Jason Bezis v. City of Livermore ( 2021 )

NOT FOR PUBLICATION FILED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. § 1983against 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