Dietrich v. John Ascuaga's Nugget

• Decision Date: 01 December 2008
• Docket Number: No. 06-17135.,06-17135.
• Parties: Janelle DIETRICH, Plaintiff-Appellant, v. JOHN ASCUAGA'S NUGGET; Michelle Malchow; Larry Harvey; City of Sparks; Sparks Police; Officer Potter; and Officer Mike Cardella, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

548 F.3d 892

Janelle DIETRICH, Plaintiff-Appellant, v. JOHN ASCUAGA'S NUGGET; Michelle Malchow; Larry Harvey; City of Sparks; Sparks Police; Officer Potter; and Officer Mike Cardella, Defendants-Appellees.

No. 06-17135.

United States Court of Appeals, Ninth Circuit.

Argued June 10, 2008.

Submitted November 20, 2008.

Filed December 1, 2008.

Martin G. Crowley, American Legal Services, Reno, NV, for the plaintiff-appellant.

Stanley H. Brown, Jr., Reno, NV, and Nicholas F. Frey and Stephen S. Kent,

Woodburn and Wedge, Reno, NV, for the defendants-appellees.

Appeal from the United States District Court for the District of Nevada; Brian E. Sandoval, District Judge, Presiding. D.C. No. CV-04-00468-BES(VPC).

Before: J. CLIFFORD WALLACE and SUSAN P. GRABER, Circuit Judges, and ROBERT J. TIMLIN,^* District Judge.

GRABER, Circuit Judge:

Every year, thousands of people attend the "Best in the West Nugget Rib Cook-Off," a multi-day event in downtown Sparks, Nevada. In 2002, Plaintiff Janelle Dietrich attended the event and attempted to register voters and to gather signatures for a political petition. Her activities prompted two incidents that resulted in the filing of this action.

On the first day, a police officer ordered Plaintiff to move to another location, under threat of arrest if she refused to do so. After 30 minutes at the new location she left, but quickly contacted the American Civil Liberties Union and one of the event's organizers. She was allowed by the event's organizer to return the next morning and to conduct her political activities for the remaining days of the event at the original location and a second satisfactory location. On the third day, however, a second police officer cited her for a traffic violation, allegedly in retaliation for publicity about her first-day activities in a local newspaper.

Plaintiff filed suit under 42 U.S.C. § 1983, alleging violations of her First Amendment right to free speech and naming as defendants the police officers, the event's organizers, the Sparks Police Department, and the City of Sparks. The district court held that no constitutional violations had occurred and granted summary judgment to all Defendants. We affirm in part, reverse in part, and remand for further proceedings.

FACTUAL AND PROCEDURAL HISTORY

Defendant John Ascuaga's Nugget ("Nugget"), a private business that operates primarily in Sparks, Nevada, hosts the annual Best in the West Nugget Rib Cook-Off. The 2002 Cook-Off ("Cook-Off") lasted four days: Thursday, August 29, through Sunday, September 1.¹ The event occurred on Victorian Square, a downtown public area. Pursuant to local regulations, Nugget had applied for, and received, a Special Event Permit for the Cook-Off from Defendant City of Sparks. The permit application stated that it would be necessary to close certain city streets and sidewalks in and around Victorian Square.

At the time of the Cook-Off, Plaintiff was a volunteer for a local political organization, Citizens for the Right to Vote ("Citizens group"). The organization was created in an effort to recall four city council members of the neighboring city of Reno, Nevada. Part of the organization's efforts included gathering signatures for a recall petition and registering voters, and the organization decided to conduct those activities at the Cook-Off.

On Thursday, Plaintiff and other volunteers arrived at the Cook-Off and set up a table on the public sidewalk at Victorian and 14th streets. Defendant Michelle Malchow, an employee of Nugget, approached the group and insisted that they leave. Malchow told the group that, because Nugget had a permit covering the sidewalk in question, the sidewalk was no longer public. The group refused to leave, and Malchow summoned Defendant Sparks Police Officer Mike Cardella. Officer Cardella told the group that, if they did not move to another location, they would be arrested.

Officer Cardella then escorted the group, including Plaintiff, to another public sidewalk, outside the boundaries of the Cook-Off, approximately a block and a half away. Plaintiff testified at her deposition that there were no passersby at the new location and that the group was therefore unable to collect any signatures. After 30 minutes, Plaintiff gave up and went home.

On Friday morning, the Citizens group contacted the American Civil Liberties Union and Defendant Larry Harvey, vice-president of Nugget. Harvey assured the members of the Citizens group that they could return to their original location as long as they did not impede pedestrian traffic or pose a safety risk. The Citizens group returned to the original location and a second satisfactory location at the Cook-Off. The organization successfully gathered signatures and registered voters at those two locations for the rest of the long weekend without incident (other than Plaintiff's traffic citation, discussed below). Plaintiff worked at the original location for three days—Friday, Saturday, and Sunday.

On Friday evening, a local newspaper ran a front page article titled "Victorian stage for petition standoff: Group seeking petition signatures and registering voters forced to leave city street." On Saturday, Plaintiff drove her pickup truck, loaded with the organization's signs and table, to the petitioning and registration location. In order to reach the drop-off point, Plaintiff passed a barricade with a "road closed" sign. Malchow and police officers, including Defendant Sparks Police Officer Potter, approached Plaintiff after she arrived at the drop-off point. Officer Potter cited her for failing to obey a traffic device, despite her explanation that a fire officer had allowed her to pass beyond the barricade. Plaintiff parked her truck elsewhere and then rejoined the organization's petitioning and registration effort.

Plaintiff challenged the citation in municipal court but was found guilty. She appealed to the state district court, which affirmed her conviction.

Plaintiff then filed the present action in federal district court under 42 U.S.C. § 1983, seeking monetary damages for two alleged violations of her First Amendment rights.² First, she alleges a constitutional violation stemming from her removal from the desired petitioning and registration location on Thursday. Second, she alleges that the traffic citation on Saturday was in retaliation for the local newspaper article, which publicized Thursday's incident.

Plaintiff brings claims against three categories of defendants: (1) a private entity and private persons: Nugget and two of its employees, Harvey and Malchow; (2) municipal entities: the City of Sparks and the Sparks Police Department; and (3) individual police officers. Plaintiff's claim concerning her removal on Thursday is brought against Officer Cardella, and her retaliation claim for the traffic citation on Saturday is brought against Officer Potter.

The district court held that there was no constitutional violation on either day and granted summary judgment to all Defendants. Plaintiff timely appeals.³

STANDARD OF REVIEW

We review de novo summary judgment and may affirm on any ground supported by the record. ACLU of Nev. v. City of Las Vegas, 333 F.3d 1092, 1096-97 (9th Cir.2003). "We must determine, viewing the evidence in the light most favorable to the nonmoving party, whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law." Id. at 1097.

DISCUSSION

Defendants make two arguments in response to Plaintiff's two § 1983 claims. First, they argue that no constitutional violation occurred. Second, they argue that, even if a constitutional violation occurred, Plaintiff's claims under § 1983 nevertheless fail. The details of this latter argument vary by Defendant. The police officers argue that they are entitled to qualified immunity under Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). The private parties argue that they were not acting "under color of state law," as required by 42 U.S.C. § 1983. See DeGrassi v. City of Glendora, 207 F.3d 636, 647 (9th Cir.2000) (setting forth the requirements for private party liability under § 1983). And the municipal entities argue that they did not have a policy or custom of violating the First Amendment. See Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) (setting forth the requirements for municipal liability under § 1983).

Because Plaintiff brings both of her § 1983 claims against police officers, we must first determine whether, viewing the facts in the light most favorable to Plaintiff, a constitutional violation occurred. Saucier, 533 U.S. at 201, 121 S.Ct. 2151. If so, we then must determine whether the claims can proceed against each Defendant.

A. First Amendment Claim for Forced Removal on Thursday

1. Constitutional Violation

Defendants' removal of Plaintiff from her original location at the Cook-Off on Thursday stands at the intersection of two private parties' First Amendment rights. On the one side, the First Amendment plainly protects Plaintiff's activities—gathering signatures for a political petition and registering voters. See Morse v. Frederick, ___ U.S. ___, 127 S.Ct. 2618, 2626, 168 L.Ed.2d 290 (2007) ("Political speech, of course, is at the core of what the First Amendment is designed to protect." (internal quotation marks omitted)). And there is no question that her location—a public sidewalk—is a "quintessential public forum[]," where protection for freedom of speech is at its height. Burson v. Freeman, 504 U.S. 191, 196, 112 S.Ct. 1846, 119 L.Ed.2d 5 (1992).

On the other side, Defendant Nugget secured a permit from the City of Sparks to hold its Cook-Off on public land. Defendant Nugget argues not that the Cook-Off was a form of political expression, but rather that Nugget wished to exercise its First Amendment right not to speak on political issues.⁴ The Supreme Court...