Klein v. Ariz. State Univ.

Linda Rae'Lee Klein, Plaintiff, v. Arizona State University, et al., Defendants.

No. CV-20-01982-PHX-SPL

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

December 17, 2020

ORDER

Before the Court is Defendants Arizona Board of Regents ("ABOR"), Arizona State University ("ASU"), Walter Cronkite School of Journalism and Mass Communication ("Cronkite"), and Kristin Grady Gilger's Motion to Dismiss filed pursuant to Fed. R. Civ. P. ("Rule") 12(b)(1) and 12(b)(6) and LRCiv. 12.1. (Doc. 11) The Motion has been fully briefed and is ready for consideration. (Docs. 11, 15, 19) For the following reasons, the Motion is granted in part and denied in part.¹

I. BACKGROUND

Plaintiff Linda Rae'Lee Klein is a student at ASU's Cronkite School. (Doc. 6 at 4) Plaintiff is or was station manager of the school's only radio station, The Blaze. (Doc. 6 at 2) Plaintiff alleges some of her fellow students demanded she be removed from her position as station manager after she posted from her personal Twitter account about the police-involved shooting of a black man, Jacob Blake. (Doc. 6 at 4) Plaintiff tweeted a New York Post article about Blake's criminal history—specifically, that at the time of the shooting he had an outstanding arrest warrant for allegedly "commit[ing] sexual assault against a woman by digitally penetrating her in front of her child, before stealing her car." (Doc. 6 at 3) Plaintiff tweeted the article along with the caption: "Always more to the story, folks. Please read this article to get the background of Jacob Blake's warrant. You'll be quite disgusted." (Doc. 6 at 4)

Several students subsequently demanded Plaintiff's removal from her position as station manager. (Doc. 6 at 4) In an email sent on September 15, 2020, Cronkite's Interim Dean (Defendant Gilger) told Plaintiff that "staying on as station manager is not an option." (Doc. 6 at 5) At some point, Plaintiff's fellow students allegedly blocked her access to the radio stations online management system. (Doc. 6 at 5) On October 13, 2020, Plaintiff filed a Complaint in this Court alleging (1) a claim under 42 U.S.C. § 1983 for violation of her First Amendment rights, and (2) a claim under A.R.S. § 15-1864 for violations of her freedom of speech as a University student. (Doc. 6 at 8-9) That same day, Plaintiff filed an Application for Injunctive Relief, seeking to enjoin Defendants from removing Plaintiff as station manager of The Blaze. (Doc. 2) Plaintiff filed an Amended Complaint on October 13, 2020. (Doc. 6) Defendants filed a Motion to Dismiss on November 6, 2020 alleging that (1) the Court lacks subject matter jurisdiction over the claims and (2) Plaintiff failed to state a claim upon which relief can be granted. (Doc. 11) Plaintiff filed her Response on November 20, 2020 (Doc. 15) and Defendants filed their Reply November 27, 2020. (Doc. 19)

II. LEGAL STANDARD

Rule 12(b)(1) "allows litigants to seek the dismissal of an action from federal court for lack of subject matter jurisdiction." Kinlichee v. United States, 929 F. Supp. 2d 951, 954 (D. Ariz. 2013) (quotation omitted). "Allegations raised under Rule 12(b)(1) should be addressed before other reasons for dismissal because if the complaint is dismissed for lack of subject matter jurisdiction, other defenses raised become moot." Id. at 954. "Amotion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) may attack either the allegations of the complaint as insufficient to confer upon the court subject matter jurisdiction, or the existence of subject matter jurisdiction in fact." Renteria v. United States, 452 F. Supp. 2d 910, 919 (D. Ariz. 2006); see also Edison v. United States, 822 F.3d 510, 517 (9th Cir. 2016). "When the motion to dismiss attacks the allegations of the complaint as insufficient to confer subject matter jurisdiction, all allegations of material fact are taken as true and construed in the light most favorable to the nonmoving party." Renteria, 452 F. Supp. 2d at 919. "When the motion to dismiss is a factual attack on subject matter jurisdiction, however, no presumptive truthfulness attaches to the plaintiff's allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the existence of subject matter jurisdiction in fact." Id. "A plaintiff has the burden of proving that jurisdiction does in fact exist." Id.

To survive a motion to dismiss under Rule 12(b)(6), a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief" so that the defendant is given fair notice of the claim and the grounds upon which it rests. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Fed. R. Civ. P. 8(a)(2)). A court may dismiss a complaint for failure to state a claim under Rule 12(b)(6) for two reasons: (1) lack of a cognizable legal theory, or (2) insufficient facts alleged under a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). When deciding a motion to dismiss, all allegations of material fact in the complaint are taken as true and construed in the light most favorable to the nonmoving party. Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009).

III. ANALYSIS

Here, Defendants move to dismiss the Amended Complaint in its entirety. (Doc. 11 at 1) Defendants argue that (1) Eleventh Amendment sovereign immunity protects ABOR, ASU, and Cronkite from suit; (2) Eleventh Amendment sovereign immunity applies to Defendant Gilger in her official capacity, (3)(a) Plaintiff fails to state a claim against Gilger personally; (3)(b) Plaintiff has not complied with Arizona's notice of claim statute; and (4)Plaintiff failed to state a claim under A.R.S. § 15-1864. (Doc. 11 at 1-2) Defendants contend this is not a constitutional law case and that Plaintiff's First Amendment rights are not in fact at issue. (Doc. 11 at 2)

Plaintiff responds that (1) the Eleventh Amendment does not apply to constitutional law claims and that she has adequately pled a First Amendment claim against Defendants, (2) ABOR has consented to suit under A.R.S. § 15-1864, (3) Gilger may be sued in her official and personal capacity, (4) Plaintiff has properly stated a claim under A.R.S. § 15-1864, and (5) Arizona's notice of claim statute does not bar any of the claims at issue. (Doc. 15)

The Court will first address the Rule 12(b)(1) arguments. See Kinlichee, 929 F. Supp. 2d at 954.

A. 12(b)(1) Arguments: Eleventh Amendment sovereign immunity creates a jurisdictional bar

i. ABOR, ASU, and Cronkite

"Sovereign immunity provides that an individual may not sue a state, a division of a state, or an instrumentality/arm of a state without the state's consent." Arizona Students' Ass'n v. Arizona Bd. of Regents, 824 F.3d 858, 864 (9th Cir. 2016) (internal citations omitted). There is an exception to this rule under the Ex Parte Young doctrine, which allows suits for injunctive relief to be brought against state officials in violation of federal law. Hason v. Med. Bd. of California, 279 F.3d 1167, 1171 (9th Cir. 2002) (citing Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908)). That exception applies to ongoing violations of a plaintiff's First Amendment rights to the extent that the plaintiff seeks prospective injunctive relief. Arizona Students' Ass'n, 824 F.3d at 865. Importantly, the exception does not apply to divisions, instrumentalities, or arms of states. See id.; see also Jamul Action Comm. v. Simermeyer, 974 F.3d 984, 994 (9th Cir. 2020). Furthermore, "[t]o bring such a claim, the plaintiff must identify a practice, policy, or procedure that animates the constitutional violation at issue." Arizona Students' Ass'n, 824 F.3d at 865.

Here, Plaintiff sues three state entities and one state employee. (Doc. 6 at 1) AsDefendants point out, the case Plaintiff cites as a basis for the Ex Parte Young exception, Arizona Students' Association, specifically states that ABOR cannot be sued as an entity. 824 F.3d at 865. (Doc. 19 at 3) That rule also applies to ASU and Cronkite because they are state entities. Jamul Action Comm. v. Simermeyer, 974 F.3d at 994. This Court does not have jurisdiction over ABOR, ASU, or Cronkite because of Eleventh Amendment sovereign immunity. To the extent Plaintiff seeks relief under Rule 21 to add individual regents, amendment is futile based on other deficiencies, as discussed below. Furthermore, Rule 21 is used in situations where there has been a misjoinder, and not usually in situations where the person or entity being sued does not fall within the Court's jurisdiction. Although a court may allow addition of parties if justice so requires under Rule 21, it is not clear that is the case here.

Plaintiff argues A.R.S. § 15-1625 indicates that the state of Arizona has consented to suit in federal court. (Doc. 15 at 4) The statute states that ABOR can "sue and be sued." A.R.S. § 15-1625(B)(3). This Court has previously held that A.R.S. § 15-1625 does not provide consent to be sued in federal court. Lazarescu v. Arizona State Univ., 230 F.R.D. 596, 599 (D. Ariz. 2005) (citing Harris v. Arizona Bd. of Regents, 528 F.Supp. 987, 994-95 (D. Ariz. 1981)). Plaintiff argues that Lazarescu and Harris are improper to show A.R.S. § 15-1625 does not waive Eleventh Amendment immunity in federal court because the cases were outside of the First Amendment context. (Doc. 15 at 5) That is irrelevant. There is nothing in the cases that confines them to a particular context, and this Court will not depart from those holdings.

Next, Plaintiff argues that the Arizona Legislature passed A.R.S. § 15-1864 to create jurisdiction over ABOR, ASU, and Cronkite for violations of the right to freedom of expression. (Doc. 15 at 4-5) The plain language of A.R.S. § 15-1864 states that persons whose rights have been violated "may bring an action in a court of competent jurisdiction to enjoin any violation of this article by any university, community...