Kevin A. Shaw v. Kathleen F. Burke et al, No. 2:2017cv02386 - Document 45 (C.D. Cal. 2018)
Court Description: ORDER DENYING, IN PART, AND GRANTING, IN PART, DEFENDANTS MOTION TO DISMISS, OR, IN THE ALTERNATIVE, FOR A MORE DEFINITE STATEMENT 22 by Judge Otis D. Wright, II: (lc)
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Kevin A. Shaw v. Kathleen F. Burke et al Doc. 45 O 1 2 3 4 5 6 7 United States District Court Central District of California 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Case 2:17-CV-02386-ODW (PLAx) KEVIN SHAW, an individual, Plaintiff, ORDER DENYING, IN PART, AND GRANTING, IN PART, DEFENDANTS’ MOTION TO KATHLEEN F. BURKE, in her individual DISMISS, OR, IN THE and official capacities; EARIC DIXONALTERNATIVE, FOR A MORE PETERS, in his individual and official capacities; WILLIAM A. MARMOLEGO, DEFINITE STATEMENT [22] in his individual and official capacities; JUAN C. ASTORGA, in his individual and official capacities; FRANCISCO C. RODRIGUEZ, in his official capacity; SCOTT J. SVONKIN, in his official capacity; SYDNEY K. KAMLAGER, in his official capacity; MIKE FONG, in his official capacity; MIKE ENG, in his official capacity; ANDRA HOFFMAN, in her official capacity; ERNEST H. MORENO, in his official capacity; NANCY PEARLMAN, in her official capacity, and JOHN DOE, in his individual and official capacities, v. Defendants. I. INTRODUCTION 26 Kevin Shaw filed his Complaint on March 28, 2017, and seeks an injunction, 27 declaratory relief, and damages for alleged violations of his First Amendment rights, 28 while a student at Los Angeles Pierce College (“Pierce”). (Compl., ECF No. 1.) He Dockets.Justia.com 1 asserts five causes of action pursuant to 28 U.S.C. § 1983, and a sixth for declaratory 2 relief. Defendants Kathleen F. Burke, Earic Dixon-Peters, William A. Marmolejo, 3 Juan C. Astorga, Francisco C. Rodriguez, Scott J. Svonkin, Sydney K. Kamlager, 4 Mike Fong, Mike Eng, Andra Hoffman, Ernest H. Moreno, and Nancy Pearlman 5 (“Defendants”) moved to dismiss Shaw’s Complaint on May 24, 2017, arguing that: 6 1) Shaw’s claims are barred by the Eleventh Amendment; 2) Shaw has no standing to 7 bring the claims; 3) certain defendants are entitled to qualified immunity; and 4) Shaw 8 fails to state a claim. (Mot., ECF No. 22.) 9 On October 24, 2017, the United States filed a Statement of Interest, pursuant to 10 28 U.S.C. § 517, arguing that Shaw has sufficiently pleaded a claim under the First 11 Amendment, but declining to opine on the remaining issues. (Statement of Interest, 12 ECF No. 39.) Defendants opposed the United States’ brief, and the Court later 13 allowed the United States to file a Supplemental Statement of Interest in response. 14 (Supp. Statement of Interest, ECF No. 44.) After considering the papers filed in 15 connection with the Motion, the Court deemed the matter appropriate for decision 16 without oral argument. Fed. R. Civ. P. 78(b); C.D. Cal. L.R. 7-15. Accordingly, the 17 Court DENIES, in part, and GRANTS, in part, Defendants’ Motion for the reasons 18 set forth below. II. 19 FACTUAL BACKGROUND1 20 Shaw attends Pierce, which is one of nine community colleges within the Los 21 Angeles Community College District (the “District”). (Compl. ¶¶ 1, 3, 14, 28.) Shaw 22 brings facial and as-applied challenges to the District and Pierce’s published and 23 unpublished speech policies. 24 A. Chapter IX, Article IX of the District’s Rules governs freedom of speech on 25 26 The Speech Policies campuses within the District. (Id. ¶¶ 31–34.) Some of the rules at issue here include: 27 28 1 All factual references are allegations taken from Shaw’s Complaint and accepted as true for purposes of this Motion. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 2 1 Rule 9901, which establishes all of the District’s campuses as non-public 2 fora that are not open to free speech and expression, except for 3 designated “Free Speech Areas,” (Id. ¶ 35, Ex. A, pg. 31); 4 Rule 9902.11, which provides that students may distribute literature, 5 including “petitions, circulars, leaflets, newspapers, miscellaneous 6 printed matter and other materials” only in Free Speech Areas, (Id. ¶ 37, 7 Ex. A, pg. 31); 8 Rule 9902.13, which allows each college president to designate “Free 9 Speech Areas” on campus “for free discussion and expression by all 10 persons,” subject to content-neutral time, place, and manner restrictions, 11 including “reasonable time restrictions on the use of Free Speech Areas,” 12 (Id. ¶ 38, Ex. A, pg. 32); 13 Rule 9904, which provides that student use of areas not designated as 14 “Free Speech Areas” for expressive activities “shall be governed by the 15 rules and regulations established pursuant to Article X, relating to student 16 activities and events,” (Id., Ex. A, pg. 34); and 17 Rule 91005, Article X, which provides that “the college president shall 18 not approve any rules relating to non-Free Speech Areas which would 19 deny students their free speech rights were they conducting such 20 activities in Free Speech Areas.” (Defendants’ Request for Judicial 21 Notice, Ex. 1, ECF No. 23-1.)2 22 Pierce requires students to obtain a permit prior to using the Free Speech Area. 23 (Id. ¶ 4.) Shaw claims this “unpublished requirement…severely restrict[s] free speech 24 and expressive activity.” (Id.) The permit contains additional rules and regulations 25 that are only available by requesting and obtaining a permit. (Id. ¶¶ 43–44, Ex. C.) 26 2 27 28 Shaw does not oppose Defendants’ Request for Judicial Notice, and addresses the contents of the District’s Board Rules in his Opposition. (Opp’n 18, ECF No. 33.) The Court takes judicial notice of the District’s Board Rules, Chapter IX, Article X. Esquivel v. San Francisco Unified Sch. Dist., 630 F. Supp. 2d 1055, 1057 n.2 (N.D. Cal. 2008) (taking judicial notice of school board policy). 3 1 As described further below, Shaw first became aware of this requirement after a 2 school administrator, sued here as John Doe, advised him that he was not permitted to 3 engage in free speech outside of the Free Speech Area, and that he needed to complete 4 a permit application prior to doing so. (Id. ¶ 60.) Because Pierce does not publish its 5 free speech rules and regulations, “[s]tudents…have no public, generally accessible 6 means to discern any restrictions to which they are subject or under which they could 7 be punished for engaging in speech or expressive activity on Pierce College’s 8 campus.” (Id. ¶ 40.) 9 Upon receiving the permit application, students discover that: 10 “The college has one (1) Free Speech Area” on campus “designated for 11 free speech and gathering of signatures,” (Id. ¶ 40, Ex. C, pgs. 36–37); 12 “Individuals planning to distribute material on campus are required to go 13 to the Vice President of Student Services Office located on the third floor 14 of the Student Services Building between the hours of 9:00 a.m. and 4:00 15 p.m.” (Id., Ex. C, pg. 36); 16 Students must identify the name and address of the organization they 17 represent, the name(s) of the distributor(s), and the date and time of the 18 distribution, (Id. ¶ 48, Ex. C, pg. 36); and 19 “[D]istribution [of materials] shall take place only within the 20 geographical limits of the Free Speech Area,” and students may only use 21 the Free Speech Area from 9:00 a.m. until 7:30 p.m., Monday through 22 Friday. (Id. ¶¶ 36–37, Ex. C, pg. 37.) 23 Shaw claims that, “[o]n its face, the Pierce College Free Speech Area Policy does not 24 limit the discretion of the Vice President of Student Services Office, or other 25 administrators responsible for its enforcement, to deny or approve the application 26 because of the content or viewpoint of the speaker’s intended message.” (Id. ¶ 50.) 27 The Free Speech Area also prohibits “spontaneous or anonymous speech because 28 4 1 individuals must fill out an application for the use of the space and identify themselves 2 and their organization prior to accessing it. (Id. ¶ 51.) 3 The Free Speech Area is identified on an attachment to Pierce’s Free Speech 4 Area Policy, which is a map that has an area “on the Mall within…red and black 5 dotted lines[, and] is approximately 616 square feet, comprising approximately .003% 6 of the total area of Pierce College’s 426 acres, and approximately .007% of the main 7 area of campus…, which excludes the approximately 226-acre farm dedicated to 8 Pierce’s agricultural…programs.” (Id. ¶ 46, Exs. B, C.) Shaw alleges that the limited 9 size of the Free Speech Area is not tied to any legitimate interest because Pierce “has 10 many open areas and sidewalks beyond the Free Speech Area where student speech, 11 expressive activity, and distribution of literature would not interfere with or disturb 12 access to college buildings or sidewalks, impede vehicular or pedestrian traffic, or in 13 any way substantially disrupt [Pierce’s] operations….” (Id. ¶ 54.) 14 Pierce enforces these rules through its Standards of Student Conduct, which it 15 prints in its schedule of classes. (Id. ¶ 55.) A violation of Pierce’s rules, or District 16 Rule 9803.11, which prohibits a “[v]iolation of college rules and regulations including 17 those concerning student organizations, the use of college facilities, or the time, place, 18 and manner of public expression or distribution of materials,” may result in discipline. 19 (Id.) 20 B. The Policies Applied to Shaw 21 In addition to being facially unconstitutional, Shaw alleges that Pierce enforces 22 its rules in a way that restricts free speech. On November 2, 2016, Shaw and two 23 other members of the Young Americans for Liberty organization attempted to 24 distribute Spanish-language copies of the United States Constitution and discuss 25 freedom of speech issues with students on Pierce’s campus. (Id. ¶ 56.) Shaw and his 26 cohort set up a small folding table near the “Mall” area of campus, but outside of the 27 Free Speech Area. (Id. ¶ 57.) Shortly afterward, a college administrator advised them 28 that they were violating Pierce’s free speech policies, and would need to obtain a 5 1 permit to continue distributing their materials and interacting with students. 2 (Id. ¶¶ 59–60.) Shaw asked what would happen if he did not follow the administrator 3 to obtain the permit, and the administrator said that he would ask Shaw and the others 4 to leave campus. (Id. ¶ 61.) So, Shaw followed the administrator to the office, and 5 filled out the permit application, which included the Pierce College Free Speech Area 6 Policy, which Shaw had now seen for the first time. (Id. ¶ 62, Ex. B.) Despite his 7 request, the administrator refused to provide Shaw with a copy of the completed 8 permit application. (Id. ¶ 63.) 9 On November 11, 2016, Shaw emailed Astorga, the Dean of Student 10 Engagement, and informed him that he wanted to gather signatures and encourage 11 students to adopt a different free speech policy in an area outside of the Free Speech 12 Area, but away from buildings and in an area that would not impede pedestrian traffic. 13 (Id. ¶¶ 18, 64–65.) Shaw also confirmed that he would not use any amplified sound. 14 (Id. ¶ 65.) It is unclear from the Complaint whether Astorga responded. 15 On November 16, 2016, Shaw distributed materials outside the Free Speech 16 Area “for several hours in an open, grassy area of campus” without encountering any 17 administrators. (Id. ¶ 66.) He also observed a “large protest that formed outside of 18 the Free Speech Area to protest the election of then-President-Elect Donald Trump.” 19 (Id.) This, he claims, evidences Pierce’s selective and uneven enforcement of its free 20 speech policies. (Id. ¶ 67.) 21 Through the rest of November and December 2016, Shaw attempted on several 22 occasions to obtain a copy of his signed permit application. (Id. ¶¶ 68–85.) After 23 several rebuffed attempts and correspondence between Shaw and Pierce 24 administrators who are named Defendants, on December 8, 2016, Geremy Mason, a 25 senior secretary in the Associated Student Organization (“ASO”) Office, provided 26 Shaw with a copy of his application. (Id.) 27 Now, Shaw wants to continue gathering signatures, and expressing himself on 28 Pierce’s campus, without being confined to the small Free Speech Area. (Id. ¶ 88.) 6 1 However, he is afraid to do so because he could run into an administrator who would 2 discipline him for violating the Standards of Student Conduct or “contact the sheriff’s 3 office to remove him from campus.” (Id.) III. 4 LEGAL STANDARD 5 A court may dismiss a complaint under Rule 12(b)(6) for lack of a cognizable 6 legal theory or insufficient facts pleaded to support an otherwise cognizable legal 7 theory. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). A 8 court may also dismiss a complaint for lack of subject matter jurisdiction, pursuant to 9 Rule 12(b)(1). 10 To survive a motion to dismiss, a complaint need only satisfy the minimal 11 notice pleading requirements of Rule 8(a)(2)—a short and plain statement of the 12 claim. Porter v. Jones, 319 F.3d 483, 494 (9th Cir. 2003). The factual “allegations 13 must be enough to raise a right to relief above the speculative level.” Bell Atl. Corp. 14 v. Twombly, 550 U.S. 544, 555 (2007). That is, the complaint must “contain sufficient 15 factual matter, accepted as true, to state a claim to relief that is plausible on its face.” 16 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). These factual allegations must provide 17 fair notice and enable the opposing party to defend itself effectively. Starr v. Baca, 18 652 F.3d 1202, 1216 (9th Cir. 2011). 19 The determination whether a complaint satisfies the plausibility standard is a 20 “context-specific task that requires the reviewing court to draw on its judicial 21 experience and common sense.” Iqbal, 556 U.S. at 679. A court is generally limited 22 to the pleadings and must construe all “factual allegations set forth in the complaint . . 23 . as true and . . . in the light most favorable” to the plaintiff. Lee v. City of L.A., 250 24 F.3d 668, 688 (9th Cir. 2001). 25 allegations, unwarranted deductions of fact, and unreasonable inferences. Sprewell v. 26 Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). But a court need not blindly accept conclusory 27 If a pleading is so vague and ambiguous that a party cannot reasonably prepare 28 a response, the party may ask for a more definite statement of the pleading. Fed. R. 7 1 Civ. P. 12(e). This request must be made before a response is filed, and it must 2 explain the defects of the complaint. Id. If the pleading party fails to provide this 3 statement, the court may strike the pleading. Id. IV. 4 DISCUSSION 5 Defendants move to dismiss on the grounds that: 1) Shaw does not have 6 standing; 2) he fails to state any claims on which relief could be granted; 3) his 7 Second Third, Fourth, and Fifth Causes of Action against Defendants Burke, 8 Marmolejo, Dixon-Peters, and Astorga (the “Pierce Defendants”) fail to state claims 9 for individual liability; 4) the Pierce Defendants are entitled to qualified immunity; 10 and 5) Eleventh Amendment immunity bars all claims for monetary damages against 11 Defendants in their official capacities. 12 A. Shaw Alleges Facts Establishing Standing 13 “Constitutional challenges based on the First Amendment present unique 14 standing considerations.” Arizona Right to Life Political Action Comm. v. Bayless, 15 320 F.3d 1002, 1006 (9th Cir. 2003). Thus, in order to “avoid the chilling effect of 16 sweeping restrictions, the Supreme Court has endorsed what might be called a ‘hold 17 your tongue and challenge now’ approach rather than requiring litigants to speak first 18 and take their chances with the consequences.” Id. (citing Dombrowski v. Pfister, 380 19 U.S. 479, 486 (1965)). Generally, standing requires an “injury in fact,” causation, and 20 that the injury may be redressed by a favorable decision by the court. Lujan v. 21 Defenders of Wildlife, 504 U.S. 555, 560–62 (1992). A plaintiff’s alleged harm 22 qualifies as an “injury in fact” where the defendant’s actions invade a legally 23 protected interest that is: “(a) concrete and particularized; and (b) ‘actual or imminent, 24 not ‘conjectural’ or ‘hypothetical.’” 25 challenges Pierce’s free speech policies, both facially, and as applied. Id. at 560 (citations omitted). Here, Shaw 26 1. As applied 27 As applied, Shaw alleges that Defendants restricted his speech when Pierce 28 administrators enforced Pierce’s Free Speech Policy, and required him to obtain a 8 1 permit before continuing to distribute Spanish-language copies of the U.S. 2 Constitution. (Compl. ¶¶ 56–62). This sufficiently establishes his standing because 3 he demonstrates a concrete injury, traceable to Defendants’ conduct that could be 4 redressed by a favorable ruling. See, e.g., Preminger v. Peake, 552 F.3d 757, 764 (9th 5 Cir. 2008) (holding plaintiff had direct standing to bring an as-applied challenge 6 where defendant interrupted plaintiff’s registration of voters within defendant’s 7 facility). 8 2. 9 With respect to Shaw’s facial challenge, Defendants claim Shaw does not 10 establish how his “rights have been violated or are immediately threatened by specific 11 provisions of the District Free Speech Policy and actions of the members of the Board 12 of Trustees,” as opposed to the Pierce Defendants. (Mot. 7) Shaw alleges, however, 13 that Pierce developed its Free Speech Policies, which have already restricted his 14 speech (Compl. ¶¶ 56–62), in accordance with the District’s directive that college 15 campuses are non-public fora, and that the colleges designate specific free speech 16 areas. (Id. ¶¶ 2–3, 29–39.) Defendants also argue that Shaw does not have standing 17 because he cannot demonstrate Pierce is likely to enforce the free speech policies. 18 (Mot. 7–10.) Facial challenge 19 When evaluating a pre-enforcement plaintiff’s standing, courts consider 20 “whether [a plaintiff] ha[s] failed to show a reasonable likelihood that the government 21 will enforce the challenged law….” Lopez v. Candaele, 630 F.3d 775, 786 (2010). 22 Next, a plaintiff must establish, “with some degree of concrete detail, that they intend 23 to violate the challenged law,” and that the law applies to them. 24 enforcement against the same conduct is good evidence that the threat of enforcement 25 is not “‘chimerical.’” Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2345 26 (2014) (quoting Steffel v. Thompson, 415 U.S. 452, 459 (1974)). Defendants argue 27 that because college officials did not restrict Shaw’s expressive activity on November 28 16, 2016, or the anti-Trump protestors’ activity, the threat of future enforcement is 9 Id. “[P]ast 1 low. (Mot. 9.) This, however, does not negate the fact that college administrators 2 interrupted Shaw’s expressive activity on November 2, 2016, pursuant to the 3 challenged policies, nor the fact that Pierce also indicates it will enforce its Free 4 Speech Policies through its Standards of Student Conduct, which can result in 5 disciplinary action. (Compl. ¶¶ 55–63); Libertarian Party of Los Angeles Cty. v. 6 Bowen, 709 F.3d 867, 871 (9th Cir. 2013) (holding threat of enforcement requirement 7 satisfied where defendant posted challenged regulation on website). Accordingly, 8 Shaw sufficiently alleges threat of future enforcement. 9 Further, Shaw adequately describes that he intends to violate the challenged 10 policies. Lopez, 630 F.3d at 786. He sets forth the conduct that originally subjected 11 him to enforcement of the policy, a second episode, where Pierce did not enforce the 12 policy, or, at least, did not catch him violating it, and that he intends to continue doing 13 so in the future. (Compl. ¶¶ 56–66, 74, 88.) Astorga also specifically told Shaw that 14 he should see him “next time [Shaw] would like to distribute any materials” so that 15 Astorga could provide the appropriate paperwork. (Id. ¶ 74.) At this stage, Shaw 16 sufficiently pleaded his intent to continue engaging in protected activity, such that the 17 Court is not required to conjure hypotheticals that may lead to enforcement of the 18 policies in the distant future. 19 Finally, a favorable ruling will redress Shaw’s injury because he will be able to 20 engage in free speech activities without discipline, interruption from college 21 authorities, or the chilling effect accompanying the threat of discipline. Khademi v. 22 South Orange Cty. Cmty. College Dist., 194 F. Supp. 2d 1011, 1019 (C.D. Cal. 2002) 23 (holding that favorable ruling would redress harm where regulation at issue “could 24 possibly prevent Plaintiffs from engaging in certain constitutionally protected 25 activities, restrict their manner of expression, and/or expose them to disciplinary 26 action for engaging in certain protected activities”). 27 28 10 1 B. Failure to State a Claim: First Amendment Issues 2 Defendants argue that Shaw fails to state a claim under the First Amendment. 3 (Mot. 11.) The extent to which the government may regulate speech at a school 4 largely depends on how the area at issue is characterized. 5 categorize property as either (1) a public forum, (2) a designated public forum, or (3) a 6 non-public forum. Perry Educ. Ass’n v. Perry Local Educs. Ass’n, 460 U.S. 37, 45– 7 46 (1983). With each of these monikers comes a different standard of review. Shaw 8 contends that Defendants’ regulations violate the First Amendment in at least two 9 ways: 1) Defendants’ limitation of speech to only the Free Speech Area is not a 10 reasonable time, place, or manner restriction; and 2) despite designating a Free Speech 11 Area, Defendants’ permitting requirement is an unconstitutional prior restraint. (See 12 Opp’n, Section C.) Courts traditionally 13 1. Type of Forum 14 “The college classroom with its surrounding environs is peculiarly ‘the 15 marketplace of ideas.’” Healy v. James, 408 U.S. 169, 180 (1972). However, simply 16 because the government owns property does not automatically mean that any 17 individual may use it to express his or her First Amendment rights. Grayned v. City of 18 Rockford, 408 U.S. 104, 117–118 (1972) (“Nowhere [have we] suggested that 19 students, teachers, or anyone else has an absolute constitutional right to use all parts of 20 a school building or its immediate environs for…unlimited expressive purposes.”). 21 Traditional public fora are places, such as public sidewalks or parks, where 22 individuals have long been able to freely express their ideas. Perry, 460 U.S. at 45. 23 In public fora, the government may not completely restrict speech. Id. “[T]o enforce 24 a content-based exclusion[, the government] must show that its regulation is necessary 25 to serve a compelling state interest and that it is narrowly drawn to achieve that end.” 26 Id. (citing Carey v. Brown, 447 U.S. 455, 461 (1980)). Where a regulation is content- 27 neutral, the government may establish reasonable time, place, and manner restrictions, 28 which are narrowly tailored to achieve a significant government interest, so long as 11 1 there are ample alternative channels of communication. Id. (citing United States 2 Postal Serv. v. Council of Greenburgh, 453 U.S. 114, 132 (1981)); Ward v. Rock 3 Against Racism, 491 U.S. 781, 791 (1989). 4 Even in places that are not traditionally regarded as a public forum, the 5 government may designate the area as an area for free discourse, which renders it a 6 designated public forum. Perry, 460 U.S. at 45–46. While not required to maintain 7 the area open for expression forever, during the period the government maintains the 8 area as an area for free expression, its regulations are subject to the same level of 9 scrutiny as those employed in a traditional public forum. Id. at 46 (citing Widmar v. 10 Vincent, 454 U.S. 263, 269–270 (1981)) (“Reasonable time, place and manner 11 regulations are permissible, and a content-based prohibition must be narrowly drawn 12 to effectuate a compelling state interest.”). While not entirely settled,3 a sub-category 13 of the “designated public forum” is the “limited public forum.” Good News Club v. 14 Milford Central Sch., 533 U.S. 98, 106–07 (2001); OSU Student Alliance v. Ray, 699 15 F.3d 1053, 1062 (9th Cir. 2012) (quoting Flint v. Dennison, 488 F.3d 816, 830–31 16 (9th Cir. 2007)). A limited forum occurs where the government opens a non-public 17 forum to certain types of speech. OSU Student Alliance, 699 F.3d at 1062. In a 18 limited public forum, the government may regulate speech as long as the regulations: 19 “(1) comport with the definition of the forum (for example, the government cannot 20 exclude election speech from a forum that it has opened specifically for election 21 speech); (2) are reasonable in light of the purpose of the forum; and (3) do not 22 discriminate by viewpoint.” Id. at 1062. 23 The final category, non-public fora, includes public property that “is not by 24 tradition or designation a forum for public communication….” Id. The government 25 may impose time, place, and manner restrictions, and “the state may reserve the forum 26 3 27 28 The Ninth Circuit has explained that “[t]he contours of the terms ‘designated public forum’ and ‘limited public forum’ have not always been clear.” Hopper v. City of Pasco, 241 F.3d 1067, 1074 (9th Cir. 2001) (citing DiLoreto v. Downey Unified Sch. Dist. Bd. of Educ., 196 F.3d 958, 965 n.4 (1999)). 12 1 for its intended purposes, communicative or otherwise, as long as the regulation on 2 speech is reasonable and not an effort to suppress expression merely because public 3 officials oppose the speaker’s view.” Perry, 460 U.S. at 46. 4 Shaw maintains that Pierce’s entire campus is a traditional public forum, or, at 5 least, a designated public forum. 6 California community colleges are not public fora because their “primary mission” is 7 to “provide academic and vocational education to younger and older students.” (Mot. 8 13.) Defendants also rely on the District Board Rules, which declare its campuses to 9 be non-public fora, except the Free Speech Area, which Defendants claim is a limited 10 public forum. (Id., Compl. ¶ 35, Ex. A, pg. 30.) On the other hand, Shaw argues that 11 California Education Code section 76120 affirmatively designates community college 12 campuses as public fora. (Opp’n 11.) 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (Opp’n 10–11.) Defendants claim that the Section 76120 provides that the rules implemented by the governing board of a community college: shall not prohibit the right of students to exercise free expression…except that expression which is obscene, libelous or slanderous according to current legal standards, or which so incites students as to create a clear and present danger of the commission of unlawful acts on [campus], or the violation of lawful community college regulations, or the substantial disruption of the orderly operation of the community college, shall be prohibited. Cal. Educ. Code § 76120. Shaw analogizes this statute to the one at issue in OSU Alliance v. Ray, where the Ninth Circuit held that an Oregon state regulation that opened universities for speech activities, with the exception of certain areas marked authorized access only, indicated that the campus was “at least a designated public forum.” OSU Alliance, 699 F.3d at 1062. While the Section 76120 evinces an intent of the California legislature to open community college campuses to “the right of students to exercise free expression,” it also explicitly excludes expression that is in “violation of lawful community college regulations.” Cal. Educ. Code § 76120. The 13 1 District’s regulations here seem to be at odds with the spirit of Section 76120. 2 Because Section 76120 excludes activities that violate “lawful community college 3 regulations,” and Defendants claim Shaw’s actions violate Pierce’s regulations, the 4 Court must evaluate the nature of the property Shaw seeks to use in categorizing it. 5 “[T]he intent of a government to create a nonpublic forum has no direct bearing 6 upon traditional public forum status.” ACLU of Nevada v. City of Las Vegas, 333 7 F.3d 1092, 1104 (9th Cir. 2003). Instead, in evaluating whether an area is a traditional 8 public forum, courts evaluate: 1) the actual use and purposes of the property, particularly status as a public thoroughfare and availability of free public access to the area; 2) the area’s physical characteristics, including its location and the existence of clear boundaries delimiting the area; and 3) traditional or historic use of both the property in question and other similar properties. 9 10 11 12 13 Id. at 1100. The Court must also keep in mind that “[a] modern university contains a 14 variety of fora.” Bowman v. White, 444 F.3d 967, 976 (8th Cir. 2006). 15 On Pierce’s campus, there are “open areas and sidewalks beyond the Free 16 Speech Area where student speech, expressive activity, and distribution of literature 17 would not interfere with or disturb access to college building or sidewalks….” 18 (Compl. ¶ 54.) At the time administrators stopped Shaw from distributing Spanish- 19 language copies of the U.S. Constitution, he was alongside a “large thoroughfare 20 called ‘the Mall’” and was not “disrupting campus operations or interfering with foot 21 traffic.” (Id. ¶¶ 57–58.) These facts tend to establish the open areas of Pierce’s 22 campus are a public forum. 23 In Widmar v. Vincent, the Supreme Court noted in a footnote that “the campus 24 of a public university, at least for its students, possesses many of the characteristics of 25 a public forum.” 454 U.S. at 267 n.5 (citing Police Dept. of Chicago v. Mosley, 408 26 U.S. 92 (1972) and Cox v. Louisiana, 379 U.S. 536 (1965)). This characterization 27 makes sense, because after all, what is a university’s purpose but to expose students to 28 new ideas and spark dialogue? However, the Supreme Court recognized, that a 14 1 university’s first priority is education and that any First Amendment analysis must 2 consider this purpose. Id. All this means, however, is that a campus need not “make 3 all of its facilities equally available to students and nonstudents alike,” nor “grant free 4 access to all of its grounds or buildings.” Id. Given the traditional purpose of the 5 open, outdoor areas of universities, such as the “Mall” on Pierce’s campus, the Court 6 finds that these areas are traditional public fora, regardless of Pierce’s regulations 7 naming them non-public fora. Id.; Bowman, 444 F.3d at 979 (“College campuses 8 traditionally and historically serve as places specifically designated for the free 9 exchange of ideas.”). This does not eviscerate Defendants’ ability to regulate speech 10 in these areas with reasonable time, place, and manner restrictions, narrowly tailored 11 to serve their interests; it simply limits their ability to create content-based restrictions. 12 See OSU Student Alliance, 699 F.3d at 1062–63 (permitting content-based, viewpoint 13 neutral restrictions in non-public or limited fora). 14 In distinguishing the legal authority cited by Shaw and the United States, 15 Defendants argue that there should be some distinction between Pierce and “public 16 universities.” (Reply 8, ECF No. 35.) According to Defendants, because Pierce is a 17 community college, and not a “public university,” the cases finding that open areas are 18 traditional public fora are not applicable. (Id.) Simply because a community college 19 attracts students who are more likely to commute and less likely to live on campus, 20 does not mean that community college students should be precluded from expressing 21 themselves in traditionally free, open areas such as the Mall on Pierce’s campus. One 22 would hope that community colleges strive to provide a certain caliber of education, 23 with which also comes the opportunity to express oneself in the same manner as a 24 student at a “public university.” Accordingly, the Court does not find this argument 25 persuasive. 26 Defendants also criticize Shaw for ignoring Board Rule 9903 in his Complaint. 27 (Reply 2.) Board Rule 9903 provides: “The president of each college may designate 28 areas outside of the Free Speech Areas where students…may exercise freedom of 15 1 expression subject only to reasonable time, place and matter restrictions.” (Compl., 2 Ex. A, pg. 33.) This Rule shows that the District contemplated designating areas 3 outside of the Free Speech Area as public fora. The Rule allows the college president 4 to determine where to designate additional areas of expression, given the unique 5 considerations applicable to a specific campus layout, i.e. location of classrooms vis- 6 à-vis open spaces or thoroughfares. 7 designated, or at least provided authority to designate, certain areas of Pierce’s 8 campus outside of the Free Speech Area as public fora. Indeed, Shaw alleges that he 9 and others engaged in expressive activity outside of the Free Speech Area on other 10 occasions, despite the policies prohibiting such conduct. (Compl. ¶ 66.) These 11 actions, if proven true, could also nullify the policies declaring the entire campus a 12 non-public forum. 13 university must consistently apply policies designed to establish an area as a non- 14 public forum). In any event, the scrutiny the Court applies to regulations governing 15 public or designated fora is the same. Perry, 460 U.S. at 45–46. Thus, the Court must 16 evaluate the nature of Defendants’ policies. Id. This supports a finding that the District See OSU Student Alliance, 699 F.3d at 1063 (holding that 17 2. Significant interests and avenues of communication 18 The parties do not dispute that Defendants have a significant interest in 19 “avoiding disruption, insuring safety, comfort, or convenience of the public, and 20 maintaining grounds that are attractive and intact….” (Opp’n 16.) The question is 21 whether Defendants narrowly tailored their regulations, and whether students have 22 alternate avenues of communication. Perry, 460 U.S. at 45–46. 23 “The requirement of narrow tailoring means that a time, place or manner 24 restriction on First Amendment activity may not ‘burden substantially more speech 25 than is necessary to further the government’s legitimate interests.’” Grossman v. City 26 of Portland, 33 F.3d 1200, 1205 (9th Cir. 1994) (quoting Ward, 491 U.S. at 799). 27 Defendants argue their regulations are narrowly tailored because without designating 28 free speech areas, students “would be able to congregate on walkways outside of 16 1 doors and buildings, compete for use of college grounds, create safety and sanitation 2 issues, and impose even greater administrative burdens….” (Mot. 14.) However, 3 Defendants’ literally “narrow” free speech area, comprising 616 square feet on a 4 campus spanning hundreds of acres (Compl. ¶ 46), does not achieve Defendants’ 5 stated goals without unnecessarily impeding students’ First Amendment rights. See 6 Kuba v. 1-A Agric. Ass’n, 387 F.3d 850, 862 (9th Cir. 2004) (citations omitted) 7 (holding that a policy that “relegates communication activity to three small, fairly 8 peripheral areas, does not sufficiently match the stated interest of preventing 9 congestion and so is not narrowly tailored”). There are ample ways for Defendants to 10 achieve their stated goals without precluding so much protected speech: Defendants 11 could limit expression to areas away from classrooms or impose restrictions on the 12 time students are able to express themselves. Instead, Defendants preclude all speech 13 in substantial portions of the campus, such as the Mall, without any discernable 14 connection to their stated interests. 15 Defendants’ regulations are not narrowly tailored. Accordingly, Shaw sufficiently alleges that 16 Defendants must also leave open alternative channels of communication. 17 Perry, 460 U.S. at 45–46. Defendants argue that because the free speech area must be 18 in a place “where there is a normal flow of student traffic with unlimited accessibility” 19 (Compl. ¶ 36), students are provided “extensive access to their intended audience.” 20 (Mot. 15.) 21 centralized does not detract from the fact that Defendants ostensibly close all other 22 channels of communication outside of the Free Speech Area by designating it non- 23 public. (Compl. ¶ 35.) Defendants also argue that Pierce’s billboards permit students 24 sufficient alternate methods of expressing themselves. (Mot. 16.) Placing a pamphlet 25 on a billboard is a different medium of expression, and does not sufficiently permit 26 students alternative channels of expression. See Galvin v. Hay, 374 F.3d 739, 750 27 (9th Cir. 2004) (“The Court has recognized that location of speech, like other aspects 28 of presentation, can affect the meaning of communication and merit First Amendment Because the one place Pierce allows expressive activity to occur is 17 1 protection for that reason.”). Last, Defendants argue that Board Rule 91005, which 2 prevents the president of the college from approving rules that “would deny students 3 their free speech rights were they conducting such activities in Free Speech Areas,” 4 provides students another avenue of communication. (Mot. 16.) However, this Rule 5 is at odds with the Pierce policy, which does not provide any additional areas of 6 expression, and, thus does allow Shaw other ways to express himself. Accordingly, 7 Shaw adequately pleads this element, too, and the Court DENIES Defendants’ 8 Motion on these grounds. 9 3. Prior Restraint 10 The government may regulate expressive activity through reasonable permitting 11 requirements to ensure equal access, and to maintain order. See generally Forsyth 12 Cty., Ga., 505 U.S. at 129–30. 13 presumption” of invalidity. Id. at 130. Courts typically find permitting schemes 14 unconstitutional where they are “contingent upon the uncontrolled will of an 15 official—as by requiring a permit or license which may be granted or withheld in the 16 discretion of such official.” Shuttlesworth v. Birmingham, 394 U.S. 147, 151 (1969) 17 (quoting Staub v. City of Baxley, 355 U.S. 313, 322 (1958)). However, prior restraints come with a “heavy 18 As described above, Shaw alleges that Pierce requires students to complete a 19 permit application prior to using the Free Speech Area, and that the policy “does not 20 limit the discretion of…administrators responsible for its enforcement, to deny or 21 approve an application because of the content or viewpoint of the speaker’s intended 22 message.” 23 administrators who process forms for use of the [Free Speech Area] do not have any 24 discretion to deny a permit, other than on the grounds that the [Free Speech Area] has 25 already been reserved by another speaker or group at the time requested.” (Mot. 19 26 (emphasis in original).) Yet, Defendants cannot point to allegations in the Complaint, 27 or anywhere in the regulations themselves that substantiate this argument. To the 28 extent Pierce College actually has articulated standards for its administrators to follow (Compl. ¶¶ 48–52.) Defendants claim that “the Pierce College 18 1 in deciding whether to grant students use of the Free Speech Area, Shaw has alleged 2 otherwise (Compl. ¶¶ 48–52, 111, 122, 129), and the Court must take his allegations 3 as true. Lee, 250 F.3d at 688. Thus, to the extent Pierce’s policy does not provide 4 “narrow objective, and definite standards to guide the licensing authority,” it is invalid 5 on its face. Forsyth Cty., Ga, 505 U.S. at 131. 6 The permitting requirement also impermissibly restricts speech because it 7 applies to all speakers regardless of whether applicants intend to speak alone or as part 8 of a group. (See Compl., Ex. C.) Courts strike permitting requirements where they 9 indiscriminately apply regardless of the number of speakers. Grossman, 33 F.3d at 10 1206–07 (holding permitting ordinance overbroad where it swept in actions of single 11 protestors). 12 legitimately tied to the government’s interests. Where a large group of protestors may 13 disrupt class, or impede foot traffic, the likelihood that a single protestor would do the 14 same is low. Furthermore, there are other, less restrictive avenues for the government 15 to achieve its goals. Accordingly, Shaw states a claim under this theory, too. These types of regulations are impermissible because they are not 16 Finally, Shaw argues that having to identify himself during the permitting 17 process is improper because it interferes with his right to anonymity. (Compl. ¶¶ 48, 18 109; Opp’n 21.) “[T]he requirement that potential speakers identify themselves to the 19 government, and the concomitant loss of anonymity, is one of the primary evils the 20 Supreme Court cited when it struck down the permitting requirement in Watchtower 21 Bible.” Berger v. City of Seattle, 569 F.3d 1029, 1045 (9th Cir. 2009) (emphasis in 22 original) (citing Watchtower Bible & Tract Society v. Village of Stratton, 536 U.S. 23 150, 166–67 (2002)). Defendants argue that only administrators know of his identity, 24 and therefore he maintains his anonymity with respect to individuals who may happen 25 upon him while he is exercising his rights. (Mot. 20.) These facts are not contained 26 in the Complaint, and thus not before the Court on this Motion. Furthermore, in 27 addition to anonymity, the permitting process precludes spontaneous speech because 28 students must obtain a permit before speaking, even within the Free Speech Area. 19 1 (See Compl., Ex. C.) Spontaneous speech is protected by the First Amendment. See 2 Watchtower, 536 U.S. at 167. Accordingly, Shaw adequately pleaded the permitting 3 process constitutes an unlawful prior restraint. 4 C. Failure to State a Claim: Section 1983 Causation 5 Defendants also move to dismiss on the grounds that Shaw’s Second through 6 Fifth causes of action do not sufficiently allege that Defendants caused Shaw’s injury. 7 (See Mot. 8, 16–17.) Defendants also argue these points in attacking Shaw’s standing. 8 In an action under 28 U.S.C. § 1983, “[t]he requisite causal connection can be 9 established not only by some kind of direct personal participation in the deprivation, 10 but also by setting in motion a series of acts by others which the actor knows or 11 reasonably should know would cause others to inflict the constitutional injury.” 12 Johnson v. Duffy, 588 F.2d 740, 743–44 (9th Cir. 1978). A supervisor may also be 13 liable under section 1983 where the supervisor’s actions in implementing, 14 promulgating, or advancing policies proximately cause plaintiff’s harm. See OSU 15 Student Alliance, 699 F.3d at 1076–77; see also Starr v. Baca, 652 F.3d 1202, 1205– 16 06 (9th Cir. 2011). 17 18 19 20 Here, Shaw alleges facts establishing each individual defendant’s alleged role in violating his rights: Burke is the President of Pierce College, and is responsible for designating the Free Speech Area (Compl. ¶¶ 15, 36); 21 Dixon-Peters is Vice President of Student Services, and students are 22 required to consult him prior to distributing materials on campus to 23 obtain a permit (Id. at ¶ 16, Ex. C, pg. 36); 24 Marmolejo is Dean of Student Services, and was aware of Shaw’s search 25 for a copy of the free speech policy, and is responsible for 26 “policymaking, administration, and enforcement of the college’s policies 27 and procedures, including those that were applied to…Shaw” (Id. at 28 ¶¶ 17, 70–74); and 20 1 Astorga is Dean of Student Engagement and specifically told Shaw that 2 “[t]he use of the Speech area [was] under [his] purview.” (Id. at ¶¶ 17, 3 74, 79–80.) 4 Shaw also argues that because he seeks injunctive relief, he “need only identify 5 the law or policy challenged as a constitutional violation and name the official within 6 the entity who can appropriately respond to injunctive relief.” Hartmann v. Cal. Dep’t 7 of Corr. & Rehab., 707 F.3d 1114, 1127 (9th Cir. 2013) (citations omitted). He has 8 done so here. (Compl. ¶¶ 15–18.) Defendants do not respond to this argument. 9 Accordingly, the Court DENIES Defendants’ Motion on these grounds. 10 D. Eleventh Amendment 11 Defendants move to dismiss Shaw’s claims for monetary damages against the 12 individuals in their official capacities. (Mot. 3–4.) Shaw concedes that he may not 13 assert monetary claims against the individuals in their official capacities (Opp’n 9), 14 but maintains he may pursue damages against them in their individual capacities. 15 Hafer v. Melo, 502 U.S. 21, 30–31 (1991) (citing Ex parte Young, 209 U.S. 123, 238 16 (1908)) (“[T]he Eleventh Amendment does not erect a barrier against suits to impose 17 ‘individual and personal liability’ on state officials under § 1983.”). Accordingly, 18 while Shaw may not pursue monetary damages against the individuals in their official 19 capacities, he may do so to the extent his claims are against them in their individual 20 capacities. However, as described below, the Court finds Defendants are entitled to 21 qualified immunity, precluding a claim for monetary damages. 22 E. Qualified Immunity 23 Defendants next argue that the Pierce College Defendants are entitled to 24 qualified immunity to the extent they are sued in their individual capacities. (Mot. 25 22.) “Qualified immunity involves a two-step inquiry: (1) whether the [defendant’s] 26 conduct violated a constitutional right; and (2) whether that right was clearly 27 established when viewed in the context of this case.” Ctr. for Bio-Ethical Reform, Inc. 28 v. Los Angeles Cty. Sheriff Dep’t, 533 F.3d 780, 793 (9th Cir. 2008) (citing Ganwich 21 1 v. Knapp, 319 F.3d 1115, 1119 (9th Cir. 2003)). The Court addressed the alleged 2 violation of Shaw’s constitutional rights in the sections above, so the only remaining 3 issue is whether Shaw’s rights were “clearly established.” Id. While there need not 4 be “a case directly on point[,]…existing precedent must have placed the statutory of 5 constitutional question beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) 6 (citing Anderson v. Creighton, 483 U.S. 635, 640 (1987)). 7 Given the range of cases addressing the status of universities as public or non- 8 public fora, and the differing classifications attributed to different aspects of a 9 university’s campus, the Court cannot make that finding here. Furthermore, while not 10 determinative, as cited by Defendants, these regulations were litigated previously, 11 albeit in a different context, with different results. See Guengerich v. Baron, No. 10- 12 cv-01045-JHN-PLAx, 2011 WL 13116612, at *7 (C.D. Cal. May 5, 2011) (granting 13 summary judgment and finding community college district’s free speech policy did 14 not violate the First Amendment rights of non-students). Accordingly, the Court 15 GRANTS Defendants’ Motion inasmuch as it requests dismissal of Shaw’s claims for 16 monetary damages against the individual defendants, Burke, Marmolejo, Dixon- 17 Peters, and Astorga, in their individual capacities; Shaw’s claim for injunctive relief, 18 however, survives. See, e.g., Hydrick v. Hunter, 669 F.3d 937, 939–40 (9th Cir. 19 2012). 20 F. Motion for More Definite Statement 21 Defendants request a more definite statement, pursuant to Federal Rule of Civil 22 Procedure 12(e), in their Notice of Motion. (Not. of Mot. 2.) However, they do not 23 address this request in any detail in their papers. 24 statement pursuant to Rule 12(e) attacks the unintelligibility of the complaint, not 25 simply the mere lack of detail, and therefore, a court will deny the motion where the 26 complaint is specific enough to apprise the defendant of the substance of the claim 27 being asserted.” Beery v. Hitachi Home Elecs. (Am.), Inc., 157 F.R.D. 477, 480 (C.D. 28 Cal. 1993). Shaw adequately pleads his Complaint such that Defendants will be able 22 “A motion for more definite 1 to frame a responsive pleading, and therefore the Court DENIES Defendants’ Motion 2 on these grounds. Famolare, Inc. v. Edison Bros. Stores, 525 F. Supp. 940, 949 (E.D. 3 Cal. 1981) (“A motion for a more definite statement should not be granted unless the 4 defendant cannot frame a responsive pleading.”). V. 5 CONCLUSION 6 As set forth more fully above, the Court DENIES, in part, and GRANTS, in 7 part, Defendants’ Motion to Dismiss, and for a more definite statement. (ECF No. 8 22.) 9 IT IS SO ORDERED. 10 11 January 17, 2018 12 13 14 ____________________________________ OTIS D. WRIGHT, II UNITED STATES DISTRICT JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 23
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