NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GEORGE RICHARD AYDELOTTE,

Plaintiff

- Appellant,

v. TOWN OF SKYKOMISH; et al.,

Defendants

- Appellees. No. 15

- 35885
D.C. No. 2:14

- cv - 00307

- RSL

MEMORANDUM *

Appeal from the United States District Court for the Western District of Washington Robert S. Lasnik, District Judge, Presiding Argued and Submitted May 16, 2018 Pasadena, California Before: WARDLAW, NGUYEN, and OWENS, Circuit Judges.
George Aydelotte appeals the district court’s grant of summary ju dgment on his 42 U.S. C. § 1983 action for First Amendment retaliation against the Town of Skykomish (Skykomish) and various municipal officers in their official capacities. We have jurisdict ion under 28 U.S.C. § 1291, and w e affirm in part, reverse in part, and remand.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3. 

# FILED

DEC 24 2018 MOLLY C. DWYER, CLER K U.S. COURT OF APPEAL S2

1. The district court erred in concluding that Mayor Grider was entitled to qualified immunity with resp ect to Aydelotte’s First Amendment ret aliation
claim

. al

- Kidd v. Ashcroft , 580 F.3d 949, 964 (9 th Cir. 2009), rev’d on other grounds , 563 U.S. 731 (2011 ). The court failed to view the facts in the light most favorable to Aydelotte, as it was required to do on summary judgment. Mattos v. Agarano , 661 F.3d 433,
439 (9 th Cir. 2011) (en banc). Moreover, it considered each incident of harassing behavior separately in its qualified immunity analysis, as opposed to assessing whether Aydelotte’s right to be free from a “campaign of harassment and humiliation” in retaliati on for his speech was clearly established. Coszalter v. City of Salem , 320 F.3d 968, 975

– 76 (9 th Cir. 2003) (holding that “severe retaliatory actions” including “campaigns of harassment and humiliation” could support a § 1983 claim for First Amendment ret aliation). Properly viewing the law and facts, we conclude that Aydelotte’s right to be
free from a campaign of harassment and humiliation in retaliation for

con stitutionally protected speech wa s clearly established. Gibson v. United States , 781 F.2d 1334 , 1338 (9 th Cir. 1986) (“State action designed to retaliate against and chill political expression strikes at the heart of the First Amendment.” ), c ert. denied , 479 U.S. 1054 (1987); Sloman v. Tadlock , 21 F.3d 1462, 1469 (9 th Cir. 1994) (same); see also Co szalter , 320 F.3d at 975

– 76.3

In addition , t here is a genuine dispute of material fact as to whether Mayor Grider retaliated against Aydelotte in violation of his First Amendment rights.
Blair v. Bethel Sch. Dist. , 608 F.3d 540, 543 (9th Cir. 2010). To p revail on his
First Amendment retaliation claim , Aydelotte had to show first, that he engaged in

cons titutionally protected activity; second , that Mayor Grider engaged in conduct that would chill a person of ordinary firmness from f urther First Amendment activity; and , third , that Mayor Grider acted with the motive of chilling Aydelotte’s speech. Id. Aydelotte engaged in constitutionally protected speech when he criticized Skykomish officials and filed a com plaint in the Washington Public Disclosure
Co mmission. McKinley v. City of Eloy , 705 F.2d 1110, 1114 (9 th Cir. 1983) ( “ [S]peech that concerns ‘issues about which information is needed or appropriate to enable members of society ’ to make informed decisions about the operation of their government meri ts the highest degree of [ F]irst [A]mendment protection.” (quoting Thornhill v. Alabama , 310 U.S. 88, 102 (1940)) )

. Thereafter , Mayor Grider engaged in a litany of actions against Aydelotte , which, viewed in the light most favorable to Aydelotte, would ch ill a person of ordinary firmness from continuing to speak out

. Blair , 608 F.3d at 543. Aydelotte
adduced evidence that after he engaged in protected speech, Mayor Grider had his
fence destroyed , ticketed and threatened to ticket his vehicle, t hreatened to tow his4

vehicle , excluded him from the start of a public meeting, instructed him to remove his signs protesting the Skykomish government , 1 and t hreatened Aydelotte with eviction from his property

. Viewing these facts in the light most favorable to Ayd elotte, there is a genuine dispute as to whether there was adverse action against Aydelotte. Coszalter , 320 F.3d at 976 (“[I]f the plaintiff[] . . . can establish that the actions taken by the defendant[] were reasonably likely to deter [him] from engagin g in protected activity . . . [he] will have established a valid claim unde r § 1983.”)

. Finally , Aydelotte raise d a genuine dispute as to whether Mayor Grider took adverse action against him for the purpose of stopping his efforts to uncover local
governme nt corruption. Blair , 608 F.3d at 543. Mayor Grider exp licitly threatened Aydelotte that “he would need to behave to continue to live there” when they discussed Mayor Grider’s ticketing. Moreover , the traffic tickets began appearing on Ayd elotte’s vehic le after Aydelotte questioned Mayor Grider about

1 The district court erred in concluding that Mayor Grider’s actions with respect to Aydelotte’s signs could not be considered First Amendment retaliation because the signs “[ran] afoul of the Skykomish sign code .” Whether there has been First Amend ment retaliation does not depend on whether Mayor Grider’s actions were lawful or permissible, b ut rather on whether Aydelotte’s protected speech was a “substanti al or motivating factor” for Mayor Grider’s actions. Lacey v. Maricopa Cty. , 693 F.3d 896, 91 6 (9 th Cir. 2012) (en banc) (citations omitted); s ee also Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle , 429 U.S. 274, 283

– 84 (1977). Here, Aydelotte adduced sufficient evidence to raise a genuine dispute as to whether his speech was a substantial or motivating factor in the signs’ removal.5

his involvement with the Burlington Northern Santa Fe Railway, the company that was found to have paid kickbacks to other Skykomish officials

. And, n otably , police officers did not issue traffic tickets to Aydelotte’s neighbor who parked his car virtually identically on property across the street. F inally , Mayor Grider personally called tow trucks to Ay delotte’s home after police officers placed traffic
tickets on Aydelotte’s vehicle

. Based on this evidenc e, a jury could find that the motivating factor in Mayor Grider’s actions against Aydelotte was retaliation for Aydelotte’s exercise of his protected right to speak

. 2

. The distric t court erred by dismissing Aydelotte’s claims for injunctive and declaratory relief against Mayor Grider on the basis of qualified immunity. Hydrick v. Hunter , 669 F.3d 937, 942 (9 th Cir. 2012) (“[C]laim s for injunctive and declaratory relief are unaffected by qualified immunity.”)

. 3

. The district court incorrectly concluded that Skykomish could not be held municipally liable

. Aydelotte adduce d sufficient evidence to create a genuine dispute as to whether the campaign of harassment against him resulted from individual acts (1) pursuant to an expressly adopted official policy; (2) pursuant to a longstanding practic e or custom; or (3) taken by a “ final policymaker. ” Delia v. City of Rialto , 621 F.3d 1069, 1081

– 82 (9 th Cir. 2010), rev’d on other grounds , 566 U.S. 377 (2012); see also Lozman v. City of Riviera Beach , 138 S. Ct. 1945, 1951 (2018)

. In addition to the evidence of Mayor Grider’s retaliatory conduct ,6

Aydel otte submitted evidence that Skykomish officials destroyed a r ock foundation at his property, that his building inspector threatened him, and that the then

- Deputy Sher iff threatened to prosecute him. 2 A reasonable jury could conclude based on
this evidenc e that Skykomish had “a longstanding [policy] or custom , ” Delia , 621 F.3d at 1081

– 82, of retaliating against Aydelotte for the exercise of his protected rights. See also City of St. Louis v. Praprotnik , 4 85 U.S. 112, 127 (1988 ) (“[A] plaintiff may be able to prove the existence of a widespread practice that, although not authorized by written law or express municipal policy, is ‘so permanent and
well settled as to constitute a “ custom or usage ” with the force of law.’ ” (quoting
Adickes v. S.H. Kress & Co. , 398 U.S. 144, 167

– 68 (1970)) )

. 4

. Accordingly, the district court erred in dismissing Aydelotte’s claims for injunctive and declaratory relief against Skykomish on the basis of its lack of an official policy , because genuine disputes of material fact existed

. Anderson v.
Warner , 451 F.3d 1063, 1070 (9 th Cir. 2006) (“Local government entities . . . can

2 In total, Aydelotte identifies nearly nine years’ worth of harassi ng incidents by various Skykomish officials. While not all of the incidents Aydelotte identifies are within the three

- year statute of limitations for his § 1983 First Amendment retaliation claim, Wallace v. Kato , 549 U.S. 384, 387 (2007) (the statute of limitations in a § 1983 claim is the same as provided under state law for tort claims alleging personal injury); RCW § 4.16.080(2) (setting out a three

- year statute of limitations under Washington state law for personal injury claims), all of the incidents outlined above occurred within the three

- yea r statute of limitations.7

be sued directly [under Monell ] for monetary, declaratory, or injunctive relief . . . .”).
5

. T he district court properly dismissed Aydelotte’s claims w ithout prejudice against certain defendants (Darrell Joselyn, Charlotte Mackner, Robert Mackner, Michael Descheemaeker, Michael Pierce, Deborah Allegri, and Fred Brandt) for l ack of timely service under Federal Rule of Civil Procedure 4(m).
A y d elotte fail ed to demonstrate “good cause” for his failure to serve these
defendants , Lemo ge v. United States , 587 F.3d 1188, 1198 (9th Cir. 2009), or that his failure was due to excusable neglect. Id

. Aydelotte claims that he failed to
serve the remaining defendants because an individual threatened to kill him if he
continued his lawsuit

. But Ay delotte fails to explain how this threat prevented him
from s erving the remaining defendants; nor did he submit additional evidence indicating any barrier s to service

. Therefore , the district court did not abuse its
discretion in concluding that this “bald assertion” did not amount to good cause for
failure to serve the remaining defendants

. 6. Aydelotte argues for the first time on appeal that Defendant s violated the Takings Clause of the Fifth Amendment by (1) repeatedly citing Aydelotte’s vehicle while it was on his property, and (2) destroy ing part of Aydelotte’s fence.
Because Aydelotte did not raise th is argument in the district court , or in his
op ening brief, he has waived it

. United States v. U.S. Dist. Court for S. Dist. of8

Cal. , 384 F.3d 1202, 1205 (9 th Cir. 2004); Smith v. Marsh , 194 F.3d 1045, 1052 (9 th Cir. 1999). AFFIRMED in part; REVERSED in part ; REMANDED
. Each party shall bear its own costs of appeal.