Maura Larkins v. Thomas Moore

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 22 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MAURA LARKINS, No. 18-56350
Plaintiff-Appellant, D.C. No. 3:16-cv-02661-LAB-NLS
v.
MEMORANDUM*
THOMAS MOORE, MD, CEO of UC San
Diego Health System Faculty Practice and
Dean for Clinical Affairs, UCSD Health
Sciences; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Submitted July 15, 2019**
Before: SCHROEDER, SILVERMAN, and CLIFTON, Circuit Judges.
Maura Larkins appeals pro se from the district court’s judgment dismissing
her 42 U.S.C. § 1983 action alleging First Amendment claims against the
University of California San Diego Health System (“UCSDHS”) and its doctors
*
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).
arising out of their refusal to reinstate her as a patient. We have jurisdiction under
28 U.S.C. § 1291. We review de novo a dismissal for failure to state a claim under
Federal Rule of Civil Procedure 12(b)(6). Decker v. Advantage Fund Ltd., 362
F.3d 593, 595-96 (9th Cir. 2004). We affirm.
The district court properly dismissed Larkins’s free speech and right-to-
petition claims because Larkins failed to allege facts sufficient to show how the
Care Agreement violated the First Amendment. See Minn. State Bd. for Cmty.
Colls. v. Knight, 465 U.S. 271, 285 (1984) (the First Amendment does not include
the right to have government officials respond or listen to individuals’
communications on public issues); Berger v. City of Seattle, 569 F.3d 1029, 1036
(9th Cir. 2009) (en banc) (explaining that “reasonable regulations governing the
time, place, and manner of speech” do not violate the First Amendment (citation
and internal quotation marks omitted)).
The district court properly dismissed Larkins’s retaliation claim because
Larkins failed to allege facts sufficient to show that the Care Agreement would
chill a person of ordinary firmness from exercising his or her First Amendment
rights. See Mendocino Envtl. Ctr. v. Mendocino County, 192 F.3d 1283, 1300 (9th
Cir. 1999) (to state a retaliation claim, a plaintiff must allege facts showing that an
official’s actions “deterred or chilled [the plaintiff’s … speech] and such
deterrence was a substantial or motivating factor [in the defendant’s] conduct”
2 18-56350
(citation and internal quotation marks omitted)).
The district court did not abuse its discretion in denying Larkins’s ex parte
motion for leave to file a second amended complaint because the proposed
amendments would have been futile. See Gardner v. Martino, 563 F.3d 981, 990
(9th Cir. 2009) (setting forth standard of review and explaining that a district court
may deny leave to amend where the proposed amendments would be futile).
Larkins’s contentions that the district court failed to take her allegations as
true, made factual errors in analyzing her claims, and improperly denied her
requests for declaratory and injunctive relief are unpersuasive.
AFFIRMED.
3 18-56350