Jacobson v. Schwarzenegger (650 F. Supp. 2d 1032, 2009)

ORDER ADOPTING FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

JOHN F. WALTER, District Judge.

Pursuant to 28 U.S.C. Section 636, the Court has reviewed the Third Amended Complaint, all the records and files herein, and the Amended Report and Recommendation of the United States Magistrate Judge. The Court concurs with and adopts the findings, conclusions and recommendations of the Magistrate Judge.

IT IS ORDERED that: (1) defendants’ Motion for Summary Judgment pursuant to Federal Rules of Civil Procedure 56 is granted; (2) plaintiffs Motion for Summary Judgment pursuant to Federal Rules of Civil Procedure 56 is denied; and (3) judgment shall be entered dismissing this action with prejudice as to Claim Twelve and without prejudice as to Claims Thirteen and Eighteen.

AMENDED REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

JENNIFER T. LUM, United States Magistrate Judge.

The Court submits this Amended Report and Recommendation to the Honorable John F. Walter, United States District Judge, pursuant to 28 U.S.C. Section 636 and General Order 05-07 of the United States District Court for the Central District of California.

INTRODU CTION

On May 21, 2004, plaintiff Eric Jacobson (“plaintiff’ or “Jacobson”), a licensed California attorney, filed a civil rights complaint pursuant to Title 42, United States Code, Section 1983 (“Complaint”). The Complaint asserted claims on Jacobson’s own behalf and also purported to represent the interests of a “caste” of California parolees under the doctrine of third party standing. The Complaint named as defendants: (1) California Governor Arnold Schwarzenegger; (2) former California Governor Gray Davis; (3) former California Youth and Adult Correctional Agency Secretary Roderick Hickman; (4) former California Youth and Adult Correctional Agency Secretary Robert Presley; (5) California Board of Prison Terms (the “Board”) chairperson Margarita E. Perez; (6) former Board chairperson Carol Daly; (7) Board Associate Chief Deputy Commissioner Thomas Wadkins; (8) Board Chief Counsel Terry R. Farmer; (9) Board Executive Director Marvin E. Speed, II; (10) Board Chief Deputy Commissioner Ken Cater; (11) Board officials Sandra Maciel, Tracy Master, and Marc D. Remis; (12) Board counsel Dan Moeller; (13) former California Department of Corrections (“CDC”) Director Jeanne S. Woodford; (14) former CDC Director Edward S. Alameida; and (15) parole agent Brigitte Murria.

On August 6, 2004, the defendants filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), a motion for a more definite statement pursuant to Federal Rule of Civil Procedure 12(e), and a motion to strike pursuant to Federal Rule of Civil Procedure 12(f). On November 30, 2004, United States Magistrate Judge James W. McMahon dismissed the Complaint with leave to amend. See Jacobson v. Schwarzenegger, 357 F.Supp.2d 1198, 1205 (C.D.Cal.2004).

On January 31, 2005, Jacobson filed a First Amended Complaint, adding a second plaintiff, Eric Johnson (“Johnson”), whom Jacobson represented in his capacity as attorney. The First Amended Complaint contained class action allegations wherein Johnson purported to represent a class of “all felons currently serving determinate sentences and all felons who have completed determinate sentences and been released to parole terms but have not yet been discharged from parole.” (See First Amended Complaint ¶¶ 128-38).

On February 15, 2005, Magistrate Judge McMahon sua sponte dismissed the First Amended Complaint, with leave to amend, on the ground that it violated the mandate of Federal Rule of Civil Procedure 8(a) that a complaint must contain a “short and plain” statement of the claim for relief. See Jacobson v. Schwarzenegger, 226 F.R.D. 395, 397-98 (C.D.Cal.2005). On March 11, 2005, Jacobson and Johnson filed a Second Amended Complaint.

On August 31, 2005, Jacobson and Johnson filed a Third Amended Complaint. The Third Amended Complaint contained two sets of claims. Claims One through Eleven challenged various aspects of California’s parole revocation system and were asserted by Johnson as class claims and by Jacobson under the doctrine of third party standing. Claims Twelve through Eighteen were asserted by Jacobson alone and consisted of a federal retaliatory termination claim and six pendent state law claims.

On September 30, 2005, defendants filed a Motion to Dismiss the Third Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) (“Motion to Dismiss”). While the Motion to Dismiss was pending, Magistrate Judge McMahon retired and the case was reassigned to this Court. On January 16, 2007, the Court issued a Report and Recommendation (“January 16, 2007 Report and Recommendation”) recommending that the Motion to Dismiss be granted in part and denied in part, and that the claims asserted by both Johnson and Jacobson be dismissed as to Jacobson and severed from the claims asserted by Jacobson alone. On August 1, 2007, the district court adopted the recommendations of the January 16, 2007 Report and Recommendation and dismissed, without leave to amend, the following claims: (1) Claims One through Eleven as asserted by Jacobson only; (2) Claims Two, Three, Six, Seven, Ten, and Fourteen through Seventeen; (3) Claim Twelve as against all defendants except Farmer, Speed, Wad-kins, Cater, and Murria; and (4) Claims Thirteen and Eighteen as against all defendants except defendants Farmer, Speed, Wadkins, and Cater. (Order Adopting Findings, Conclusions, and Recommendations, filed August 1, 2007).

On September 6, 2007, United States District Judge John F. Walter severed the remaining claims asserted by Johnson (Claims One, Four, Eight, Nine and Eleven) from the remaining claims asserted by Jacobson (Claims Twelve, Thirteen and Eighteen), and ordered that they be assigned a new case number. This action then proceeded with Jacobson as the pro se plaintiff, defendants Farmer, Speed, Wadkins, Cater, and Murria (“defendants”) as the remaining defendants, and Claims Twelve, Thirteen, and Eighteen as the remaining claims.

On December 10, 2007, defendants filed an Answer to the Third Amended Complaint. On August 29, 2008, defendants filed a Motion for Summary Judgment pursuant to Federal Rule of Civil Procedure 56 (“Defendants’ Motion” or “Def. Motion”). Defendants’ Motion was accompanied by declarations and other evidentiary material, a Separate Statement of Undisputed Material Facts, a proposed Statement of Uncontroverted Facts and Conclusions of Law (“Def. St. Uncontroverted Facts”), and a proposed Judgment.

Plaintiff also filed a Motion for Partial Summary Judgment on August 29, 2008, pursuant to Federal Rule of Civil Procedure 56 (“Plaintiffs Motion” or “PL Motion”). Plaintiffs Motion was accompanied by his declaration (Declaration of Eric C. Jacobson, dated August 29, 2008 [“Jacobson Decl.”]) and other evidentiary materials, and a Separate Statement of Uncontroverted Facts (“Pl. St. Uncontroverted Facts”). On September 16, 2008 defendants filed an Opposition to Plaintiffs Motion (“Defendants’ Opposition” or “Def. Opp.”), accompanied by a Statement of Genuine Issues.

On September 17, 2008, plaintiff filed an Opposition to Defendants’ Motion (“Plaintiffs Opposition”), accompanied by evidentiary materials. On September 23, 2008, plaintiff filed a Reply to Defendants’ Motion (“Plaintiffs Reply”). Defendants also filed a Reply to Plaintiffs Motion (“Def. Reply”) and objections to plaintiffs declaration (“Def. Obj. to Jacobson Decl.”) and to plaintiffs exhibits (“Def. Obj. to Pl. Exh.”) on September 23, 2008.

On September 30, 2008, plaintiff submitted another declaration in support of his motion and in opposition to Defendants’ Motion (“Plaintiffs September 30, 2008 Declaration”). On October 2, 2008, defendants filed an ex parte application to strike plaintiffs filings as untimely and violative of Local Rules 11-6 and 11-8.

On October 24, 2008, the Court issued a minute order striking Plaintiffs Opposition, Plaintiffs Reply, and Plaintiffs September 30, 2008 Declaration. The Court granted plaintiff until October 31, 2008 to refile these documents, and granted defendants additional time to file a reply.

On November 3, 2008, plaintiff filed a revised Opposition to Defendants’ Motion (“PL Rev. Opp.”) and a revised declaration in opposition to Defendants’ Motion and in support of Plaintiffs Motion (Revised Declaration by Plaintiff Eric C. Jacobson, dated November 3, 2008 [“Jacobson Rev. Decl.”]). On November 4, 2008, plaintiff filed a revised Reply to Defendants’ Opposition (“PL Rev. Reply”). Plaintiff subsequently filed additional evidentiary materials and, on November 24, 2008, filed a memorandum regarding his . exhibits (“Plaintiffs Memorandum re Exhibits”).

On November 19, 2008, defendants filed a Reply to Plaintiffs Revised Opposition (“Def. Rev. Reply”). On December 2, 2008, defendants filed separate objections to: (1) plaintiffs revised declaration (“Def. Obj. to Jacobson Rev. Decl.”); (2) plaintiffs audio-recordings of deposition excerpts (“Def. Obj. to Audio.”); (3) plaintiffs Memorandum re Exhibits (“Def. Obj. to Memo.”); and (4) the Declaration of Larry Starn (“Def. Obj. to Starn Decl.”).

On March 13, 2009, the Court issued a Report and Recommendation (“March 13, 2009 Report and Recommendation”) recommending that: (1) plaintiffs Motion for Summary Judgment be denied; (2) defendants’ Motion for Summary Judgment be granted; and (3) the action be dismissed with prejudice.

On March 30, 2009, plaintiff filed a pleading, denoted as a motion under Rules 59 and 60 of the Federal Rules of Civil Procedure, requesting the Court to: (1) deem itself without jurisdiction to hear and determine the Motions; (2) reconsider and vacate the March 13, 2009 Report and Recommendation; and (3) grant plaintiff an extension of time to transcribe the previously submitted deposition excerpts. On April 24, 2009, the Court issued a minute order in which it construed plaintiffs motion as objections to the March 13, 2009 Report and Recommendation (“Objections”), and granted plaintiff an extension of time to submit transcripts of the deposition excerpts he wished the Court to consider. On May 15, 2009, plaintiff submitted transcripts of excerpts of five audiotaped depositions, accompanied by his declarations. On May 21, 2009, defendants filed objections to the deposition transcripts and a response to plaintiffs Objections (“Def. Obj. to Tr.”). The Court now submits this Amended Report and Recommendation.

Both motions are fully briefed and under submission.

SUMMARY OF PLAINTIFF’S REMAINING CLAIMS

Plaintiffs remaining claims against defendants consist of one federal claim (Claim Twelve) and two pendent state law claims (Claims Thirteen and Eighteen). In Claim Twelve, plaintiff asserts a First Amendment retaliation claim based on the theory that defendants removed him from the parole revocation attorney appointment list in retaliation for his criticisms of the Board and advocacy of parolee rights. (Third Amended Complaint ¶ 173). In Claim Thirteen, plaintiff contends that his allegedly retaliatory removal from the attorney appointment list violated his rights under the California constitution. (Id. at ¶ 174). In Claim Eighteen, plaintiff contends that his removal from the attorney appointment list constituted an intentional infliction of emotional distress. (Id. at ¶ 179 [erroneously denominated ¶ 115]).

FACTUAL BACKGROUND

Plaintiff is a California attorney. (Jacobson Rev. Decl. at 2). In September 1998, the state appointed plaintiff to a list of attorneys eligible to represent parolees at parole revocation hearings before the Board. (Transcript of the Deposition of Eric C. Jacobson [“Jacobson Depo.”] at 25). The terms of the contractual relationship between plaintiff and the Board were set forth in the Board’s “Attorney Packet.” (See Def. Exh. B). Appointed attorneys were compensated at $30.00 per hour (less when plaintiff was first appointed to the list) for up to six hours per case, unless appointed counsel obtained prior approval to bill more time for a complex case, or the parolee had communication problems falling under the Americans with Disabilities Act. (Def. Exh. B at 22, 30; Jacobson Depo. at 60). On September 16, 2003, plaintiff was removed from the attorney appointment list. (Jacobson Decl. ¶ 2; Def. Exh. N). This action revolves around the parties’ different claims as to why plaintiff was removed from the list. Plaintiff contends that he was removed from the list in retaliation for his zealous representation of his clients, his vocal advocacy of parolee rights, and his criticisms of California’s parole system. (Jacobson Rev. Decl. at 18). Plaintiff contends that he was one of the most capable and effective parole revocation counsel, providing superior quality representation to the parolees he was appointed to represent. (Id. at 13; Jacobson Depo. at 77-78, 81). Starting in 2001, plaintiff “repeatedly and strenuously articulated the illegal and unconstitutional treatment which [his] clients routinely endured, placed them on record during hearings, and demanded that cognizance be taken of them by [Board] deputy commissioners.” (Jacobson Deck at 14; see Jacobson Depo. at 80). In addition, plaintiff sometimes pursued administrative appeals on his clients’ behalf and wrote letters to Board officials in which he (1) complained about misapplication of the law and abusive conduct by deputy commissioners at their hearings and (2) requested a review of their parole revocation dispositions. (Jacobson Depo. at 81-82; Jacobson Rev. Deck at 14; Jacobson Deck ¶¶ 5-6). Plaintiff. wrote these letters, notwithstanding the fact that his contract with the Board prohibited plaintiff from billing the Board for the time spent on these letters, or for assisting parolees with administrative appeals. (Jacobson Depo. at 59; Jacobson Rev. Deck at 8, 10-11). He estimates that during his five years as a Board-appointed parole revocation counsel, he authored five to fifteen administrative appeals on behalf of his clients, and wrote about five to ten letters requesting review of the parole commissioner’s decision. (Jacobson Depo. at 104).

Defendants contend that plaintiffs criticisms of the Board and advocacy of parolee rights had nothing to do with his removal from the attorney appointment list. Defendants assert that plaintiff was removed from the list for unsatisfactory performance. To substantiate their contention, defendants have submitted evidence of several instances during plaintiffs five-year tenure when he was late for a hearing or failed to appear. For example, on November 30, 1998, plaintiff failed to appear at two parole revocation hearings and they had to be postponed. (Declaration of Steven Hernandez, dated August 20, 2008 [“Hernandez Deck”] ¶ 4; Declaration of Monica Smith, dated August 21, 2008 [“Smith Deck”] ¶ 6, Exh. A). Plaintiff testified that he did not appear because he believed that the hearings had been rescheduled or that he had been reassigned. (Jacobson Depo. at 117-18). In a memorandum dated December 3,1998, Associate Chief Deputy Commissioner Monica Smith requested an investigation into complaints about plaintiffs performance. In her memo, Smith stated that, according to Deputy Commissioner Carol Cantu and Regional Hearing Coordinator Steven Hernandez,

[Plaintiff] has been continually late for his assigned hearings and does not interview his clients ahead of the hearing date. This poses due process concerns and results in postponed hearings impacting our hold-to-hearing time frames. On this last instance, he stated he had been notified that his hearing had been canceled. He had been assigned two cases so it appears he is fabricating or at the least misrepresenting the facts. He is not reachable by phone or by pager and does not respond to messages left for on voice mail. It is not permissible to interview the parolees on the same day as the hearing due to interruption and delay of the calendar and more importantly the inability to request any needed witnesses.

(Smith Deck ¶¶ 5, 6, Exh. B; see also Exh. A [memorandum dated November 30, 1998, from Cantu to Smith]).

On April 20, 1999, Cantu prepared another memorandum to Smith, stating that plaintiff had requested permission to interview a parolee client half an hour before her scheduled revocation hearing but did not arrive until the time scheduled for the hearing, necessitating a 20-minute postponement of the hearing. (Smith Decl. ¶ 6, Exh. C; see Jacobson Depo. at 122). On June 1, 1999, plaintiff arrived late for the first of his two scheduled hearings and stated that he had not yet interviewed the parolees. (Hernandez Decl. ¶ 5; Exh. A [memorandum dated June 22, 1999 from Hernandez to Smith]). Plaintiff conducted the interviews but the hearings were postponed, and Associate Chief Deputy Commissioner Richard Washington reprimanded plaintiff, telling him that he should not conduct parolee interviews on the day of the hearing. (Jacobson Depo. at 121— 22, 131). Plaintiff believes that the incident was handled in this manner because the parole hearings that day were being videotaped on behalf of the plaintiff class in the action Valdivia v. Schwarzenegger, CV S-9400671 LKK/GHK. (Jacobson Depo. at 131).

On August 3, 1999, Ted Rich, at that time Acting Executive Officer for the Board, sent a letter to plaintiff advising him that the Board was considering his removal from the attorney appointment list because it had “received numerous complaints from Board and Department of Corrections staff regarding [plaintiffs] tardiness, inadequate preparation and representation of clients, and disrespect shown towards institutional security policies.” (Declaration of Ted Rich, Sr., dated August 28, 2008 [“Rich Decl.”] ¶¶2, 3, Exh. A). Plaintiff admits that he received the letter and that there were complaints about him, but disputes that the complaints were “numerous,” or that they were justified. (Jacobson Depo. at 158-62).

Two years later, on June 6, 2001, regional hearing coordinator Ricardo Valencia prepared a memorandum to Associate Chief Deputy Commissioner Washington describing an incident when plaintiff was tardy and delayed the commencement of a hearing while soliciting clients. (Def. Exh. G at 30). Valencia asked Washington to remove plaintiff from the attorney appointment list. (Id.). Plaintiff disputes that the incident ever occurred. (Jacobson Depo. at 163-66).

On May 21, 2003, plaintiff represented parolee Averon Fletcher at a revocation hearing at the Los Angeles County Jail (“Jail”). (Jacobson Rev. Decl. at 42). Plaintiff vigorously cross-examined Fletcher’s parole agent, defendant Murria. (Id. at 42-43). After the hearing, plaintiff approached Murria and told her that he had no choice but to cross-examine her vigorously and that in the future she should provide more complete responses to questions. (Id. at 43). Murria testified that plaintiff touched or tapped her on the shoulder when he approached her, and that she found the action offensive and told him not to put his hand on her shoulder. (Transcript of Deposition of Brigitte Murria [“Murria Depo.”] at 46, 47, 48-49, 50). Plaintiff testified that it is possible that he might have tapped Murria on the shoulder to get her attention, although he does not recall doing so; however, he specifically recalls that she never asked him to remove his hand. (Jacobson Depo. at 177-78).

After the hearing, Deputy Commissioner Fernando Perez called Murria and told her that he had observed the incident and considered it inappropriate, and that “if anything was to come out of it,” she would know why because Perez planned to “write it up.” (Murria Depo. at 40, 44). Defendant Murria did not file a complaint, nor did she take any other action regarding the incident. (Murria Depo. at 80-81). Perez prepared a memorandum that, according to plaintiff, misrepresented where the incident occurred and what Murria said to plaintiff. (Def. Exh. J; Jacobson Rev. Decl. at 43-44).

Plaintiff was then notified that he was being suspended from the attorney appointment list pending an investigation of the incident. (Jacobson Rev. Decl. at 46). On July 1, 2003, defendant Speed notified plaintiff by letter that the investigation was complete and he was being restored to the attorney appointment list. (Declaration of Marvin Speed, dated August 28, 2008 [“Speed Decl.”] ¶ 1, Exh. A). Speed advised plaintiff that he had determined that his questioning of Murria, although aggressive, was not inappropriate, but characterized plaintiffs decision to talk with Murria after the hearing as “ill conceived,” and his placing a hand on her shoulder as “uncalled for and inappropriate under the circumstances.” (Speed Decl., Exh. A). Speed also notified plaintiff that, although plaintiff was no longer suspended, he would not receive assignments until he signed the attorney packet, which all attorneys on the appointment list were required to sign by February 28, 2003. (Id.).

On July 14, 2003, plaintiff responded to defendant Speed’s letter. (Def. Exh. S). Plaintiff described his questioning of defendant Murria and his subsequent encounter with her. (Id.). He asserted that he did not recall putting his hand on her shoulder, and denied that she ever asked him to remove his hand. (Id.). Plaintiff expressed his indignation at having been suspended from the attorney appointment list during the investigation of the incident, as well as his belief that defense revocation counsel would be deterred from zealous advocacy of parolees if any parole agent could cause counsel’s suspension from the list simply by complaining of inappropriate conduct that never occurred. (Id.).

On August 27, 2003, defendant Wadkins prepared a memorandum to defendant Cater, stating that on August 20, 2003, plaintiff had failed to appear at the Jail for his assigned “second serves.” (Declaration of Thomas Wadkins, dated August 29, 2008 [“Wadkins Decl.”] ¶¶2, 3, Exh. A; Declaration of Ken Cater, dated August 29, 2008 [“Cater Decl.”] ¶ 2). Wadkins also noted the incident involving Murria and the existence of prior complaints about plaintiff, and recommended that plaintiff not be assigned additional cases or second serves pending an investigation. (Wadkins Decl., Exh. A). Cater forwarded the memorandum to the Board counsel, defendant Farmer. (Cater Decl. ¶ 3).

On August 28, 2003, defendant Wadkins sent plaintiff a letter advising him that he was being considered for removal from the attorney appointment list as a result of missing “second serves” on August 20, 2003, and asked him to submit a response. (Wadkins Decl., Exh. B). Plaintiff responded by letter dated September 2, 2003, expressing his belief that his removal from the attorney list based on a single missed “second serve” appointment due to a calendaring error could only be motivated by retaliation for plaintiffs successful refutation of the charges against him made by defendant Murria. (Def. Exh. L). Wadkins forwarded the letter to defendants Speed, Cater, and Farmer. (Def. Exh. M).

Wadkins declares that he then recommended to defendant Cater that plaintiff be suspended from the attorney appointment list for 90 days, basing his recommendation on the reasons set forth in his memorandum. (Wadkins Decl. ¶ 6). He declares that he never recommended that plaintiff be permanently removed from the attorney appointment list, nor did he make the decision to remove him. (Id.).

The decision to remove plaintiff from the attorney appointment list was made by defendant Speed. (Speed Decl. ¶ 3; Cater Decl. ¶ 4). Cater did not make the decision, nor did he recommend to Speed that plaintiff be permanently removed from the attorney appointment list. (Cater Decl. ¶4). Speed declares that he decided to remove plaintiff from the attorney appointment list based on the information in Wad-kins’ memorandum to Cater, namely, plaintiffs “history of missing hearings, being late to hearings, and being unprepared for hearings,” as well as the incident with defendant Murria, and that he had not received any information, before making his decision, that plaintiff was overzealous in his representation of parolees or critical of the California parole system. (Speed Decl. ¶¶ 3, 4). On September 16, 2003, defendant Farmer advised plaintiff, by letter, that he would not be assigned any additional cases “at this time.” (Def. Exh. N). Despite the ambiguous phraseology, the parties agree that this constituted removal from the attorney appointment list.

Plaintiff declares that because parolee rights were his sole field of legal expertise, he was obliged to continue working in the field of parolee civil rights after his removal from the attorney appointment list, so far without compensation. (Jacobson Rev. Decl. at 71). He seeks declaratory relief, an injunction directing his reinstatement, and compensatory and punitive damages. (Third Amended Complaint ¶¶ 187-89).

LEGAL STANDARDS REGARDING SUMMARY JUDGMENT

A federal court must grant summary judgment if the papers show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c). A “genuine issue” exists if there is a sufficient evidentiary basis on which a reasonable jury could find for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A factual dispute is “material” if it might affect the outcome of the suit under governing law. See id. The court must believe the nonmoving party’s evidence and must view inferences it draws from the underlying facts in the light most favorable to the nonmoving party. See id. at 255, 106 S.Ct. 2505; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

The moving party bears the initial burden of demonstrating the absence of any genuine issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). However, the moving party need not disprove the other party’s case. Id. at 323-24, 106 S.Ct. 2548. The moving party need not produce admissible evidence showing the absence of a genuine issue of material fact when the non-moving party has the burden of proof, but may discharge its burden simply by pointing out that there is an absence of evidence to support the non-moving party’s case. Id. at 324, 325, 106 S.Ct. 2548.

Summary judgment is appropriate when the nonmoving party “fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Id. at 322, 106 S.Ct. 2548. The nonmoving party cannot avoid summary judgment by relying solely on conclusory allegations that are unsupported by factual data. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir.1989). Instead, the opposition must go beyond the assertions and allegations of the pleadings and set forth specific facts by producing competent evidence that shows a genuine issue for trial. See Fed.R.Civ.P. 56(e); see also Celotex, 477 U.S. at 324, 106 S.Ct. 2548.

When the moving party has the burden of proof on an issue, e.g., when a plaintiff seeks summary judgment on a claim for relief or a defendant seeks summary judgment on an affirmative defense, the moving party’s showing must be sufficient for the court to hold that no reasonable trier of fact could find other than for the moving party. Calderone v. United States, 799 F.2d 254, 258-59 (6th Cir.1986); Inamed Corp. v. Medmarc Cas. Ins. Co., 258 F.Supp.2d 1117, 1120 (C.D.Cal.2002).

When both plaintiff and defendant file cross-motions for summary judgment, it does not follow that no genuine issue of material fact exists. “[A] party may argue that no issue exists in the hope that his legal theory will be accepted, but at the same time the movant may maintain that there is a genuine factual dispute in the event his theory is rejected or the opponent’s is adopted.” 10A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 2720 (2008). “The contention of one party that there are no issues of material fact sufficient to prevent the entry of judgment in its favor does not bar that party from asserting that there are issues of material fact sufficient to prevent the entry of judgment as a matter of law against it.” Zook v. Brown, 748 F.2d 1161, 1166 (7th Cir.1984) (quoting Schwabenbauer v. Bd. of Educ., 667 F.2d 305, 313 (2d Cir.1981)); Brawner v. Pearl Assurance Co., 267 F.2d 45, 46 (9th Cir.1958) (“[Sjummary judgment cannot be granted if there be a disputed issue of material fact. This determination does not depend upon what either or both parties may have thought about the matter.”).

The court may only consider admissible evidence in ruling on a motion for summary judgment. Ballen v. City of Redmond, 466 F.3d 736, 745 (9th Cir.2006).

PRELIMINARY MATTERS

I. DEFENDANTS’ EVIDENTIARY OBJECTIONS

A. Defendants’ Objections to Plaintiff’s Declaration

Defendants raise a variety of objections to plaintiffs declaration. (Def. Obj. to PI. Decl. at 2-15). Defendants initially object to plaintiffs declaration in its entirety. This objection is DENIED. Defendants’ specific objections to Paragraphs 2, 8, 9, 10, and 16 are also DENIED. Defendants’ objections to Paragraphs 3, 6, 7, 11, 12, 13, 14, and 15 are GRANTED. Legal arguments do not belong in a declaration, and plaintiffs summary of a non-party’s deposition testimony constitutes inadmissible hearsay. See Fed.R.Evid. 402, 801(c), 802.

B. Defendants’ Objections to Plaintiff’s Exhibits

Defendants object to plaintiffs Exhibits 5, 6, 9, 15, 16, 17, and 18. (Def. Obj. to PI. Exh.). The Court DENIES defendants’ objections.

Defendants object that Exhibits 5 and 6, which consist of drafts of plaintiffs letters to Richard Washington, are insuffieiently authenticated. (Def. Obj. to PL Exh. at 2). To the extent that plaintiffs attempt to authenticate them through Paragraph 16 of his declaration is defective, plaintiff presumably could authenticate his own letters. See Hal Roach Studios, Inc. v. Feiner & Co., 896 F.2d 1542, 1551 (9th Cir.1990) (court’s consideration of unauthenticated evidence was harmless error when a competent witness with personal knowledge could have authenticated it). In regards to Exhibits 9, 15, and 16, consisting of internal Board memoranda, defendants do not dispute their authenticity and, in fact, themselves offer Exhibit 9 as evidence. (See Def. Exh. J). See Burch v. Regents of Univ. of California, 433 F.Supp.2d 1110, 1120 (E.D.Cal.2006) (criticizing objections to authentication on summary judgment motion “where the objecting party does not contest the authenticity of the evidence submitted but nevertheless makes an evidentiary objection based on purely procedural grounds”).

Exhibits 17 and 18 do not constitute evidence. Although plaintiff should have separately lodged his proposed order granting his summary judgment motion (Exhibit 17) and filed his belated verification of the Third Amended Complaint (Exhibit 18), rather than making them exhibits to his motion, this is not a basis for the Court refusing to consider them.

C. Defendants’ Objection to Plaintiff’s Revised Declaration

Defendants object to plaintiffs 73-page revised declaration on the grounds that it is “replete with argument and opinion, and in fact contains almost nothing but that,” and that it is, in effect, a trial brief arguing the evidence. (Def. Obj. to PL Rev. Decl. at 2). Defendants move to strike plaintiffs revised declaration. (Id.).

Defendants’ characterization of plaintiffs revised declaration is largely correct. In addition, the revised declaration, despite its length, does not contain numbered paragraphs and discusses matters that are of tangential or no relevance to this action, or of which plaintiff has no personal knowledge. Nevertheless, the Court will not strike the entire declaration but will, instead, consider only those portions that are admissible under Fed.R.Civ.P. 56(e) for purposes of the parties’ cross motions for summary judgment. Defendants’ objections, therefore, are DENIED.

D. Defendants’ Objections to Plaintiff’s Deposition Excerpts

Plaintiff elected to record depositions nonstenographically, as was his right. See Fed.R.Civ.P. 30(b)(3)(A). However, in order to use the depositions on a motion for summary judgment, plaintiff is required to provide the Court with a transcript. See Fed.R.Civ.P. 32(c) (“Unless the court orders otherwise, a party must provide a transcript of any deposition testimony the party offers, but may provide the court with testimony in nontranscript form as well.”) & Advisory Committee’s Notes on 1993 Amendment (“Under this rule a party may offer deposition testimony in any of the forms authorized under Rule 30(b) but, if offering it in a nonstenographic form, must provide the court with a transcript of the portions so offered.”); Fed.R.Civ.P. 30(b), Advisory Committee’s Notes on 1993 Amendment (“A party choosing to record a deposition only by videotape or audiotape should understand that a transcript will be required by Rule 26(a)(3)(B) and Rule 32(c) if the deposition is later to be offered as evidence at trial or on a dispositive motion under Rule 56.”); Local Rule 32-1.

Plaintiff submitted to the Court audiotapes and CDs of excerpts of depositions taken by him in this action. Defendants objected to the audiotapes and CDs on the grounds that the Federal Rules of Civil Procedure and the local rules of this court require plaintiff to lodge a transcript of the deposition testimony. (Def. Obj. to Audio, at 2). In its original Report and Recommendation, the Court declined to listen to the audiotapes and CDs without benefit of a transcript of the pertinent portions. In his Objections, plaintiff requested an extension of time to prepare and submit transcripts. The Court granted him an extension of time to submit transcripts of deposition testimony he wished the Court to consider.

Plaintiff then filed transcriptions of portions of the audio-recordings of the depositions of defendants Wadkins, Speed, Cater, and Murria and non-party Richard Washington, each transcript accompanied by a declaration setting forth the manner of its preparation. Plaintiff declared that the transcripts were prepared by him, with assistance from his wife. Defendants object to these transcripts on the grounds that they have not been properly authenticated and were not prepared by a neutral party. (Def. Obj. to Tr. at 2-3).

Defendants are correct that the transcripts submitted by plaintiff lack a certification by the deposition officer before whom the depositions were taken. See Orr v. Bank of America, NT & SA, 285 F.3d 764, 774 (9th Cir.2002) (“A deposition or an extract therefrom is authenticated in a motion for a summary judgment when it identifies the names of the deponent and action and includes the reporter’s certification that the deposition is a true record of the testimony of the deponent.”); Fed.R.Civ.P. 30(f)(1). Defendants also correctly point out that the excerpts are long and plaintiff does not identify the pages that contain the testimony he wishes the Court to consider. See Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir.1996) (the court is entitled to rely on the nonmoving party “to identify with reasonable particularity the evidence that precludes summary judgment”).

The Court, however, rejects defendants’ argument that Rule 28(c), which requires a deposition to be taken before a neutral deposition officer, by extension requires an audiotaped deposition to be transcribed by a neutral party. See Fed.R.Civ.P. 26(c), Advisory Committee Notes to 1993 Amendment (explaining that a party must provide transcript of a nonstenographie deposition to other parties before trial for verification, “an obvious concern since counsel often utilize their own personnel to prepare transcripts from audio or video tapes”); see also Hudson v. Spellman High Voltage, 178 F.R.D. 29, 31 (E.D.N.Y.1998) (concluding that the Advisory Committee Notes to 1993 Amendment to Rule 30(b)(2) “reflect the legislative intent that law office personnel, rather than an independent stenographer, will most likely prepare the typed transcript of those portions of the audio or video depositions which counsel intends to introduce at trial”). The Court also notes that defendants arranged to have each of the depositions at issue stenographically recorded, and are in possession of transcripts that the court reporter prepared. Defendants do not dispute the accuracy of plaintiffs transcription of the deposition excerpts. The Court, therefore, DENIES defendants’ objections.

E. Defendants’ Objections to Plaintiff’s Memorandum re Exhibits

In plaintiffs Memorandum re Exhibits, plaintiff discusses the significance of his exhibits and summarizes deposition testimony he believes supports his case. Defendants object to the summaries of the deposition testimony on the grounds that plaintiff has not provided the Court with transcripts of the depositions.

The Court does not intend to rely on plaintiffs summaries as a substitute for deposition transcripts. Accordingly, defendants’ objections are DENIED as moot.

F. Defendants’ Objections to Starn Declaration

Defendants object to the Declaration of Larry Starn filed by plaintiff in the action Watson v. Schwarzenegger, CV 05-0192 JFW (Ctx) and lodged by him in this action. Defendants object to the declaration on a variety of grounds. (Def. Obj. to Starn Decl. at ¶¶ 1-53). The Court did not rely on the Declaration of Larry Starn in making its recommendations with respect to the cross-motions. Accordingly, defendants’ objections are DENIED as moot.

II. PLAINTIFF’S REQUEST FOR CONTINUANCE

Plaintiff requests a continuance under Rule 56(f) of the Federal Rules of Civil Procedure. He asserts that he had limited time to prepare his Opposition to Defendants’ Motion due to his obligations in other cases, and asks that the Court, in the event it does not grant his summary judgment motion to grant him time to obtain additional declarations and prepare a revised opposition to defendants’ summary judgment motion. (Pl. Rev. Opp. at 4; Rev. Reply at 4).

Rule 56(f) of the Federal Rules of Civil Procedure provides that, “[if] a party opposing the motion [for summary judgment] shows by affidavit that, for specified reasons, it cannot present facts essential to justify its opposition,” the court may deny the summary judgment motion, or may order a continuance to enable affidavits to be obtained or to enable further discovery. Thus, Rule 56(f) “provides a device for litigants to avoid summary judgment when they have not had sufficient time to develop affirmative evidence.” United States v. Kitsap Physicians Service, 314 F.3d 995, 1000 (9th Cir.2002). However, a party invoking Rule 56(f) must show, by affidavit or declaration: (1) the specific facts that it hopes to elicit; (2) how those facts would preclude summary judgment; and (3) that the evidence sought actually exists. California v. Campbell, 138 F.3d 772, 779 (9th Cir.1998); see Terrell v. Brewer, 935 F.2d 1015, 1018 (9th Cir.1990) (affirming denial of Rule 56(f) request when party failed to show the existence of additional essential and discoverable evidence). Moreover, the party must show that it has been diligent in gathering the evidence. See Pfingston v. Ronan Eng’g Co., 284 F.3d 999, 1005 (9th Cir.2002).

Plaintiffs request for a continuance meets none of these requirements. He has not specified what additional declarations he would submit, how they would preclude summary judgment, or why he was unable to obtain them earlier. Furthermore, the Court already has granted plaintiff an extension of time to provide transcripts of the deposition excerpts he submitted to the Court. To the extent plaintiff wants more time to prepare a revised and extended version of his Opposition, he has already had two opportunities to file an opposition to defendants’ Motion. After the Court struck his initial Opposition for failure to comply with the local rules, plaintiff was granted additional time to file a revised Opposition, and was later granted an extension of time. Plaintiff has filed a 25-page revised Opposition to defendants’ Motion, a 73-page declaration, and several binders of evidentiary material. The cross-motions are now under submission. Plaintiffs request for a continuance is DENIED.

III. COMPLIANCE WITH LOCAL RULE 7-3

Plaintiff contends that defendants’ counsel did not comply with Local Rule 7-3 because they did not “discuss thoroughly” the substance of the contemplated motion and a proposed resolution. (Revised Opposition at 12-13). Plaintiff is not contesting that the parties conferred, but only the quality of the conference. The Court declines to recommend that Defendants’ Motion be denied or stricken on this basis.

DISCUSSION

I. DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT ON PLAINTIFF’S FIRST AMENDMENT CLAIM

In Claim Twelve, plaintiffs sole remaining federal claim, plaintiff contends that defendants violated his First Amendment rights by removing him from the attorney appointment list in retaliation for his zealous representation of parolees and advocacy of parolee rights. (Third Amended Complaint at 173).

In their Motion, defendants contend that they are entitled to summary judgment because: (1) the speech that plaintiff contends triggered his removal from the attorney appointment list was not protected by the First Amendment and (2) plaintiff has no evidence that he was removed from the attorney appointment list on account of his speech. (Def. Motion at 5-19). In his cross-motion, plaintiff contends that he is entitled to summary judgment because: (1) the uncontroverted evidence shows that the decision to remove him from the attorney appointment list was motivated by his “whistleblower complaints” to Board officials; and (2) defendants cannot meet their burden of showing that they would have removed him from the attorney appointment list even if he had not engaged in protected speech. (PI. Motion at 11-17).

A. Applicable Law

In order to sustain a First Amendment retaliation claim against a public employer, a plaintiff must show that: (1) he or she engaged in constitutionally protected speech; (2) the employer took adverse employment action against him or her; and (3) the speech was a substantial or motivating factor for the adverse action. Freitag v. Ayers, 468 F.3d 528, 543 (9th Cir.2006), cert. denied, 549 U.S. 1323, 127 S.Ct. 1918, 167 L.Ed.2d 567 (2007); Coszalter v. City of Salem, 320 F.3d 968, 973 (9th Cir.2003); see Board of County Comm’rs v. Umbehr, 518 U.S. 668, 675, 116 S.Ct. 2342, 135 L.Ed.2d 843 (1996). If the plaintiff meets this burden, the governmental employer can still escape liability by showing that it would have taken the same action even in the absence of the protected speech. Umbehr, 518 U.S. at 675, 116 S.Ct. 2342; Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977). Moreover, even termination arising from protected speech may be justified when legitimate countervailing government interests are sufficiently strong. Umbehr, 518 U.S. at 675, 116 S.Ct. 2342.

A public employee’s speech is protected under the First Amendment only if it falls within the core of First Amendment protection — speech on matters of public concern. Engquist v. Oregon Dept. of Agr., — U.S. -, 128 S.Ct. 2146, 2152, 170 L.Ed.2d 975 (2008); Connick v. Myers, 461 U.S. 138, 146-47, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). “The [Supreme] Court has made clear that public employees do not surrender all their First Amendment rights by reason of their employment. Rather, the First Amendment protects a public employee’s right, in certain circumstances, to speak as a citizen addressing matters of public concern.” Garcetti v. Ceballos, 547 U.S. 410, 417, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006); see Connick, 461 U.S. at 143, 103 S.Ct. 1684; Pickering v. Bd. of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). However, the First Amendment rights of public employees depend on a balance between the interests of the employee, as a citizen, in commenting upon matters of public concern, and the interests of the government, as an employer, in promoting the efficiency of the public services it performs through its employees. Pickering, 391 U.S. at 568, 88 S.Ct. 1731. The government’s interests in effectively and efficiently achieving its goals are owed significantly greater deference when the government acts as an employer than when it acts as a sovereign. Umbehr, 518 U.S. at 676, 116 S.Ct. 2342. Thus, even if a public employee’s speech touches upon a matter of public concern, the governmental employer can restrict that speech if it can prove that the employee’s interest as a citizen in commenting on the matter is outweighed by the interest of the governmental employer in promoting effective and efficient public service. See Pickering, 391 U.S. at 568, 88 S.Ct. 1731. The court applies a balancing test to determine whether the government lacked adequate justification for treating the employee differently from any other member of the general public. Garcetti 547 U.S. at 418, 126 S.Ct. 1951 (citing Pickering, 391 U.S. at 568, 88 S.Ct. 1731).

These principles apply not only to public employees, but also to persons rendering services to the government as independent contractors. Umbehr, 518 U.S. at 684-85, 116 S.Ct. 2342. The deference afforded to public employers in regulating employee speech is also warranted in regulating the speech of independent contractors because the government “needs to be free to terminate both employees and contractors for poor performance, to improve the efficiency, efficacy, and responsiveness of service to the public, and to prevent the appearance of corruption.” Id. at 674, 684-85, 116 S.Ct. 2342. There is no “difference of constitutional magnitude between independent contractors and employees” in the First Amendment context. Umbehr, 518 U.S. at 684, 116 S.Ct. 2342 (internal quotation marks and citation omitted).

In Garcetti the Supreme Court set forth an additional requirement for determining whether a public employee’s speech is protected under the First Amendment. The Supreme Court held that even when a public employee’s speech touches on matters of public concern, it does not enjoy First Amendment protection if the employee is speaking pursuant to his or her official duties rather than as a citizen. Garcetti 547 U.S. at 422, 126 S.Ct. 1951. In Garcetti deputy district attorney Ceballo, a calendar deputy, was asked by defense counsel to look into whether an affidavit filed by the sheriffs department in support of a search warrant was inaccurate. Id. at 413-14, 126 S.Ct. 1951. According to Ceballo, it was not unusual for defense attorneys to ask calendar deputies to investigate aspects of pending cases. Id. at 414, 126 S.Ct. 1951. Ceballo submitted a disposition memorandum to his supervisors, in which he concluded that the affidavit contained serious misrepresentations and recommended dismissal of the case. Id. After an acrimonious meeting with sheriffs department employees, the district attorney’s office proceeded with the prosecution, and the trial court later rejected the defense challenge to the warrant. Id. at 414-15, 126 S.Ct. 1951. When Ceballo was subsequently reassigned, transferred, and passed over for a promotion, he filed suit alleging that his supervisors were retaliating against him for the disposition memo. Id. at 415, 126 S.Ct. 1951.

The Supreme Court held that the memo did not constitute protected speech because Ceballo did not speak as a citizen when he wrote it. Id. at 421-22, 126 S.Ct. 1951. Rather, he spoke as a prosecutor fulfilling his responsibility to advise his supervisors about how best to proceed with a pending case. Id. at 421, 126 S.Ct. 1951. The Supreme Court declared: “We hold that 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.” Id.

In Garcetti the parties did not dispute that Ceballos wrote his disposition memo pursuant to his employment duties, and the Supreme Court expressly declined “to articulate a comprehensive framework for defining the scope of an employee’s duties in cases where there is room for serious debate.” Garcetti 547 U.S. at 424, 126 S.Ct. 1951. The Supreme Court declared only that “[t]he proper inquiry is a practical one,” noting that “[fjormal job descriptions often bear little resemblance to the duties an employee actually is expected to perform.” Id. at 425, 126 S.Ct. 1951.

In Posey v. Lake Pend Oreille School District No. 84, 546 F.3d 1121 (9th Cir.2008), the Ninth Circuit held that although the Supreme Court in Connick declared that whether speech is protected under the First Amendment is an issue of law, see Connick, 461 U.S. at 148 n. 7, 103 S.Ct. 1684 (“The inquiry into the protected status of speech is one of law, not fact.”), after Garcetti the issue of whether the plaintiff spoke as a public employee or as a private citizen is a mixed question of fact and law. Id. at 1127-29. Whether the plaintiffs speech addressed an issue of public concern, however, is purely an issue of law. Eng v. Cooley, 552 F.3d 1062, 1070 (9th Cir.2009); see also Gibson v. Office of the Attorney General, 561 F.3d 920, 925 (9th Cir.2009).

Thus, to summarize, in evaluating a First Amendment retaliation claim by a public employee or independent contractor, the Court must address a “sequential five-step series of questions: (1) whether the plaintiff spoke on a matter of public concern; (2) whether the plaintiff spoke as a private citizen or public employee; (3) whether the plaintiffs protected speech was a substantial or motivating factor in the adverse employment action; (4) whether the state had an adequate justification for treating the employee differently from other members of the general public; and (5) whether the state would have taken the adverse employment action even absent the protected speech.” Eng, 552 F.3d at 1070. Plaintiff has the burden of showing that: (1) “the speech addressed an issue of public concern”; (2) “the speech was spoken in the capacity of a private citizen and not a public employee”; and (3) “the state took adverse employment action” and the speech “was a substantial or motivating factor in the adverse action.” Id. at 1070-71. Only if plaintiff passes these three tests does the burden shift to the defendants to show that, under the Pickering balancing test, the government’s interests outweigh the plaintiffs First Amendment rights, or that it would have taken the same action even in the absence of the protected conduct. Id. at 1071-72.

B. Protected Status of Plaintiff’s Speech

As an initial matter, plaintiff does not clearly identify the speech at issue, ie., the protected speech that he contends caused his termination from the attorney appointment list. At times, plaintiff states that the decision to remove him from the attorney appointment list was motivated by his July 14, 2003 letter to defendant Speed and his September 2, 2003 letter to Wad-kins; elsewhere, he contends that his termination was motivated by other letters he sent to Board officials, as well as by his advocacy of his clients’ constitutional rights during hearings and his pursuit of administrative remedies on their behalf. (Jacobson Decl. ¶ 12 & n. 6; Jacobson Rev. Decl. at 14-15, 28-29; PI. Rev. Opp. at 15-16).

1. Plaintiffs July 14, 2003 Letter to Speed and September 2, 2003 Letter to Wadkins Do Not Address Matters of Public Concern

Defendants contend that plaintiffs July 14, 2003 letter to defendant Speed and his September 2, 2003 letter to defendant Wadkins do not address matters of public concern. (Def. Motion at 16). This is a question of law for the Court. Gibson, 561 F.3d at 925; Eng, 552 F.3d at 1070.

In his July 14, 2003 letter to defendant Speed, plaintiff is responding to Speed’s July 1, 2003 letter notifying plaintiff that the investigation of the incident involving parole agent Murria was complete and plaintiff would be restored to the attorney appointment list. (Def. Exh. S; Speed Decl., Exh. A). In his July 1, 2003 letter, Speed advised plaintiff that he had determined that plaintiffs cross-examination of Murria, although aggressive, was not inappropriate, but that plaintiff acted inappropriately in approaching her afterwards. (Speed Decl., Exh. A). In his letter, plaintiff explains why he needed to aggressively cross-examine Murria, and vehemently disputes that he did anything more than tap her on the shoulder to get her attention, or that she ever told him to remove his hand. (Def. Exh. S). Plaintiff opines that Murria lied both at the hearing and in her account of the incident, and expresses his indignation at his suspension during an investigation of the charge. (Id.). Plaintiff argues that such a suspension should be preceded by notice and an informal investigation, and expresses a fear that defense counsel of less firmness and greater financial dependence on parole revocation appointments than plaintiff will be deterred from aggressively cross-examining parole agents if any agent can bring about an attorney’s suspension from the list by making a baseless charge of inappropriate behavior. (Def. Exh. S).

Plaintiffs September 2, 2003 letter to defendant Wadkins is a response to Wad-kins’ August 28, 2003 letter notifying plaintiff that the Board was contemplating his removal from the attorney appointment list as a result of missing “second serves” on August 20, 2003, and requesting him to submit a response. (Def. Exh. T; Wad-kins Decl., Exh. B). In his September 2, 2003 letter, plaintiff states that removal from the attorney appointment list was a draconian penalty for a single accidentally missed “second serve” appointment, and could only have been motivated by retaliation for plaintiffs successful refutation of the charges against him made by defendant Murria. (Def. Exh. T). Plaintiff expresses concerns about attacks on his professional reputation and about a hostile work environment faced by him and other parole revocation defense attorneys. (Id.).

“The Supreme Court has held that speech involves a matter of public concern when it fairly can be said to relate to ‘any matter of political, social, or other concern to the community.’ ” Gibson, 561 F.3d at 925 (quoting Connick, 461 U.S. at 146, 103 S.Ct. 1684). Whether an employee’s or contractor’s speech addresses a matter of public concern, and thus is protected by the First Amendment, must be decided based on the “content, form, and context of a given statement, as revealed by the whole record.” Connick, 461 U.S. at 147-48, 103 S.Ct. 1684. Generally, when an employee or independent contractor complains about his own job treatment, his speech does not address a matter of public concern. Thomas v. City of Beaverton, 379 F.3d 802, 808 (9th Cir.2004) (“[T]he type of personnel matters that we have deemed unprotected under the public concern test are employment grievances in which the employee is complaining about her own job treatment, not personnel matters pertaining to others.” (emphasis in original)); see also Robinson v. York, 566 F.3d 817, 823 (9th Cir.2009) (“Reports pertaining to others, even if they concern personnel matters including discriminatory conduct, can still be ‘protected under the public concern test.’ ”) (quoting Thomas, 379 F.3d at 808; emphasis added). “[Wjhen a public employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest, absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee’s behavior.” Connick, 461 U.S. at 147, 103 S.Ct. 1684; see also Gibson, 561 F.3d at 925 (“[Sjpeech by public employees may be characterized as not of ‘public concern’ when it is clear that such speech deals with individual personnel disputes and grievances and that the information would be of no relevance to the public’s evaluation of the performance of governmental agencies.” (quoting McKinley v. City of Eloy, 705 F.2d 1110, 1114 (9th Cir.1983))).

Both the letters at issue here concern the Board’s treatment of plaintiff: the July 14, 2003 letter to defendant Speed concerns plaintiffs investigation and temporary suspension in connection with the incident involving agent Murria, and the September 2, 2003 letter to defendant Wadkins concerns plaintiffs missed “second serves” appointment and notice that the Board was contemplating plaintiffs removal from the list. The issues that plaintiff has regarding these letters do not involve matters of public concern. See Connick, 461 U.S. at 146-47, 103 S.Ct. 1684; see also Gibson, 561 F.3d at 926 (deputy attorney general’s representation of co-worker in a private legal malpractice action, which led to their termination by the attorney general’s office, did not involve matters of public concern).

Plaintiff argues that the quality of representation afforded to indigent parole violators is a matter of public concern, and that he expressed in his letters a general concern that the quality of representation provided to parolees would be chilled if zealous appointed counsel faced a prospect that their zeal would provoke pretextual charges resulting in their suspension or termination from the appointment list. (PI. Rev. Opp. at 7-8). The Ninth Circuit has held that “statements presenting mixed questions of private and public concern properly fall within the scope of First Amendment protection.” Posey, 546 F.3d at 1130 n. 5 (internal quotation marks and citation omitted). This statement, however, contemplated a situation where a letter addressed both topics of public concern and personal grievances. See id. at 1124, 1130 (Posey’s letter expressing concerns about school’s security and safety policies satisfied the “public concern” test even though a part of the letter addressed his private grievances with respect to his treatment by the school principal); see also Connick, 461 U.S. at 146-49, 103 S.Ct. 1684 (concluding that questionnaire submitted to district attorney’s office staff addressed internal office matters not of public concern, except for a question about pressure to support political campaigns, which touched upon a matter of public concern and was subject to the balancing stage of the protected speech inquiry). Here, the statements that plaintiff contends involve matters of public concern are incidental to his arguments that his suspension from the attorney appointment list was unjustified and that a permanent removal from the list would be a disproportionate sanction. (Def. Exh. S). Plaintiff merely draws generalizations from his own experience and speculates as to what would happen if defendants treated other parole revocation defense counsel the way they treated him. (Id.). He does not contend that any such chilling effect on other attorneys has occurred; he complains solely about actions directed at him. See Connick, 461 U.S. at 154, 103 S.Ct. 1684 (warning against attempts to constitutionalize employee grievances).

In light of the Court’s conclusion that these two letters do not address matters of public concern but only plaintiffs personal problems with the Board, the Court need not undertake a Garcetti inquiry into whether the letters were written pursuant to plaintiffs contract with the Board. Because the letters do not address matters of public concern, they do not constitute protected speech under the First Amendment and cannot be the basis of a Fi