COLLEEN HUBER V. JOSEPH BIDEN ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 20 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
COLLEEN HUBER, No. 22-15443
Plaintiff-Appellant, D.C. No. 3:21-cv-06580-EMC
v.
MEMORANDUM*
JOSEPH R. BIDEN, in his official capacity
as President of the United States of America;
et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Edward M. Chen, District Judge, Presiding
Argued and Submitted December 6, 2022
San Francisco, California
Before: NGUYEN and KOH, Circuit Judges, and BATAILLON,** District Judge.
Colleen Huber (“Huber”) appeals from the district court’s dismissal with
prejudice of her operative complaint alleging violations of her First and Fifth
Amendment rights. Because the parties are familiar with the facts of this case, we
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Joseph F. Bataillon, United States District Judge for
the District of Nebraska, sitting by designation.
do not recite them here. We review de novo dismissals for failure to state a claim,
Ariix, LLC v. NutriSearch Corp., 985 F.3d 1107, 1114 (9th Cir. 2021), and we
affirm.
The district court properly dismissed Huber’s constitutional claims because
she failed to sufficiently allege state action. Dismissal is proper when a complaint
lacks “sufficient ‘well-pleaded, nonconclusory factual allegation[s]’ . . . to state ‘a
plausible claim for relief.’” Beckington v. Am. Airlines, Inc., 926 F.3d 595, 604
(9th Cir. 2019) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 679–80 (2009)).
1. Huber argues that state action exists under the joint action test because
she has plausibly alleged a conspiracy between Twitter and the government. See
Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1140 (9th Cir. 2012). To prove a
conspiracy between a private entity and the government, “an agreement or meeting
of the minds to violate constitutional rights must be shown.” Fonda v. Gray, 707
F.2d 435, 438 (9th Cir. 1983) (internal quotation marks and citation omitted).
Here, the complaint does not contain any nonconclusory allegations
plausibly showing an agreement between Twitter and the government to violate her
constitutional rights. See Dietrich v. John Ascuaga’s Nugget, 548 F.3d 892, 900
(9th Cir. 2008) (“[A] bare allegation of such joint action will not overcome a
motion to dismiss.” (citation omitted)). Contrary to Huber’s argument, the two
media reports on which she draws do not plausibly show that Twitter agreed to
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suspend her account on the government’s behalf. See In re Gilead Scis. Sec. Litig.,
536 F.3d 1049, 1055 (9th Cir. 2008) (“[T]he court [is not] required to accept as
true allegations that are merely conclusory, unwarranted deductions of fact, or
unreasonable inferences.” (citation omitted)); see also Bell Atl. Corp. v. Twombly,
550 U.S. 544, 557 (2007) (“[A] conclusory allegation of agreement at some
unidentified point does not supply facts adequate to show illegality.”).
Moreover, “an allegation is not plausible where there is an ‘obvious
alternative explanation’ for alleged misconduct.” Capp v. Cnty. of San Diego, 940
F.3d 1046, 1055 (9th Cir. 2019) (quoting Iqbal, 556 U.S. at 682). Huber’s
allegations do not “tend to exclude the possibility” of the alternative explanation
that Twitter, in suspending her account, was independently enforcing Huber’s
violation of Twitter’s Terms of Service. See In re Century Aluminum Co. Sec.
Litig., 729 F.3d 1104, 1108 (9th Cir. 2013). Indeed, the complaint contains no
allegations that Huber did not violate Twitter’s Terms of Service or that Twitter
would not have suspended Huber’s account absent the alleged conspiracy. See id.(“To render their explanation plausible, plaintiffs must do more than allege facts
that are merely consistent with both their explanation and defendants’ competing
explanation.”).
2. Huber also argues that state action exists because the enactment of § 230
of the Communications Decency Act preempts her speech protection under the
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Unruh Act. Even assuming this is a plausible theory of state action, Huber’s
argument fails on its own terms because she cannot state an Unruh Act claim. The
Unruh Act protects “[a]ll persons within the jurisdiction of [California]” from
certain forms of discrimination. Cal. Civ. Code § 51(b). Thus, the Unruh Act “by
its express language applies only within California.” Archibald v. Cinerama
Hawaiian Hotels, Inc., 140 Cal. Rptr. 599, 604 (Cal. Ct. App. 1977), disapproved
on other grounds by Koire v. Metro Car Wash, 707 P.2d 195 (Cal. 1985).
Here, Huber, a resident of Arizona, does not allege that she suffered the
challenged discrimination while in California. Huber cites no authority applying
the Unruh Act extraterritorially, nor offers any basis to overcome the statute’s plain
language or the presumption against extraterritorial application of California law.
See Sullivan v. Oracle Corp., 254 P.3d 237, 248 (Cal. 2011) (“[W]e presume the
Legislature did not intend a statute to be operative, with respect to occurrences
outside the state, . . . unless such intention is clearly expressed or reasonably to be
inferred from the language of the act or from its purpose, subject matter or
history.” (internal quotation marks and citation omitted)).
AFFIRMED.
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