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 Plaintiff’s claims against Michael Quon, Director of the PUC’s Construction Management

Bureau, and Alan Wong, PUC’s Safety Manager, have been dismissed with prejudice subject to certain

conditions not relevant to the resolution of these summary judgment motions.

United States District Court

For the Northern District of California

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

MITCHELL ENGINEERING,

Plaintiff,

 v.

CITY AND COUNTY OF SAN FRANCISCO, 

et al.,

Defendants. /

No. C 08-04022 SI

ORDER DENYING PLAINTIFF’S

MOTION FOR SUMMARY JUDGMENT

and GRANTING IN PART AND

DENYING IN PART DEFENDANTS’

MOTIONS FOR SUMMARY JUDGMENT

The Court heard oral argument on the cross-motions for summary judgment filed by plaintiff

Mitchell Engineering, defendant City and County of San Francisco, and defendant Anthony Irons on

June 25, 2010. Having considered the arguments of the parties and the papers submitted, and for good

cause shown, the Court hereby DENIES plaintiff’s motion and GRANTS in part and DENIES in part

defendants’ motions.

BACKGROUND

This litigation arises from a business dispute between plaintiff Mitchell Engineering, defendant

City and County of San Francisco (“the City”), including the City’s Department of Power and Water

(“DPW”) and Public Utilities Commission (“PUC”), and defendant Anthony Irons, the Deputy General

Manager of the PUC.1

 Plaintiff is a public works contractor who previously entered into many

municipal construction contracts with the City for projects such as upgrading the City’s utility pipelines,

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 The City’s relevance objection to the latter article is overruled.

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drinking water reservoirs, and bridges. 

This dispute arose after Mitchell Engineering, primarily through Curt Mitchell, its president,

began speaking to the media in 2005 about what it believed to be the City’s mishandling of a project

involving the seismic retrofitting and rehabilitation of the Fourth Street Bridge. Plaintiff’s conversations

with reporters resulted in several news articles, including a May 31, 2006 article in San Francisco

Weekly entitled “A Bridge Too Costly” and a July 31, 2006 article in the San Francisco Chronicle

entitled “4th Street Bridge is Up a Creek.”2

 See Betz Decl. Ex. B. Both articles recounted statements

by plaintiff’s president to the effect that the City’s mismanagement and errors had resulted in significant

delays and cost increases to the Fourth Street Bridge project. Mitchell was also quoted as stating that

the City was refusing to pay for the increased construction costs that had resulted from its own

negligence. Id. Plaintiff alleges that, after it spoke out to the media, the City retaliated against it by

taking a number of actions designed to drive plaintiff out of business. The primary actions complained

of concern the City’s termination of plaintiff from its work on the Fourth Street Bridge project and

withholding of funds on other projects. Plaintiff alleges that these adverse actions were carried out in

retaliation for plaintiff’s speech and in order to ensure that plaintiff could not qualify to bid on future

construction projects. 

Plaintiff brought six breach-of-contract suits in state court between July 2007 and February 2008,

each of which challenged the City’s actions in connection with a particular construction contract.

Plaintiff filed this action in federal court in August 2008, alleging that the City’s conduct amounted to

civil conspiracy, tortious interference with contractual relations and prospective economic advantage,

and civil rights violations under 42 U.S.C. § 1983. By order dated March 9, 2010, the Court dismissed

the tort claims with prejudice. Plaintiff’s remaining civil rights claims allege that the City and Irons

violated plaintiff’s rights to procedural and substantive due process and its rights under the First

Amendment by terminating plaintiff from the Fourth Street Bridge contract and assessing liquidated

damages in other contracts, thereby essentially freezing plaintiff out of future contracts with the City.

Presently before the Court are the parties’ cross-motions for summary judgment.

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LEGAL STANDARD

Summary judgment is proper “if the pleadings, the discovery and disclosure materials on file,

and any affidavits show that there is no genuine issue as to any material fact and that the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). The moving party bears the initial

burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477

U.S. 317, 323 (1986). The moving party, however, has no burden to disprove matters on which the

non-moving party will have the burden of proof at trial. The moving party need only demonstrate to

the Court that there is an absence of evidence to support the non-moving party’s case. Id. at 325.

Once the moving party has met its burden, the burden shifts to the non-moving party to “set out

‘specific facts showing a genuine issue for trial.’” Id. at 324 (quoting Fed. R. Civ. P. 56(e)). To carry

this burden, the non-moving party must “do more than simply show that there is some metaphysical

doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574,

586 (1986). “The mere existence of a scintilla of evidence . . . will be insufficient; there must be

evidence on which the jury could reasonably find for the [non-moving party].” Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 252 (1986).

In deciding a summary judgment motion, the court must view the evidence in the light most

favorable to the non-moving party and draw all justifiable inferences in its favor. Id. at 255.

“Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from

the facts are jury functions, not those of a judge . . . ruling on a motion for summary judgment.” Id.

However, conclusory, speculative testimony in affidavits and moving papers is insufficient to raise

genuine issues of fact and defeat summary judgment. Thornhill Publ’g Co., Inc. v. GTE Corp., 594 F.2d

730, 738 (9th Cir. 1979).

DISCUSSION

Plaintiff’s cause of action under 42 U.S.C. § 1983 can be divided into three claims. First,

plaintiff alleges that the City violated its right to procedural due process by failing to provide procedural

safeguards prior to carrying out a constructive debarment which rendered plaintiff unable to obtain

future public works contracts. Second, plaintiff alleges that this constructive debarment violated its

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right to substantive due process by depriving it of its liberty interest in pursuing the occupation of its

choice. Finally, plaintiff alleges that the City violated its right to free speech by retaliating against it

for publicly speaking out against the City.

I. City’s Liability under Monell

As an initial matter, the City asserts that it is entitled to summary judgment on all of plaintiff’s

claims because it cannot properly be held liable under Monell v. Department of Social Services of New

York, 436 U.S. 658 (1978). A plaintiff who seeks to state a claim under 42 U.S.C. § 1983 against a

municipality may not sue on the basis of respondeat superior liability, but must sue under Monell by

alleging that he or she has suffered a constitutional violation as a result of a municipal policy, custom,

or practice. Price v. Sery, 513 F.3d 962, 966 (9th Cir. 2008). Ordinarily, to succeed in proving a Monell

claim, a plaintiff must show that the municipality expressly adopted an unconstitutional policy or that

the constitutional violation was the result of a “longstanding practice or custom.” Christie v. Iopa, 176

F.3d 1231, 1235 (9th Cir. 1999) (citation omitted). However, evidence of an isolated violation may

suffice where “the person causing the violation has ‘final policymaking authority’” or where a “final

policymaker ‘ratified’ a subordinate’s actions” and the unlawful basis for those actions. Id. at 1235,

1238-39 (citations omitted). 

It is undisputed that, pursuant to the San Francisco City Charter, PUC General Manager Susan

Leal has final policymaking authority with respect to PUC actions. See S.F. City Charter § 8B.121(d)

(Docket No. 139) (General Manager has authority to “adopt rules and regulations governing all matters

with the jurisdiction of” the commission). The City asserts that plaintiff has presented no evidence that

Leal played any part in taking the adverse actions at issue in this case. Plaintiff has shown, however,

that one of the primary adverse actions at issue in this case – the decision to terminate plaintiff from the

Central Pump Station Project – was made by defendant Irons acting in concert with Leal. See Irons

Depo., Betz. Oppo. Decl. Ex. EE, at 74:14-18, 75:2-7 (Docket No. 149) (stating that the decision to

terminate plaintiff from the Central Pump project was “made in concert with myself and the general

manager of the PUC, Susan Leal” and that “the final decision . . . to write the termination letter” was

“approved by Ms. Leal”). This evidence is, at the very least, sufficient to create a material issue of fact

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regarding whether Leal ratified plaintiff’s termination. See Lytle v. Carl, 382 F.3d 978, 988 (9th Cir.

2004) (ratification shown where final policymaker “actively participated in . . . and ratified the decisions

of his subordinates” and subordinate “specifically testified at trial that he collaborated with” the final

policymaker).

 Plaintiff has also presented sufficient evidence to create a factual dispute as to whether Leal

ratified the basis for the termination – in other words, that Leal was aware of and approved plaintiff’s

termination for the purpose of freezing plaintiff out of future City contracts and/or retaliating against

plaintiff for speaking out against the City. Christie, 176 F.3d at 1239. First, plaintiff has shown that

the decision to terminate plaintiff was reached as a result of numerous meetings between Irons and Leal,

raising an inference that Irons and Leal discussed the basis for the termination. See Irons Depo. at

74:23-75:1. Additionally, plaintiff has shown that the termination was initiated after plaintiff appeared

before PUC officials to discuss its complaints regarding the City’s actions. See Johanson Depo., Betz

Oppo. Decl. Ex. D, at 50-52. Although defendants deny any connection between plaintiff’s appearance

before the PUC and the termination, the Court agrees with plaintiff that this sequence of events, if

proved at trial, could permit the jury to conclude that Leal and/or the PUC ratified the retaliatory basis

for plaintiff’s termination. 

II. Procedural Due Process Claim

Plaintiff’s procedural due process claim centers around its allegation that the City constructively

debarred plaintiff from future eligibility for public works contracts without providing notice and a

hearing. The facts underlying this claim are as follows. Plaintiff entered its last successful bid for a

City contract in March 2004. Fine Decl. ¶ 3 (Docket No. 134). In approximately October 2006, the City

implemented a new set of pre-qualification requirements for contractors wishing to submit bids for

certain projects. See Request for Qualifications, Betz. Decl. Ex. T, at 3 (Docket No. 129). Among other

things, the new requirements provided that a contractor could not pre-qualify to bid on future projects

if it had been terminated from a project in the past eight years or had paid more than $50,000 in

liquidated damages in three consecutive prior projects in the past five years. Id. at 15-16. 

In January 2007, the City terminated plaintiff from its contract for the Central Pump Station

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 Plaintiff’s objections to this paragraph are overruled.

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Project. Johanson Decl. ¶ 10;3

 Jan. 2, 2007 Letter, Johanson Decl. Ex. 8 (Docket No. 136). Thereafter,

the City also contacted another municipality, the City of Hayward (“COH”), to suggest that it impose

liquidated damages against plaintiff. See Mar. 15, 2007 Email from Johanson to Irons, Betz Decl. Ex.

K (“Dennis [Tsai, PUC’s Manager] also suggested that the COH should assess LDs [liquidated

damages] and contact the bonding company.”); Mar. 20, 2007 Letter from PUC to COH, Betz Decl. Ex.

M, at 3 (describing PUC’s prior suggestion to assess liquidated damages in the “hope that by informing

you about Mitchell, you would take steps to avoid the problems we had with them,” and recounting

COH’s response that it “instead decided to assist Mitchell in completing the work in a ‘reasonable

amount of time’” and did not wish to “allow unrelated issues or disputes between Mitchell and SFPUC

to interfere with [its] decisions on this project”). Plaintiff argues that this sequence of events amounts

to constructive debarment in that the City’s actions were designed to ensure that plaintiff could not prequalify to bid on future construction projects with the City. 

A. Futility of Applying to Bid

The City argues that plaintiff’s procedural due process claim must fail because plaintiff never

actually applied to pre-qualify or attempted to submit any bids after the City took the adverse actions

against it. The City states that the pre-qualification process would itself have provided plaintiff with

all the process it was due, including the opportunity to appeal an adverse determination. The City’s

argument amounts to a renewal of the ripeness challenge it raised in moving to dismiss the procedural

due process claim from plaintiff’s First Amended Complaint. At that time, the City’s argument was

successful because plaintiff’s First Amended Complaint simply alleged constructive debarment in a

conclusory manner, without any specific allegations concerning the pre-qualification requirements or

the City’s intentions with respect to plaintiff’s ability to meet those requirements. See Feb. 23, 2009

Order at *5-6 (Docket No. 30). 

Plaintiff’s theory at present, however, is that the City’s actions were carried out in order to

ensure that plaintiff would fail the pre-qualification requirements, meaning that any attempt by plaintiff

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 The plaintiff in CNA Corp. had previously submitted two proposals that were rejected, and

argued that a third application would have been futile. Although plaintiff in this case has admittedly

never applied to pre-qualify, the Court finds CNA Corp. persuasive. The Court notes in particular that

PUC officials have admitted that the effect of the termination and other adverse actions against plaintiff

is that plaintiff would certainly fail the pre-qualification requirements.

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to apply to pre-qualify would have been futile. Plaintiff argues that, under these circumstances, it was

not required to bid or to attempt to pre-qualify before bringing this action. Plaintiff’s theory finds

support in the case law. See Beekwilder v. United States, 55 Fed Cl. 54, 61 (Fed. Cl. 2002) (“If

submitting an application, or taking a step in an administrative process would serve no purpose then its

avoidance will not defeat ripeness.”); CNA Corp. v. United States, 81 Fed. Cl. 722, 727 (Fed. Cl. 2008)

(plaintiff not required to submit bid for federal health study contract before bringing suit to challenge

rejection of the bid where rejection would have been “all but certain”).4

 

In order to avail itself of the futility exception, however, plaintiff must prove or at least raise a

material dispute of fact concerning whether the City’s adverse actions were carried out with the purpose

of preventing plaintiff from meeting the pre-qualification requirements. In the Court’s view, plaintiff

has made a sufficient factual showing. First, plaintiff has raised a dispute of fact as to the validity of

the City’s stated reasons for terminating plaintiff from the Central Pump project. According to

defendant Irons, a primary reason for plaintiff’s termination was its inability to complete the project on

time. Irons testified at his deposition that a likely cause of the delay was financial trouble that rendered

plaintiff unable to pay its employees and subcontractors:

[T]here was a significant financial problem, because there were no workers on this

Central pump station for a long period of time. Nobody was there. Nobody was getting

paid. There was stop notices that couldn’t be cured or weren’t being cured. And so I

think my assumption was they did not have the financial . . . resources necessary to

finish the project. They simply didn’t have them.

Irons Depo., Betz Decl. Ex. I, at 168:3-11; see also id. at 169:10-15 (it was a “consensus among the

entire project team” which reported to Irons that “we d[id]n’t believe Mitchell ha[d] the financial

capacity to finish the project”). As plaintiff points out, however, Irons was aware several months prior

to plaintiff’s termination that the City had failed to make certain payments due to plaintiff on other

projects. Id. at 186:20-187:1; Oct. 13, 2006 Email to Irons, Betz. Decl. Ex. H (describing erroneously

withheld payment). Irons did not know as of the date of his deposition in February 2010 whether

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 Defendants object to this evidence on the ground it is misleading. In the Court’s view,

however, Ms. Fine’s testimony and notes pertain to the City’s intentions regarding plaintiff’s future

ability to contract with the City, one of the key factual disputes in this case. Therefore, the evidence is

appropriate for consideration on summary judgment.

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plaintiff had ever been provided with this missed payment. Irons Depo. at 188:8-9. This evidence,

while slim, raises an issue of fact as to whether the City purported to use plaintiff’s lack of capital in

order to terminate it from the Central Pump project despite knowing that some of plaintiff’s financial

trouble stemmed from the City’s own actions.

Second, plaintiff has presented evidence that, at a meeting concerning the City’s projects with

plaintiff, City employees were instructed, “if we don’t collect LDs or default [terminate] them we won’t

be able to catch them in the prequal.” Fine Notes, Betz Decl. Ex. U; Fine Depo., Betz Decl. Ex. S, at

135:4-17 (stating that notes were from “a meeting I was in regarding various Mitchell projects”).5

 In

its briefing and at oral argument, the City vigorously disputed plaintiff’s contention that this statement

constitutes evidence of any ill intent on the part of the City. The Court agrees that plaintiff’s evidence

at this stage is not strong. However, given the subjective nature of the termination decision and the fact

that resolution of the reasons underlying the termination may depend largely on credibility

determinations, the Court believes that it must be left to the jury to decide whether plaintiff can prove

that the City was targeting plaintiff as a result of its media statements, as opposed to acting out of a

legitimate concern regarding plaintiff’s performance.

B. Exclusion from All City Contracts

The City also argues, albeit briefly, that plaintiff cannot show de facto debarment as a matter of

law because the pre-qualification requirements only applied to certain City contracts and therefore

plaintiff was not prevented from entering into all City contracts. As an initial matter, deposition

testimony of the City’s own employees contradicts the City’s assertion. Fine Depo. at 123:18-23 (“Tony

Irons was clear to me that his intention was to have a prequalification program for all PUC construction

projects.”). Moreover, even assuming that there were some contracts not subject to the pre-qualification

requirements, plaintiff has presented uncontroverted evidence that prior terminations would prevent it

from obtaining surety bonds necessary to bid for all public works contracts. See Expert Surety

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Underwriting Report (hereinafter “Surety Report”), Betz. Oppo. Decl. Ex. W, at 2 (“A termination

notice immediately red flags the account as high risk, meaning the contractor will virtually be precluded

from obtaining surety bonds. Without bonds, a contractor cannot win future public works contracts.”).

Therefore, even if the pre-qualification requirements did not apply to all City contracts, plaintiff has

raised an issue of fact as to whether it was effectively prevented from qualifying for any future City

work. Both parties’ motions for summary judgment as to the procedural due process claim are

DENIED.

III. Substantive Due Process Claim

Plaintiff also states a substantive due process claim based on its alleged de facto debarment.

Plaintiff claims that the City’s actions deprived it of its liberty interest in pursuing the occupation of its

choice. Substantive due process “forbids the government from depriving a person of life, liberty, or

property in such a way that interferes with rights implicit in the concept of ordered liberty.” Engquist

v. Or. Dep’t of Agric., 478 F.3d 985, 996 (9th Cir. 2007) (quotation marks, alteration and citation

omitted). The Ninth Circuit has specifically “recognized the liberty interest in pursuing an occupation

of one’s choice.” Id. at 997.

Defendants argue that plaintiff cannot make out a substantive due process claim because plaintiff

cannot show that it was entirely foreclosed from working as a contractor, as opposed to, at most, being

shut out from obtaining future public works contracts with the City. Defendants’ position finds support

in Ninth Circuit and Supreme Court case law, both of which hold that the deprivation of a plaintiff’s

ability to practice its profession must be absolute in order to be actionable as a substantive due process

violation. See Conn v. Gabbert, 586 U.S. 286, 292 (1999) (cases recognizing a substantive due process

right in one’s profession “all deal with a complete prohibition of the right to engage in a calling”);

Engquist, 478 F.3d at 997 (recognizing claim based on government’s alleged “interference with

[plaintiff’s] ability to pursue a profession altogether”). 

In its papers, plaintiff made no effort to distinguish these cases and in fact acknowledged that

the substantive right to engage in a profession can be encroached by a government employer’s actions

only in “extreme cases, such as a government blacklist [that] . . .effectively excludes the blacklisted

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individual from his occupation.” Id. at 997 (quotation marks and citation omitted). Applying the

standard set forth by the Supreme Court and the Ninth Circuit, the Court must conclude that plaintiff

has not presented evidence sufficient to show or even raise a material factual dispute as to whether

defendants’ actions have rendered it unable to obtain any new employment. Plaintiff’s evidence is

wholly directed at proving that it is unable to obtain future contracts with the City of San Francisco.

Plaintiff has put forth no evidence showing that, as a result of defendants’ actions, it is unable to obtain

any other type of contract, such as contracts with private employers. 

Plaintiff stated in its papers that it is “exclusively engaged in public contracts” and that its

inability to obtain work with the City effectively spells an end to its business. Plaintiff further asserted

at oral argument that public works projects are a specialty within the contracting field, much like the

specialty of cardiology within the field of medicine, and that its inability to obtain public works

contracts will effectively spell an end to its ability to work as a contractor. Plaintiff’s argument is

insufficient to defeat summary judgment on this claim. First, plaintiff has made no evidentiary showing

to support its assertion that public contracting work is sufficiently specialized that exclusion from such

work may constitute a substantive due process violation. Second, plaintiff’s own assertions establish

that it engages solely in public contracting work by choice. Ninth Circuit authority holds that where a

plaintiff is unable to obtain new work through reasons unrelated to the defendant’s actions, there is no

substantive due process violation. See Engquist, 478 F.3d at 999 (“[I]t appears that [plaintiff] works in

a highly specialized field, and there simply are not many jobs available in that field in Oregon. Because

Defendants did not cause this situation, their specific actions have not made it ‘virtually impossible’ for

[plaintiff] to find new employment.”). Defendants are not responsible for plaintiff’s choice to work

solely on public contracts. Plaintiff has not shown that harm to its reputation will prevent it from

obtaining private contracts, or that it is somehow unqualified or ineligible for private contracts. Plaintiff

has shown no more than that it will suffer reduced business as a result of its own choice to engage in

public contracting work.

Accordingly, plaintiff’s motion for summary judgment as to its substantive due process claim

is DENIED, and the City’s and Irons’s cross-motions are GRANTED.

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IV. First Amendment Claim

Plaintiff’s final claim is that the City and Irons violated plaintiff’s rights under the First

Amendment by taking the adverse actions described throughout this order in retaliation for plaintiff’s

protected speech. A contractor asserting a First Amendment retaliation claim against government

officials must prove that: “(1) it engaged in expressive conduct that addressed a matter of public

concern; (2) the government officials took an adverse action against it; and (3) its expressive conduct

was a substantial or motivating factor for the adverse action.” Alpha Energy Savers, Inc. v. Hansen, 381

F.3d 917, 923 (9th Cir. 2004). If the contractor meets its burden of proving these three elements, the

defendants may avoid liability by proving either that “legitimate administrative interests . . . outweigh

the contractor’s free speech interests” or that they “would have taken the same actions in the absence

of the contractor’s expressive conduct.” Id.

First, the Court finds that at least some of plaintiff’s speech – namely, its comments to reporters

regarding the City’s alleged mishandling of a major municipal construction project funded by taxpayer

dollars – addressed a matter of public concern. See Johnson v. Multnomah County, Or., 48 F.3d 420,

425 (9th Cir. 1995) (“[M]isuse of public funds, wastefulness, and inefficiency in managing and

operating government entities are matters of inherent public concern.”). Defendants do not dispute this

by anything more than a few conclusory sentences. Second, in light of the foregoing discussion

regarding plaintiff’s procedural due process claim, the Court must also conclude that plaintiff has

presented evidence sufficient to defeat summary judgment regarding the elements of adverse action and

the fact that plaintiff’s speech was a motivating factor behind that action. Defendants asserted both in

their papers and at oral argument that plaintiff cannot show that its termination was motivated by its

speech, given that plaintiff had disputes with the PUC prior to plaintiff’s speech acts. Defendants

argued at the hearing that permitting a First Amendment retaliation claim under these circumstances

would essentially enable contractors to insulate themselves against termination by simply speaking out

to the media after getting into a dispute with the City. The Court recognizes that the City has a

significant interest in being able to run its public works projects, including terminating contractors with

performance problems, without encountering constitutional challenges where its actions are taken for

legitimate reasons. However, just as a contractor should not be able to protect itself from termination

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 The City has also argued that it actually withdrew its notice of termination after some of

plaintiff’s public speech acts in late 2006, and only reinstated the termination in January 2007. The City

asserts that this course of events demonstrates good faith and undermines any contention of First

Amendment retaliation. At oral argument, plaintiff countered that the City wanted to wait until 2007

to effectuate the termination because the pre-qualification requirements were set to take effect on

January 1, 2007. The City did not dispute this assertion. The dispute concerning the import of the

timing of events presents another factual dispute weighing against the granting of summary judgment

to any party.

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simply by speaking out against the City, neither should the City be able to insulate itself from liability

for First Amendment retaliation simply by pointing out that it had a preexisting dispute with the

contractor bringing the claim. The Court believes that, in this case, it is fundamentally a question for

the jury whether plaintiff’s speech caused the parties’ differences to escalate beyond mere contractual

disputes to First Amendment retaliation. Plaintiff has presented sufficient evidence at this stage to be

permitted to test its theory before a jury.6

The Court must now determine whether the City and Irons have met their burden of showing

either that legitimate governmental interests outweighed plaintiff’s free speech interest or that they

would have terminated plaintiff from the Central Pump project and taken the other adverse actions at

issue even if plaintiff had not spoken out against the City. Alpha Energy Savers, 381 F.3d at 923. Irons

asserts in his motion that he is entitled to summary judgment because plaintiff has not shown that he had

any personal involvement in any First Amendment retaliation. However, as the Court has already

concluded, there is no dispute that Irons was involved in making the decision to terminate plaintiff from

the Central Pump project. Material disputes of fact and significant credibility questions prevent the

Court from determining at this time whether Irons and the PUC would have taken this adverse decision

even absent plaintiff’s speech.

Additionally, the City spends a significant portion of its summary judgment motion arguing that

it did not retaliate against plaintiff in connection with each of the six contracts that are at issue in the

lawsuits currently pending in state court. Plaintiff’s claims in this case, however, are based on its

termination from the Central Pump project and certain other specific financial actions taken by the City

after plaintiff spoke out in 2006. The majority of the actions discussed in the City’s motion took place

prior to plaintiff’s speech, and are therefore not relevant to plaintiff’s claims. The City has presented

no other persuasive reason that it is entitled to summary judgment on plaintiff’s First Amendment

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claims. As with defendant Irons, the Court believes that material factual and credibility disputes

preclude summary judgment as to the City’s liability.

The parties’ motions for summary judgment regarding the First Amendment claim are DENIED.

V. Qualified Immunity

Defendant Irons argues very briefly in his reply in support of his motion for summary judgment

and in his opposition to plaintiff’s motion for summary judgment that he is entitled to qualified

immunity for any alleged violations of plaintiff’s constitutional rights. “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 have known.” Tibbetts

v. Kulongoski, 567 F.3d 529, 535 (9th Cir. 2009). To determine whether an official is entitled to

qualified immunity, the Court must consider whether the facts, viewed in the light most favorable to

plaintiff, establish a violation of a constitutional right, and, if so, whether that right was clearly

established at the time of the alleged violation. Pearson v. Callahan, 129 S. Ct. 808, 815-16 (2009);

Inouye v. Kemna, 504 F.3d 705, 712 (9th Cir. 2007). “To reject a defense of qualified immunity, [the

court] must find that the contours of the right are sufficiently clear that a reasonable official would

understand that what he is doing violates the right.” Inouye, 504 F.3d at 712 (quotation marks, alteration

and citation omitted).

Having concluded that Irons is entitled to summary judgment on the merits of plaintiff’s

substantive due process claim, the Court need not assess whether qualified immunity might apply to that

claim. With respect to the procedural due process and First Amendment retaliation claims, it is

essentially uncontested that terminating a contractor without adequate process and in retaliation for

protected speech violates the Fourteenth and First Amendments, respectively. Irons contends, however,

that plaintiff’s right not to be terminated was not “clearly established” because it would not have been

apparent to a reasonable official that it was unlawful to terminate a contractor with whom the City had

a preexisting, performance-related dispute. Defendants’ framing of Irons’ actions highlights the factual

disputes that prevent a grant of summary judgment on grounds of qualified immunity. Because the

resolution of this question is tied closely to the factual disputes identified above regarding the purpose

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and intent behind Irons’s actions, Ions’ request for summary judgment on the basis of qualified

immunity must be DENIED.

VI. Statute of Limitations

At the very conclusion of its summary judgment motion, the City vaguely argues that any claims

arising more than two years before the filing of plaintiff’s complaint must be dismissed on statute of

limitations grounds. See Maldonado v. Harris, 370 F.3d 945, 955 (9th Cir. 2004) (two-year statute of

limitations applies to § 1983 actions brought in California after January 1, 2003). The City clarifies in

its reply brief that it is simply seeking “an order that Mitchell may not seek liability or damages for

actions that took place before August 22, 2006” – two years before the complaint was filed – because

“discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged

in timely filed charges.” City’s Reply at 14 (quoting RK Ventures, Inc. v. City of Seattle, 307 F.3d 1045,

1061 (9th Cir. 2002) (citation omitted). Plaintiff states in its opposition brief that it does not intend to

seek liability or damages for actions occurring outside the limitations period, but may wish to introduce

evidence of such actions at trial for background purposes. Accordingly, the Court GRANTS the City’s

motion for a ruling that plaintiff may not seek to impose liability or damages for any acts prior to August

22, 2006, but expresses no opinion at this time regarding the admissibility of evidence of such prior acts.

CONCLUSION

For the foregoing reasons, and for good cause shown, plaintiff’s motion for summary judgment

is DENIED and defendants’ motions for summary judgment are GRANTED in part and DENIED in

part. (Docket Nos. 126, 130, 131).

IT IS SO ORDERED.

Dated: July 19, 2010 

SUSAN ILLSTON

United States District Judge

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