United States District Court, D. Arizona
Roy E. Spears, Plaintiff,
Arizona Board of Regents, et al., Defendants.
K. JORGENSON, UNITED STATES DISTRICT JUDGE
before the Court is the Motion to Dismiss (“MTD”)
(Doc. 27) filed by State Defendants and the Motion for
Preliminary Injunction (Doc. 35) filed by Plaintiff Roy E.
Spears (“Spears”). The parties have thoroughly
presented the facts and briefed the legal issues. Therefore,
the Court declines to set this matter for oral argument.
See LRCiv 7.2(f); 27A Fed.Proc., L.Ed. § 62:367
(March 2016) ("A district court generally is not
required to hold a hearing or oral argument before ruling on
Factual and Procedural Background
attended the 2017 Festival of Books on the University of
Arizona (“UA”) campus mall (“UA
Mall”) on March 17, 2017. Within minutes of arriving on
campus, “booming sound amplification immersed
Spears.” Amended Complaint (“FAC”) (Doc. 7,
¶ 33). Spears put on his GoPro, amplification system,
headset microphone, placed Gospel signs around a tree, held
one Gospel sign, and began to speak at approximately 12:20
seven minutes, Rebekah Salcedo (“Salcedo”), a UA
“First Amendment Monitor, ” approached and said,
“I'm going to ask you to turn off your microphone.
The only sound permission for the Festival are the sound
stages. You can certainly be here and talk with people but
not with the microphone.” Id. at ¶ 35.
She further stated, “The permit for this weekend for
the sound stages were given to the sound stages. There is no
permits for amplified sound[.]” Id. at ¶
37. When Spears disagreed with “Salcedo's arbitrary
interpretation of the long-standing weekend UA policy
allowing amplification being superseded by the presence of
the Festival[, ]” id. at ¶ 38, Salcedo
replied, “No, it is not arbitrary because the Festival
of Books reserved the stage and the sound licenses for this
weekend were given to the stages.” Id. at
¶ 39. The FAC alleges:
84. Though the UA admits that sound amplification is allowed
on the weekends, they adopt a curious policy for banning all
amplified speech from either UA students or the public during
the Festival. In fact, no one without a permit can amplify
sound during the Festival except those who are officially
part of it: the authors, musicians, non-profits, vendors,
85. The UA accomplishes this permitting scheme through an ad
hoc, unwritten and unnamed policy referred to as the
“sound amplification policy” and is only
applicable once a year during the Festival.
86. Though UA officials refer to this vague policy when
denying students and the public's first amendment right
to amplify during the Festival, they cannot produce official
documentation detailing precisely what this policy
states—it does not exist except, perhaps, in a single
section on a Mall form titled, “The University of
Arizona Commercial and Campus Use Activity Form.”
JPZ1 hpSU5vajBuU2tYR0Jj[.] See middle of page 1, “Sound
FAC (Doc. 7, ¶¶ 84-86).
Students Kathy Adams Riester (“Riester”) arrived
several minutes later. Riester told Spears his amplifying
sound was disruptive to the Festival of Books and that
volunteers from the Festival had complained.
was given three warnings, but he continued to speak with
amplification. University of Arizona Police Department
(“UAPD”) Officer Ian Theel (“Theel”)
advised Spears that, if he continued to speak using
amplification, he would face arrest if he failed to obey
Riester. After Spears continued to speak using amplification,
Spears was arrested. Spears was subsequently stripped of his
possessions and placed in the police cruiser of UAPD Officer
Picktrom (“Picktrom”). Picktrom transported
Spears to the Pima County Adult Detention Center. Spears was
held for nine hours. On March 28, 2018, Spears was found
guilty of third-degree criminal trespass. Spears has appealed
March 8, 2018, Spears filed a civil rights Complaint (Doc. 1)
with this Court. On May 29, 2018, Spears filed his FAC (Doc.
7). The FAC lists the Arizona Board of Regents
(“ABOR”), Brian Seastone (“Seastone”)
in his official capacity as Chief of Police for the
University, Greg Ewer (“Ewer”), individually and
in his official capacity as police officer for the UAPD,
Theel, individually and in his official capacity as police
officer for the UAPD; Picktrom, individually and in his
official capacity as police officer for the UAPD, Riester,
individually and in her official capacity as Dean of Students
for the UA, as Defendants. Spears alleges claims of Count I,
violation of freedom of speech, Count II, violation of due
process clause, Count III, violation of Fourteenth Amendment
right to equal protection, Count IV, intentional infliction
of emotional distress, Count V, abuse of process, Count VI,
false light, Count VII, violation of Fourth Amendment -
arrest without probable cause, and Count VIII, false
5, 2018, Defendants filed a Motion to Dismiss (Doc. 27).
Spears has filed a response (Doc. 31) and Defendants have
filed a reply (Doc. 34).
December 18, 2018, Spears filed a Motion for Preliminary
Injunction (Doc. 35). Defendants have filed a response (Doc.
38) and Spears has filed a reply (Doc. 40).
Requirement that Action State a Claim on Which Relief Can
assert Spears has failed to state a claim against them. A
complaint is to contain a "short and plain statement of
the claim showing that the pleader is entitled to
relief[.]" Fed.R.Civ.P. 8(a). A complaint must set forth
a set of facts that serves to put defendants on notice as to
the nature and basis of the claim(s). The United States
Supreme Court has found that a plaintiff must allege
“enough facts to state a claim to relief that is
plausible on its face.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007). While a complaint
need not plead “detailed factual allegations, ”
the factual allegations it does include “must be enough
to raise a right to relief above the speculative
level.” Id. at 555; see also Starr v.
Baca, 652 F.3d 1202, 1216 (9th Cir. 2011) ("If
there are two alternative explanations, one advanced by
defendant and the other advanced by plaintiff, both of which
are plausible, plaintiff's complaint survives a motion to
dismiss[.]"). Further, Fed.R.Civ.P. 8(a)(2) requires a
showing that a plaintiff is entitled to relief “rather
than a blanket assertion” of entitlement to relief.
Twombley, 127 S.Ct. at 1965 n. 3. The complaint
“must contain something more . . . than . . . a
statement of facts that merely creates a suspicion [of] a
legally cognizable right to action.” Id. at
Court considers the Complaint in light of Twombly
and must determine if Spears has “nudge[d] [the] claims
across the line from conceivable to plausible.”
Id. at 570. The Court also considers that the
Supreme Court has cited Twombly for the traditional
proposition that “[s]pecific facts are not necessary
[for a pleading that satisfies Rule 8(a)(2)]; the statement
need only ‘give the defendant fair notice of what the .
. . claim is and the grounds upon which it rests.”
Erickson v. Pardue, 551 U.S. 89, 93 (2007). Indeed,
Twombly requires “a flexible
‘plausibility standard,' which obliges a pleader to
amplify a claim with some factual allegations in those
contexts where such amplification is needed to render the
claim plausible.” Iqbal v. Hasty, 490
F.3d 143, 157-58 (2nd Cir. 2007); see also Moss v. U.S.
Secret Service, 572 F.3d 962 (9th Cir. 2009) (for a
complaint to survive a motion to dismiss, the non-conclusory
“factual content, ” and reasonable inferences
from that content, must be plausibly suggestive of a claim
entitling the plaintiff to relief).
Court must take as true all allegations of material fact and
construe them in the light most favorable to Spears. See
Cervantes v. United States, 330 F.3d 1186, 1187 (9th
Cir. 2003). In general, a complaint is construed favorably to
the pleader. See Scheuer v. Rhodes, 416 U.S. 232,
236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), overruled on
other grounds, 457 U.S. 800. Nonetheless, the Court does
not accept as true unreasonable inferences or conclusory
legal allegations cast in the form of factual allegations.
Western Mining Council v. Watt, 643 F.2d 618, 624
(9th Cir. 1981). Furthermore, the Court is not to serve as an
advocate of a pro se litigant, Noll v.
Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987), in
attempting to decipher a complaint.
court determines that dismissal is appropriate, a plaintiff
must be given at least one chance to amend a complaint when a
more carefully drafted complaint might state a
claim. Bank v. Pitt, 928 F.2d 1108, 1112 (11th Cir.
1991). Moreover, when dismissing with leave to amend, a court
is to provide reasons for the dismissal so a plaintiff can
make an intelligent decision whether to file an amended
complaint. See Bonanno v. Thomas, 309 F.2d 320 (9th
Cir. 1962); Eldridge v. Block, 832 F.2d 1132 (9th
Consideration of Materials Outside the Pleadings
deciding a Rule 12(b)(6) motion, the court generally looks
only to the face of the complaint and documents attached
thereto. Van Buskirk v. Cable News Network, Inc.,
284 F.3d 977, 980 (9th Cir.2002). A court must normally
convert a Rule 12(b)(6) motion into a Rule 56 motion for
summary judgment if it “considers evidence outside the
pleadings . . . A court may, however, consider certain
materials—documents attached to the complaint,
documents incorporated by reference in the complaint, or
matters of judicial notice—without converting the
motion to dismiss into a motion for summary judgment.”
United States v. Ritchie, 342 F.3d 903, 907-08 (9th
Cir.2003); see also Tellabs, Inc. v. Makor Issues &
Rights, Ltd., 551 U.S. 308, 322, 127 S.Ct. 2499, 168
L.Ed.2d 179 (2007) (a court may consider “other sources
courts ordinarily examine when ruling on Rule 12(b)(6)
motions to dismiss, in particular, documents incorporated
into the complaint by reference, and matters of which a court
may take judicial notice”); Branch v. Tunnell,
14 F.3d 449, 453 (9th Cir.1994) (noting that a court may
consider a document whose contents are alleged in a
complaint, so long as no party disputes its authenticity)
(overruled on other grounds).
in this case references and incorporates numerous documents
and videos. Spears does not dispute the authenticity of the
documents and videos; indeed, he has not objected to this
request. The Court finds it may consider those documents and
videos in determining the MTD without converting it into a
motion for summary judgment.
officials are entitled to qualified immunity "insofar as
their conduct does not violate clearly established statutory
or constitutional rights of which a reasonable person would
have known." Liston v. County of Riverside, 120
F.3d 965, 975 (9th Cir. 1997), citing Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982). Qualified immunity
protects governmental defendants from liability, but is also
“‘an entitlement not to stand trial or face the
other burdens of litigation.' [It] is ‘an immunity
from suit rather than a mere defense.'” Saucier
v. Katz, 533 U.S. 194, 200-01 (2001) (citing
Mitchell v. Forsyth, 472 U.S. 511, 526 (1985).
Indeed, qualified immunity allows for errors in judgment and
protects "all but the plainly incompetent or those who
knowingly violate the law . . . [I]f officers of reasonable
competence could disagree on the issue [whether or not a
specific action was constitutional], immunity should be
recognized." Malley v. Briggs, 475 U.S. 335,
341 (1986). The Court must determine "whether, in light
of clearly established principles governing the conduct in
question, [defendants] objectively could have believed that
[their] conduct was lawful." Watkins v. City of
Oakland, 145 F.3d 1087, 1092 (9th Cir. 1998).
determining qualified immunity, a court considers "this
threshold question: Taken in the light most favorable to the
party asserting the injury, do the facts alleged show
[defendants'] conduct violated a constitutional
right?" Saucier v. Katz, 533 U.S. 194, 201
(2001); see also Billington v. Smith, 292 F.3d 1177,
1183 (9th Cir. 2002). If no constitutional right was
violated, then there is no need for any further inquiries
into qualified immunity. See e.g., Scott, 127 S.Ct.
at 1774. If the evidence supports a finding that a
constitutional rights has been violated, the court then
“ask[s] whether the right was clearly
established” such that “it would be clear to a
reasonable officer that [his] conduct was unlawful in the
situation he confronted.” Saucier, 533 U.S. at
201-202. Additionally, the United States Supreme Court has
determined that the sequence set forth in Saucier is
not mandatory and that district courts may "exercise
their sound discretion in deciding which of the two prongs of
the qualified immunity analysis should be addressed first in
light of the circumstances in the particular case at
hand." Pearson v. Callahan, 555 U.S. 223, 236
(2009); see also Olivier v. Baca, 913 F.3d 852, 860
(9th Cir. 2019) (“Qualified immunity shields federal
and state officials from money damages unless a plaintiff
pleads facts showing (1) that the official violated a
statutory or constitutional right, and (2) that the right was
‘clearly established' at the time of the challenged
conduct.”) (citation omitted).
plaintiff has the burden of showing the alleged violation of
a clearly established federal right. Davis v.
Scherer, 468 U.S. 183, 197 (1984); Olivier, 913
F.3d at 860; Clairmont v. Sound Mental Health, 632
F.3d 1091, 1109 (9th Cir. 2011). The Supreme Court has stated
the right the official is alleged to have violated must have
been “clearly established” in a more
particularized, and hence more relevant, sense. The contours
of the right must be sufficiently clear that a reasonable
official would understand that what he is doing violates that
right. This is not to say that an official action is
protected by qualified immunity unless the very action in
question has previously been held unlawful, but it is to say
that in light of pre-existing law the unlawfulness must be
Anderson v. Creighton, 483 U.S. 635, 640 (1987)
(citation omitted). Further, the Supreme Court has repeatedly
stated that courts are not to define clearly established law
at a high level of generality; rather, “[t]he
dispositive question is ‘whether the violative nature
of particular conduct is clearly
established.'” Mullenix v. Luna, --- U.S.
---, 136 S.Ct. 305, 308, (2015) (citation omitted, emphasis
Alleged Violation of First Amendment Right to Free
Speech (Count I)
alleges Defendants violated his right to free speech. The
First Amendment prohibits government officials from
"abridging the freedom of speech . . . or the right to
the people peaceably to assemble." U.S. Const. amend. I.
"[T]he First Amendment reflects a 'profound national
commitment' to the principle that debate on public issues
should be uninhibited, robust, and wide-open . . . and [the
Supreme Court] ha[s] consistently commented on the central
importance of protecting speech on public issues."
Boos v. Barry, 485 U.S. 312, 318, 108 S.Ct. 1157,
1162, 99 L.Ed.2d 333 (1988).
first step in analyzing Spears' claim is to determine the
nature of the relevant forum. OSU Student All. v.
Ray, 699 F.3d 1053, 1062 (9th Cir. 2012) (citing
Ariz. Life Coal. Inc. v. Stanton, 515 F.3d 956, 968
(9th Cir. 2008)). “Forum analysis has traditionally
divided government property into three categories: public
fora, designated public fora, and nonpublic fora.”
Flint v. Dennison, 488 F.3d 816, 830 (9th Cir. 2007)
(internal quotation marks omitted). A traditional public
forum is a place “which by long tradition ... ha[s]
been devoted to assembly and debate.” Id.
(internal quotation marks omitted). A designated public forum
“exists when the government intentionally dedicates its
property to expressive conduct.” Id. (internal
quotation marks omitted). A non-public forum is “any
public property that is not by tradition or designation a
forum for public communication.” Id. (internal
quotation marks omitted). A limited public forum has also
been recognized. This is a partially designated public forum:
The government is not left with only the two options of
maintaining a non-public forum or creating a designated
public forum; if the government chooses to open a non-public
forum, the First Amendment allows the government to open the
non-public forum for limited purposes. The limited public
forum is a sub-category of a designated public forum that
refers to a type of nonpublic forum that the government has
intentionally opened to certain groups or to certain topics.
Id. at 830-31 (internal quotation marks omitted).
summarized by the Ninth Circuit:
In traditional and designated public forums, content-based
restrictions on speech are prohibited, unless they satisfy
strict scrutiny. Pleasant Grove [ City, Utah v.
Summum, 555 U.S. 460, 469-70 (2009)]. In limited public
forums, content-based restrictions are permissible, as long
as they are reasonable and viewpoint neutral. See
id. at 470 .
Seattle Mideast Awareness Campaign v. King Cty., 781
F.3d 489, 496 (9th Cir. 2015).
parties dispute whether the UA Mall is a traditional public
forum. Spears asserts the UA's own policy on the forum
characteristics of the property refers to an “open
public forum” as well as a “designated public
forum.” Because open is defined by an online dictionary
as “accessible to all; unrestricted as to participants.
Free from limitations, boundaries, or restrictions[, ]
https://www.thefreedictionary.com/open, Spears argues this
suggests a traditional rather than a designated public forum:
“There can be no question that the public sidewalk
Spears was arrested upon is ‘by long tradition or by
government fiat' been ‘devoted to assembly and
debate.'” Response (Doc. 31, p. 13). Defendants
assert, however, that “a public university's mall,
surrounding streets and sidewalks are [not] a traditional
public forum[.]” The Supreme Court has stated:
A university differs in significant respects from public
forums such as streets or parks or even municipal theaters. A
university's mission is education, and decisions of this
Court have never denied a university's authority to
impose reasonable regulations compatible with that mission
upon the use of its campus and facilities. We have not held,
for example, that a campus must make all of its facilities
equally available to students and nonstudents alike, or that
a university must grant free access to all of its grounds or
Widmar v. Vincent, 454 U.S. 263, 268, n. 5 (1981).
to Spears' arguments, the UA Mall “is not akin to a
public street, park, or theater, but instead is an institute
of higher learning that is devoted to its mission of public
education. This mission necessarily focuses on the students
and other members of the University of Arizona
(“UA”) community. Accordingly, it has not
traditionally been open to the public at large, but instead
has been a “special type of enclave” that is
devoted to higher education.” Am. Civil Liberties
Union v. Mote, 423 F.3d 438, 444 (4th Cir. 2005) (citing
United States v. Grace, 461 U.S. 171, 180, (1983)).
Spears seems to emphasize that he was on a public sidewalk.
However, that sidewalk was within a public university and the
asserts the UA relies on an unwritten policy regarding sound
amplification. However, he does refer to the UA Policy and
Regulations Governing the Use of the Campus, MTD, Ex. A (Doc.
27-1) in his FAC. See e.g. FAC (Doc. 7, p. 26).
Spears asserts the applicable UA policy is confusing. The
policy defines relevant terms as follows:
7. “Designated Public Forums”: The
University's campus contains buildings and property whose
primary purpose is to provide education, research, and
outreach. However, the University often designates areas to
allow access by the University Community or to create limited
forums for the discussion of certain topics or subject matter
by certain speakers, each at times when the property is not
being used for its devoted purposes.
8. “Limited Public Forum” is a subcategory of the
Designated Public Forum that occurs when the University
intentionally opens a Non-Public Forum to speech or to
activities related specifically to defined subject matters
for certain groups on certain topics.
9. "Mall" refers to the grassy areas between Park
Avenue and Campbell Avenue and along University Boulevard
East and University Boulevard West that is designated for
expressive activities or Limited Public Forums, subject to
the qualifications, definitions, and procedures set forth in
a. "Reserved Area" refers to those portions of the
University campus designated for reservations only which are
scheduled to maximize the availability and use of the space
consistent with the University's educational, research,
service, and business functions. Use of Reserved Areas is
subject to reasonable time, place, and manner restrictions.
b. "Unreserved Area" refers to that part of the
Mall which may be used without advance reservations or
scheduling for expressive activities, including but not
limited to the passing of petitions, distribution of written
information, picketing, and carrying of placards. Such use is
subject to the time, place, and manner limitations set forth
in this policy. For the location of the Unreserved Area, see
the available space map at
10. “Non Public Forums” are University buildings,
structures, and property that are not designated as spaces
open for public communication, activities, or expression, but
instead are reserved for normal ...