Doe v. Pasadena Unified Sch. Dist.

JANE DOE, an individual; et al., Plaintiffs-Appellants, v. PASADENA UNIFIED SCHOOL DISTRICT; et al., Defendants-Appellees.

No. 18-56436

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted: February 3, 2020

April 16, 2020

NOT FOR PUBLICATION

D.C. No. 2:18-cv-00905-PA-FFM

MEMORANDUM^*

Appeal from the United States District Court for the Central District of California

Percy Anderson, District Judge, Presiding

Argued and Submitted February 3, 2020 Pasadena, California

Before: IKUTA and LEE, Circuit Judges, and MARBLEY, Chief District Judge.^**

Jane Doe, an undocumented immigrant, and her children sued Pasadena Unified School District and school principal Juan Ruelas for numerous constitutional violations. Doe alleges that Ruelas threatened to call immigration if she complained about his school lunch policy to the school board. The district court grantedPasadena Unified School District's and Ruelas' summary judgment motion. We review de novo the district court's summary judgment decision. See Devereaux v. Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001) (en banc). We affirm.

1. Equal Protection Claim. While Ruelas' threat may be unseemly and unbecoming of a school principal, Doe has not presented evidence that his threat — which was never acted upon — denied her or her children equal protection of the law.

Doe claims that Ruelas' threat caused her children emotional distress, interfering with their equal education opportunities. She relies on Brown v. Board of Education to argue that psychological impact on children can violate the equal protection clause. But Ruelas' single instance of a threat — no matter how inappropriate — cannot compare to the shameful chapter in our nation's history of sustained and systematic segregation. Moreover, the Brown court relied on expert evidence that long-standing segregation policies had a psychological effect on minority students and hindered their ability to learn. See Brown v. Bd. of Educ., 347 U.S. 483, 494 (1954), supplemented 349 U.S. 294 (1955). Doe, on the other hand, has not presented any such evidence.

Doe's Equal Protection claim also fails because it amounts to a First Amendment retaliation claim, not an Equal Protection claim. Doe has not shown that Ruelas threatened her because of her immigration status. "To state a claimunder 42 U.S.C. § 1983 for a violation of the Equal Protection Clause of the Fourteenth Amendment a plaintiff must show that the defendants acted with an intent or purpose to discriminate against the plaintiff based upon membership in a protected class." Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (emphasis added); Serrano v. Francis, 345 F.3d 1071, 1082 (9th Cir. 2003) ("Intentional discrimination means that a defendant acted at least in part because of a plaintiff's protected status.") (quoting another source). Here, Ruelas threatened Doe not because of her immigration status, but rather because of her threat to complain about his school lunch policy. While Ruelas tailored his threat to her immigration status, he did not threaten her because of it. So Doe's complaint should be analyzed under the rubric of the First Amendment.

2. First Amendment Claim. To prevail on her First Amendment retaliation claim, Doe must present evidence that "(1) [s]he was engaged in a constitutionally protected activity, (2) the defendant's actions would chill a person of ordinary firmness from continuing to engage in the protected activity, and (3) the protected activity was a substantial or motivating factor in the defendant's conduct." Pinard v. Clatskanie Sch. Dist. 6J, 467 F.3d 755, 770 (9th Cir. 2006). Doe must also provide evidence of Ruelas' subjective "[i]ntent to inhibit speech." See Mendocino Envtl. Ctr. v. Mendocino Cty., 192 F.3d 1283, 1300 (9th Cir. 1999).

Doe sets forth two bases for her First Amendment retaliation claim.

First, she claims that Ruelas retaliated by limiting her volunteer opportunities. But she has not pointed to any evidence that Ruelas in fact curtailed them. To the contrary, she continued to volunteer and even won a volunteering award. Doe's claim that she was forced to participate in a "distinct" volunteer program also fails because Doe has not shown, or even alleged, that the "distinct" program was inferior.

Second, she claims that Ruelas retaliated by threatening to call immigration enforcement. Whether a threat can support a First Amendment retaliation claim depends on the individual circumstances of the case. In the employment context, this court has said that "[m]ere threats and harsh words are insufficient" to constitute a retaliation claim without plaintiff also showing she suffered harm as a result (e.g., loss of a tangible interest or government benefit). See Nunez v. City of Los Angeles, 147 F.3d 867, 874-75 (9th Cir. 1998) (supervisor allegedly threatened to "transfer or dismiss" plaintiff). In the prison context, an implicit threat can create apprehension in a prisoner sufficient to support a First Amendment retaliation claim. See Brodheim v. Cry, 584 F.3d 1262, 1270-71 (9th Cir. 2009). More recently in Mulligan v. Nichols, this court suggested in dicta that a government official's speech may support a First Amendment retaliation claim — even absent the loss of tangible rights or government benefits — under certain circumstances. 835 F.3d 983, 989 n.5 (9th Cir. 2016).

This court's Brodheim case does not control here because a school principal does not have the same authority over a parent that a prison guard has over an inmate. On the other hand, the important interest in allowing government supervisors to speak freely in managing their employees (as in Nunez) may not apply with the same force in this case, where Ruelas' threat did not have a plausible pedagogical purpose.

We, however, need not decide whether Ruelas' threat implicates the First Amendment because Ruelas is entitled to qualified immunity, even assuming Doe has a viable claim.¹ Ruelas' conduct did not violate Doe's "clearly established . . . constitutional rights of which a reasonable person would have known." Kisela v. Hughes, 138 S. Ct. 1148, 1152 (2018) (quoting another source). The Supreme Court has cautioned that a constitutional right is "clearly established" only if a statute or precedent "squarely governs the specific facts at issue." Id. at 1153 (internal quotation marks omitted). Here, in light of the mixed case law in this circuit, parents did not enjoy a "clearly established" right to be free from a school official's threats. Id. at 1152-53 (warning courts "not to define clearly established law at a high level of generality").²

3. Due Process Claim. Doe's Due Process claim fails because she does not have a protected property or liberty interest in volunteering. To obtain relief under § 1983 for a procedural due process violation, Doe must prove: "(1) a liberty or property interest protected by the Constitution; (2) a deprivation of the interest by the government; and (3) lack of process." Guatay Christian Fellowship v. County of San Diego, 670 F.3d 957, 983 (9th Cir. 2011) (quoting another source). "[A] statute will create an entitlement to a governmental benefit either if the statute sets out conditions under which the benefit must be granted or if the statute sets out the only conditions under which the benefit may be denied." Allen v. Beverly Hills, 911 F.2d 367, 370 (9th Cir. 1990) (quoting another source). "[A] benefit is not a protected entitlement if government officials may grant or deny it in their discretion." Town of Castle Rock v. Gonzales, 545 U.S. 748, 756 (2005).

Doe relies on sections 35021 and 51101 of the California Education Code, but both statutes provide government officials discretion to deny parents opportunities to volunteer. Cal. Educ. Code § 35021 (stating that any person "may be permitted" by the school board to serve as a school volunteer); Cal. Educ. Code § 51101 (stating that parents "have the right and should have the opportunity" to volunteer "with the approval, and under the direct supervision, of the teacher"); see also Gonzales, 545U.S. at 759-61 (reasoning that even statutes with mandatory language such as "shall use every reasonable means" may still afford the official some discretion). In any event, as noted above, she has not presented evidence Ruelas limited her volunteer opportunities.

4. Municipal Liability. Doe argues that Pasadena is subject to municipal liability because it was aware of Ruelas' retaliatory conduct. To impose liability on a municipality under § 1983 for an employee's conduct, Doe must establish:

(1) that [s]he possessed a constitutional right of which [s]he was deprived; (2) that the municipality had a policy; (3) that this policy "amounts to deliberate indifference" to the plaintiff's constitutional right; and (4) that the policy is the "moving force behind the constitutional violation."

Oviatt v. Pearce, 954 F.2d 1470, 1474 (9th Cir. 1992) (quoting City of Canton v. Harris, 489 U.S. 378, 389-91 (1989)). Deliberate indifference is "a stringent standard of fault, requiring proof that a municipal actor disregarded a known or obvious consequence of his action." Bd. of Cty. Comm'rs v. Brown, 520 U.S. 397, 410 (1997).

The evidence presented is insufficient to establish municipal liability. Doe cites evidence that the school board knew about Ruelas' retaliatory threats against her and other parents and teachers. But Doe does not point to any school district policy that amounted to "deliberate indifference" to her constitutional rights and does not explain how outstanding discovery could contain such evidence.Additionally, Doe's Monell claim fails because we have rejected her claims that Ruelas violated her constitutional rights. See Quintanilla v. City of Downey, 84 F.3d 353, 355 (9th Cir. 1996).

5. Rule 56(d) Request. The district court did not abuse its discretion in denying Doe's Rule 56(d) request because she sought duplicative and irrelevant evidence. See Michelman...