Dee Perry v. Jason Viloria ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 6 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DEE PERRY, No. 20-56081
Plaintiff-Appellant, D.C. No.
8:19-cv-02381-JVS-JDE
v.
JASON VILORIA, Superintendent of MEMORANDUM*
Laguna Beach Unified School District, in his
official capacity; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
James V. Selna, District Judge, Presiding
Submitted October 4, 2021**
Pasadena, California
Before: GRABER and OWENS, Circuit Judges, and BREYER,*** District Judge.
Dee Perry appeals from the district court’s order dismissing her complaint
*
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).
***
The Honorable Charles R. Breyer, United States District Judge for the
Northern District of California, sitting by designation.
on Eleventh Amendment grounds. Perry is an elected member of the Laguna
Beach Unified School District Board of Education and brought this action against
District Superintendent Jason Viloria and individual Board members Jan Vickers,
Peggy Wolff, Carol Normandin, and James Kelly (collectively “Defendants”). We
review de novo dismissals based on Eleventh Amendment immunity. Cholla
Ready Mix, Inc. v. Civish, 382 F.3d 969, 973 (9th Cir. 2004). Because the parties
are familiar with the facts, we do not recount them here. We affirm.
“The Eleventh Amendment protects states and state instrumentalities . . .
from suit in federal court.” Doe v. Regents of the Univ. of Cal., 891 F.3d 1147,
1153 (9th Cir. 2018). “Under the Ex parte Young exception to that Eleventh
Amendment bar, a party may seek prospective injunctive [and declaratory] relief
against an individual state officer in her official capacity” to remedy an ongoing
violation of federal law. Id.; see also Ariz. Students’ Ass’n v. Ariz. Bd. of Regents,
824 F.3d 858, 865 (9th Cir. 2016). The “officer must have some connection with
the enforcement of the act.” Ex parte Young, 209 U.S. 123, 157 (1908).
The district court properly dismissed Perry’s claim against Superintendent
Viloria because her complaint alleged only that Viloria ratified the other
Defendants’ actions and not that he has individual authority to act on his own.
Perry argues for the first time on appeal that the Board’s president and
superintendent have authority under District Bylaw 9322 to “decide whether a
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request from a member of the public is within the subject matter jurisdiction of the
Board.” We generally do not consider arguments raised for the first time on
appeal. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999). And in any
case, under the Bylaws, if the Board’s president and superintendent deny a request
from a Board member to place an item on the agenda, the Board member may ask
the Board to place the item on the agenda. Thus, the Board, and not any individual
member, has the final say on agenda items, and Perry’s argument regarding Viloria
fails.
The district court also properly concluded that the remaining Defendants
have no individual authority or duty. The Board bylaws specify that “the Board is
the unit of authority over the district and . . . a Board member has no individual
authority.” And while Perry cites several California Education Code sections, all
confirm that the “governing board” retains ultimate authority. See Cal. Educ. Code
§§ 35020, 35010(b), 35161. In fact, Perry misrepresents section 35161 as stating
that the “individuals” retain ultimate responsibility, when the text of the statute
clearly describes the “governing board” as the entity with “ultimate responsibility
over the performance of those powers or duties so delegated.” Cal. Educ. Code
§ 35161. Thus, the Board can act only by majority vote, and the district court
properly held Perry’s claims are barred under the Eleventh Amendment.
Finally, the district court did not abuse its discretion by denying leave to
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amend. See Curry v. Yelp Inc., 875 F.3d 1219, 1224 (9th Cir. 2017) (“We review
the denial of leave to amend a complaint for abuse of discretion.”). Perry had two
opportunities to amend her complaint and was on notice that her claims were
barred by the Eleventh Amendment when her First Amended Complaint was
dismissed. She thus had an opportunity to amend her complaint to address this
specific deficiency. And because all of Perry’s claims are barred by the Eleventh
Amendment, it is unclear what Perry could have alleged to overcome this hurdle.
AFFIRMED.1
1
We do not reach Defendants’ alternative arguments that Perry failed to state a
First or Fourteenth Amendment claim upon which relief can be granted and that
they are entitled to qualified or absolute immunity.
4