Susan Dyer Reynolds v. Dean E. Preston

Opinion

UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT JUN 10 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS SUSAN DYER REYNOLDS, No. 23-15504

Plaintiff-Appellee, D.C. No. 3:22-cv-08408-WHO Northern District of California, v. San Francisco

DEAN E. PRESTON, ORDER

Defendant-Appellant.

Before: KOH, H.A. THOMAS, and DESAI, Circuit Judges.

The panel has unanimously voted to GRANT the petition for panel

rehearing, Dkt. No. 48. The memorandum disposition filed on June 3, 2024, is

hereby amended. The amended disposition will be filed concurrently with this

order. No future petitions for panel rehearing or rehearing en banc will be

entertained. NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 10 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

SUSAN DYER REYNOLDS, No. 23-15504

Plaintiff-Appellee, D.C. No. 3:22-cv-08408-WHO

v. AMENDED MEMORANDUM* DEAN E. PRESTON,

Appeal from the United States District Court for the Northern District of California William Horsley Orrick, District Judge, Presiding

Argued and Submitted May 30, 2024 San Francisco, California

Dean E. Preston, a member of the San Francisco Board of Supervisors,

appeals a district court order denying his motion to dismiss Susan Dyer Reynolds’s

claim that Preston violated Reynolds’s First Amendment rights by blocking her on

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Twitter.1 “We have jurisdiction under the collateral order doctrine to review a

district court’s rejection of a qualified immunity defense at the motion to dismiss

stage, and we review such a denial de novo.” Polanco v. Diaz, 76 F.4th 918, 925

(9th Cir. 2023) (citations omitted). We reverse and remand for the district court to

dismiss Reynolds’s claim for damages.

To overcome a qualified immunity defense at the motion to dismiss stage, a

plaintiff must show that, “accepting all of [the plaintiff’s] allegations as true, [the

defendant’s] conduct ‘(1) violated a constitutional right that (2) was clearly

established at the time of the violation.’” Id. (quoting Ballou v. McElvain, 29 F.4th

413, 421 (9th Cir. 2022)). Reynolds argues that Preston’s conduct violated law

clearly established by our decision in Garnier v. O’Connor-Ratcliff, 41 F.4th 1158

(9th Cir. 2022), vacated, 601 U.S. 205 (2024). But the Supreme Court has since

vacated that decision. O’Connor-Ratcliff v. Garnier, 601 U.S. 205, 208 (2024).

This vacatur prevents our decision in Garnier “from spawning any legal

consequences”—including the consequence of clearly establishing the violation of

a constitutional right. Camreta v. Greene, 563 U.S. 692, 713 (2011) (quoting

United States v. Munsingwear, Inc., 340 U.S. 36, 41 (1950)). Reynolds cites no

1 Since Reynolds filed her complaint, Twitter has been renamed X. Irina Ivanova, Twitter is Now X. Here’s What That Means., CBS News (July 31, 2023, 2:18 PM), https://www.cbsnews.com/news/twitter-rebrand-x-name-change- elon-musk-what-it-means/ [https://perma.cc/98P6-QDD4].

2 other case clearly establishing that blocking her on Twitter violated her First

Amendment rights.

Absent clearly established law, Preston is entitled to qualified immunity. See

Polanco, 76 F.4th at 925. We therefore reverse the judgment of the district court

and remand with instructions to dismiss Reynolds’s claim for damages.

REVERSED and REMANDED.