Jason Bezis v. City of Livermore

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 19 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JASON ADRIAN BEZIS, No. 19-17386

Plaintiff-Appellant, D.C. No. 3:19-cv-01061-RS

v. MEMORANDUM* CITY OF LIVERMORE; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Northern District of California Richard Seeborg, Chief District Judge, Presiding

Submitted March 18, 2021** San Francisco, California

Before: MURGUIA and CHRISTEN, Circuit Judges, and LYNN,*** District Judge.

Appellant Jason Adrian Bezis (“Bezis”) brought suit under 42 U.S.C. § 1983

against the City of Livermore, John Marchand, individually and in his capacity as

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Barbara M. G. Lynn, Chief United States District Judge for the Northern District of Texas, sitting by designation. the Mayor of Livermore, Steven Spedowfski and Robert Carling, individually and

in their official capacities as members of the Livermore City Council (“City

Council”), and Jason Alcala, individually and in his official capacity as Livermore

City Attorney (collectively called “the City”). Bezis contended that the City violated

his First Amendment rights and his right to due process and equal protection at a

City Council meeting on February 27, 2017, when City Council members, the

Mayor, and the City Attorney interrupted him with multiple procedural points of

order when Bezis strayed from the agenda topic.

The City moved to dismiss Bezis’s First Amended Complaint for failure to

state a claim under Federal Rule of Civil Procedure 12(b)(6), which was granted by

the district court, with leave to amend. After Bezis filed his Second Amended

Complaint, the City again moved to dismiss, and the motion was granted without

leave to amend. Bezis appealed to this Court. We affirm the district court’s grant

of the City’s motion to dismiss.

We have jurisdiction under 28 U.S.C. § 1291. We review de novo a district

court’s dismissal under Federal Rule of Civil Procedure 12(b)(6), accepting as true

all allegations of fact in a well-pleaded complaint and construing those facts in the

light most favorable to the plaintiff. Karam v. City of Burbank, 352 F.3d 1188, 1192

(9th Cir. 2003). A district court’s refusal to exercise supplemental jurisdiction over

state law claims after all federal claims were dismissed is reviewed for abuse of

2 19-17386 discretion. Costanich v. Dep’t of Soc. & Health Servs., 627 F.3d 1101, 1107 (9th

Cir. 2010) (citation omitted). A district court’s decision on qualified immunity is

reviewed de novo. Vazquez v. Cnty. of Kern, 949 F.3d 1153, 1159 (9th Cir. 2020).

The district court did not err in dismissing Bezis’s Second Amended

Complaint. City Council meetings are limited public forums in which it is

appropriate to place reasonable restrictions on the time, place, and manner of speech,

in addition to restrictions on speech content, so long as those regulations are

viewpoint neutral and enforced in a neutral manner. Norse v. City of Santa Cruz,

629 F.3d 966, 975 (9th Cir. 2010) (en banc). The district court properly held that

because Bezis’s comments were off the topic of the agenda, the City Council was

entitled to restrict him to the agenda item, without improperly infringing on his First

Amendment rights, and that Bezis’s Second Amended Complaint failed to allege

any new facts that would impact that holding. Therefore, the district court rightly

concluded that Bezis failed to state a First Amendment claim upon which relief could

be granted.1 Further, the district court properly concluded that because Bezis’s

remaining constitutional claims relied on the same facts alleged to support his First

Amendment claim for relief, those claims necessarily failed as well.

1 The district court also properly dismissed Bezis’s facial First Amendment challenge. The facial challenge was dismissed as moot because the City represented that the challenged procedural rule had been amended twice since the City Council meeting at issue, and Bezis offered no response in opposition, thus, as the district court found, “effectively conceding the point.”

3 19-17386 The district court did not abuse its discretion by dismissing Bezis’s

supplemental state law claims. Under 28 U.S.C. § 1367(c)(3), a district court “may

decline to exercise supplemental jurisdiction over a [state law] claim” when “all

claims over which it has original jurisdiction” have been dismissed. The district

court’s dismissal of Bezis’s state law claims, after all of Bezis’s federal claims were

dismissed, was a proper exercise of the district court’s discretion.

Finally, the district court did not err in finding that Bezis had alleged no facts

to overcome the individual Appellees’ qualified immunity. To determine whether

qualified immunity applies, we ask whether (1) the plaintiff has plausibly alleged a

violation of a constitutional right, and (2) the constitutional right was “clearly

established” at the time of the conduct at issue. Wilk v. Neven, 956 F.3d 1143, 1148

(9th Cir. 2020) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)). The district

court properly found that Bezis had not plausibly alleged a violation of a

constitutional right, and thus had not alleged sufficient facts to overcome the

individual Appellees’ qualified immunity.

AFFIRMED.

4 19-17386