Case 3:17-cv-02255-MMC Document 13-1 Filed 06/28/17 Page 1 of 5

1 BRYAN H. HECKENLIVELY (SBN 279140) CHARLES F. ROBINSON (SBN 113197)

bryan.heckenlively@mto.com charles.robinson@ucop.edu
2 JESLYN A. EVERITT (SBN 274701) MARGARET L. WU (SBN 184167)
jeslyn.everitt@mto.com margaret.wu@ucop.edu
3 ELIZABETH A. KIM (SBN 295277) UNIVERSITY OF CALIFORNIA
elizabeth.kim@mto.com Office of the General Counsel
4 MUNGER, TOLLES & OLSON LLP 1111 Franklin Street, 8th Floor
560 Mission Street Oakland, CA 94607-5200
5 Twenty-Seventh Floor Telephone: (510) 987-9800
San Francisco, California 94105-2907 Facsimile: (510) 987-9757
6 Telephone: (415) 512-4000
Facsimile: (415) 512-4077
7
Attorneys for Defendants
8

9 UNITED STATES DISTRICT COURT

10 NORTHERN DISTRICT OF CALIFORNIA, SAN FRANCISCO DIVISION

11 YOUNG AMERICAS FOUNDATION, a Case No. 3:17-cv-02255-MMC

Tennessee nonprofit corporation; and
12 BERKELEY COLLEGE REPUBLICANS, a [PROPOSED] ORDER GRANTING
student organization at the University of DEFENDANTS MOTION TO DISMISS
13 California, Berkeley, COMPLAINT
14 Plaintiffs,

15 v. Date: August 25, 2017

Time: 9 a.m.
16 JANET NAPOLITANO, in her official Place: Courtroom 7, 19th Floor
capacity as President of UC; NICHOLAS B. Judge: Maxine M. Chesney
17 DIRKS, individually and in his official
capacity as Chancellor of UC Berkeley;
18 STEPHEN C. SUTTON, individually and in
his official capacity as Interim Vice
19 Chancellor of the Student Affairs Division of
UC Berkeley; JOSEPH D. GREENWELL,
20 individually and in his official capacity as
Associate Vice Chancellor and Dean
21 of Students of UC Berkeley; MARGO
BENNETT, in her official capacity as Chief of
22 Police of UC Police Department, at Berkeley;
ALEX YAO, individually and in his official
23 capacity as Operations Division Captain of UC
Police Department, at Berkeley; and LEROY
24 M. HARRIS, individually and in his official
capacity as Patrol Lieutenant of UC Police
25 Department, at Berkeley,

26 Defendants.

27

28

-1- 3:17-cv-02255
[PROPOSED] ORDER GRANTING DEFENDANTS MOTION TO DISMISS COMPLAINT
 Case 3:17-cv-02255-MMC Document 13-1 Filed 06/28/17 Page 2 of 5

1 Plaintiffs Young Americas Foundation and Berkeley College Republicans (collectively,

2 Plaintiffs) filed this action against Defendants Janet Napolitano, Nicholas B. Dirks, Stephen C.

3 Sutton, Joseph D. Greenwell, Margo Bennett, Alex Yao, and Leroy M. Harris (collectively,

4 Defendants) asserting four claims for relief under the First and Fourteenth Amendments. Before

5 the Court is Defendants motion to dismiss all of Plaintiffs claims. Having considered the

6 parties submissions, the complaint, and the applicable law, the Court GRANTS Defendants

7 motion to dismiss in its entirety without leave to amend.

8 I. LEGAL STANDARD
9 A Rule 12(b)(1) motion for lack of subject matter jurisdiction must be granted unless

10 plaintiff, who has the burden of proving jurisdiction, shows in his pleading, affirmatively and

11 distinctly, the existence of whatever is essential to federal jurisdiction. Tosco Corp. v. Communities

12 for a Better Envt, 236 F.3d 495, 499 (9th Cir. 2001) (per curiam) (quoting Smith v. McCullough,

13 270 U.S. 456, 459 (1926)), abrogated on other grounds by Hertz Corp. v. Friend, 559 U.S. 77

14 (2010)). A Rule 12(b)(6) motion for failure to state a claim must be granted where where the

15 complaint lacks a cognizable legal theory or sufficient facts to support a cognizable legal theory.

16 Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008).

17 Under Rule 15(a) of the Federal Rules of Civil Procedure, leave to amend should be freely

18 granted when justice so requires, bearing in mind the underlying purpose of Rule 15 to facilitate
19 decisions on the merits, rather than on the pleadings or technicalities. Lopez v. Smith, 203 F.3d

20 1122, 1127 (9th Cir. 2000) (en banc) (internal quotation marks and alterations omitted). Leave to

21 amend may be denied if allowing amendment would unduly prejudice the opposing party, cause

22 undue delay, be futile, or if the moving party has acted in bad faith. Leadsinger, Inc. v. BMG Music

23 Publg, 512 F.3d 522, 532 (9th Cir. 2008).

24 II. DISCUSSION
25 A. Plaintiffs Claims For Declaratory and Injunctive Relief Are Dismissed as
Moot
26
The Court dismisses Plaintiffs claims for declaratory and injunctive relief as moot. To the
27
extent the supposed High-Profile Speaker Policy alleged in the Complaint ever existed, the
28

-2- 3:17-cv-02255
[PROPOSED] ORDER GRANTING DEFENDANTS MOTION TO DISMISS COMPLAINT
 Case 3:17-cv-02255-MMC Document 13-1 Filed 06/28/17 Page 3 of 5

1 University has committed to replacing it with a new policy that has not been challenged. The

2 Universitys public commitment to a new policy moots Plaintiffs claims. See Coal. of Airline

3 Pilots Assocs. v. F.A.A., 370 F.3d 1184, 1190-91 (D.C. Cir. 2004) (challenge to administrative

4 regulations was moot where the agencies had publicly committed to drafting new regulations);

5 Desert Outdoor Adver., Inc. v. Oakland, 506 F.3d 798, 808 (9th Cir. 2007) (challenge to ordinance

6 was moot where the city had temporarily amended the ordinance to delete the challenged

7 provision and planned to pass a permanent amendment after a judicial decision was rendered).1

8 B. Plaintiffs Claims for Damages Are Barred by Qualified Immunity and

Punitive Damages Are Not Available
9
The Court dismisses Plaintiffs damages claims because Defendants are entitled to
10
qualified immunity. When resolving whether a government official is entitled to qualified
11
immunity, courts ask: (1) whether the facts that a plaintiff has alleged show a violation of a
12
constitutional right and, if so, (2) whether that right was sufficiently clearly established such that a
13
reasonable official would have known the conduct violated the Constitution. Pearson v. Callahan,
14
555 U.S. 223, 232 (2009). For a constitutional right to be clearly established, its contours must
15
be sufficiently clear that a reasonable official would understand that what he is doing violates that
16
right. Hope v. Pelzer, 536 U.S. 730, 739 (2002) (internal quotation marks omitted).
17
Here, Plaintiffs have not plausibly alleged any constitutional violation and a reasonable
18
official in Defendants position would, therefore, have had no reason to think that his or her
19
particular conduct in imposing content and viewpoint neutral time-manner-place restrictions
20
violated any clearly established right. Courts have long authorized universities to regulate to time,
21
place and manner of campus speech activities in service of their educational missions, see Widmar
22
v. Vincent, 454 U.S. 263, 267 n.5 (1981), and a reasonable official in Defendants position could
23
not have known that acts taken in pursuit of this mission would be found unconstitutional.
24
Plaintiffs claims for punitive damages must also be dismissed because Plaintiffs have not
25
alleged that any Defendants conduct was motivated by evil motive or intent, or . . . involves
26

27 1
The Court grants Defendants request for judicial notice in its entirety for the reasons stated
28 therein.

-3- 3:17-cv-02255
[PROPOSED] ORDER GRANTING DEFENDANTS MOTION TO DISMISS COMPLAINT
 Case 3:17-cv-02255-MMC Document 13-1 Filed 06/28/17 Page 4 of 5

1 reckless or callous indifference to the federally protected rights of others as required to support a

2 claim for punitive damages under Section 1983. Smith v. Wade, 461 U.S. 30, 56 (1983).

3 C. Alternatively, Plaintiffs Fail to Plead Any Constitutional Violation

4 Plaintiffs fail to state a claim for relief under the First or Fourteenth Amendment.

5 The Court dismisses Plaintiffs First Amendment free speech claim because the campus

6 facilities at issue are limited public forums where restrictions on speech need only be viewpoint

7 neutral and reasonable in light of the purpose served by the forum. Rosenberger v. Rector &

8 Visitors of Univ. of Va., 515 U.S. 819, 829 (1995) (campus facilities opened to various student

9 groups were a limited public forum). The alleged restrictions were viewpoint neutral because they

10 were not motivated by disagreement with the speakers viewpoint. See Christian Legal Socy

11 Chapter of the Univ. of Cal., Hastings Coll. of the Law v. Martinez, 561 U.S. 661, 695-696 (2010).

12 The alleged restrictions were also reasonable in light of the purpose served by the forum because

13 they served the educational mission of the University. See id. at 685-86. Alternatively, the alleged

14 restrictions were constitutional time, place and manner regulations because they were content

15 neutral, narrowly tailored to serve the significant government interests in safety, education, and

16 distribution of university resources, and left open ample alternative channels of communication.

17 Perry Educ. Assn v. Perry Local Educators Assn, 460 U.S. 37, 45-46 (1983).

18 The Court dismisses Plaintiffs First Amendment retaliation claim (brought by the Berkeley

19 College Republicans only) because Plaintiffs have not alleged that the protected activity was a

20 substantial or motivating factor in the [Defendants] conduct. Pinard v. Clatskanie Sch. Dist. 6J,

21 467 F.3d 755, 770 (9th Cir. 2006). To the contrary, the facts alleged in the Complaint make clear

22 that the sole motivating factor for Defendants actions was the proper law enforcement motive of

23 maintaining security on campus. Nor have Plaintiffs established, as they must, that Defendants

24 conduct would chill a person of ordinary firmness from continuing to engage in the protected

25 activity. Id. Rather, the alleged restrictions were de minimis deprivations that do not give rise to a

26 First Amendment claim. See, e.g., Blair v. Bethel Sch. Dist., 608 F.3d 540, 544 (9th Cir. 2010)

27 ([D]e minimis deprivations of benefits and privileges on account of ones speech do not give rise

28 to a First Amendment claim.); Matney v. Cty. of Kenosha, 86 F.3d 692, 699 (7th Cir. 1996)

-4- 3:17-cv-02255
[PROPOSED] ORDER GRANTING DEFENDANTS MOTION TO DISMISS COMPLAINT
 Case 3:17-cv-02255-MMC Document 13-1 Filed 06/28/17 Page 5 of 5

1 (holding that any chill on speech from a permissible time, place, manner restriction is

2 constitutionally tolerable).

3 The Court dismisses Plaintiffs Due Process claim because Plaintiffs have not plausibly

4 alleged deprivation of any due process rights protected by the Fourteenth Amendment. See Bd. of

5 Regents of State Colls. v. Roth, 408 U.S. 564, 577 (1972).

6 The Court dismisses Plaintiffs Equal Protection claim because Plaintiffs have not plausibly

7 alleged conduct by any Defendant that had both a discriminatory purpose and a discriminatory

8 effect. Rosenbaum, 484 F.3d at 1152-53.

9 D. The Eleventh Amendment

10 The Court dismisses any remaining claims under the Eleventh Amendment, which

11 prohibits a federal court from issuing a declaration on the past lawfulness of the actions of a

12 state, or state officials. Green v. Mansour, 474 U.S. 64, 73 (1985).

13 III. CONCLUSION
14 For the foregoing reasons, and for good cause shown, the Court GRANTS Defendants
15 Motion to Dismiss and DISMISSES Plaintiffs Complaint with prejudice.

16

17 IT IS SO ORDERED.
18
19

20
DATED: _______________________
21
MAXINE M. CHESNEY
22 UNITED STATES DISTRICT JUDGE

23

24

25

26

27

28

-5- 3:17-cv-02255
[PROPOSED] ORDER GRANTING DEFENDANTS MOTION TO DISMISS COMPLAINT