDUM***
Appellant Elias Georgopoulos appeals the district court‘s summary judgment or-
Qualified immunity is determined by a two-step inquiry: (1) Are the facts that a plaintiff has alleged or shown sufficient to demonstrate a violation of a constitutional right?; and (2) Was the right at issue “clearly established” at the time of the defendant‘s alleged misconduct? Saucier v. Katz, 533 U.S. 194, 201 (2001), receded from by Pearson v. Callahan, 555 U.S. 223, 236 (2009). If the answer to both questions is yes, then qualified immunity should be denied. Id.
The district court properly denied Georgopoulos qualified immunity on Abudiab‘s First Amendment retaliation claim because (1) Abudiab raised an issue of fact over whether Georgopoulos violated his First Amendment rights by punching him and spraying him with pepper spray, and (2) the right to be free from First Amendment retaliation by a government official was clearly established at the time of Georgopoulos‘s alleged misconduct. See United States v. Poocha, 259 F.3d 1077, 1080-82 (9th Cir. 2001); Soranno‘s Gasco, Inc. v. Morgan, 874 F.2d 1310, 1319 (9th Cir. 1989). Likewise, the district court properly denied Georgopoulos qualified immunity on Abudiab‘s Fourth Amendment malicious prosecution claim because (1) Abudiab raised an issue of fact as to whether Georgopoulos, using his status as a city parking officer, lied to the police to have Abudiab arrested, and (2) the right to be free from malicious prosecution by a government official was clearly established at the time of Georgopoulos‘s alleged misconduct. See Awabdy v. City of Adelanto, 368 F.3d 1062, 1066 (9th Cir. 2004); Harris v. Roderick, 126 F.3d 1189, 1198 (9th Cir. 1997).
In contrast to a denial of qualified immunity, which is an appealable “final decision,” Mitchell v. Forsyth, 472 U.S. 511, 530 (1985), a grant of qualified immunity is generally not independently appealable on an interlocutory basis, see Eng v. Cooley, 552 F.3d 1062, 1067 (9th Cir. 2009). We thus decline to consider Abudiab‘s argument that the district court improperly granted Georgopoulos qualified immunity on Abudiab‘s Fourth Amendment excessive force claim.
Also pending before the Court is Appellee‘s Motion for Sanctions and Appellant‘s Opposition to Sanctions Motion/Motion to Strike Portions of Abudiab‘s Brief. Both motions are DENIED.
AFFIRMED.