NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JAN 27 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

APRIL J. GRUNDFOR,                              No.    18-55314

                Plaintiff-Appellant,            D.C. No.
                                                2:16-cv-04163-TJH-AGR
 v.

JANET BOUFFARD, in her individual               MEMORANDUM*
capacity; et al.,

                Defendants-Appellees.

                   Appeal from the United States District Court
                       for the Central District of California
                   Terry J. Hatter, Jr., District Judge, Presiding

                      Argued and Submitted January 7, 2020
                              Pasadena, California

Before: WATFORD, BENNETT, and LEE, Circuit Judges.

      Plaintiff-Appellant April Grundfor appeals the district court’s grant of

summary judgment and judgment as a matter of law to Defendants. Grundfor was

a social worker at Atascadero State Hospital (“ASH”), a maximum-security

institution that houses mentally ill male criminals. After she was terminated by

ASH, Grundfor brought suit under 42 U.S.C. § 1983—claiming that Defendants,


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
her former supervisors, retaliated against her for exercising her First Amendment

right to free speech. Grundfor alleges Defendants terminated her in retaliation for

two protected acts: (1) speaking with police after an incident in which an ASH

patient strangled another patient, and (2) writing and submitting an

interdisciplinary note about the same incident (the “Note”). The district court

granted partial summary judgment to Defendants as to Grundfor’s claim based on

the Note, and after a jury trial, granted judgment as a matter of law to Defendants

as to Grundfor’s claim based on the police interview. We have jurisdiction under

28 U.S.C. § 1291 and affirm both judgments.

      “The doctrine of 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.’” Pearson v. Callahan, 

, 231 (2009) (quoting Harlow v.

Fitzgerald, 

, 818 (1982)). Clearly established law “should not be

defined ‘at a high level of generality’ [and] must be ‘particularized’ to the facts of

the case.” White v. Pauly, 

, 552 (2017) (citations omitted). The

“dispositive inquiry in determining whether a right is clearly established is whether

it would be clear to a reasonable officer that his conduct was unlawful in the

situation he confronted.” Hernandez v. Mesa, 

, 2007 (2017)

(quoting Saucier v. Katz, 

, 202 (2001)). If a government official


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“perform[s] their duties reasonably” but nevertheless makes a mistake, qualified

immunity “applies regardless of whether the government official’s error is ‘a

mistake of law, a mistake of fact, or a mistake based on mixed questions of law

and fact.’” 

(citation omitted).

       “[T]he First Amendment protects a public employee’s right . . . to speak as

a citizen addressing matters of public concern.” Garcetti v. Ceballos, 

, 417 (2006). By contrast, “when public employees make statements pursuant

to their official duties, the employees are not speaking as citizens for First

Amendment purposes, and the Constitution does not insulate their communications

from employer discipline.” 

Grundfor’s constitutional rights to speak

with the police and write the Note were clearly established only if, viewing the

facts in the light most favorable to Grundfor, reasonable officials in Defendants’

positions would have believed that those activities were outside the scope of her

job duties. See Greisen v. Hanken, 

, 1112–13 (9th Cir. 2019).

      Contrary to Grundfor’s contention, the district court applied the correct

qualified immunity test when it asked whether reasonable officials in Defendants’

positions would have believed their actions were unlawful. We conclude that,

even viewing the facts in the light most favorable to Grundfor, reasonable officials

in Defendants’ positions could have believed that Grundfor spoke as a public

employee rather than as a private citizen.


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      First, Defendants are entitled to qualified immunity on Grundfor’s claim

based on the police interview. Grundfor did not have a clearly established

constitutional right to speak to the police because Defendants could have

reasonably believed that speaking to police was a part of her job duties. After the

strangulation, ASH police officers instructed all staff members present to speak to

officers prior to departing. Grundfor was interviewed because she worked in the

patients’ treatment unit and was one of the first people to arrive at the scene.

Further, evidence in the record indicates that ASH’s policy required staff to

cooperate in police investigations and Grundfor’s supervisors expected that she

would. We are not persuaded by Grundfor’s argument that her formal job

description did not include participation in police investigations, as the Supreme

Court has instructed that “[f]ormal job descriptions often bear little resemblance to

the duties an employee actually is expected to perform, and the listing of a given

task in an employee’s written job description is neither necessary nor sufficient to

demonstrate that conducting the task is within the scope of the employee’s

professional duties for First Amendment purposes.” 

–25.

It is entirely reasonable for supervisors to believe that when an employee of a

maximum-security institution is a witness in a case involving a crime allegedly

committed by one of her patients, and talks to police at the request of the police,

she is speaking as an employee and not as a private citizen. Certainly no case


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stands for the contrary proposition, even at a high level of generality.

      Second, Defendants are entitled to qualified immunity on Grundfor’s claim

based on the Note because they could have reasonably believed that writing the

Note was within Grundfor’s job duties. Grundfor’s job as a social worker included

regularly writing and submitting interdisciplinary notes, and Grundfor herself

agreed that she prepared the Note pursuant to her job duties. Even if Grundfor was

not required to write this particular Note, her supervisors could have reasonably

believed that when a social worker wrote a note for a patient’s chart, she was not

speaking as a private citizen. And again, no case stands for the contrary

proposition, even at a high level of generality.

      AFFIRMED.




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