Spears v. Ariz. Bd. of Regents

• Decision Date: 06 March 2019
• Docket Number: No. CIV 18-126-TUC-CKJ,CIV 18-126-TUC-CKJ
• Citation: 372 F.Supp.3d 893
• Parties: Roy E. SPEARS, Plaintiff, v. ARIZONA BOARD OF REGENTS, et al., Defendants.
• Court: U.S. District Court — District of Arizona

372 F.Supp.3d 893

Roy E. SPEARS, Plaintiff,

v.ARIZONA BOARD OF REGENTS, et al., Defendants.

No. CIV 18-126-TUC-CKJ

United States District Court, D. Arizona.

Signed March 6, 2019

Filed March 7, 2019

Roy E. Spears, Tucson, AZ, pro se.

Robert Richard McCright, Office of the Attorney General, Tucson, AZ, for Defendants.

ORDER

Cindy K. Jorgenson, United States District Judge

Pending 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 PlaintiffRoy 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.SeeLRCiv7.2(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 a motion.");

I.Factual and Procedural Background¹

Spears 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 p.m.

Within 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disagreed with "Salcedo's arbitrary interpretation of the long-standing weekend UA policy allowing amplification being superseded by the presence of the Festival[,]"id.at ¶ 38, Salcedo replied, "No, it is not arbitrary because the Festival of Books reserved the stage and the sound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, etc.

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."¹¹

¹¹ https://drive.google.com/open?id=0B9m1G5k2wXI6TDB6QzJaaW1uQnJPZ1hpSU5vajBuU2tYR0Jj[.]See middle of page 1, "Sound Amplification?"

FAC (Doc. 7, ¶¶ 84-86).

Dean of 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.²

Spears 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 his conviction.

On 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 arrest/false imprisonment.

On July 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).

On 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).

II.Requirement that Action State a Claim on Which Relief Can be Granted

Defendants 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, 127 S.Ct. 1955, 167 L.Ed.2d 929(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, 127 S.Ct. 1955;see alsoStarr 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.Twombly , 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 1965.

The 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, 127 S.Ct. 1955.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. Pardus , 551 U.S. 89, 93, 127 S.Ct. 2197, 167 L.Ed.2d 1081(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 alsoMoss 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).

This Court must take as true all allegations of material fact and construe them in the light most favorable to Spears.SeeCervantes v. United States , 330 F.3d 1186, 1187(9th Cir.2003).In general, a complaint is construed favorably to the pleader.SeeScheuer 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, 102 S.Ct. 2727.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.

If a 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.SeeBonanno v. Thomas , 309 F.2d 320(9th Cir.1962);Eldridge v. Block , 832 F.2d 1132(9th Cir.1987).

III.Consideration of Materials Outside the Pleadings

In 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 56motion 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 ...