Rob Handy v. Lane County , 585 F. App'x 570 ( 2014 )


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  •                                                                               FILED
    NOT FOR PUBLICATION                                OCT 23 2014
    MOLLY C. DWYER, CLERK
    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    ROB HANDY; BRIAN T. MCCALL,                      No. 13-35357
    Plaintiffs - Appellants,           D.C. No. 6:12-cv-01548-AA
    v.
    MEMORANDUM*
    LANE COUNTY; LIANE
    RICHARDSON; JAY BOZIEVICH;
    FAYE H. STEWART; SIDNEY LEIKEN,
    Defendants - Appellees.
    Appeal from the United States District Court
    for the District of Oregon
    Ann L. Aiken, Chief District Judge, Presiding
    Argued and Submitted October 10, 2014
    Portland, Oregon
    Before: GOULD, CHRISTEN, and NGUYEN, Circuit Judges.
    Rob Handy and Brian McCall appeal from the district court’s dismissal of
    their complaint without leave to amend. We have jurisdiction under 28 U.S.C.
    § 1291, and we affirm in part, vacate in part, and remand.
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by 9th Cir. R. 36-3.
    The district court properly dismissed Handy’s and McCall’s claims under
    Federal Rules of Civil Procedure 12(b)(6) and 12(b)(1), respectively. As to
    Handy’s First Amendment retaliation claim, the complaint fails to allege facts that
    tend to show the nature of Handy’s allegedly protected speech or sufficiently plead
    the “substantial causal relationship” element of his First Amendment retaliation
    claim. Blair v. Bethel Sch. Dist., 
    608 F.3d 540
    , 543 (9th Cir. 2010). As to Handy’s
    Fourteenth Amendment due process claim, the complaint fails to allege facts
    sufficient to plead such a claim. See Bd. of Regents of State Colls. v. Roth, 
    408 U.S. 564
    , 569 (1972). Likewise, the complaint does not contain factual allegations
    sufficient to plead municipal liability for constitutional violations under Monell v.
    Department of Social Services, 
    436 U.S. 658
    (1978).
    As to McCall’s claims, McCall lacks Article III standing because the
    complaint does not allege he suffered an injury that affected him “in a personal and
    individual way” above and beyond Handy’s constituents generally. See Lujan v.
    Defenders of Wildlife, 
    504 U.S. 555
    , 560 n.1 (1992).
    While the district court did not specifically address whether amendment
    would be allowed, the district court entered judgment soon after dismissal,
    effectively precluding amendment. In general, leave to amend should be freely
    granted. Fed. R. Civ. P. 15(a)(2); see also Desertrain v. City of L.A., 
    754 F.3d 2
    1147, 1154 (9th Cir. 2014) (“[T]his policy is to be applied with extreme
    liberality.”) (quoting Morongo Band of Mission Indians v. Rose, 
    893 F.2d 1074
    ,
    1079 (9th Cir. 1990)). “A simple denial of leave to amend without any explanation
    by the district court is subject to reversal,” Eminence Capital, LLC v. Aspeon, Inc.,
    
    316 F.3d 1048
    , 1052 (9th Cir. 2003), and a review of the record does not reveal
    that the complaint could not have been saved by amendment. See Saul v. United
    States, 
    928 F.2d 829
    , 843 (9th Cir. 1991) (“A district court does not err in denying
    leave to amend where the amendment would be futile . . . .”). Therefore, we vacate
    the district court’s entry of judgment and remand to allow Appellants to file an
    amended complaint.
    AFFIRMED in part, VACATED in part, and REMANDED.
    3