San Francisco International Arts Festival v. Breed

— 1 — — 2 — — 3 — — 4 — — 5 — 6 UNITED STATES DISTRICT COURT 7 NORTHERN DISTRICT OF CALIFORNIA — 8 — 9 SAN FRANCISCO INTERNATIONAL Case No. 20-cv-07314-JD ARTS FESTIVAL, et al., — 10 — Plaintiffs, ORDER RE MOTIONS TO DISMISS — 11 — v. Re: Dkt. Nos. 94, 100 — 12 — LONDON BREED, et al., — 13 — Defendants. — 14 — — 15 — 16 Plaintiffs San Francisco International Arts Festival (SFIAF) and one of its affiliated artists, 17 Nkechi Emeruwa, sued San Francisco Mayor London Breed and California Governor Gavin 18 Newsom over limitations on public gatherings implemented in response to the COVID-19 19 pandemic. The flash points, per the operative complaint, were the denial of permits for outdoor 20 performance events at Crane Cove Park in May 2021 and the Jerry Garcia Amphitheater in 21 September 2021. Plaintiffs say they were denied these permits while other organizations were 22 allowed to hold events at other locations throughout San Francisco. Dkt. No. 93 (TAC). 23 Plaintiffs alleged three claims under 42 U.S.C. § 1983 against Breed on grounds of 24 freedom of expression, equal protection, and due process. Newsom was expressly excluded as a 25 defendant in these claims. The only claim against Newsom is for declaratory relief ostensibly 26 based on similar grounds, although the TAC is rather vague on this point. See TAC ¶¶ 47-48. The 27 same declaratory relief claim is directed against Breed. Defendants have moved for dismissal of 1 94, 100. The parties’ familiarity with the record is assumed, and plaintiffs’ third amended 2 complaint is dismissed with prejudice. 3 DISCUSSION 4 I. DECLARATORY RELIEF 5 Plaintiffs’ sole allegation for this claim is that “[a]n actual controversy has arisen and now 6 exists between Plaintiffs and Defendants, . . . , including each party’s respective rights and 7 interests to hold gatherings and obtain permits during the COVID-19 Pandemic. Accordingly, a 8 declaration of each party’s respective rights is needed.” TAC ¶ 48. Plaintiffs add in the prayer for 9 relief that they seek an order “declaring unconstitutional the Mayor’s and Governor’s guidelines 10 for outdoor gatherings to the extent that they treat certain arts with less protection and more 11 restrictions than imposed on others who have similarly protected constitutional rights to f[r]ee 12 speech and the right to assemble.” Id. at 12 (Prayer) ¶ 4. 13 Even giving plaintiffs every benefit of the doubt, these are hardly short and plain 14 statements showing plaintiffs may be entitled to relief, as Rule 8 contemplates. Plaintiffs omit any 15 material facts, such as whether a current controversy actually exists in the form of permit 16 applications that are presently pending, or what the “Mayor’s and Governor’s guidelines for 17 outdoor gatherings” might be. Plaintiffs are equally opaque with respect to the nature and content 18 of the declaration they hope to obtain. 19 This is all too vague to fairly apprise defendants of the claim against them, or to warrant 20 judicial intervention. “Federal courts do not have a duty to grant declaratory judgment; therefore, 21 it is within a district court’s discretion to dismiss an action for declaratory judgment.” Leadsinger, 22 Inc. v. BMG Music Publishing, 512 F.3d 522, 533 (9th Cir. 2008). That is the appropriate 23 outcome here. As in Public Affairs Associates, Inc. v. Rickover, 369 U.S. 111 (1962), SFIAF and 24 Emeruwa are seeking “declaratory judgments on issues of public moment” -- i.e., COVID-1925 related rules and regulations on public gatherings -- and they are doing so “in speculative 26 situations” and on a “woefully lacking” record. 369 U.S. at 112-13 . “So fragile a record is an 27 unsatisfactory basis on which to entertain this action for declaratory relief.” Id. at 114 . 1 II. CLAIMS AGAINST MAYOR BREED 2 Because Breed has been “sued in her official capacity” as Mayor of the City and County of 3 San Francisco for purposes of the Section 1983 claims, TAC ¶ 3, the suit against her functionally 4 is a suit against the City and County of San Francisco. See Kentucky v. Graham, 473 U.S. 159 , 5 165-66 (1985). This means that plaintiffs must satisfy Monell v. Department of Social Services of 6 the City of New York, 436 U.S. 658, 694 (1978), which held that “a local government may not be 7 sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when 8 execution of a government’s policy or custom, whether made by its lawmakers or by those whose 9 edicts or acts may fairly be said to represent official policy, inflicts the injury that the government 10 as an entity is responsible under § 1983.” 11 Plaintiffs have not plausibly alleged any policy, custom, or practice on the part of the City 12 and County of San Francisco that led to the constitutional violations asserted in the complaint. See 13 Saved Magazine v. Spokane Police Dept., 19 F.4th 1193, 1201 (9th Cir. 2021) (“The City of 14 Spokane cannot be held liable because even assuming Spokane police officers violated Yaghtin’s 15 First Amendment rights, nothing in the complaint plausibly alleges a policy, custom, or practice 16 leading to that violation.”) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Plaintiffs say their 17 constitutional rights were violated on two occasions in 2021. See, e.g., TAC ¶ 30. But “a policy 18 or practice requires more than a few occurrences of challenged conduct. A single or even a few 19 isolated and sporadic incidents of unconstitutional conduct are not enough to impose municipal 20 liability under Section 1983.” Escobar-Lopez v. City of Daly City, 527 F. Supp. 3d 1123 , 1128 21 (N.D. Cal. 2021) (citing Gant v. Cnty. of Los Angeles, 772 F.3d 608, 618 (9th Cir. 2014)). 22 Allegations of “no more than an ‘isolated or sporadic incident[]’ . . . cannot form the basis of 23 Monell liability for an improper custom.” Saved Magazine, 19 F.4th at 1201 (quoting Trevino v. 24 Gates, 99 F.3d 911, 918 (9th Cir. 1996)). 25 Plaintiffs’ tentative effort to escape this conclusion on the basis of a “ratification” theory is 26 of no moment. Plaintiffs say in their opposition brief that Breed “has final policy making 27 authority over executive agencies such as the Port and Park and Rec,” and “plaintiffs believe she 1 to the constitutional violations resulting from those decisions.” Dkt. No. 101 at 9-10. This is 2 again vague and conclusory, and entirely outside of the complaint. The TAC does not present any 3 plausible factual allegations in support of a ratification theory. It does not allege any facts 4 indicating that Breed “adopted and expressly approved of the acts of others who caused the 5 constitutional violation.” Trevino, 99 F.3d at 920 ; see also Christie v. Iopa, 176 F.3d 1231 , 1239 6 (9th Cir. 1999). 7 A. First Amendment -- Freedom of Expression 8 The shortfall under Monell is enough in itself to terminate all of the Section 1983 claims. 9 For the sake of comprehensiveness, and to underscore the weakness of the TAC overall, the Court 10 will identify the additional deficiencies in the individual claims. 11 The first claim says that Mayor Breed’s alleged conduct “will have the effect of depriving 12 plaintiffs of” their rights to freedom of expression under the First Amendment. TAC ¶ 37. But 13 the TAC does not plausibly allege anything like a First Amendment violation. “In most cases 14 where restrictions on speech are challenged pursuant to the First Amendment, we ask whether a 15 legislative act, such as a city ordinance or permit scheme, unconstitutionally infringes on speech.” 16 Saved Magazine, 19 F.4th at 1199 . The TAC does not identify a concrete and specific city 17 ordinance or permit regime that might have caused a free speech violation. It does not adduce any 18 facts that might plausibly state viewpoint discrimination of any sort. Nor does it identify a 19 regulation of speech that is not sufficiently “narrowly tailored to serve [a] substantial and content20 neutral governmental interest[]” or which fails to “leave[] open ample [alternative] channels of 21 communication.” Ward v. Rock Against Racism, 491 U.S. 781, 803 (1989). 22 B. Fourteenth Amendment -- Equal Protection 23 The second Section 1983 claim alleges that “plaintiffs were and are all exercising a 24 fundamental right, which defendants, and each of them discriminated against, by allowing others 25 with less rights, including sporting events, to engage in outdoor activities without severe 26 restrictions on artists and attendees.” TAC ¶ 40. Mayor Breed’s alleged conduct is again said to 27 have infringed this right. 1 “To state a § 1983 claim for violation of the Equal Protection Clause a plaintiff must show 2 that the defendants acted with an intent or purpose to discriminate against the plaintiff based upon 3 membership in a protected class.” Thornton v. City of St. Helens, 425 F.3d 1158, 1166 (9th Cir. 4 2005) (quotations and citation omitted). The allegations in the TAC do not identify any group that 5 is “comprised of similarly situated persons so that the factor motivating the alleged discrimination 6 can be identified.” Id. at 1167 . Instead, plaintiffs’ allegations impermissibly “conflat[e] all 7 persons not injured into a preferred class receiving better treatment than the plaintiff.” Id. (internal 8 quotations and citation omitted). See, e.g., TAC ¶ 40 (asserting that defendants allowed “others 9 with less rights, including sporting events, to engage in outdoor activities” while plaintiffs’ 10 permits were denied); ¶ 28 (giving examples of City and County of San Francisco’s ability to 11 “work with dozens of other organizations to allow literally hundreds of other events to take place 12 in San Francisco,” all at other locations and in different contexts). 13 “Although a successful equal protection claim may be brought by a class of one, the 14 plaintiff still bears the burden of proving that she has been intentionally treated differently from 15 others similarly situated and that there is no rational basis for the difference in treatment.” 16 Thornton, 425 F.3d at 1167 (cleaned up). Among other deficiencies, plaintiffs have not alleged 17 that any other group (arts or otherwise) was granted a permit to hold an outdoor event at Crane 18 Cove Park or the Jerry Garcia Amphitheater during the same time period for which plaintiffs’ 19 permit applications were denied. 20 C. Fourteenth Amendment -- Due Process 21 The third Section 1983 claim alleges that Mayor Breed “denied plaintiffs due process by 22 retaliating against plaintiffs in violation of their rights to due process.” TAC ¶ 45. Plaintiffs also 23 say, on information and belief, that Mayor Breed “took the actions with respect to the permit in 24 retaliation for plaintiffs filing this action and past constitutionally protected actions by SFIAF and 25 its Executive Director, Andrew Woods.” Id. ¶ 44. 26 What these vague and conclusory allegations might mean is entirely unclear in the TAC. 27 Plaintiffs again try to fill in the void in the opposition brief by saying that they are attempting to 1 claim hinges on proof of two elements: (1) a protectible liberty or property interest, and (2) a 2 denial of adequate procedural protections.” Thornton, 425 F.3d at 1164 . Plaintiffs have not 3 plausibly alleged facts supporting either element. Plaintiffs cite Concrete Pipe and Products of 4 California, Inc. v. Construction Laborers Pension Trust for Southern California, 508 U.S. 602 5 (1993), for the proposition that “[p]rocedural due process is not met when the decision maker is 6 neither neutral nor detached.” Dkt. No. 101 at 9. But that holding is not applicable here. See 7 Concrete Pipe, 508 U.S. at 617-18 (“due process requires a neutral and detached judge in the first 8 instance,” and “the rigid requirements designed for officials performing judicial or quasi-judicial 9 functions are not applicable to those acting in a prosecutorial or plaintiff-like capacity”) (emphasis 10 added and cleaned up). 11 In any event, the allegations of bias against Mayor Breed are wholly conclusory, and too 12 vague and speculative to be plausible. See TAC ¶ 31 (“Plaintiffs are informed and believe and 13 thereon allege that the Mayor has retaliated against Plaintiffs based on their failure to support her 14 in the past, for challenging her public orders during the COVID pandemic, and for bringing this 15 litigation against her. Plaintiffs are informed and believe and thereon allege that the current 16 refusal of the CCSF to grant the permits at issue, like past mistreatment of SFIAF by the Mayor, is 17 due, in whole or in part to the opposition of individuals associated with SFIAF, in particular 18 Wood, to her past campaigns for electoral office.”). 19 CONCLUSION 20 The TAC is dismissed in its entirety. This was plaintiffs’ fourth try at making out a 21 plausible claim against defendants, and the remaining question is whether they are entitled to a 22 fifth effort. “Although leave to amend a deficient complaint shall be freely given when justice so 23 requires, leave may be denied if amendment of the complaint would be futile.” Gordon v. City of 24 Oakland, 627 F.3d 1092, 1094 (9th Cir. 2010) (citation omitted). “[W]here the plaintiff has 25 previously been granted leave to amend and has subsequently failed to add the requisite 26 particularity to its claims, the district court’s discretion to deny leave to amend is particularly 27 broad.” Zucco Partners, LLC v. Digimarc Corp., 552 F.3d 981, 1007 (9th Cir. 2009) (cleaned up). 1 Dismissal with prejudice is warranted at this stage. Plaintiffs have had many opportunities 2 || to state a plausible claim. They did not succeed, and nothing in their briefs or the record as a 3 whole indicates that they would fare any better in another try. Plaintiffs certainly did not provide a 4 || good reason for further amendment, or say anything about what they might add in a fifth 5 |} complaint. Dkt. No. 101 at 13; Dkt. No. 102 at 9. And as is widely recognized, the pandemic 6 || landscape has changed substantially for the better. Public events of every type -- sports, music, 7 arts, political, and religious -- are resuming. The documents in defendants’ requests for judicial 8 notice, Dkt. Nos. 95 & 98-1, which plaintiffs have not opposed, show as much, and underscore 9 || how COVID-19 regulations for public gatherings have vastly changed since plaintiffs filed this 10 |] case in October 2020. 11 The case is dismissed with prejudice, and judgment will be entered for defendants. Each 12 side will bear its own fees and costs. 5 13 IT IS SO ORDERED. || Dated: March 4, 2022 — 16 — JAMESf#ONATO 17 United fftates District Judge — 18 — — 19 — — 20 — — 21 — — 22 — — 23 — — 24 — — 25 — — 26 — — 27 — — 28 —