Greg OCCHIONERO, Plaintiff-Appellant, v. CITY OF FRESNO, Defendant-Appellee, 386 F. App'x 745

MEMORANDUM Appellant Greg Occhionero (Occhionero) appeals the district court’s grant of

summary judgment in favor of the City of Fresno (the City). Occhionero argues that the City violated his constitutional rights to due process and free speech when Israel Trejo (Trejo), a city planner, seized Oc-chionero’s stored property while summarily abating a nuisance. 1. To survive

summary judgment, a plaintiff alleging a First Amendment retaliation claim must produce evidence that the governmental actor had knowledge of his protected speech. See Dietrich v. John Ascuaga’s Nugget, 548 F.3d 892, 901 (9th Cir.2008). Occhionero’s only evidence that Trejo was aware of Occhionero’s protected speech is an e-mail sent by the City’s tax department to other city officials inquiring into whether Occhionero was in compliance with building and fire regulations. The email did not contain any reference to Oc-chionero’s protected speech and was not sent to Trejo or anyone in his department.

In his deposition Trejo affirmatively denied any knowledge of Occhionero’s previous comments to City officials. Because Occhionero failed to offer evidence that Trejo knew of his speech,

summary judgment in favor of the City on this claim was appropriate. See Keyser v. Sacramento City Unified School District, 265 F.3d 741, 750-51 (9th Cir.2001), as amended (concluding that

summary judgment was appropriate where “there [was] no evidence in the record to contradict [the actor’s] statement in his declaration that he was unaware [of the speech].”) 2. Contrary to Occhionero’s assertion, the district court did not err in rejecting his due process claim. In his complaint, Occhionero explicitly tethered his due process claim to the City’s alleged retaliatory animus. As Occhionero failed to present evidence of a retaliatory animus, his due process claim necessarily fails. 3.

Because Occhionero asserted no viable constitutional claims, we need not address whether the City would have been liable for Trejo’s actions under Monell v. New York City Dept’t of Soc. Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.