O'Brien v. Welty

• Decision Date: 07 April 2016
• Docket Number: No. 13–16279.,13–16279.
• Citation: 818 F.3d 920
• Parties: Neil O'BRIEN, an individual, Plaintiff–Appellant, v. John WELTY, Dr.; Paul M. Oliaro, Dr.; Carolyn V. Coon, Dr.; Victor M. Torres, Dr.; Maria A. Lopes, Dr.; Luz Gonzalez, Dr.; Matthew Jendian, Dr., each in their personal capacities; Does, 1 through 25, inclusive, Defendants–Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

818 F.3d 920

Neil O'BRIEN, an individual, Plaintiff–Appellant,

v.John WELTY, Dr.; Paul M. Oliaro, Dr.; Carolyn V. Coon, Dr.; Victor M. Torres, Dr.; Maria A. Lopes, Dr.; Luz Gonzalez, Dr.; Matthew Jendian, Dr., each in their personal capacities; Does, 1 through 25, inclusive, Defendants–Appellees.

No. 13–16279.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Sept. 16, 2015.

Filed April 7, 2016.

Brian C. Leighton (argued), Law Offices of Brian C. Leighton, Clovis, CA, for Plaintiff–Appellant.

Molly S. Murphy (argued), Deputy Attorney General; Kamala D. Harris, Attorney General of California; Kristin G. Hogue, Senior Assistant Attorney General; Joel A. Davis, Supervising Deputy Attorney General, Los Angeles, CA, for Defendants–Appellees.

Eugene Volokh (argued), UCLA School of Law, Los Angeles, CA, for Amici Curiae Student Press Law Center and the Foundation for Individual Rights in Education, Inc.

David J. Hacker and Heather Gebelin Hacker, Alliance Defending Freedom, Folsom, CA; Kevin J. Theriot, Alliance Defending Freedom, Leawood, KS; Kevin T. Snider, Pacific Justice Institute, Sacramento, CA, for Amici Curiae Trent Downes, Alliance Defending Freedom, and Pacific Justice Institute.

Before: WILLIAM A. FLETCHER, MARSHA S. BERZON, and CARLOS T. BEA, Circuit Judges.

OPINION

W. FLETCHER, Circuit Judge:

At all times relevant to this suit, Neil O'Brien was a student at California State University Fresno ("Fresno State"), where he was an outspoken political conservative and critic of the university. In May 2011, O'Brien confronted and videotaped two professors in their offices, questioning them about a poem that had been published in a supplement to the student newspaper. After disciplinary proceedings, the university found that O'Brien had violated the Student Conduct Code's prohibition on harassment and intimidation that poses a threat to others. The university imposed sanctions. O'Brien brought suit in district court against several faculty members and administrators, alleging violations of his constitutional rights including those protected by the First Amendment. The district court dismissed the complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim.

We hold that California Code of Regulations, tit. 5, § 41301(b)(7), which authorizes branches of California State University to discipline students for conduct that "threatens or endangers the health or safety of any person ... including ... intimidation [or] harassment," is not unconstitutionally overbroad or vague. We hold, further, that the regulation supported imposing discipline for O'Brien's conduct. However, we also hold that O'Brien's complaint alleges sufficient facts to state a plausible First Amendment retaliation claim against some of the defendants. We therefore reverse in part and remand to the district court for further proceedings.

I. Background

A. Factual Allegations

The following narrative is based on allegations in O'Brien's First Amended Complaint ("FAC"). For present purposes, we assume that the allegations of fact and reasonably drawn inferences are true.

Plaintiff Neil O'Brien enrolled as a junior at Fresno State in the fall semester of 2010 to pursue a degree in recreation. O'Brien, who describes himself as a "constitutional conservative," quickly involved himself in political advocacy on campus. He formed the Fresno chapter of the student organization Young Americans for Liberty; he organized events for the Central Valley Tea Party; and he frequently attended student government meetings.

O'Brien soon became an outspoken critic of the Fresno State faculty and administration. He particularly objected to the university's support for the student body president, an undocumented immigrant, and to the administrators' endorsement of the DREAM Act. O'Brien began a website on which he posted information he had discovered about the student body president on the internet and through IRS records searches. He also posted criticism of Fresno State's separate graduation ceremony for Latino students. He filed public records requests to obtain information on administrator salaries and other issues, and he spoke up at student government meetings. He learned that his records requests were "reported all the way up to" then-university president Dr. John D. Welty.

In response to the activities just described, university officials monitored and interfered with O'Brien's activities. During O'Brien's first year at Fresno State, Dr. Carolyn Coon, Assistant Dean of Student Affairs, "requested that students and other faculty members gather information and complaints to use against" him. The director of alumni relations sent emails to other administrators, including the university's communications director, requesting that they "do something" about O'Brien and his website. In the fall of 2012, university officials deleted some of O'Brien's posts from Facebook pages that were "operated and managed by university officials" and "permanently block[ed] him from posting" about certain issues on the pages while, at the same time, allowing the posts of "pro-radical left-leaning view points in support of [the student body president] and other leftist posts to remain."

1. Videotaping Incident

In early May 2011, O'Brien read a poem in "La Voz de Aztlan," a supplement to the Fresno State student newspaper published by the Chicano and Latin American Studies ("CLS") Department. O'Brien objected to the ways in which the poem characterized the United States—including " ‘America the land robbed by the white savage,’ the ‘land of the biggest genocide,’ the ‘place of greed and slavery,’ the ‘rapist of the earth,’ ... [and] the ‘land of the brute, the bully, the land of glorified killers, the eater of souls[.]’ " On May 11, O'Brien went to the second floor of the social sciences building to confront Dr. Victor Torres, the faculty advisor for "La Voz" and a professor in the CLS Department. While waiting in the hallway outside Torres' office, O'Brien overheard Dr. Maria Lopes, another CLS professor, comment to Torres that O'Brien was "stalking" the hallway. Torres said to Lopes that "the faculty should post ‘wanted’ signs with pictures of [O'Brien's] face on them to mock [him] and to serve as a warning to other students and faculty as to what [he] looked like and warn of [his] potential presence." After overhearing these comments, O'Brien decided to approach not only Dr. Torres but also Dr. Lopes.

O'Brien approached Dr. Torres' open office door, turned on his video camera, and asked Torres if he had approved of the publication of the poem. Torres refused to speak to him. O'Brien "calmly insisted on speaking to Torres about the poem." Torres then picked up the phone and called campus police. O'Brien next went to the open door of Dr. Lopes' office, with his video camera turned on, and asked her the same questions. She, too, refused to answer, stating that she did not want to talk to him. When O'Brien insisted, she closed her office door and called campus police. Torres and Lopes subsequently filed complaints with the Fresno State campus police. Dr. Luz Gonzalez, Dean of the Social Sciences Department (of which the CLS Department is a part), also filed a complaint with the campus police, even though she had not been present during the videotaping incident. O'Brien provided to the campus police a copy of the videotape he had made while confronting Torres and Lopes.

When Dr. Torres and Dr. Lopes later read the campus police report of the May 11 incident, they learned that "the Campus Police investigator had determined ... that [O'Brien] was not threatening and intimidating." "Defendants Torres, Lopes and Gonzalez requested the Campus Police to rewrite the report to show that [O'Brien] was threatening and intimidating." The FAC does not specify whether the report was rewritten as requested, but we infer from other allegations in the FAC that it was not. At the request of unspecified "Defendants," the campus police "report[ed] the matter" to the Fresno County District Attorney, but the District Attorney declined to prosecute.

The FAC alleges that on May 24 "[t]he Campus Police Department, now having reviewed the actual video tape of the incident contacted Defendants Torres and Lopes again to confront them about what they claimed [O'Brien] did and said, the length of time he was in each of their offices, and to let both Torres and Lopes know that the video tape of the incident showed that their previous claims were not accurate. Both refused to correct their false claims."

Also on May 24, Dean Coon mailed a letter to O'Brien informing him that he was facing disciplinary action. The letter stated that his actions on May 11 constituted conduct that "threatens or endangers the health, or safety ... including physical abuse, threats, intimidation, harassment ...." The letter required him to attend a "judicial conference" or face a possible "disciplinary hold" on his record.

2. Disciplinary Proceedings

In response, O'Brien emailed Dean Coon, copying President Welty and campus police, "stating that Torres and Lopes' accusations were completely false," and stating that campus police had not contacted O'Brien to request a statement. O'Brien asked Coon to provide him with copies of "reports made by all students, staff, and administrators" about O'Brien. Coon initially agreed to provide such reports but later refused to do so. O'Brien requested that he be allowed to bring an attorney to the "judicial conference," and that he be allowed to videotape and otherwise record the proceedings.

Dr. Paul Oliaro, Vice President for the Division of Student Affairs and Dean of Students, replied to O'Brien, stating that President Welty had asked him to respond. Oliaro wrote that pursuant to a "long-standing policy" of President Welty, attorneys were not permitted to participate in "judicial proceedings," but that O'Brien could bring a non-attorney advisor. Oliaro also wrote that O'Brien would not...