Phillips v. Ochoa

• Court: District Court, D. Nevada
• Decided: March 24, 2021
• Docket: 2:20-cv-00272
• Status: Unknown

Opinion

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 T. Matthew Phillips, Case No.: 2:20-cv-00272-JAD-VCF

4 Plaintiff Order Denying Plaintiff’s Motion for 5 v. Leave to Amend and for Sanctions and Closing Case 6 Judge Vincent Ochoa, et al., [ECF Nos. 39, 66] 7 Defendants

8 Pro se plaintiff T. Matthew Phillips brings this civil-rights action under 42 U.S.C. § 1983, 9 claiming that his First Amendment right to free speech was violated when Nevada state court 10 judge Vincent Ochoa deleted Phillips’s comments and blocked him from accessing the judge’s 11 election-campaign Facebook pages.1 I previously dismissed Phillips’s claims, denied his motion 12 for a preliminary injunction, and ordered him to show cause why he failed to serve defendant 13 Clark County.2 But I authorized him to seek leave to amend his complaint on the condition that 14 he plead true facts raising a reasonable inference that Judge Ochoa acted under color of state law 15 in barring Phillips from the Facebook pages.3 16 Phillips now seeks leave to file his amended complaint4 and sanctions against Judge 17 Ochoa and his counsel under Federal Rule of Civil Procedure 11,5 claiming that the judge filed a 18 spurious emergency motion without abiding by this district’s local rules and engaged in 19 20 1 ECF No. 68 (proposed first amended complaint). This is merely a summary of facts alleged in 21 the complaint and should not be construed as findings of fact. 2 ECF No. 64 (dismissal order). 22 3 Id. at 11. 23 4 ECF No. 66 (motion for leave). 5 ECF No. 39 (motion for sanctions). 1 discovery misconduct. Judge Ochoa opposes both motions, arguing that (1) Phillips has failed to 2 cure the pleading deficiencies identified in my prior dismissal order; (2) his actions smack of bad 3 faith; and (3) he has failed to comply with Rule 11’s safe-harbor provision, allege sanctionable 4 conduct, or seek an appropriate sanction. I find that Phillips’s proposed amended complaint 5 confirms that Judge Ochoa did not act under color of state law in blocking Phillips from his

6 election-campaign pages, so I deny his motion for leave to amend and dismiss his claims with 7 prejudice. I also find that Phillips failed to comply with Rule 11’s mandatory safe-harbor 8 provision and thus deny his request for sanctions. 9 Discussion 10 I. Motion for leave to amend [ECF No. 66] 11 Federal Rule of Civil Procedure 15(a)(2) directs that courts “should freely give leave [to 12 amend] when justice so requires.” In determining whether to grant leave to amend, courts 13 consider five factors: bad faith, undue delay, prejudice to the opposing party, futility of 14 amendment, and whether the plaintiff has previously amended the complaint.6 Futility alone can

15 justify denial of a motion to amend.7 Judge Ochoa argues that I should deny Phillips’s motion 16 for leave to amend because his new factual allegations fail to state a § 1983 claim and his motion 17 was brought in bad faith.8 While Phillips fails to explicitly oppose the second basis, he claims 18 that his amended complaint contains sufficient facts demonstrating that Judge Ochoa acted under 19 20 21

22 6 Johnson v. Buckley, 356 F.3d 1067, 1077 (9th Cir. 2004). 7 Carrico v. City & Cnty. of S.F., 656 F.3d 1002, 1008 (9th Cir. 2011); Gordon v. City of 23 Oakland, 627 F.3d 1092, 1094 (9th Cir. 2010). 8 ECF No. 70. 1 color of state law when he blocked Phillips from the campaign pages.9 I find that granting 2 Phillips leave to amend his complaint would be futile. 3 A. Section 1983 claims and social-media conduct 4 The First Amendment, by its terms, prohibits only governmental abridgment of speech.10 5 To state a colorable § 1983 claim, a plaintiff must allege two elements: (1) the violation of a

6 right secured by the Constitution or laws of the United States and (2) that the alleged violation 7 was committed by a person acting under color of state law.11 Because “§ 1983 excludes from its 8 reach merely private conduct,”12 a plaintiff must demonstrate that the defendant “exercised 9 power ‘possessed by virtue of state law and made possible only because the [defendant] is 10 clothed with the authority of state law.”13 Courts examine the totality of the circumstances to 11 determine if the state official committed the conduct at issue with the imprimatur of the state.14 12 While the Ninth Circuit has yet to definitively address whether a government official who 13 blocks or restricts commentors on his social-media page can be liable under § 1983 for First 14 Amendment violations, multiple circuit courts have provided helpful reasoning on this topic. In

15 my prior dismissal order, I synthesized two of these decisions—Davison v. Randall15 and Knight 16 17 9 ECF No. 64 at 5–6. 18 10 Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1928–30 (2019) (“When the government provides a forum for speech (known as a public forum), the government may be 19 constrained by the First Amendment, meaning that the government ordinarily may not exclude speech or speakers from the forum on the basis of viewpoint, or sometimes even on the basis of 20 content.”). 21 11 See West v. Atkins, 487 U.S. 42, 48 (1988). 12 Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49–50 (1999). 22 13 West, 487 U.S. at 50 (collecting cases). 23 14 Howerton v. Gabica, 708 F.2d 380, 384 (9th Cir. 1983). 15 Davison v. Randall, 912 F.3d 666 (4th Cir. 2019). 1 First Amendment Institute at Columbia University v. Trump16—and determined that courts 2 should inquire into the social-media page’s characteristics, presentation, category, treatment, and 3 use to assess whether a government actor acted under color of state law when barring or 4 otherwise restricting users from his page.17 Applying those decisions to Phillips’s complaint, I 5 noted that the mere fact that Judge Ochoa is a government official is insufficient to show that

6 “the Facebook page was clothed in the authority of state law,” and I found that Phillips had failed 7 to allege sufficient facts showing that the judge acted in his official capacity in denying Phillips 8 access to the page.18 9 Since that order, the Eleventh and Eighth Circuits have similarly addressed whether and 10 how government actors may be liable under § 1983 for blocking social-media users. In an 11 unpublished decision, Attwood v. Clemons, the Eleventh Circuit followed Davison and Knight 12 and declined to require dismissal of a § 1983 claim when a government official, who “adorn[ed] 13 his social media accounts with all the trappings of his state office,” blocked a user from 14 accessing it.19 In that case, the official used the page to “make official statements, to share

15 information about legislative activities and government functions, and to communicate with the 16 general public.”20 But in Campbell v. Reisch, the Eighth Circuit held that a newly elected 17 legislator acted in her private capacity and could not be liable under § 1983 when she blocked a 18 critical commentator from her election campaign’s social-media page.21 Unlike the Attwood 19

20 16 Knight First Amendment Inst. at Columbia Univ. v. Trump, 928 F.3d 226 (2d Cir. 2019). 21 17 ECF No. 64. 18 Id. at 11. 22 19 Attwood v. Clemons, 818 F. App’x 863, 867 (11th Cir. 2020). 23 20 Id. at 867. 21 Campbell v. Reisch, 986 F.3d 822, 825–26 (8th Cir. 2021). 1 defendant, the Campbell official merely used the page to announce her candidacy, “solicit[] 2 donations to her campaign,” “convince her audience to support her election bid,” and “tout her 3 record” and fulfilment of “campaign promises.”22 Consistent with my order dismissing 4 Phillips’s claims, both the Campbell and Attwood courts examined the quality, characteristics, 5 purpose, and use of the government officials’ social-media accounts to determine whether those

6 officials acted in their governmental capacities when they blocked users from accessing their 7 pages. 8 B. Phillips’s amended § 1983 claim 9 Phillips’s new allegations about Judge Ochoa’s Facebook page and conduct do not 10 demonstrate that the judge acted under color of state law when he blocked Phillips. Though 11 lengthy, Phillips’s amended complaint turns on relatively few, materially relevant new facts. As 12 before, Phillips states that he was blocked from Judge Ochoa’s judicial-election campaign 13 pages.23 He alleges that these pages were entitled, respectively, “Re-elect” and “Elect Vincent 14 Ochoa for Family Court Judge, Department S”—the former of which was registered as a

15 “government[-]official” account on Facebook.24 According to Phillips, Judge Ochoa used the 16 pages in his “official” capacity as both a judge and candidate for office “to solicit votes from the 17 general public,” “communicate and interact with the public about the election campaign,” “make 18 posts about his candidacy,” “post comments concerning the 2020 election,” and “make[] 19 20 21 22 22 Id. at 825. 23 23 Compare ECF No. 1 at ¶¶ 14, 47, with ECF No. 68 at ¶ 8. 24 ECF No. 68 at ¶ 9. 1 statements aimed at procuring an ‘electoral result or outcome.’”25 He adds that third parties used 2 the pages to endorse the defendant as “a ‘judge’ and as a ‘candidate.’”26 3 Unfortunately for Phillips, these allegations only undermine his claim because they 4 confirm that Judge Ochoa acted in his personal capacity on his reelection page and not, as 5 Phillips offers, in his official capacity. The decision in Campbell guides my analysis. There, the

6 Eighth Circuit examined almost identical allegations to those Phillips asserts, and determined 7 that being blocked on a social-media page used “overwhelmingly for campaign purposes” could 8 not support a colorable § 1983 claim because “[r]unning for public office is not state action; it is 9 private activity.”27 The Campbell court added that “the mere fact of [the official’s] election did 10 not magically alter the account’s character” because “the overall theme” of the page “remained 11 the same after her electoral victory.”28 The Eighth Circuit was similarly unconvinced that 12 registration of the page to a government official somehow transformed it into an “organ of 13 official business.”29 Like the Campbell page, Phillips alleges that Judge Ochoa used his 14 Facebook page exclusively for campaign purposes and not official business, so blocking Phillips

15 did not and could not occur under color of state law. 16 Phillips’s allegations also demonstrate that Judge Ochoa’s campaign page is 17 fundamentally different from the official accounts at issue in Knight, Davison, and Attwood.30 In 18

19 25 Id. at ¶¶ 9, 17, 19, 24–26, 34. 20 26 Id. at ¶ 29. 27 Campbell, 986 F.3d at 825. 21 28 Id. at 826. 22 29 Id. 30 These decisions are also of limited value because those courts did not have the opportunity to 23 draw a distinction between a campaign page, which any private or public individual may have, and an official page, which only an elected official might operate. 1 Knight, the President used his social-media account in his executive capacity, “announc[ing] 2 ‘matters related to official government business,” like staff changes and “changes to major 3 national policies”; “engag[ing] with foreign leaders”; and “consistently us[ing] the [a]ccount as 4 an important tool of governance and executive outreach.”31 So too in Davison, where the social- 5 media page had been “created and administered” to “further [the official’s] duties as a municipal

6 officer,” “provid[ing] information to the public about [the official’s] and [the board’s] official 7 activities.”32 The Attwood representative likewise used his account “to make official 8 statements,” “share information about legislative activities and government functions,” and “to 9 communicate with the general public,” all while maintaining and preserving his posts in 10 accordance with the state’s public records laws.33 And Judge Jane Kelly’s dissent in Campbell 11 impliedly concedes that blocking users on campaign pages, as opposed to pages used to 12 disseminate official information or conduct official duties, is likely not conduct under the color 13 of state law within the meaning of § 1983.34 Here, the only allegation that even approximates 14 “official” conduct on Judge Ochoa’s campaign page—namely, that the judge explained why he

15 was “reluctant to do jury trials in family court”—was clearly designed to further his re-election 16 campaign.35 These facts cannot support a colorable § 1983 claim. 17 My reasoning also accords with established precedent. As Judge Ochoa points out, and 18 Phillips entirely concedes, actions taken to further election campaigns are generally treated as 19

20 31 Knight, 928 F.3d at 235–36. 32 Davison, 912 F.3d at 680. 21 33 Attwood, 818 F. App’x at 867. 22 34 Campbell, 986 F.3d at 828 (Kelly, J., dissenting) (“Reisch’s election to public office may not have ‘magically alter[ed]’ the character of her Twitter account, as the court notes, but it did 23 change how she used the account and for what purpose.” (alteration in original)). 35 See ECF No. 68 at ¶ 27. 1 private conduct.36 And both circuit courts and the Supreme Court have endorsed the right of 2 election campaigners and political associations to “shape their own messages.37 Phillips offers 3 no reason to deviate from this doctrine. So I find that Phillips, despite having been given a 4 second chance to do so, has failed to allege facts demonstrating that Judge Ochoa blocked 5 Phillips from his Facebook page under color of state law, and I deny as futile his motion for

6 leave to amend.38 7 II. Rule 4(m) service 8 In my order dismissing Phillips’s complaint, I also requested that he show cause why his 9 claims against Clark County should not be dismissed under Rule 4(m) for failure to timely serve 10 this defendant.39 Proffering a “mea culpaa [sic]” in an affidavit filed with the court, Phillips 11 claims that he incorrectly believed that Nevada Attorney General Aaron Ford represented the 12 County and that he could (and would) refrain from serving the County until his claims were 13 14 36 See, e.g., Estate of Sims ex rel. Sims v. Cnty. of Bureau, 506 F.3d 509, 516 (7th Cir. 2007) 15 (noting that acts of “campaign misconduct” do not constitute “actions of a state actor performed under color of state law” but are instead “the private actions of a person who happened to be a 16 [government official]”); Campbell, 986 F.3d at 825. 17 37 Perry v. Schwarzenegger, 591 F.3d 1126, 1142 n.9 (9th Cir. 2009) (“Associations, no less than individuals, have the right to shape their own messages.”); see also Cal. Democratic Party v. 18 Jones, 530 U.S. 567, 575 (2000) (“Unsurprisingly, our cases vigorously affirm the special place the First Amendment reserves for, and the special protection it accords, the process by which a 19 political party ‘select[s] a standard bearer who best represents the party’s ideologies and preferences.’” (citation omitted) (alteration in original)); Nwanguma v. Trump, 903 F.3d 604, 20 613 (6th Cir. 2018) (finding that a candidate’s request to have protestors removed from his campaign event was not incitement to riot and was, instead, protected speech). 21 38 Judge Ochoa also argues that Phillips’s motion should be denied because he brought his suit in bad faith. ECF No. 70 at 10–11. Phillips neglects entirely to respond to this argument, filing a 22 one-page reply brief that is merely a highlight reel of his motion’s arguments. ECF No. 71. While I do not consider Phillips’s alleged bad faith in my order, I could also deny his motion for 23 leave to amend on this uncontested ground. 39 ECF No. 64. 1 deemed meritorious, given the cost of service.40 Because I deny him leave to amend his 2 complaint and dismiss his claims with prejudice, I also dismiss his suit against the County. 3 III. Rule 11 sanctions [ECF No. 39] 4 Phillips seeks sanctions for Judge Ochoa’s filing of an “emergency” motion that did not 5 constitute an emergency and his failure to identify the person that blocked Phillips on the

6 Facebook page.41 Rule 11(c) authorizes courts to “impose an appropriate sanction on any 7 attorney, law firm, or party” under certain circumstances.42 In order to seek sanctions, a party 8 must (1) “describe the specific conduct” that violates Rule 11; (2) serve the motion under Rule 5; 9 and (3) abide by the rule’s safe-harbor provision, which requires that a moving party refrain from 10 filing the motion until after the accused has had the chance to withdraw or appropriately correct 11 the challenged conduct.43 The Ninth Circuit directs courts to “reserve sanctions for the rare and 12 exceptional case where the action is clearly frivolous, legally unreasonable or without legal 13 foundation, or brought for an improper purpose.”44 14 Phillips admits that he did not comply with Rule 11’s safe-harbor provision, failing to

15 notify Judge Ochoa’s counsel that he believed the emergency motion was spurious. This alone is 16 17 18 40 ECF No. 67 at 2–3 (“And, if the Court, respectfully, is inclined to grant leave to amend, 19 Plaintiff promises to faithfully effectuate service on Defendant Clark County forthwith.”). 41 ECF No. 39. 20 42 Fed. R. Civ. P. 11(c)(1). 21 43 Id. at (c)(2). 44 Operating Eng’rs Pension Trust v. A-C Co., 859 F.2d 1336, 1344 (9th Cir. 1988); Islamic 22 Shura Council of S. Cal. v. FBI, 757 F.3d 870, 873 (9th Cir. 2014) (“Rule 11 is intended to deter baseless filings in district court and imposes a duty of ‘reasonable inquiry’ so that anything filed 23 with the court is ‘well[-]grounded in fact, legally tenable, and not interposed for any improper purpose.’” (quoting Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 393 (1990))). 1||reason to deny his motion.* And while he claims that he could not comply with the safe-harbor 2|| provision because the judge “jump[ed] the gun” in filing his allegedly sanctionable motion, his reasoning misreads the rule—the party against whom sanctions are sought must have the All opportunity to “withdraw[]” or “appropriately correct[]” the motion.*® It also fails to account for 5|| the fact that Phillips seeks sanctions for alleged discovery misconduct, which the judge could, and should, have been given the opportunity to remedy. Regardless, the alleged misconduct 7|| Phillips identifies is hardly the type of “baseless” or “improper” filing or behavior the rule seeks 8]| to deter.4”7 So I deny his motion. 9 Conclusion 10 IT IS THEREFORE ORDERED that Phillips’s motion for leave to file an amended 11]}complaint [ECF No. 66] is DENIED. His claims are dismissed with prejudice. 12 IT IS FURTHER ORDERED that Phillips’s motion for sanctions against Judge Ochoa 13]| [ECF No. 39] is DENIED. 14 The Clerk of Court is directed to ENTER JUDGMENT accordingly and CLOSE THIS 15|| CASE. 1 US. District Judgé Jennifer’A. Dorsey 17 March 24, 2021 18 19 20 S Truesdell v. S. Cal. Permanente Med. Grp., 293 F.3d 1146, 1151-52 (9th Cir. 2002) (““Where, as here, sanctions are initiated by motion, Rule 11 provides for a mandatory 21 day safe-harbor period .... This period is meant to give litigants an opportunity to remedy any alleged misconduct before sanctions are imposed.”); Barber v. Miller, 146 F.3d 707-11 (9th Cir. 1998) (vacating a sanctions order because the moving party failed to comply with the safe-harbor provision). 231/46 Fed. R. Civ. P. 11(c)(2). “7 Islamic Shura Council of S. Cal., 757 F.3d at 873. 10