JILANNE BARTO V. DAVID MIYASHIRO ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 16 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JILANNE D. BARTO, No. 21-56223
Plaintiff-Appellant, D.C. No.
3:19-cv-02261-WQH-KSC
v.
DAVID MIYASHIRO, In his official MEMORANDUM*
capacity as Superintendent Cajon Valley
Union School District; JAMES MILLER,
each in their official capacity as Trustee of
Cajon Valley Union School District Board of
Trustees; JO ALEGRIA; TAMARA
OTERO; KAREN CLARK-MEJIA,
Defendants-Appellees,
and
DOES, 1-50, inclusive,
Defendant.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Appeal from the United States District Court
for the Southern District of California
William Q. Hayes, District Judge, Presiding
Submitted November 17, 2022**
Pasadena, California
Before: TASHIMA and NGUYEN, Circuit Judges, and FITZWATER,*** District
Judge.
Jilanne D. Barto brought this action under 42 U.S.C. § 1983 against
Appellees David Miyashiro, in his official capacity as Superintendent of Cajon
Valley Union School District (“CVUSD”), and James Miller, Jo Alegria, Tamara
Otero, and Karen Clark-Mejia, in their official capacities as members of the
CVUSD Board of Trustees (“Board”). Barto appeals the district court’s grant of
summary judgment in favor of Appellees. We have jurisdiction under 28 U.S.C. §
1291. We review de novo a district court’s decision to grant summary judgment.
Weiner v. San Diego County, 210 F.3d 1025, 1028 (9th Cir. 2000). We also
review de novo whether a party is immune from suit under the Eleventh
Amendment. Sofamor Danek Grp., Inc. v. Brown, 124 F.3d 1179, 1183 (9th Cir.
1997). We affirm.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Sidney A. Fitzwater, United States District Judge for
the Northern District of Texas, sitting by designation.
2
California school districts are “arms of the state” entitled to sovereign
immunity under the Eleventh Amendment. Sato v. Orange Cty. Dep’t of Educ.,
861 F.3d 923, 934 (9th Cir. 2017). Thus, the Eleventh Amendment bars suits
against school district officials sued in their official capacities. See Eaglesmith v.
Ward, 73 F.3d 857, 860 (9th Cir. 1996). However, the Ex Parte Young exception
to Eleventh Amendment immunity, 209 U.S. 123, 159–60 (1908), applies “where a
plaintiff alleges an ongoing violation of federal law, and where the relief sought is
prospective rather than retrospective.” Doe v. Lawrence Livermore Nat’l Lab., 131
F.3d 836, 839 (9th Cir. 1997) (cleaned up).
Barto argues that the Ex Parte Young doctrine applies here. She alleges that
Appellees acted in concert to chill her First Amendment rights in retaliation for
publicly questioning Appellees’ actions and expenditures of CVUSD funds. And
she requests permanent injunctive relief restraining them from their allegedly
retaliatory activities. But even assuming arguendo that the relief Barto seeks is
prospective, Barto cannot show an ongoing violation of the First Amendment.1
To bring a claim for prospective injunctive relief, a plaintiff “must identify a
1
We granted Appellees’ motion to take judicial notice of a public record showing
that Barto withdrew her name as a candidate for the November 8, 2022 election for
Cajon Valley Union Trustee Area No. 2. Dkt. No. 38. While Barto’s withdrawal
raises doubt as to whether the relief she seeks remains prospective, we need not
reach this question because Barto, in any event, cannot show an ongoing violation
of federal law.
3
practice, policy, or procedure that animates the constitutional violation at issue.”
Ariz. Students’ Ass’n v. Ariz. Bd. of Regents, 824 F.3d 858, 865 (9th Cir. 2016)
(citing Hafer v. Melo, 502 U.S. at 25 (1991)); Monell v. Dep’t of Soc. Serv. of the
City of N.Y., 436 U.S. 658, 690 & n. 55 (1978)). In the analogous context of
municipal liability for § 1983 claims, plaintiffs can establish liability in one of
three ways: (1) by proving that an employee committed the violation pursuant to a
formal policy or longstanding practice or custom that constitutes the standard
operating procedure of the governmental entity; (2) by establishing that the
individual who committed the constitutional tort was an official with final policy-
making authority; or (3) by proving that an official with final policy-making
authority ratified a subordinate’s unconstitutional decision or action and the basis
for it. Gillette v. Delmore, 979 F.2d 1342, 1346–47 (9th Cir. 1992) (citing Monell,
436 U.S. at 690–91, and its progeny). Here, Barto unavailingly relies on the first
two theories.
Barto failed to point to any record evidence that Appellees acted pursuant to
a policy or longstanding custom to violate Barto’s First Amendment rights. See
Lacey v. Maricopa County, 693 F.3d 896, 916 (9th Cir. 2012) (cleaned up). And
while the Board as an entity exercised final policy-making authority based on a
majority vote, there is no evidence in the record that any of the Trustees named as
defendants could make a “final decision” that “may appropriately be attributed to
4
the District.” Lytle v. Carl, 382 F.3d 978, 983 (9th Cir. 2004). Neither has Barto
shown that Miyashiro had or was delegated final policy-making authority as
District Superintendent. State law does not provide such authority to Miyashiro,
who was hired and supervised by the Board of which Barto is a member. See Cal.
Educ. Code §§ 35026, 35250, 35035; Lytle, 382 F.3d at 982–83 (“A municipal
employee may act as a de facto policymaker under § 1983 without explicit
authority under state law, but [the court] is ordinarily not justified in assuming that
municipal policymaking authority lies somewhere else than where the applicable
law purports to put it.” (cleaned up)). The record evidence confirms that
Miyashiro did not make decisions that were final, unreviewable, and unconstrained
by Board policies. See City of St. Louis v. Prapotnik, 485 U.S. 112, 127 (1988)
(plurality opinion).
There is no triable issue of fact that would warrant reversal of the summary
judgment. While Barto sometimes opposed proposals from Miyashiro and her
colleagues on the Board, she often voted for the kinds of fiscal expenditures she
alleges were the basis for Appellees’ retaliation. Further, she has not pointed to
any evidence connecting her legislative activities to actions allegedly taken against
her. Based on the record, the Board made decisions as a majority body pursuant to
Board policies that applied to all Trustees.
AFFIRMED.
5