OSU Student Alliance v. Ray
--- F.3d ----, 2012 WL 5200341
C.A.9 (Or.),2012.
October 23, 2012
OPINION
TASHIMA, Circuit Judge:
*1
The
complaint alleges that employees in Oregon State University's Facilities
Department gathered up the outdoor newsbins belonging to the
Liberty, a conservative student monthly, and threw them in a heap
by a dumpster in a storage yard. The employees acted pursuant to an
unwritten and previously unenforced policy governing newsbins on campus.
They did not notify anyone at the
Liberty before confiscating the newsbins. After the confiscation,
University officials denied the paper permission to replace the bins
anywhere but in two designated campus areas—limited areas to which the
University's traditional student paper, the
Daily Barometer, was not confined.
Plaintiffs, the
Liberty's student editors and student publishers, sue under 42 U.S.C. § 1983.
We have little trouble finding constitutional violations. The real
issue is whether the complaint properly ties the violations to the four
individual defendants, who are senior University officials. Plaintiffs
confront a familiar problem: they do not know the identities of the
employees who threw the newsbins into the trash heap, and they do not
know which University official devised the unwritten policy or which
official gave the order to confiscate the bins. Plaintiffs do know,
however, that three of the four defendants participated in the decision
to deny them permission to place bins outside of the designated areas
after the confiscation. We conclude that the complaint states claims
against those three defendants based on this post-confiscation decision.
We also hold that the complaint states a claim against one
defendant—the Director of Facilities Services—based on the confiscation
itself.
I
We accept as true the well-pleaded facts in the complaint.
Starr v. Baca, 652 F.3d 1202, 1220 (9th Cir.2011).
Plaintiff-appellant OSU Students Alliance is a registered student
organization at Oregon State University (“OSU” or the “University”). Its
members are all OSU students. OSU Students Alliance publishes the
Liberty, an independent student newspaper distributed to students on OSU's campus in Corvallis, Oregon. The
Liberty is a conservative student newspaper that styles itself as an alternative to the University's official student paper, the
Daily Barometer. The
Liberty is funded through private donations and advertising
revenue. OSU Students Alliance may apply for and receive student fees to
fund the
Liberty, but has chosen not to apply for those funds to maintain its independence. The
Daily Barometer is funded through student fees and advertising revenue.
In 2002, OSU Students Alliance began distributing the
Liberty on campus via newsbins. The OSU Facilities Services gave
OSU Students Alliance permission to place these bins around campus,
including in dining halls and the Memorial Union.
In
2005, OSU Students Alliance placed eight new bins around campus. OSU
Students Alliance placed the bins in the areas of campus with the
heaviest student traffic—near the bookstore, dorms, football stadium,
and other locations. Most of these locations already had the
Barometer bins, and OSU Students Alliance's goal was to place bins next to the
Barometer so that students would pick up a copy of both student
newspapers. After one bin was stolen, OSU Students Alliance used wire
bicycle chains to secure the remaining seven bins to nearby light or
sign poles. In total, the
Liberty had seven outdoor distribution bins.
*2
At the time of the complaint, the
Barometer had 24 distribution bins, which were located throughout campus. Off-campus newspapers, including the
Corvallis Gazette–Times, Eugene Weekly, and
USA Today also had distribution bins on campus. Each of these
newspapers had bins chained to fixtures such as light posts or building
columns.
During the 2008–09 winter term, all seven of the
Liberty's outdoor distribution bins disappeared from campus.FN1 The bins of the other papers, including the other off-campus papers, were left untouched. Because OSU had given the
Liberty permission to place its bins at specific locations throughout campus, and had not revoked that permission, the
Liberty's editors had no reason to suspect their bins had been
confiscated by the University. Thus, they called the police. Only
through the police investigation did they learn of the University's
involvement. After contacting the Facilities Department, the student
editors recovered the seven newsbins from the storage yard, where they
had been left “heaped on the ground.” One bin was cracked and others had
spilled open, resulting in the loss of 150 copies of the
Liberty to water damage. The wire bicycle locks that the editors used to secure the bins against theft had been cut.
The Facilities Department's customer service manager told plaintiff William Rogers, the
Liberty's executive editor, that the Department had removed the
bins because it was “catching up” on its enforcement of a 2006
University policy that prohibited newsbins in all but two designated
campus locations, one near the bookstore and another by the student
union. The customer service manager told Rogers that, going forward, the
Liberty could not place newsbins anywhere but in the designated areas.
Rogers complained by email to defendant Ed Ray, President of OSU, who responded that the events surrounding the
Liberty were “news to him.” Ray copied defendant Mark
McCambridge, Vice President of Finance and Administration, and defendant
Larry Roper, Vice Provost for Student Affairs, on the email and
indicated that these individuals would contact Rogers about the
incident. Several days later, defendant Vincent Martorello, the Director
of Facilities Services, called Rogers and explained, much like the
customer service manager had, that the University's newsbin policy
prohibited the
Liberty from placing bins anywhere but in the two designated
locations. Martorello said the purpose of the 2006 policy was to keep
the campus clean by regulating newsbins belonging to “off-campus”
publications. Martorello also said that the policy did not allow bins to
be chained to school property
Martorello's explanation perplexed Rogers. He did not consider the
Liberty an “off-campus” paper, because it was written and edited
entirely by OSU students and published by the OSU Student Alliance, a
Registered Student Organization (“RSO”).FN2 Also, OSU had not applied the policy against the
Daily Barometer, the traditional school paper, nor against the other off-campus newspapers such as the
Corvallis Gazette–Times, Eugene Weekly, and
USA Today, which continued to place their newsbins throughout the
campus, not just in the designated areas. The only apparent difference
between the two papers' connection to the OSU community was that the
Barometer supplemented its advertising revenue by accepting student fees from the University, whereas the
Liberty received private funding and advertising revenue but no student fees. FN3
*3
Rogers challenged the application of the policy against the
Liberty. He wrote Martorello a long email explaining that the
Liberty was a student paper and requesting permission to place newsbins outside of the designated areas, just as the
Barometer was allowed to do. Martorello initially agreed to assess the “potential of adding additional [
Liberty ] bins on campus. But two weeks later, Martorello tersely
denied Rogers' request: “The Liberty is not in the same situation as
the Barometer and will need to be located at the approved locations....”
In an earlier email to Rogers, Vice President McCambridge had explained the more onerous restrictions on the
Liberty, as opposed to the
Barometer, as follows: “As a newspaper that is not funded by
ASOSU [the Associated Students of OSU], we don't have the same
communications availability between your paper and the University ....“
McCambridge also said that OSU would work with Rogers on finding newsbin
locations for the
Liberty, but that those locations would “be agreed to within the
parameters that the University determines.” McCambridge left ultimate
resolution of the matter in Martorello's hands, writing that Martorello
would keep both him and President Ray informed about the progress of the
Liberty's request for better campus access.
After Martorello definitively denied the request, the
Liberty's editors asked him for a copy of the policy governing
newsbins. In response, they received an email from Charles Fletcher,
Esq., Associate General Counsel of OSU, who explained that the 2006
policy was unwritten:
There
is no specific written policy that governs the placement of publication
bins, and none is required. OSU's control over its grounds, buildings,
and facilities ... is plenary under ORS Chapters 351 and 352 ... subject
only to limited exceptions that do not apply here. I hope this helps.
Fletcher also suggested that the policy did not apply to the Barometer because it had been “the campus newspaper since 1896” and because it was funded by ASOSU. In another message, Fletcher explained:
The
mere fact that The Liberty has students on staff does not mean that it
is entitled to the same bin locations as the Daily Barometer. The Daily
Barometer was established over 100 years ago as the OSU student
newspaper. It's published by the OSU Student Media Committee on behalf
of ASOSU. The Liberty, on the other hand, is not published by OSU and
receives almost all of its funding from outside sources.
Arguing that the unwritten policy arbitrarily distinguished between the Liberty and the Barometer, the Liberty's editors drafted a proposed alternative policy under which both publications would receive equal campus access. The administration refused to consider the proposal. In a final email reaffirming the University's commitment to the policy, Fletcher wrote that he had “been in communication with President Ray and Vice President McCambridge” about plaintiffs' objections to the policy, but asserted that the policy was constitutional.
*4
Plaintiffs filed an action under 42 U.S.C. § 1983
alleging violations of their constitutional rights to free speech, due
process, and equal protection. They sought injunctive and declaratory
relief and damages. Soon thereafter, OSU adopted a written policy on
newspaper bins which, in contrast to its unwritten predecessor, does not
distinguish between “on-campus” and “off-campus” publications. Rather,
the written policy allows any person to obtain permission to place a
newsbin on campus by submitting a request form and complying with
certain physical requirements, such as that bins “shall be placed on a
level surface and kept in an upright position.”
In
light of the new policy, the district court dismissed as moot the
claims for injunctive and declaratory relief. As for the damages claims,
it held them deficient because the complaint did not allege that any of
the four defendants had participated in the confiscation of the
newsbins. The district court did not consider the allegations about the
aftermath of the confiscation, when the University continued to apply
the unwritten policy against the
Liberty. The court dismissed the damages claims for failure to
state a claim, and granted judgment for defendants without leave to
amend.
See
OSU Students Alliance v. Ray, 692 F.Supp.2d 1278 (D.Or.2010).
It also denied plaintiffs' post-judgment motion seeking leave to amend.
Plaintiffs appeal only the dismissal of the damages claims and the
denial of leave to amend.
II
[1] [2] [3] We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo the dismissal of a complaint for failure to state a claim.
Starr, 652 F.3d at 1205. To avoid dismissal under Federal Rule of Civil Procedure 12(b)(6), a plaintiff must “allege ‘sufficient factual matter ... to state a claim to relief that is plausible on its face.’ “
Pinnacle Armor, Inc. v. United States, 648 F.3d 708, 721 (9th Cir.2011) (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009));
see also
Starr, 652 F.3d at 1216 (“[T]he factual allegations that are
taken as true must plausibly suggest an entitlement to relief, such that
it is not unfair to require the opposing party to be subjected to the
expense of discovery and continued litigation.”). In reviewing a
dismissal under Rule 12(b)(6),
we accept the well-pleaded factual allegations of the complaint as true
and construe them in the light most favorable to plaintiffs.
Id.;
Daniels–Hall v. Nat'l Educ. Ass'n, 629 F.3d 992, 998 (9th Cir.2010).
III
[4] To state a claim under § 1983
against state officials in their individual capacities, a plaintiff
must plead that the officials, “acting under color of state law, caused
the deprivation of a federal right.”
Suever v. Connell, 579 F.3d 1047, 1060(9th Cir.2009) (quoting
Hafer v. Melo, 502 U.S. 21, 25, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991)).
No one disputes that the four defendants acted under color of state
law. Defendants argue that plaintiffs fail to plead the other two
elements: (1) the deprivation of a federal right; and (2) causation. We
begin our analysis with the first element. The complaint asserts
violations of three constitutional rights: free speech, equal
protection, and procedural due process.
A
*5
[5] [6] [7] The circulation of newspapers is expressive conduct protected by the First Amendment.
See
City of Lakewood v. Plain Dealer Publ'g Co., 486 U.S. 750, 760, 108 S.Ct. 2138, 100 L.Ed.2d 771 (1988);
Honolulu Weekly, Inc. v. Harris, 298 F.3d 1037, 1047 (9th Cir.2002)
(“[I]t is beyond dispute that the right to distribute newspapers is
protected under the First Amendment ....”) (citation omitted).
Therefore, if the government wishes to regulate the placement of
newsbins in a public forum, it must do so according to established,
content-neutral standards.
See
Plain Dealer, 486 U.S. at 760, 108 S.Ct. 2138. A city
ordinance violates the First Amendment if it allows the mayor to grant
or deny applications for newsbin permits without creating standards to
limit the mayor's discretion—beyond requiring that he “state the
reasons” for a denial—because the absence of established decision-making
criteria makes it “far too easy” for the mayor to practice censorship
by offering “
post hoc rationalizations” and “shifting or illegitimate” justifications.
Id. at 758, 108 S.Ct. 2138;
see
id. at 763, 108 S.Ct. 2138(“[The] danger [of content and
viewpoint censorship] is at its zenith when the determination of who may
speak and who may not is left to the unbridled discretion of a
government official.”);
see also
G.K. Ltd. Travel v. City of Lake Oswego, 436 F.3d 1064, 1082 (9th Cir.2006)
(“To avoid impermissible discretion, the challenged ordinance should
‘contain adequate standards to guide the official's decision and render
it subject to effective judicial review.’ ”) (quoting
Thomas v. Chi. Park Dist., 534 U.S. 316, 323, 122 S.Ct. 775, 151 L.Ed.2d 783 (2002)).
On the other hand, a city ordinance that seeks to reduce sidewalk
clutter by establishing a content-neutral lottery to award a limited
number of newsbin permits does not violate the First Amendment, because
the lottery establishes a clear basis for distinguishing between permit
applicants.
See
Honolulu Weekly, 298 F.3d at 1044.
1
To
decide whether the complaint adequately pleads a First Amendment
violation under these principles, we must first determine the nature of
the relevant forum—namely, the OSU campus.
Ariz. Life Coal. Inc. v. Stanton, 515 F.3d 956, 968 (9th Cir.2008)
(“The first step in assessing a First Amendment claim relating to
private speech on government property is to identify the nature of the
forum, because the extent to which the Government may limit access
depends on whether the forum is public or nonpublic.”) (internal
quotation marks omitted). “Forum analysis has traditionally divided
government property into three categories: public fora, designated
public fora, and nonpublic fora.”
Flint v. Dennison, 488 F.3d 816, 830 (9th Cir.2007) (internal
quotation marks omitted). The traditional public forum is a place
“which by long tradition ... ha[s] been devoted to assembly and debate.”
Id. (internal quotation marks omitted). The designated public
forum “exists when the government intentionally dedicates its property
to expressive conduct.”
Id. (internal quotation marks omitted). The non-public forum
is “any public property that is not by tradition or designation a forum
for public communication.”
Id. (internal quotation marks omitted).
*6
There is also a fourth category, the limited public forum, which is a partially designated public forum:
The
government is not left with only the two options of maintaining a
non-public forum or creating a designated public forum; if the
government chooses to open a non-public forum, the First Amendment
allows the government to open the non-public forum for limited purposes.
The limited public forum is a sub-category of a designated public forum
that refers to a type of nonpublic forum that the government has
intentionally opened to certain groups or to certain topics.
Id. at 830–31 (internal quotation marks omitted).
[8] In traditional and designated public fora, content-based restrictions on speech draw strict scrutiny.
Id. at 830. But in a limited public forum, speech
restrictions are constitutional so long as they: (1) comport with the
definition of the forum (for example, the government cannot exclude
election speech from a forum that it has opened specifically for
election speech); (2) are reasonable in light of the purpose of the
forum; and (3) do not discriminate by viewpoint.
Id. at 831.
OSU's campus is at least a designated public forum. Section 576–005–0015(1) of the Oregon Administrative Rules,
which governs public areas at OSU, states that “University grounds are
open to the public and the University community for speech activities
except any grounds designated for authorized access only.” Through this
rule, the state has “intentionally dedicate[d] [campus] property to
expressive conduct,” thereby creating a designated public forum.
Flint, 488 F.3d at 830 (internal quotation marks omitted);
see
Hays Cnty. Guardian v. Supple, 969 F.2d 111, 116–17 (5th Cir.1992)
(holding that public university campus was a designated public forum
because a university rule opened the campus to speech activities).FN4
[9] [10]
Defendants argue that OSU's adoption of the unwritten newsbin policy
converted the campus from a designated public forum into a limited
public forum that excluded noncompliant newsbins from the scope of
permissible speech activities. This reasoning is circular: the
contention is that the policy placed a limitation on the forum, and that
the limitation on the forum in turn justified the policy. If speech
restrictions in a designated public forum automatically constituted
limitations on the scope of the forum itself, then the concept of the
“designated public forum” would merge entirely with that of the limited
public forum: in either type of forum, the government would be able to
exclude speech subject only to the limitations of reasonableness and
viewpoint neutrality. To destroy the designation of a public forum, the
government must do more. It must consistently apply a policy
specifically designed to maintain a forum as non-public.
See
Hopper v. City of Pasco, 241 F.3d 1067, 1075–76 (9th Cir.2001).
“[A] general policy of open access does not vanish when the government
adopts a specific restriction on speech, because the government's policy
is indicated by its
consistent practice, not each exceptional regulation that departs from the consistent practice.”
Hays Cnty. Guardian, 969 F.2d at 117–18. Accepting as true
the allegations in the complaint, OSU's newsbin policy was unwritten
and, prior to its application against the
Liberty, entirely unenforced. Therefore, the policy did not
establish a consistent practice aimed at partially closing the campus to
speech activities and, accordingly, did not vitiate the codified
designation of OSU's campus as a public forum.
2
*7
Having concluded that the OSU campus is a public forum, we now consider whether enforcement of the unwritten policy against the
Liberty violated the rule of
Plain Dealer: restrictions on newspaper circulation in public
fora are unconstitutional unless enforced according to established,
content-neutral standards. Plaintiffs expressly decline to argue that
the unwritten nature of OSU's policy alone demonstrates an
unconstitutional lack of standards. They cite no law on this issue, but
their concession is probably correct. If OSU had announced and
consistently applied a straightforward but unwritten rule about
newsbins—for example, that newsbins could not be chained to
lampposts—the University's failure to codify the rule might not be
fatal.
See
Thomas, 534 U.S. at 322–23, 122 S.Ct. 775 (approving of licensing standards that are “limited by [their] terms,
or by nondiscriminatory practice, to [content-neutral] considerations ....”) (emphasis added) (internal quotation marks omitted).
[11]
The policy that OSU enforced against plaintiffs, however, was not
merely unwritten. It was also unannounced and had no history of
enforcement. It materialized like a bolt out of the blue to smite the
Liberty's, but not the
Daily Barometer's, newsbins onto the trash heap. The policy
created no standards to cabin discretion through content or history of
enforcement, and it set no fixed standard for a distinction between the
Barometer and the
Liberty. The policy's enforcement against plaintiffs therefore violated the First Amendment.
See
Plain Dealer, 486 U.S. at 769, 108 S.Ct. 2138.
Of
course, after the initial confiscation, while plaintiffs sought
permission to replace their newsbins throughout campus, defendants did
try to explain the line they drew between the two student newspapers.
Fletcher, the Associate General Counsel, emphasized the
Barometer's status as OSU's traditional, flagship paper: “The
Daily Barometer was established over 100 years ago as the OSU student
newspaper. It's published by the OSU Student Media Committee .... “
Martorello and McCambridge invoked the concept of “off-campus” versus
“on-campus” publications and reasoned that the
Liberty was off-campus because it received outside funding, which, in turn, somehow impeded communication with the University.
These
explanations have clear constitutional flaws. Fletcher's explanation
raises the ominous specter of viewpoint discrimination.
See
Giebel v. Sylvester, 244 F.3d 1182, 1188 (9th Cir.2001)(“
‘[V]iewpoint discrimination’ occurs when the government prohibits
‘speech by particular speakers,’ thereby suppressing a particular view
about a subject.”) (quoting
Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 59, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983));
see also
Hays Cnty. Guardian, 969 F.2d at 121 (holding that a
university could not favor its official student paper over competing
papers). And both explanations invoke criteria—established versus
unestablished publications; on-campus versus off-campus funding—that
bear no relationship to the University's purported interests in reducing
clutter and maintaining the aesthetic beauty of campus.
See
City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 424–25, 113 S.Ct. 1505, 123 L.Ed.2d 99 (1993)
(holding that a city ban of only commercial newsracks was not narrowly
tailored, and was therefore unconstitutional, because “the distinction
[between commercial and noncommercial racks] [bore] no relationship
whatsoever to the particular interests [in aesthetics] that the city [ ] asserted”).
*8
The
explanations' most obvious flaw, however, and the flaw that guides our
decision here, is their timing. Because defendants offered the
explanations only after the confiscation, in an effort to justify the
University's application of an unannounced and unenforced policy, the
explanations cannot be distinguished from
post hoc rationalizations.
See
Plain Dealer, 486 U.S. at 760, 108 S.Ct. 2138. Maybe the
unwritten policy sought from its inception to differentiate papers based
on their sources of funding, or maybe OSU officials seized upon this
criterion after the
Liberty published something that infuriated them. The “policy's”
lack of established standards muddles the provenance of defendants'
explanations in a manner that is unconstitutional under
Plain Dealer. The fact that the “policy” was not written or
otherwise established by practice meant there were no standards by which
the officials could be limited. It left them with unbridled discretion.FN5
In recent years, courts have limited the rule against just such unbridled discretion. In
Thomas, which concerned a permitting ordinance for events in a
public park, the Supreme Court rejected the contention that the
ordinance's thirteen enumerated grounds for denial of a permit were
“insufficiently precise because they [we]re described as grounds on
which the Park District ‘may’ deny a permit, rather than grounds on
which it must do so.” 534 U.S. at 324, 122 S.Ct. 775.FN6
Similarly, we have determined that a permitting scheme is not
unconstitutional simply because it contains “somewhat elastic”
provisions that allow “reasonable discretion to be exercised by the
permitting authority.”
Desert Outdoor Adver. v. Oakland, 506 F.3d 798, 807 (9th Cir.2007)
(internal quotation marks omitted). So long as the ordinance contains
standards that are “significantly ... concrete,” it does not confer
unconstitutionally broad discretion.
Id.
Those holdings, however, do not aid defendants. Although courts have qualified
Plain Dealer and earlier unbridled discretion cases by
finding that a certain degree of flexibility in a permitting scheme does
not make it unconstitutional, no court has held that a standardless
policy passes muster. OSU's unwritten policy provided that newsbins of
all newspapers were limited to two locations, except for the
Barometer's newsbins, which could be placed anywhere on campus. But even that policy was not enforced evenly. Only the newsbins of the
Liberty were removed, not the newsbins of other papers the University did not control, such as the
Corvallis Gazette–Times, Eugene Weekly, and
USA Today. Thus, we conclude that this “standard” that the University voiced after the
Liberty filed suit was really no standard at all. Its application to the
Liberty's newbins therefore violated the First Amendment.
See
Thomas, 534 U.S. at 323, 122 S.Ct. 775(“[A] time, place, and
manner regulation [must] contain adequate standards to guide the
official's decision and render it subject to effective judicial
review.”).FN7
*9
Defendants do not cite
Plain Dealer or make any argument about the policy's lack of
standards. Instead, they defend the policy as a valid time, place,
manner restriction. But a speech restriction cannot satisfy the time,
place, manner test if the restriction does not contain clear standards.
To identify just one problem, the time, place, and manner test requires
content neutrality.
Klein v. City of San Clemente, 584 F.3d 1196, 1200–01 (9th Cir.2009) (quoting
Kuba v. 1–A Agric. Ass'n, 387 F.3d 850, 856 (9th Cir.2004)
(time, place, and manner restrictions “must be content-neutral, be
narrowly tailored to serve an important government interest, and leave
open ample alternative channels for the communication of the message”)).
One cannot tell if OSU's unwritten policy was content-neutral, because
the policy did not disclose the basis on which it distinguished between
publications. As
Plain Dealer explains:
[T]he
absence of express standards makes it difficult to distinguish, “as
applied,” between a licensor's legitimate denial of a permit and its
illegitimate abuse of censorial power. Standards provide the guideposts
that check the licensor and allow courts quickly and easily to determine
whether the licensor is discriminating against disfavored speech.
486 U.S. at 758, 108 S.Ct. 2138. OSU's standardless policy cannot qualify as a valid time, place, and manner restriction. Id.; see also Thomas, 534 U.S. at 323, 122 S.Ct. 775; Kaahumanu v. Hawaii, 682 F.3d 789, 805–07 (9th Cir.2012).
[12] Plaintiffs also correctly pleaded that the University applied its “policy” to discriminate against the
Liberty because of its viewpoint. That the University did not
apply its “policy” as articulated by attorney Fletcher equally across
all the newspapers with bins on campus adequately alleges that the
policy was really just an ad hoc attempt to rationalize viewpoint
discrimination—and a poor one at that.FN8
Once one applies reasonable construction principles to the complaint's
allegations which incorporate Fletcher's explanation, and translates the
Orwellian euphemism of better “communications” based on University
funding, the words mean the University has control over the
Barometer through its funding, control which it doesn't have over
Liberty and that is the reason for the application of its news bin “policy” to limit
Liberty's access to the student body. The complaint alleges that
OSU officials removed and restricted the newsbins because the officials
disliked the
Liberty's viewpoints. In other words, leaving the policy's
defects aside, plaintiffs assert that OSU violated the First Amendment
by enforcing the policy in a viewpoint-discriminatory fashion.
See
Thomas, 534 U.S. at 325, 122 S.Ct. 775 (noting that even if
an ordinance is facially valid, it violates the constitution if applied
in a content- or viewpoint-discriminatory fashion);
Moss v. U.S. Secret Serv., 572 F.3d 962, 970 (9th Cir.2009). Under this theory, the complaint plausibly alleges that OSU officials applied the policy to quash the
Liberty's viewpoint, rather than on the basis of some
unarticulated, content- and viewpoint-neutral criterion. Hence, the
allegations of the complaint sufficiently state a non-neutral viewpoint
restriction to speech in a designated public forum.
*10
Thus,
the complaint adequately pleads a First Amendment violation on two
grounds by applying a standardless policy to draw a distinction between
the
Liberty and the
Barometer and by engaging in viewpoint discrimination.
B
Plaintiffs
press equal protection claims on the theory that the University treated
them differently than similarly situated persons by restricting the
Liberty's newsbins but not the newsbins of other publications.
The
equal protection claims rise and fall with the First Amendment claims.
Plaintiffs do not allege membership in a protected class or contend that
the University's conduct burdened any fundamental right other than
their speech rights. Therefore, the University's differential treatment
of plaintiffs will draw strict scrutiny (as opposed to rational basis
review) under the Equal Protection Clause only if it impinged
plaintiffs' First Amendment rights.
See
ACLU of Nev. v. City of Las Vegas, 466 F.3d 784, 797–98 (9th Cir.2006);
Monterey Cnty. Democratic Cent. Comm. v. U.S. Postal Serv., 812 F.2d 1194, 1200 (9th Cir.1987)
(noting, with regard to “equal protection claims relating to expressive
conduct,” that “[o]nly when rights of access associated with a public
forum are improperly limited may we conclude that a fundamental right is
impinged”).
[13]
As we have already explained, the complaint properly alleges that the
University infringed plaintiffs' speech rights by employing a
standardless policy to draw a distinction between the
Liberty and the
Barometer and by engaging in viewpoint discrimination. Therefore,
the complaint also states equal protection claims for differential
treatment that trenched upon a fundamental right.
See
ACLU of Nev., 466 F.3d at 798.
Defendants
argue that the equal protection claims' dependence on the First
Amendment claims requires dismissal of the equal protection claims.
There is no authority for this proposition. At least twice, the Supreme
Court has analyzed speech-based equal protection claims that were
coupled with First Amendment claims without suggesting that the claims'
common analytical predicate foreclosed one claim or the other.
See
Perry, 460 U.S. at 54, 103 S.Ct. 948;
Police Dep't of Chi. v. Mosley, 408 U.S. 92, 94–95, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972);
see also
Hill v. Colorado, 530 U.S. 703, 709, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000). Although the Court has noted that one analysis will often control both claims,
see
Perry, 460 U.S. at 54, 103 S.Ct. 948, it has never invoked
the concept of duplicity or redundance to find preclusion of a
speech-based equal protection claim. Defendants rely on a footnote in a
Ninth Circuit decision which, after noting that the plaintiff had “made
only passing reference to [his speech-based] Equal Protection [theory]
in his Complaint and dedicated to it only one sentence in his opening
brief on appeal,” quoted a treatise for the proposition that “[i]t is
generally unnecessary to analyze laws which burden the exercise of First
Amendment rights ... under the equal protection guarantee.”
Orin v. Barclay, 272 F.3d 1207, 1213 n. 3 (9th Cir.2001).
This footnote recognizes that the two types of claims share a common
analytical foundation, but it stops well short of barring a plaintiff
from bringing a § 1983 claim for violation of a constitutional right simply because that violation mirrors the violation of a different right.
C
Plaintiffs contend that the University violated their due process rights by confiscating the newsbins without notice.
[14] Due process generally requires that the government give notice before seizing property.
Clement v. City of Glendale, 518 F.3d 1090, 1093 (9th Cir.2008)
(“[T]he government may not take property like a thief in the night;
rather, it must announce its intentions and give the property owner a
chance to argue against the taking.”). This general rule has exceptions.
“The government need not give notice in an emergency, nor if notice
would defeat the entire point of the seizure, nor when the interest at
stake is small relative to the burden that giving notice would impose.”
Id. at 1093–94. Defendants invoke the final exception.
The
Clement plaintiff had parked her car in the lot of the hotel
where she resided, in violation of the car's “non-operational”
registration, which barred the vehicle from accessible parking lots.
Id. at 1092. Rather than issue her a ticket or notify her of the violation, the defendant police officer had the car towed.
Id. The court found a due process violation because giving
notice would not have imposed a burden on the officer. The car was
parked in the lot with the hotel's permission, not in “the path of
traffic,” and the officer easily could have provided notice by leaving a
ticket or informing the hotel clerk that plaintiff had to move the car.
Id. at 1094–95. The court also noted that even though the
vehicle was non-operational, the plaintiff had an appreciable interest
in receiving notice before the tow.
Id. at 1094(“[T]he [typical car] owner suffers some anxiety
when he discovers that [his] vehicle has mysteriously disappeared from
its parking spot .... [Also,] the owner will normally have to travel to
the towing garage ... which may involve significant cost ....”).
[15] The complaint adequately pleads a due process violation under
Clement. If the allegations are true, then OSU confiscated
property without notice even though providing notice would have imposed,
at most, only a minimal burden on OSU. After adopting the unwritten
newsbin policy in 2006, the University waited more than two years to
enforce it against the
Liberty. Clearly there was no urgency and no reason to junk the
bins instead of directing plaintiffs to remove them. Moreover, contact
information for the paper's editorial board appeared inside the first
page of every copy of the
Liberty. Providing notice would have been as simple as flipping a
page and making a phone call or sending an email. The Facilities
Department's decision to forego this procedure in favor of summarily
confiscating the newsbins—more like a “thief in the night” than a
“conscientious public servant”—violated due process.
Id. at 1093, 1095.
Defendants seek to distinguish
Clement on the ground that plaintiffs here had only a small
interest in receiving notice before the confiscation. Whereas the car
owner in
Clement was presumed to have suffered inconvenience, cost,
and anxiety in locating and recovering her car after the tow, the
argument goes, plaintiffs recovered their newsbins “with little effort
or cost.” Problematically, this argument ignores the “burden” prong of
the
Clement analysis: even if it were true that plaintiffs'
interest in avoiding confiscation of the newsbins was small in some
absolute sense, that interest certainly was not small “relative to the
burden that giving notice would [have] impose[d],” because giving notice
would not have imposed any burden at all.
Id. at 1093–94. Moreover, the argument that plaintiffs
weathered the confiscation with “little effort or cost” contravenes the
factual allegations. Like the plaintiff in
Clement, plaintiffs had no idea what had happened to their
newsbins after the confiscation; they had to call the police just to
learn of OSU's involvement. And once plaintiffs located the bins in a
heap by the dumpster, they had to clean them of mud and debris and then
load and transport them out of the storage yard “over several trips.”
They lost 150 copies of the paper due to water damage. They had to
arrange for the Facilities Department to repair one damaged bin. Because
the Facilities Department took all seven of the
Liberty's outdoor newsbins, the confiscation likely hobbled the
paper's circulation for a period. Plaintiffs had as much interest in
avoiding this ordeal as the
Clement plaintiff had in avoiding the tow of her non-operational vehicle, which she could not use for transportation in any event.
See
id. at 1094.
IV
More
difficult is the question of individual causation—whether the complaint
ties the constitutional violations to the individual defendants.
[16] [17] [18] Section 1983 suits, like
Bivens suits, do not support vicarious liability.FN9 “[E]ach government official, his or her title notwithstanding, is only liable for his or her own misconduct.”
Iqbal, 129 S.Ct. at 1949. The Attorney General's senior
position does not by itself make him liable for racial and religious
discrimination perpetrated by subordinates; rather, he must have engaged
in culpable action or inaction himself.
Id. at 1948. To state a valid § 1983
claim, “a plaintiff must plead that each government-official defendant,
through the official's own individual actions, had violated the
Constitution.”
Id.
A. First Amendment and Equal Protection Claims Against Martorello
[19] Some of plaintiffs' claims raise thorny questions under
Iqbal, but the First Amendment and equal protection claims
against Martorello, the Director of Facilities Services, are more
straightforward. The complaint straightforwardly ties Martorello to
violations of both constitutional provisions. After unknown Facilities
Department employees threw the newsbins into the trash heap, the
Liberty's editors pleaded with Martorello for permission to replace the bins in locations beyond the “designated areas.” The
Liberty is an on-campus paper just like the
Barometer, they said, and should enjoy the same access to campus.
Martorello rejected these pleas directly. He told the editors that
“[t]he Liberty is not in the same situation as the Barometer and [its
bins] will need to be located at the approved locations by the Memorial
Union.” In other words, relying on a standardless and unwritten policy,
Martorello denied plaintiffs permission to place their newsbins in
locations where the
Barometer was permitted to place its bins. He did so directly,
not through subordinates, and therefore violated the First Amendment
under
Plain Dealer through his “own individual actions.”
Iqbal, 129 S.Ct. at 1948. For the same reasons, he violated equal protection by discriminating against the
Liberty in a way that impinged plaintiffs' speech rights.
See
ACLU of Nev., 466 F.3d at 797–98.
[20] As we shall see,
Iqbal emphasizes that a constitutional tort plaintiff must
allege that every government defendant—supervisor or subordinate—acted
with the state of mind required by the underlying constitutional
provision. 129 S.Ct. at 1948–49.
Invidious discrimination claims require specific intent; accordingly,
to state invidious discrimination claims against the Attorney General,
Javaid Iqbal had to allege that the Attorney General acted with the
purpose of discriminating by race, religion, or national origin.
Id. The First and Fourteenth Amendment free speech claims
against Martorello, however, do not implicate this requirement, because
the allegations show specific intent. After deliberating over
plaintiffs' request, Martorello purposefully denied them the same campus
access that the
Barometer enjoyed. Even if free speech claims require specific
intent (which they do not, as we conclude below), the complaint states
claims against Martorello.
*13
The district court erred by considering only Martorello's involvement
vel non in the confiscation of the bins, without considering his
personal participation in continuing to enforce the unconstitutional
policy against the
Liberty after the confiscation. The court dismissed the claims
against Martorello (and the other defendants) because it found that
“plaintiffs do not allege that any individual defendants were involved
in the bin removal process.” This analysis is incomplete. Whether or not
the complaint plausibly alleges that Martorello had a hand in the
confiscation, it states valid § 1983
claims for First Amendment and equal protection violations because it
pleads that he personally applied the policy against plaintiffs after
the confiscation.
B. First Amendment and Equal Protection Claims Against Ray and McCambridge
The
claims against President Ray and Vice President McCambridge require
closer examination. According to the complaint, neither defendant
actually made the decision to deny plaintiffs permission to place their
newsbins throughout campus; Martorello did that. Both Ray and
McCambridge, however, oversaw Martorello's decision-making process and
knowingly acquiesced in his ultimate decision. Multiple emails excerpted
in the complaint (one by McCambridge himself) FN10 state that Martorello and Fletcher kept the President and Vice President informed about the status of the
Liberty controversy—both before and after Martorello definitively decided that the unwritten policy required that the
Liberty newsbins remain confined to the designated areas.
According to the complaint, then, Ray and McCambridge knew that their
subordinate, Martorello, was applying the previously unannounced and
unenforced policy against the
Liberty, but not against any of the other off-campus newspaper,
and they did nothing to stop him. The question is whether allegations of
supervisory knowledge and acquiescence suffice to state claims for
speech-based First Amendment and equal protection violations.
[21]
Iqbal does not answer this question. That case holds that a
plaintiff does not state invidious racial discrimination claims against
supervisory defendants by pleading that the supervisors knowingly
acquiesced in discrimination perpetrated by subordinates, but this
holding was based on the elements of invidious discrimination in
particular, not on some blanket requirement that applies equally to all
constitutional tort claims.
Iqbal makes crystal clear that constitutional tort claims
against supervisory defendants turn on the requirements of the
particular claim—and, more specifically, on the state of mind required
by the particular claim—not on a generally applicable concept of
supervisory liability. “The factors necessary to establish a
Bivens violation will vary with the constitutional provision at issue.” 129 S.Ct. at 1948.
Allegations that the Attorney General (Ashcroft) and the director of
the FBI (Mueller) knowingly acquiesced in their subordinates'
discrimination did not suffice to state invidious racial discrimination
claims against them, because such claims require specific
intent—something that knowing acquiescence does not establish.
Id. at 1949;
see
Starr, 652 F.3d at 1207 (“Holding [ ] Ashcroft and [ ]
Mueller personally liable for unconstitutional discrimination if they
did not themselves have a discriminatory purpose would be equivalent to
finding them vicariously liable for their subordinates' violation
....”). On the other hand, because Eighth Amendment claims for cruel and
unusual punishment generally require only deliberate indifference (not
specific intent), a Sheriff is liable for prisoner abuse perpetrated by
his subordinates if he knowingly turns a blind eye to the abuse.
See
id. at 1205. The Sheriff need not act with the purpose that the prisoner be abused.
See
id. at 1206–07(“A showing that a supervisor acted, or failed
to act, in a manner that was deliberately indifferent to an inmate's
Eighth Amendment rights is sufficient to demonstrate the involvement—and
the liability—of that supervisor.”). Put simply, constitutional tort
liability after
Iqbal depends primarily on the requisite mental state for the violation alleged.
*14
[22] Section 1983
“contains no state-of-mind requirement independent of that necessary to
state a violation of the underlying constitutional right;” therefore,
the requisite mental state for individual liability will change with the
constitutional provision at issue.FN11
Daniels v. Williams, 474 U.S. 327, 330, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986).
Here,
where President Ray and Vice President McCambridge are alleged to have
knowingly acquiesced in their subordinate Martorello's violation of
plaintiffs' free speech rights under the First and Fourteenth
Amendments, we must decide whether knowledge (as opposed to purpose)
satisfies the mental state requirement for free speech violations.FN12
If
the inquiry sounds misplaced—if it strikes one as wrongheaded to speak
of free speech violations and mental state requirements in the same
breath—it is because the law has had scant occasion to address it. With
some notable exceptions, courts before
Iqbal generally did not have to determine the required mental
state for constitutional violations, particularly not free speech
violations. A uniform mental state requirement applied to supervisors:
so long as they acted with deliberate indifference, they were liable,
regardless of the specific constitutional right at issue.
See
Preschooler II v. Clark Cnty. Sch. Bd. of Trs. 479 F.3d 1175, 1182 (9th Cir.2007)
(“[A] supervisor is liable for the acts of his subordinates if the
supervisor ... knew of the violations of subordinates and failed to act
to prevent them.”) (internal quotations and alterations omitted);
see also Kit Kinports,
Iqbal and Supervisory Immunity, 114 Penn St. L.Rev. 1291, 1294–95 (2010) (noting that before
Iqbal, the circuits had adopted generally-applicable mental state standards for § 1983 supervisory liability).FN13
As for the subordinate officials who violate constitutional rights
directly—the officer who shoots the suspect, the Facilities Department
employee who junks the newsbins—they act intentionally in most cases.
Perhaps they do not always know that their actions are unconstitutional
(hence, the qualified immunity defense), but they do intend to take the
violative action. Thus, before
Iqbal, fixing the mental state requirement for a particular
constitutional provision was most often unnecessary. The line officers
generally satisfied every mental state because they acted intentionally,
and supervisors were subject to a uniform mental state requirement
divorced from the underlying claim.FN14 By abrogating the second half of this framework, however,
Iqbal places new weight on the state of mind requirement for
constitutional torts. Now claims against supervisors present problems
that claims against subordinates typically do not: must the supervisor
have harbored the specific intent to subject the plaintiff to the
injury-causing act, or does knowledge or some lesser mental state
suffice? FN15
For two reasons, we conclude that knowledge suffices for free speech violations under the First and Fourteenth Amendments.FN16 First, it is black-letter law that government need not target speech in order to violate the Free Speech Clause.
United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968), sets forth a framework for analyzing the constitutionality of laws that inhibit expressive conduct without aiming to do so:
*15
[A]
government regulation [of expressive conduct] is sufficiently justified
if it is within the constitutional power of the Government; if it
furthers an important or substantial governmental interest; if the
governmental interest is unrelated to the suppression of free
expression; and if the incidental restriction on alleged First Amendment
freedoms is no greater than is essential to the furtherance of that
interest.
Id. at 377, 88 S.Ct. 1673.FN17 The requirement that the governmental interest be “unrelated to the suppression of free expression” is but one prong in O'Brien's four-pronged test. Even if a law has purely speech-neutral purposes—such as, for example, preservation of the orderly functioning of the draft system—its incidental effects on free expression still might violate the First Amendment if those effects are “greater than is essential” to further the speech-neutral interest. Id.; see also Clark v. Cmty. for Creative Non–Violence, 468 U.S. 288, 298, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984) (applying intermediate scrutiny under the First Amendment to regulation prohibiting camping on national parks in Washington, D.C.). In other words, the government may violate the speech clause even if it acts without the purpose of curtailing speech. Free speech claims do not require specific intent.
Second,
only in limited situations has the Supreme Court found constitutional
torts to require specific intent. We know of three examples: (1) due
process claims for injuries caused by a high-speed chase,
Cnty. of Sacramento v. Lewis, 523 U.S. 833, 836, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998); (2) Eighth Amendment claims for injuries suffered during the response to a prison disturbance,
Whitley v. Albers, 475 U.S. 312, 320–21, 106 S.Ct. 1078, 89 L.Ed.2d 251 (1986); and (3) invidious discrimination under the Equal Protection Clause and the First Amendment Free Exercise Clause.
Iqbal, 129 S.Ct. at 1948. As for the first two examples, they
turn on exigent circumstances not present in the free speech context.
Because prison riots and high-speed chases do not afford officers time
for “actual deliberation” before determining how best to carry out their
official responsibilities, deliberate indifference does not suffice for
liability in those contexts—the plaintiff must show intent.
Lewis, 523 U.S. at 851, 852–53, 118 S.Ct. 1708(“As the very
term ‘deliberate indifference’ implies, the standard is sensibly
employed only when actual deliberation is practical....”). The reasoning
does not apply to officials who embark on a course of conduct that
curtails speech, because such officials—like Ray and McCambridge, for
example—do not face similar exigencies.
See
Moreland v. Las Vegas Metro. Police Dep't, 159 F.3d 365, 373 (9th Cir.1998)
(“[T]he critical question in determining the appropriate standard of
culpability is whether the circumstances allowed the state actors time
to fully consider the potential consequences of their conduct.”).
As
for invidious discrimination claims, the substance of the
constitutional right to which the claims correspond—the right not to be
singled out
because of some protected characteristic, like race or religion—calls for a specific intent requirement.
See
Washington v. Davis, 426 U.S. at 239, 96 S.Ct. 2040 (“The
central purpose of the Equal Protection Clause of the Fourteenth
Amendment is the prevention of official conduct discriminating on the
basis of race.”). But the First Amendment Speech Clause is more
absolute: a limitation on speech may be unconstitutional even if it
follows from a law that, like many time, place, and manner restrictions,
applies neutrally to expressive and non-expressive conduct alike.
See, e.g.,
Long Beach Area Peace Network v. City of Long Beach, 574 F.3d 1011, 1035 (9th Cir.2009)
(striking down as not narrowly tailored a parks regulation that
required permits for activities “likely to require the provision of city
services”). Thus, while a specific intent requirement inheres in claims
for invidious discrimination, the same requirement does not inhere in
claims for free speech violations.
*16
[23] [24]
For these two reasons—because Supreme Court case law indicates that
free speech violations do not require specific intent, and because the
rationales that have led the Court to read specific intent requirements
into certain other constitutional tort claims do not apply in the free
speech context—we conclude that allegations of facts that demonstrate an
immediate supervisor knew about the subordinate violating another's
federal constitutional right to free speech, and acquiescence in that
violation, suffice to state free speech violations under the First and
Fourteenth Amendments. The complaint alleges that Ray and McCambridge
knowingly acquiesced in Martorello's decision to continue restricting
the
Liberty's circulation under the standardless, unwritten newsbin
policy. They stood superior to Martorello; they knew that Martorello
denied plaintiffs' publication the same access to the campus that the
Barometer received; and they did nothing. The complaint therefore
states First Amendment and Equal Protection claims against Ray and
McCambridge.FN18
C. Process Claims
Unlike
the free speech violation, the procedural due process violation based
on the University's failure to notify the owner of the newsbins prior to
taking them did not endure beyond the confiscation of the newsbins. The
Facilities Department threw the newsbins into the storage yard, without
notice, but then allowed plaintiffs to reclaim the bins. Plaintiffs'
task in tying Martorello and the other defendants to the due process
violation is therefore more difficult than the free speech violation. To
state a claim that defendants committed a procedural due process
violation through their “own individual actions,” plaintiffs must tie
the defendants to the confiscation itself.
Iqbal, 129 S.Ct. at 1949.
1. Martorello
he
allegations portray Martorello as the University official responsible
for enforcing the unwritten newsbin policy. Thus, the question on which
plaintiffs' due process claim against Martorello turns is not whether
knowledge and acquiescence, deliberate indifference, or some lesser
mental state meets the state of mind requirement for the claim, but
rather whether an official's administration and oversight of an
unconstitutional policy meets the required threshold. The Tenth Circuit
confronted this question in
Dodds, where the issue was whether the complaint stated a § 1983
claim against a Sheriff for a due process violation that occurred when
jail officials denied the plaintiff the opportunity to post bail for
several days after his arrest. 614 F.3d at 1189–90.
The violation occurred pursuant to a county policy that prevented
detainees charged with felonies from posting bail before arraignment,
even if bail had been pre-set in the arrest warrant.
Id. at 1190. The Sheriff was in charge of the jail and
therefore oversaw enforcement of the policy, although there was no
allegation that he was involved in or aware of the policy's application
against the plaintiff in particular.
Id. at 1202–03. The court held that the complaint stated a claim:
*17
Whatever else can be said about
Iqbal, and certainly much can be said, we conclude the following basis of § 1983 liability survived it and ultimately resolves this case: § 1983
allows a plaintiff to impose liability upon a defendant-supervisor who
creates, promulgates, implements, or in some other way possesses
responsibility for the continued operation of a policy the enforcement
(by the defendant-supervisor or her subordinates) of which “subjects, or
causes to be subjected” that plaintiff “to the deprivation of any
rights ... secured by the Constitution ....“
Id. at 1199 (quoting 42 U.S.C. § 1983). Because the Sheriff maintained the policy at the jail, and because the unconstitutional denial of the opportunity for the plaintiff to post bail followed directly from the policy, the Sheriff was held liable. Id. at 1203–04.
[25] We agree with
Dodds. When a supervisory official advances or manages a
policy that instructs its adherents to violate constitutional rights,
then the official specifically intends for such violations to occur.
Claims against such supervisory officials, therefore, do not fail on the
state of mind requirement, be it intent, knowledge, or deliberate
indifference.
Iqbal itself supports this holding. There, the Court rejected
the invidious discrimination claims against Ashcroft and Mueller
because the complaint failed to show that those defendants advanced a
policy of purposeful discrimination (as opposed to a policy geared
simply toward detaining individuals with a “suspected link to the
[terrorist] attacks”), not because it found that the complaint had to
allege that the supervisors intended to discriminate against Iqbal in
particular. 129 S.Ct. at 1952(concluding
that Javaid Iqbal failed to allege that the supervisory defendants
created a policy that directed subordinates to discriminate by race or
religion). Advancing a policy that requires subordinates to commit
constitutional violations is always enough for § 1983
liability, no matter what the required mental state, so long as the
policy proximately causes the harm—that is, so long as the plaintiff's
constitutional injury in fact occurs pursuant to the policy.
Under
these principles, the complaint states a due process claim against
Martorello if it plausibly alleges that: (1) “he promulgate[d],
implement[ed], or in some other way possesse[d] responsibility for the
continued operation of” the newsbin policy; and (2) the due process
violation (
i.e., the confiscation of the newsbins without notice) occurred pursuant to that policy.
[26]
The complaint does not allege that Martorello devised the newsbin
policy; plaintiffs have no way of knowing, without discovery, who at OSU
devised the unwritten policy. But the complaint does create a plausible
inference that Martorello was “responsib[le] for the continued
operation of” the newsbin policy.
Dodds, 614 F.3d at 1199. It describes his job
responsibilities as “overseeing campus administration related to
Facilities and creating, implementing, and/or administering university
policies, including the policies and procedures challenged herein.” Of
course, the complaint also alleges that the other three defendants were
responsible for the “policies and procedures” challenged in this action—
viz., the newsbin policy. But the allegation that Martorello bore
responsibility for the operation of the policy is plausible—not
conclusory—in light of other allegations in the complaint. Martorello
was head of the Facilities Department. The unwritten newsbin policy
governed use of OSU facilities and fell to the Facilities Department for
enforcement. The inference that Martorello oversaw enforcement of the
policy flows naturally from these facts. Moreover, the allegations about
the aftermath of the confiscation make plain that Martorello was the
policy's steward. When plaintiffs complained about the unequal treatment
the
Liberty received vis-a-vis the
Barometer, University officials tapped Martorello to handle the
issue. It was Martorello who analyzed plaintiffs' petition for
recognition as an “on-campus” publication under the policy, and it was
Martorello who ultimately denied that petition. The complaint need not
allege more plausibly to allege that Martorello bore responsibility for
administration of the newsbin policy.
*18
As
for proximate causation, the complaint pleads forthrightly that the
unknown Facilities Department employees confiscated the newsbins
pursuant to the policy that Martorello administered. According to the
allegations, the Department's customer service manager told plaintiffs
that the confiscation occurred because the Department “was finally
‘catching up’ with the policy.” Similarly, when Martorello contacted
plaintiffs after the confiscation, he “related the existence of the
policy” and explained that “the University was trying to keep the campus
clean and was therefore regulating ‘off-campus' newspaper bins.” Thus,
because it alleges that Martorello was in charge of the newsbin policy
and that the confiscation without notice was conducted pursuant to that
policy, the complaint pleads a due process claim against Martorello.
We note two distinctions from the invidious discrimination claims that
Iqbal rejected. First, Javaid Iqbal's complaint did not
“contain facts plausibly showing that [Ashcroft and Mueller]
purposefully adopted a policy of classifying post–September–11 detainees
as ‘of high interest’ because of their race, religion, or national
origin.” 129 S.Ct. at 1952.
Simply put, the complaint did not tie the alleged unconstitutional
conduct—purposeful discrimination by race or religion—to any policy that
the supervisory defendants advanced. This case is different. Through
concrete allegations, the complaint ties the unconstitutional
confiscation of the newsbins to the policy that Martorello administered.
Second,
the small scope of Martorello's operation matters. It is one thing to
allege that, because some low-level government officers engaged in
purposeful discrimination, a cabinet-level official must also have
engaged in purposeful discrimination. But it is another thing to say
that the director of a university facilities department had a hand in
the unconstitutional manner in which his employees enforced a
department-wide policy. The second claim is plausible. Like all claims
at the pleading stage, of course, it requires development. For example,
the complaint does not really clarify whether the policy (or
Martorello's administration of the policy) directed employees to
confiscate the newsbins
without notice, or whether the employees improvised the failure
to notify. To ask plaintiffs to clarify this point at the pleading
stage, however, asks too much. They have not yet had discovery on what
the unwritten policy required or on how Martorello told his employees to
enforce it.
[27] To be sure, when a plaintiff presses an implausible claim, lack of access to evidence does not save the complaint.
See
Iqbal, 129 S.Ct. at 1950 (“Rule 8
... does not unlock the doors of discovery for a plaintiff armed with
nothing more than conclusions.”). But where the claim is
plausible—meaning something more than “a sheer possibility,” but less
than a probability—the plaintiff's failure to prove the case on the
pleadings does not warrant dismissal.
Id. at 1949(“The plausibility standard is not akin to a
probability requirement, but it asks for more than a sheer possibility
that a defendant has acted unlawfully.”) (internal quotation marks
omitted). Discovery will reveal whether Martorello's stewardship of the
policy in fact called for confiscation without notice. All that matters
at this stage is that the allegations nudge this inference “across the
line from conceivable to plausible.”
Id. at 1951 (internal quotations omitted). Martorello was
responsible for the policy, Martorello's subordinates confiscated the
bins without notice, and two people—including Martorello himself—said
the subordinates had acted pursuant to the policy. That is enough to get
discovery.
See
Starr, 652 F.3d at 1216 (holding that allegations must be
sufficiently plausible “such that it is not unfair to require the
opposing party to be subjected to the expense of discovery and continued
litigation”);
Pinnacle Armor, 648 F.3d at 721(“[A plaintiff] is not required to ‘demonstrate’ anything in order to survive a Rule 12(b)(6)
motion to dismiss. Rather, it only needs to allege sufficient factual
matter, accepted as true, to state a[plausible] claim to relief ....”)
(some internal quotation marks omitted).
D. Due Process Claims Against Ray and McCambridge
*19
The
complaint does not tie President Ray and Vice President McCambridge to
the confiscation, through the policy or any other means. Unlike
Martorello, these officials are not alleged to have run the department
that enforced the policy or to have had any familiarity with the
policy's requirements before the confiscation. (Recall Ray's “its news
to me” response.) The averments thus do not support an inference that
deliberate action or even recklessness by Ray or McCambridge caused the
due process violation. Perhaps one could infer that the President and
Vice President acted carelessly in presiding over subordinates who
enforced an unconstitutionally standardless policy governing newspaper
circulation, but even this inference would be inadequate, because
negligence does not suffice for due process liability.
See
Daniels, 474 U.S. at 328, 106 S.Ct. 662(“The Due Process Clause is simply not implicated by a
negligent act of an official causing unintended loss of or injury
to life, liberty, or property.”). Therefore, the complaint does not
state due process claims against these defendants.
E. Defendant Larry Roper
The
complaint names a fourth defendant, Larry Roper, against whom it makes
only two factual averments. It says that Roper was Vice Provost for
Student Affairs, and that President Ray forwarded to Roper, along with
two other persons, plaintiff Rogers' first email message complaining
about the confiscation. That is the totality of the allegations against
Roper. These allegations do not suffice to state any claims against
Roper. One cannot infer that Roper knowingly acquiesced in the decision
to continue applying the unconstitutional newsbin policy against
plaintiffs after the confiscation, because nothing suggests that Roper
knew about that decision. Rather, the complaint suggests that he was
copied on one email and then fell out of the loop. The complaint does
not even contain facts to suggest that the newsbin issue fell within
Roper's purview or that he was derelict in not ensuring that the
University handled the matter appropriately. The First Amendment and
equal protection claims premised on the post-confiscation application of
the policy therefore fail against Roper. As for the due process claim
against him, it fails for the same reason that it fails against Ray and
McCambridge: the allegations do not suggest that he had anything to do
with the confiscation itself or the unconstitutional policy pursuant to
which the confiscation occurred.
* * *
To
summarize, we hold that the complaint states free speech claims under
the First Amendment and the Fourteenth Amendment Equal Protection Clause
against Martorello, Ray, and McCambridge; and that it states a due
process claim against Martorello. We further hold that the complaint
does not state due process claims against Ray and McCambridge, and that
it does not state any claims against Roper.
V
[28]
The district court dismissed the complaint and entered judgment without
granting plaintiffs an opportunity to amend. Plaintiffs did not request
leave to amend until after the judgment issued, but the district
court's with-prejudice dismissal was still an abuse of discretion.
See
Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir.2000) (en banc)
(“[W]e have repeatedly held that ‘a district court should grant leave to
amend even if no request to amend the pleading was made, unless it
determines that the pleading could not be cured by the allegation of
other facts.’ ”) (quoting
Doe v. United States, 58 F.3d 494, 497 (9th Cir.1995)).
Because plaintiffs might well be able to remedy the deficiencies in the
claims against Roper and in the due process claims against Ray and
McCambridge, we conclude that the district court abused its discretion
in denying plaintiffs leave to amend their complaint.
See
id. at 1131. On remand, plaintiffs should be afforded that opportunity.
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