911 F. 2d 738 - Poole

MEMORANDUM*

Plaintiff Diane Warner, a county probation officer, appeals from the district court's dismissal, without prejudice, of her Sec. 1983 suit against the probation department and Elaine McNally, her immediate supervisor. The defendants cross-appeal from the denial of their motion for summary judgment. We reverse the district court's dismissal of Warner's suit, and affirm its denial of the defendants' summary judgment motion.

The district court gave no reason for its decision to dismiss Warner's complaint; it appears, however, that ripeness was the court's primary concern.1 Having reviewed the issue de novo, see Herrington v. County of Sonoma, 857 F.2d 567, 568 (9th Cir.), cert. denied, 109 S.Ct. 1559 (1989), we conclude that Warner's action was ripe for adjudication.

The defendants argue that Warner's claims are not ripe because she has not yet suffered any injury and asserts only speculative fears about what might happen in the future. Warner, however, has alleged specific injuries that have occurred already. She claims that she has been harassed, intimidated and treated unfairly since filing an earlier suit for infringement of her first amendment right to freedom of expression ("Case I"). More specifically, she contends that McNally and the department have assigned her to do interviews at distant locations, scrutinized her attendance at classes and her contact with clerical staff (while not doing so for other employees), denied her information necessary to do her assigned work, and encouraged other employees to adopt a hostile attitude toward her. Moreover, she has offered evidence of injury in the form of deposition testimony by her physician that she suffers from an "acute anxiety type illness" as a result of her employment situation.

In light of these allegations, it is difficult to find much merit in the defendants' position. Their reliance upon Andrade v. Lauer, 729 F.2d 1475 (D.C.Cir.1984), is misplaced. In Andrade, the alleged injury was loss of employment, and the court upheld dismissal because the plaintiffs had not been discharged, and loss of employment was merely hypothetical at that point. See 729 F.2d at 1481. Warner's alleged injuries, of course, are not hypothetical.

The defendants also appear to urge that Warner's claims are not ripe because she did not avail herself of the department's administrative grievance procedure. There was, however, no requirement that Warner seek administrative redress before bringing a Sec. 1983 action. See Clark v. Yosemite Community College District, 785 F.2d 781, 790-91 (9th Cir.1986) (plaintiff need not first resort to state remedies before filing Sec. 1983 action for infringement of first amendment right of association).

Finally, there is some indication that the district court may have considered Warner's claims not ripe because they depend upon the ultimate resolution of Case I, which at present is on appeal to this Court. This position depends upon an erroneous conception of Warner's action. Warner asserts in this case that McNally and the department subjected her to harassment and other unfair treatment because she sought to vindicate her first amendment rights in Case I. This court has held recently that such a claim of retaliation is well within the scope of Sec. 1983. Soranno's Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314-15 (9th Cir.1989) ("Deliberate retaliation by state actors against an individual's exercise of [the right of access to the courts] is actionable under section 1983."). Thus, Warner's allegations in this case establish a basis for Sec. 1983 relief that is independent from that of Case I. The ultimate outcome of her first amendment claim in Case I is irrelevant to the basis of her claim in this case.

B. Denial of defendants' summary judgment motion

The defendants argue that the district court should have granted their summary judgment motions and dismissed Warner's claims with prejudice. Having reviewed this issue de novo, see Kruso v. International Telephone & Telegraph Corp., 872 F.2d 1416, 1421 (9th Cir.), cert. denied, 58 U.S.L.W. 3801 (U.S. June 18, 1990), we conclude that the district court properly denied summary judgment.

The defendants contend first that Warner's claim against the department fails as a matter of law because Warner has not demonstrated any official custom or policy that violated her constitutional rights. They allude to an ordinance that places policy-making authority over hiring and firing in a three-member committee (which includes McNally). Contrary to what this reference implies about Warner's allegations, she claims that she suffered retaliation due to the way in which McNally operated the department, rather than in the hiring and firing decisions themselves. Considering the fact that McNally was the Director of Probation, it is reasonable to assume that she had policymaking authority when it came to the daily operations of the Probation Office. Because defendants have not shown that she lacked that authority, summary judgment would have been inappropriate.

The defendants also argue that the district court should have dismissed Warner's claims against McNally because McNally is entitled to qualified immunity. The defendants acknowledge that qualified immunity would not protect McNally from liability for violating a "clearly established" constitutional right. See, e.g., Mitchell v. Forsyth, 472 U.S. 511, 528 (1985). They urge, however, that Warner claims infringement of a right to express "dissatisfaction with the way [her] department is run," and that this is not a clearly established right. See Appellee's Brief # 1 at 25-26.

This argument misconceives Warner's claim. Her suit alleges that McNally subjected her to harassment in retaliation for seeking to vindicate her right to free speech via Case I. The right to resort to the courts without retaliation is a long-standing principle, derived from the first amendment. See, e.g., Soranno's Gasco, Inc., 874 F.2d at 1314 ("The right of access to the courts is subsumed under the first amendment right to petition the government for redress of grievances." (citing cases)). Furthermore, we have recognized for some time that the government violates the first amendment rights of its employees by retaliating against them for exercising those rights, even if the retaliation is short of discharge. See Rutan v. Republican Party of Illinois, 58 U.S.L.W. 4872, 4875 & n. 8 (U.S. June 21, 1990); Allen v. Scribner, 812 F.2d 426, 434 (9th Cir.1987).

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED. Defendants-Appellees/Cross-Appellants to pay costs.