Chaffee v. San Francisco Library Commission et al

Filing 21

CERTIFICATE OF COUNSEL: Response to Order to Show Cause, filed by City and County of San Francisco, San Francisco Library Commission (Steeley, Tara) (Filed on 2/10/2011) Modified on 2/11/2011 (jlm, COURT STAFF).

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1 2 3 4 5 6 7 8 DENNIS J. HERRERA, State Bar #139669 City Attorney WAYNE K. SNODGRASS, State Bar #148137 TARA M. STEELEY, State Bar #231775 Deputy City Attorneys City Hall, Room 234 1 Dr. Carlton B. Goodlett Place San Francisco, California 94102-4682 Telephone: (415) 554-4655 Facsimile: (415) 554-4699 E-Mail: tara.steeley@sfgov.org Attorneys for Defendants SAN FRANCISCO LIBRARY COMMISSION AND CITY AND COUNTY OF SAN FRANCISCO 9 10 11 UNITED STATES DISTRICT COURT 12 NORTHERN DISTRICT OF CALIFORNIA 13 JAMES CHAFFEE, 14 Plaintiff, 15 vs. 16 17 18 SAN FRANCISCO LIBRARY COMMISSION, CITY AND COUNTY OF SAN FRANCISCO, and DOES 1 through 20, inclusive, Defendants. 19 20 21 22 23 24 25 26 27 28 CERTIFICATE OF COUNSEL CASE NO. CV10-4521 SBA Case No. CV10-4521 SBA CERTIFICATE OF COUNSEL Pursuant to the Court's Order to Show Cause Re Dismissal, filed February 4, 2011, Defendants 1 2 San Francisco Library Commission and City and County of San Francisco (collectively, the "Library 3 Commission" or "Commission") submit this Certificate of Counsel. 4 I. NATURE OF THIS ACTION In this action, Plaintiff James Chaffee challenges the Library Commission's decision to prohibit 5 6 members of the public from using computerized graphic displays (such as PowerPoint) during the 7 public comment portion of Library Commission meetings. Chaffee contends that the First 8 Amendment and Equal Protection Clause of the United States Constitution entitle him to use 9 PowerPoint during the public comment portion of Library Commission meetings, and thus the 10 Commission's restriction violates his constitutional rights. Plaintiff contends that his inability to use 11 PowerPoint during Commission meetings has caused him "extreme embarrassment, humiliation, and 12 emotion distress," has violated his constitutional rights, and has impeded his "right to distribute 13 information and to provide information that might prevent damage to the public welfare." Compt. at 14 6-7. Plaintiff seeks general and special damages, declaratory relief, an injunction, and an award of 15 costs and attorneys' fees. 16 II. The Complaint was filed on October 6, 2010. Defendants filed an answer on October 27, 17 18 PROCEDURAL HISTORY 2010. 19 The Initial Case Management Conference ("CMC") was scheduled for February 3, 2011. On 20 February 2nd, Tara Steeley, counsel for Defendants, received an email from Plaintiff which stated: "I 21 just called the court clerk and cancelled the Case Management Conference at 2:30 tomorrow. Since 22 they can’t do it without me, I think we can consider it off." After receiving that message, Ms. Steeley 23 called Lisa R. Clark, Calendar Clerk & Courtroom Deputy for the Honorable Saundra Brown 24 Armstrong, to seek guidance on what she should do in light of Plaintiff's apparently unilateral decision 25 to cancel a hearing scheduled by the Court. Shortly before the scheduled CMC, Ms. Steeley also 26 called the number provided on the CMC scheduling order and asked what she should do in light of 27 Plaintiff's message. Ms. Steeley was informed that she should wait to see if Plaintiff initiated the call. 28 Plaintiff failed to initiate the call as ordered by the Court. CERTIFICATE OF COUNSEL CASE NO. CV10-4521 SBA 1 On February 4, 2011, at 7:32 am, the Court issued an Order to Show Cause Re Dismissal. That 1 2 Order provides that Plaintiff "may not file any motions or other requests with the Court until he files 3 his response to this Order," and informs Plaintiff that "FAILURE TO FULLY COMPLY WITH THIS 4 ORDER WILL BE DEEMED SUFFICIENT GROUNDS TO DISMISS THE ACTION, WITHOUT 5 FURTHER NOTICE." Dkt 19 at 2. Ignoring that Order, Plaintiff filed a motion on February 7, 2011 (before filing his response to 6 7 the Order to Show Cause) seeking to disqualify the Honorable Saundra Brown Armstrong on the 8 ground that she denied his request to participate in the Court's efiling program. That motion is 9 frivolous. Liteky v. U.S., 510 U.S. 540, 555 (1994) (holding "judicial rulings alone almost never 10 constitute a valid basis for a bias or partiality motion"). 11 III. 12 REASONS THE ACTION SHOULD BE DISMISSED This action should be dismissed under Rule 41(b) of the Federal Rules of Civil Procedure 13 because Plaintiff failed to comply with the Court's CMC scheduling order and Order to Show Cause 14 Re Dismissal. Plaintiff's repeated and unjustifiable failures to comply with orders of the Court justify 15 dismissal of this action. Ferdick v. Bonzelet, 963 F.2d 1258, 1260 (9th Cir. 1992). 16 Although dismissal is a harsh sanction, it is appropriate in this case. Plaintiff has repeatedly 17 and blatantly violated two orders issued by this Court. By violating Court orders, Plaintiff threatens 18 this Court's ability to manage its docket, and prevents this litigation from advancing to resolution in an 19 expeditious manner. The Court need not be "subject to the endless vexatious noncompliance" with its 20 orders, and thus these factors strongly support dismissal. Ferdick, 963 F.2d at 1261. Plaintiff's 21 conduct has also prejudiced defendants because his actions have forced their counsel to waste limited 22 time and money that would be better spent on other matters. Finally, there are no less drastic 23 alternatives that would curb Plaintiff's behavior. In response to Plaintiff's violation of the CMC 24 scheduling order and his apparent misrepresentation to the Court that he would set up the call at the 25 appropriate time, the Court issued an Order to Show Cause to give Plaintiff the opportunity to explain 26 his behavior. Plaintiff responded, however, by violating terms of the Order to Show cause by filing a 27 frivolous motion. Because Plaintiff has not demonstrated any willingness to comply with the orders of 28 this Court, dismissal is appropriate. Ferdick, 963 F.2d at 1262 (upholding dismissal even though CERTIFICATE OF COUNSEL CASE NO. CV10-4521 SBA 2 1 defendants were not prejudiced and public policy supported disposition of actions on the merits 2 because other factors strongly supported dismissal). 3 IV. 4 THE EXPECTED COURSE OF THIS ACTION IF NOT DISMISSED If this case is not dismissed, the Library Commission intends to move for summary judgment 5 because this suit lacks merit. Plaintiff does not have a First Amendment right to use PowerPoint 6 during Library Commission meetings. It is well established that "[c]itizens are not entitled to exercise 7 their First Amendment rights whenever and whatever they wish." Kindt v. Santa Monica Rent 8 Control, 67 F.3d 266, 269 (9th Cir. 1995). To the contrary, public commissions may regulate the time, 9 place and manner of speech, and may even regulate the content of speech – as long as the content- 10 11 based restrictions are "reasonable and viewpoint neutral." Id. at 271. Here, the Library Commission permissibly prevents members of the public, including Plaintiff, 12 from using computerized graphic displays during the public comment portion of Library Commission 13 meetings. Although Plaintiff wishes to use PowerPoint, the Library Commission has determined that 14 allowing the use of PowerPoint during the public comment portion of commission meetings would, 15 inter alia, cause unnecessary delays1 and threaten the security of the Library's computer network.2 16 Based on these reasonable concerns, the Library Commission does not allow any member of the public 17 to use PowerPoint or other computerized graphic displays during the public comment portion of 18 meetings regardless of the viewpoint expressed in the comments. Nothing prohibits members of the 19 public from orally conveying their views to the Commission members, or distributing written 20 materials conveying their point of view. 21 Plaintiff’s equal protection claim fails because the Library Commission's refusal to allow 22 PowerPoint during public comment is rationally related to a legitimate interest of the Commission. 23 City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 440 (1985). Plaintiff contends that the 24 25 26 27 28 1 Member of the public are permitted to speak for three minutes during each public comment period at the Library Commission meetings. Allowing each of those individuals to set up and display a PowerPoint presentation would likely introduce unnecessary delays and needless burden for the Library Commission. 2 The Library Commission's network security may be threatened because the auditorium where Library Commission meetings are held does not have a separate, dedicated system for members of the public to use. Thus, members of the public wishing to use PowerPoint would have to use the Library's computer facilities, thus potentially exposing the computer network to viruses and other harms. CERTIFICATE OF COUNSEL CASE NO. CV10-4521 SBA 3 1 Library Commission has violated his equal protection rights by allowing employees of the City or 2 other invited guests to make PowerPoint presentations while prohibiting him from doing so. But 3 allowing employees or a few invited guests to make PowerPoint presentations concerning agenda 4 items does not raise the same delay and security concerns that would exist if the Library Commission 5 also had to allow every member of the public to use PowerPoint during the three minutes allotted for 6 each public comment. Because the Commission's decision must be presumed to be valid and must be 7 upheld if it is supported by any rational interest, Plaintiff's equal protection claim fails. Id. 8 9 Finally, Plaintiff’s claim under 42 U.S.C. § 1983 fails, inter alia, because the Commission’s conduct has not deprived him of any constitutional right. Ketchum v. Alameda County, 811 F.2d 10 1243, 1245 (9th Cir. 1987) (holding a Section 1983 claim requires conduct that deprives the plaintiff of 11 a constitutional right). CONCLUSION 12 13 14 This action should be dismissed because Plaintiff has repeatedly violated Orders of this Court. Dated: February 10, 2011 15 DENNIS J. HERRERA City Attorney WAYNE K. SNODGRASS TARA M. STEELEY Deputy City Attorneys 16 17 18 By: 19 /s/Tara M. Steeley TARA M. STEELEY 20 Attorneys for Defendants SAN FRANCISCO LIBRARY COMMISSION AND CITY AND COUNTY OF SAN FRANCISCO 21 22 23 24 25 26 27 28 CERTIFICATE OF COUNSEL CASE NO. CV10-4521 SBA 4 PROOF OF SERVICE 1 2 3 4 5 I, HOLLY CHIN, declare as follows: I am a citizen of the United States, over the age of eighteen years and not a party to the aboveentitled action. I am employed at the City Attorney’s Office of San Francisco, City Hall, Room 234, 1 Dr. Carlton B. Goodlett Place, San Francisco, CA 94102. On February 10, 2011, I served the following document(s): CERTIFICATE OF COUNSEL 6 7 8 9 10 11 12 13 14 15 on the following persons at the locations specified: JAMES CHAFFEE In Pro Per 63 Stoneybrook Avenue San Francisco, CA 94112 Telephone: 415-584-8999 in the manner indicated below: BY UNITED STATES MAIL: Following ordinary business practices, I sealed true and correct copies of the above documents in addressed envelope(s) and placed them at my workplace for collection and mailing with the United States Postal Service. I am readily familiar with the practices of the San Francisco City Attorney's Office for collecting and processing mail. In the ordinary course of business, the sealed envelope(s) that I placed for collection would be deposited, postage prepaid, with the United States Postal Service that same day. 17 BY PERSONAL SERVICE: I sealed true and correct copies of the above documents in addressed envelope(s) and caused such envelope(s) to be delivered by hand at the above locations by a professional messenger service. A declaration from the messenger who made the delivery is attached or will be filed separately with the court. 18 BY OVERNIGHT DELIVERY: I sealed true and correct copies of the above documents in addressed 16 20 envelope(s) and placed them at my workplace for collection and delivery by overnight courier service. I am readily familiar with the practices of the San Francisco City Attorney's Office for sending overnight deliveries. In the ordinary course of business, the sealed envelope(s) that I placed for collection would be collected by a courier the same day. 21 BY FACSIMILE: Based on a written agreement of the parties to accept service by fax, I transmitted true and 19 22 23 24 25 correct copies of the above document(s) via a facsimile machine at telephone number Fax #415-554-4699 to the persons and the fax numbers listed above. The fax transmission was reported as complete and without error. The transmission report was properly issued by the transmitting facsimile machine, and a copy of the transmission report is attached or will be filed separately with the court. I declare under penalty of perjury pursuant to the laws of the State of California that the foregoing is true and correct. Executed February 10, 2011, at San Francisco, California. 26 /s/Holly Chin HOLLY CHIN 27 28 CERTIFICATE OF COUNSEL CASE NO. CV10-4521 SBA 5

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