NOT FOR PUBLICATION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 judgment 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 jurisdiction under 28 U.S.C. § 1291, and we 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, CLERK

U.S. COURT OF APPEALS
2 

1. The district court erred in concluding that Mayor Grider was entitled 

to qualified immunity with respect to Aydelotte’s First Amendment retaliation 

claim. al-Kidd v. Ashcroft, 580 F.3d 949, 964 (9th 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 (9th 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 retaliation for his speech was clearly established. Coszalter v. City 

of Salem, 320 F.3d 968, 975–76 (9th Cir. 2003) (holding that “severe retaliatory 

actions” including “campaigns of harassment and humiliation” could support a 

§ 1983 claim for First Amendment retaliation).

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 

constitutionally protected speech was clearly established. Gibson v. United States, 

781 F.2d 1334, 1338 (9th Cir. 1986) (“State action designed to retaliate against and 

chill political expression strikes at the heart of the First Amendment.”), cert. 

denied, 479 U.S. 1054 (1987); Sloman v. Tadlock, 21 F.3d 1462, 1469 (9th Cir. 

1994) (same); see also Coszalter, 320 F.3d at 975–76.
3 

In addition, there 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 prevail on his 

First Amendment retaliation claim, Aydelotte had to show first, that he engaged in 

constitutionally protected activity; second, that Mayor Grider engaged in conduct 

that would chill a person of ordinary firmness from further 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 complaint in the Washington Public Disclosure 

Commission. McKinley v. City of Eloy, 705 F.2d 1110, 1114 (9th 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 merits 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 chill 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, threatened to tow his 
4 

vehicle, excluded him from the start of a public meeting, instructed him to remove 

his signs protesting the Skykomish government,

1

and threatened Aydelotte with 

eviction from his property. Viewing these facts in the light most favorable to 

Aydelotte, 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 

engaging in protected activity . . . [he] will have established a valid claim under 

§ 1983.”).

Finally, Aydelotte raised a genuine dispute as to whether Mayor Grider took 

adverse action against him for the purpose of stopping his efforts to uncover local 

government corruption. Blair, 608 F.3d at 543. Mayor Grider explicitly 

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 Aydelotte’s vehicle 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 

Amendment retaliation does not depend on whether Mayor Grider’s actions were 

lawful or permissible, but rather on whether Aydelotte’s protected speech was a 

“substantial or motivating factor” for Mayor Grider’s actions. Lacey v. Maricopa 

Cty., 693 F.3d 896, 916 (9th Cir. 2012) (en banc) (citations omitted); see 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, notably, 

police officers did not issue traffic tickets to Aydelotte’s neighbor who parked his 

car virtually identically on property across the street. Finally, Mayor Grider 

personally called tow trucks to Aydelotte’s home after police officers placed traffic 

tickets on Aydelotte’s vehicle. Based on this evidence, 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 district 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 (9th Cir. 2012) (“[C]laims 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 adduced 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 practice or custom; or (3) taken by a “final policymaker.” Delia v. 

City of Rialto, 621 F.3d 1069, 1081–82 (9th 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 

Aydelotte submitted evidence that Skykomish officials destroyed a rock foundation 

at his property, that his building inspector threatened him, and that the then-Deputy 

Sheriff threatened to prosecute him.2 A reasonable jury could conclude based on

this evidence 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, 485 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 (9th Cir. 2006) (“Local government entities . . . can 

 

2

In total, Aydelotte identifies nearly nine years’ worth of harassing 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-year statute of limitations.
7 

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

.”).

5. The district court properly dismissed Aydelotte’s claims without 

prejudice against certain defendants (Darrell Joselyn, Charlotte Mackner, Robert 

Mackner, Michael Descheemaeker, Michael Pierce, Deborah Allegri, and Fred 

Brandt) for lack of timely service under Federal Rule of Civil Procedure 4(m).

Aydelotte failed to demonstrate “good cause” for his failure to serve these 

defendants, Lemoge 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 Aydelotte fails to explain how this threat prevented him 

from serving the remaining defendants; nor did he submit additional evidence

indicating any barriers 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 Defendants violated 

the Takings Clause of the Fifth Amendment by (1) repeatedly citing Aydelotte’s 

vehicle while it was on his property, and (2) destroying part of Aydelotte’s fence. 

Because Aydelotte did not raise this argument in the district court, or in his 

opening brief, he has waived it. United States v. U.S. Dist. Court for S. Dist. of 
8 

Cal., 384 F.3d 1202, 1205 (9th Cir. 2004); Smith v. Marsh, 194 F.3d 1045, 1052 

(9th Cir. 1999).

AFFIRMED in part; REVERSED in part; REMANDED.

Each party shall bear its own costs of appeal.