Karen Velie v. Adam Hill

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 30, 2018
• Docket: 17-55233
• Status: Unpublished

Opinion

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT AUG 30 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS KAREN VELIE, No. 17-55233

Plaintiff-Appellant, D.C. No. 2:16-cv-07839-DSF-E

v. MEMORANDUM* ADAM HILL; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California Dale S. Fischer, District Judge, Presiding

Argued and Submitted August 6, 2018 Pasadena, California

Before: CLIFTON and CALLAHAN, Circuit Judges, and HOYT,** District Judge.

Plaintiff-appellant, Karen Velie (“Velie”), appeals the district court’s

dismissal of her complaint with prejudice under Fed. R. Civ. P. 12(b)(6). Velie

filed suit under 42 U.S.C. § 1983 and California state law. She alleged that

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Kenneth M. Hoyt, United States District Judge for the Southern District of Texas, sitting by designation. Defendant-appellees, Adam Hill and the County of San Luis Obispo

(“Defendants”), deprived her of her First Amendment rights by denying her equal

access to information and retaliating against her for her reporting. We affirm.1

Velie has failed to state a claim for First Amendment denial of equal access.

The government enjoys extraordinary discretion when selecting “private speakers

to transmit specific information pertaining to its own [affairs].” Rosenberger v.

Rector & Visitors of Univ. of Va., 515 U.S. 819, 833 (1995). Although the First

Amendment guarantees the press a limited right to gather news, see Pell v.

Procunier, 417 U.S. 817, 833 (1974), journalists have no “constitutional right of

special access to information not available to the public generally.” Branzburg v.

Hayes, 408 U.S. 665, 684 (1972); see also Houchins v. KQED, Inc., 438 U.S. 1, 9

(1978) (plurality opinion) (“This Court has never intimated a First Amendment

guarantee of a right of access to all sources of information within government

control.”); id. at 16 (Stewart, J., concurring in judgment) (“The First and

Fourteenth Amendments do not guarantee the public a right of access to

information generated or controlled by government, nor do they guarantee the

1 As the parties are familiar with the facts and procedural history, we restate them only as necessary to explain our decision. 2 press any basic right of access superior to that of the public generally.”). 2 In her

complaint, Velie asserts only general allegations in support of her claim for denial

of equal access to information. She does not sufficiently allege that she was

uniquely deprived of public information or information that Defendants distributed

to all media on a nondiscretionary basis. She has, therefore, failed to state a claim

for denial of equal access.

Velie has also failed to state a claim for First Amendment retaliation. To

state a claim for retaliation, Velie must allege that Defendants subjected her to

adverse action because of her constitutionally protected journalistic activities.

Mulligan v. Nichols, 835 F.3d 983, 988 (9th Cir. 2016). Velie has not done so.

Defendants’ refusal to grant her access to discretionary government information

does not constitute retaliation because the First Amendment does not guarantee

access to such information. Velie’s argument that Defendants retaliated against her

by publicly defaming her is also unavailing because she does not allege that

Defendants’ comments were accompanied by any official action that deprived her

of a right or privilege. Similarly, her argument that Defendants retaliated against

her by pressuring her advertisers to stop working with her is unsuccessful because

2 Because Justice Stewart’s view in Houchins was the narrowest prevailing one, it has controlling effect. See Marks v. United States, 430 U.S. 188, 193 (1977). 3 she does not allege that Defendants took or threatened to take state action if the

advertisers did not accede to their requests. See Am. Family Ass’n, Inc. v. City &

Cty. of San Francisco, 277 F.3d 1114, 1125 (9th Cir. 2002).

Moreover, Velie has waived her equal protection claim, as her entire claim

rests solely on a single heading asserted in her brief filed in opposition to

Defendants’ motion to dismiss. The district court made no finding with regard to

this claim because Velie failed to raise any argument concerning it or offer any

legal authority in support thereof. Since Velie failed to properly address this claim

before the district court, we need not address it now on appeal. See In re E.R.

Fegert, Inc., 887 F.2d 955, 957 (9th Cir. 1989) (“The rule in this circuit is that

appellate courts will not consider arguments that are not properly raised in the trial

courts. . . . A workable standard . . . is that the argument must be raised sufficiently

for the trial court to rule on it.”) (internal quotation marks and citations omitted).

Finally, we find that the district court did not abuse its discretion in granting

Defendants’ motion to dismiss without leave to amend. The district court may deny

leave to amend if amendment would be futile. See AE ex rel. Hernandez v. Cty. of

Tulare, 666 F.3d 631, 636 (9th Cir. 2012). Velie has not provided any specific

allegations that she would use to amend her complaint, either before the district

court or on appeal. The district court was, therefore, within its discretion to dismiss

4 Velie’s complaint with prejudice. See Gingery v. City of Glendale, 831 F.3d 1222,

1231 (9th Cir. 2016); Carrico v. City & Cty. of San Francisco, 656 F.3d 1002,

1008 (9th Cir. 2011).

AFFIRMED.