Karen Velie v. Adam Hill ( 2018 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
AUG 30 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
KAREN VELIE, No. 17-55233
Plaintiff-Appellant, D.C. No. 2:16-cv-07839-DSF-E
v.
MEMORANDUM*
ADAM HILL; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Dale S. Fischer, District Judge, Presiding
Argued and Submitted August 6, 2018
Pasadena, California
Before: CLIFTON and CALLAHAN, Circuit Judges, and HOYT,** District Judge.
Plaintiff-appellant, Karen Velie (“Velie”), appeals the district court’s
dismissal of her complaint with prejudice under Fed. R. Civ. P. 12(b)(6). Velie
filed suit under 42 U.S.C. § 1983 and California state law. She alleged that
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Kenneth M. Hoyt, United States District Judge for the
Southern District of Texas, sitting by designation.
Defendant-appellees, Adam Hill and the County of San Luis Obispo
(“Defendants”), deprived her of her First Amendment rights by denying her equal
access to information and retaliating against her for her reporting. We affirm.1
Velie has failed to state a claim for First Amendment denial of equal access.
The government enjoys extraordinary discretion when selecting “private speakers
to transmit specific information pertaining to its own [affairs].” Rosenberger v.
Rector & Visitors of Univ. of Va., 515 U.S. 819, 833 (1995). Although the First
Amendment guarantees the press a limited right to gather news, see Pell v.
Procunier, 417 U.S. 817, 833 (1974), journalists have no “constitutional right of
special access to information not available to the public generally.” Branzburg v.
Hayes, 408 U.S. 665, 684 (1972); see also Houchins v. KQED, Inc., 438 U.S. 1, 9
(1978) (plurality opinion) (“This Court has never intimated a First Amendment
guarantee of a right of access to all sources of information within government
control.”); id. at 16 (Stewart, J., concurring in judgment) (“The First and
Fourteenth Amendments do not guarantee the public a right of access to
information generated or controlled by government, nor do they guarantee the
1
As the parties are familiar with the facts and procedural history, we restate
them only as necessary to explain our decision.
2
press any basic right of access superior to that of the public generally.”). 2 In her
complaint, Velie asserts only general allegations in support of her claim for denial
of equal access to information. She does not sufficiently allege that she was
uniquely deprived of public information or information that Defendants distributed
to all media on a nondiscretionary basis. She has, therefore, failed to state a claim
for denial of equal access.
Velie has also failed to state a claim for First Amendment retaliation. To
state a claim for retaliation, Velie must allege that Defendants subjected her to
adverse action because of her constitutionally protected journalistic activities.
Mulligan v. Nichols, 835 F.3d 983, 988 (9th Cir. 2016). Velie has not done so.
Defendants’ refusal to grant her access to discretionary government information
does not constitute retaliation because the First Amendment does not guarantee
access to such information. Velie’s argument that Defendants retaliated against her
by publicly defaming her is also unavailing because she does not allege that
Defendants’ comments were accompanied by any official action that deprived her
of a right or privilege. Similarly, her argument that Defendants retaliated against
her by pressuring her advertisers to stop working with her is unsuccessful because
2
Because Justice Stewart’s view in Houchins was the narrowest prevailing
one, it has controlling effect. See Marks v. United States, 430 U.S. 188, 193 (1977).
3
she does not allege that Defendants took or threatened to take state action if the
advertisers did not accede to their requests. See Am. Family Ass’n, Inc. v. City &
Cty. of San Francisco, 277 F.3d 1114, 1125 (9th Cir. 2002).
Moreover, Velie has waived her equal protection claim, as her entire claim
rests solely on a single heading asserted in her brief filed in opposition to
Defendants’ motion to dismiss. The district court made no finding with regard to
this claim because Velie failed to raise any argument concerning it or offer any
legal authority in support thereof. Since Velie failed to properly address this claim
before the district court, we need not address it now on appeal. See In re E.R.
Fegert, Inc., 887 F.2d 955, 957 (9th Cir. 1989) (“The rule in this circuit is that
appellate courts will not consider arguments that are not properly raised in the trial
courts. . . . A workable standard . . . is that the argument must be raised sufficiently
for the trial court to rule on it.”) (internal quotation marks and citations omitted).
Finally, we find that the district court did not abuse its discretion in granting
Defendants’ motion to dismiss without leave to amend. The district court may deny
leave to amend if amendment would be futile. See AE ex rel. Hernandez v. Cty. of
Tulare, 666 F.3d 631, 636 (9th Cir. 2012). Velie has not provided any specific
allegations that she would use to amend her complaint, either before the district
court or on appeal. The district court was, therefore, within its discretion to dismiss
4
Velie’s complaint with prejudice. See Gingery v. City of Glendale, 831 F.3d 1222,
1231 (9th Cir. 2016); Carrico v. City & Cty. of San Francisco, 656 F.3d 1002,
1008 (9th Cir. 2011).
AFFIRMED.
5