Garnier et al v. Poway Unified School District et al

Filing 18

ORDER Denying 7 Defendants' Motion to Dismiss; Denying 12 Motion for Sanctions. Signed by Judge Thomas J. Whelan on 5/24/2018. (jao)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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CHRISTOPER GARNIER, et al.,

Case No.: 17-cv-2215-W (JLB)

Plaintiffs,

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v.

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ORDER DENYING DEFENDANTS’
MOTION TO DISMISS [DOC. 7]
AND MOTION FOR SANCTIONS

POWAY UNIFIED SCHOOL
DISTRICT, et al.,

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Defendants.

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Pending before the Court is a motion to dismiss under Federal Rule of Civil

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Procedure 12(b)(1) and 12(b)(6), and a motion for sanction under Rule 11 filed by

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Defendants Michelle O’Connor-Ratcliff, and T.J. Zane. Plaintiffs Christopher Garnier

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and Kimberly Garnier oppose both motions.

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The Court decides the matters on the papers submitted and without oral argument.

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See Civ. L.R. 7.1(d.1). For the reasons that follow, the Court DENIES Defendants’

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motions [Docs. 7, 12].

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17-cv-2215-W (JLB)

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I.

BACKGROUND
Defendants Michelle O’Connor-Ratcliff, and T.J. Zane are members of the Poway

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Unified School District’s (“PUSD”) governing board. (Compl. [Doc. 1] ¶ 4.) Plaintiffs

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allege that both Defendants use their Facebook accounts, and O’Connor-Ratcliff also uses

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her Twitter account, to disseminate information in their official capacities about PUSD

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matters and to allow members of the public to post comments. (Id. ¶ 10.)

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After Plaintiff Christopher Garnier posted comments criticizing Defendants

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concerning PUSD matters, he was blocked by Defendants from posting further comments

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on their Facebook accounts, and from O’Connor-Ratcliff’s Twitter account. (Compl. ¶

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10.) Similarly, Plaintiff Kimberly Garnier was blocked from posting comments on

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O’Connor-Ratcliff’s Facebook account after she posted comments criticizing O’Connor-

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Ratcliff. (Id.)

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On October 30, 2017, Plaintiffs filed this lawsuit against Defendants in their

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individual capacities, alleging they violated Plaintiffs’ federal and state constitutional

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rights by blocking them from exercising their free-speech and/or government-petitioning

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rights in a public forum. (Compl. ¶ 10.) Defendants now seek to dismiss the lawsuit

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arguing that Plaintiffs’ claims are (1) time barred, and (2) the Court lacks jurisdiction

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because Defendants cannot be sued in their individual capacities for violating Plaintiffs’

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free-speech/petitioning rights. Defendants also seek sanctions against Plaintiffs’ counsel.

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II.

MOTION TO DISMISS
A.

Standard
1.

Motion to Dismiss Under Rule 12(b)(1)

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Rule 12(b)(1) provides a procedural mechanism for a defendant to challenge

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subject-matter jurisdiction. “A jurisdictional challenge under Rule 12(b)(1) may be made

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either on the face of the pleadings or by presenting extrinsic evidence. Where jurisdiction

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is intertwined with the merits, we must assume the truth of the allegations in a complaint

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unless controverted by undisputed facts in the record.” Warren v. Fox Family
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17-cv-2215-W (JLB)

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Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003) (internal quotation marks, brackets,

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ellipsis and citations omitted).

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A facial attack challenges the complaint on its face. Safe Air for Everyone v.

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Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). But when the moving party raises a factual

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challenge to jurisdiction, the court may look beyond the complaint and consider extrinsic

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evidence, and “need not presume the truthfulness of the plaintiff’s allegations.” See id.

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Once the defendant has presented a factual challenge under Rule 12(b)(1), the burden of

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proof shifts to the plaintiff to “furnish affidavits or other evidence necessary to satisfy its

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burden of establishing subject matter jurisdiction.” Id.

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2.

Motion to Dismiss Under Rule 12(b)(6)

The Court must dismiss a cause of action for failure to state a claim upon which

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relief can be granted. Fed. R. Civ. P. 12(b)(6). A motion to dismiss under Rule 12(b)(6)

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tests the legal sufficiency of the complaint. See Parks Sch. of Bus., Inc. v. Symington, 51

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F.3d 1480, 1484 (9th Cir. 1995). A complaint may be dismissed as a matter of law either

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for lack of a cognizable legal theory or for insufficient facts under a cognizable theory.

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Balisteri v. Pacifica Police Dep’t., 901 F.2d 696, 699 (9th Cir. 1990). In ruling on the

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motion, a court must “accept all material allegations of fact as true and construe the

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complaint in a light most favorable to the non-moving party.” Vasquez v. L.A. Cnty.,

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487 F.3d 1246, 1249 (9th Cir. 2007).

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A complaint must contain “a short and plain statement of the claim showing that

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the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The Supreme Court has

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interpreted this rule to mean that “[f]actual allegations must be enough to raise a right to

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relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 554, 555

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(2007). The allegations in the complaint must “contain sufficient factual matter, accepted

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as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556

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U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570).

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Well-pled allegations in the complaint are assumed true, but a court is not required

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to accept legal conclusions couched as facts, unwarranted deductions, or unreasonable

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inferences. See Papasan v. Allain, 478 U.S. 265, 286 (1986); Sprewell v. Golden State

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Warriors, 266 F.3d 979, 988 (9th Cir. 2001).

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B.

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Discussion
1.

Statute of Limitations.

Defendant Zane argues Plaintiffs claims are barred by the 2-year statute of

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limitations. Plaintiffs filed this lawsuit on October 20, 2017. (See Compl.) According to

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Zane, he blocked Plaintiffs from posting on his Facebook page on approximately July 20,

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2015 and, therefore, the statute of limitations ran on July 20, 2017—two months before

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this lawsuit was filed. (P&A [Doc. 7-1] 4:18–20.) There are two problems with this

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argument.

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First, Zane’s argument relies on facts not found in the Complaint or subject to

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judicial notice. (P&A 4:18–19, citing Ex. A (Zane Decl.).) In deciding a motion to

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dismiss, the Court is confined to facts alleged in the complaint and those subject to

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judicial notice. See Lee v. City of Los Angeles, 250 F.3d 668, 688–690 (9th Cir. 2001)

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(explaining that with the exception of matters of public record subject to judicial notice,

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generally “a district court may not consider any material beyond the pleadings in ruling

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on a Rule 12(b)(6) motion.” ), overruled on other grounds as stated in Galbraith v. Cty.

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of Santa Clara, 307 F.3d 1119, 1125–26 (9th Cir. 2002). Because Zane’s argument is

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based on facts not found in the Complaint, Zane’s request to dismiss on this ground must

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be denied.

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Second, as Plaintiffs point out, under the “discovery rule,” the statute of limitations

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does not run until Plaintiffs learned that Zane had blocked them from his account. See

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O’Connor v. Boeing North American, Inc., 311 F.3d 1139, 1147-1149 (9th Cir. 2002).

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Aside from not alleging when Plaintiffs were blocked from Zane’s Facebook account, the

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Complaint also does not allege when Plaintiffs learned they were blocked. For these

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reasons, Plaintiffs’ claims are not time barred.

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2.

Lack of Jurisdiction.

Defendants next argue that the court lacks jurisdiction. According to the motion to

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dismiss, although Defendants are government officials, Plaintiffs “are not suing

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[Defendants] in their official capacities,” but instead are suing them “in their personal

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capacities.” (P&A 5:16–20.) Because “only the Federal or State governments may”

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violate the right to free speech, Defendants argue the Plaintiffs cannot sue them in their

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individual capacities. (Id. 5:19–24.) Plaintiffs respond that Defendants’ argument is

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contrary to the Supreme Court’s holding in Hafer v. Melo, 502 U.S. 21 (1991). (Opp’n

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[Doc. 10] 5:9–10.) Plaintiffs are correct.

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In Hafer, the Supreme Court explained that “[p]ersonal-capacity suits… seek to

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impose individual liability upon a government officer for actions taken under color of

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state law. Thus, ‘[o]n the merits, to establish personal liability in a § 1983 action, it is

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enough to show that the official, acting under color of state law, caused the deprivation of

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a federal right.’” Id. 502 U.S. at 25 (citation omitted). Under Hafer, government

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officials, such as Defendants, may be sued in their individual capacities for acting under

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color of state law.

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In their Reply, Defendants appear to recognize that their original argument lacks

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merit because they raise a new theory. Defendants now contend that Plaintiffs have

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“conflate[d] the elements they are required to show in bringing a Section 1983 claim” and

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the Complaint fails to “assert that the individual Defendants acted in concert with the

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State or that the individual Defendants acted under color of state law.” (Reply [Doc. 11]

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2:21–23.) This argument is not in Defendants’ original motion. For this reason alone,

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this Court is inclined not to consider the new argument. See Pierce v. County of Marin,

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291 F.Supp.3d 982, 991 n. 6 (N.D. Cal. 2018) (refusing to consider any new arguments

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raised in defendants’ reply). However, in their motion for sanctions, Defendants argue
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that Plaintiffs fail to allege action under color of law. (Mt. for Sanctions [Doc. 12-1] 8:9–

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9:15.) For this reason, the Court will consider the issue in the context of the motion to

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dismiss.
In opposing Defendants’ motion for sanctions, Plaintiffs contend Davison v.

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Loudoun County Board of Supervisors, 267 F.Supp.3d 702 (E.D. VA 2017), supports a

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finding that the Complaint adequately alleges action under color of law. In Davison, 267

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F.Supp.3d 702 (E.D. VA 2017), a county resident sued the Chairperson of the County

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Board of Supervisors under section 1983 for blocking the resident from the Chairperson’s

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personal Facebook page. The district court was, therefore, asked to decide whether the

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Chairperson was acting under color of state law.

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In evaluating the issue, the district court relied on a Fourth Circuit case, Rossignol

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v. Voorhaar, 316 F.3d 516 (4th Cir. 2003), in which a group of off-duty officers

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purchased, on election day, all issues of a local newspaper that regularly criticized the

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sheriff department’s leadership. The paper sued on first amendment grounds, and the

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district court held that because the officers were off duty and not acting pursuant to their

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official duties, they were not acting under color of state law. The Fourth Circuit reversed

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and held the “requisite nexus” existed between the officers’ conduct and their public

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office so as to be fairly attributable to the government.

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Citing Rossignol, the district court in Davison found that although the

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Chairperson’s Facebook page was private, her actions in blocking the resident from

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posting comments arose out of public, not personal, circumstances and thus constituted

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conduct under color of state law. Significant to Davison’s finding was that the

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Chairperson created the page in collaboration with her Chief of Staff the day before

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taking office, and she did so for the purpose of addressing her new constituents. Davison,

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267 F.Supp.3d at 713. The Chairperson also asked constituents to visit her Facebook

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page and, after taking office, used the page as a “tool for governance” by holding “back

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and forth constituent conversations” and coordinating disaster relief efforts after a storm.

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Id.
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Although Davison is not a Ninth Circuit case, it is clearly analogous to this case.

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Moreover, in their Reply, Defendants failed to identify any authority within this circuit

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that contradicts Davison or is more analogous to the facts in this case. Accordingly, this

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Court is persuaded by Davison’s reasoning and agrees with Plaintiffs that the case

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supports a finding that Defendants were acting under color of state law.
To begin with, the Complaint alleges that the “two [PUSD] board members sued in

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this lawsuit all maintain Facebook and other social-media websites in order to

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communicate with the public about official PUSD matters.” (Compl. ¶ 2.) Plaintiffs also

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allege that Zane’s Facebook website “has been described as ‘the official page for T.J.

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Zane, [PUSD] Board Member, to promote public and political information.’” (Id. ¶ 10.)

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“MOR’s Facebook website has include[s] a ‘Political Info’ section and list[s] her

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‘Current Office’ as ‘Board of Education, President, Poway Unified School District’; the

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website also identifies her as a ‘Government Official.’” (Id.) Additionally, the copy of

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Zane’s Facebook page that is attached to the Complaint shows a picture of the “Poway

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Unified School District” sign, further suggesting a close connection between Zane’s

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personal account and his position as a board member, and his “story” states:

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My interests include: being accessible and accountable; retaining quality
teachers; increasing transparency in decision making; preserving local
standards for education; and ensuring our children’s campus safety.

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(Id. Ex. B.)
Based on these allegations, and at this stage in the litigation, it is reasonable to infer

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that Defendants, like the Chairperson in Davison, used their private social media accounts
as a tool for governance. Accordingly, the Court finds the Complaint adequately alleges
Defendants acted under color of law when they blocked Plaintiffs from posting messages
on their Facebook and Twitter accounts.
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III.

MOTION FOR SANCTIONS
Defendants also request an award of sanctions against Plaintiffs’ attorney. Under

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Federal Rule of Procedure 11(b)(1), a court may sanction an attorney for filing a pleading

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for “any improper purpose, such as to harass, cause unnecessary delay, or needlessly

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increase the cost of litigation.” In addition, Rule 11 sanctions may be awarded if an

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attorney presents a “frivolous” paper. See Townsend v. Holman Consulting Corp., 929

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F.2d 1358, 1362 (9th Cir. 1990). “Where… [the frivolousness of the] complaint is the

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primary focus of Rule 11 proceedings, a district court must conduct a two-prong inquiry

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to determine (1) whether the complaint is legally or factually “baseless” from an

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objective perspective, and (2) if the attorney has conducted “a reasonable and competent

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inquiry” before signing and filing it. Christian v. Mattel, Inc., 286 F.3d 1118, 1127 (9th

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Cir. 2002) (citing Buster v. Greisen, 104 F.3d 1186, 1190 (9th Cir.1997)).

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For the reasons discussed above, the Court finds the Complaint is neither legally

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nor factually baseless from an objective perspective. Accordingly, Defendants are not

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entitled to an award of sanctions under Rule 11.

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IV.

SUMMARY & CONCLUSION
For the foregoing reasons, the Court DENIES Defendants’ motion to dismiss

[Doc. 7] and motion for sanctions [Doc. 12].
IT IS SO ORDERED.
Dated: May 24, 2018

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