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Laura Ashmore, et al. v. the Regents of the University of California

December 15, 2011


The opinion of the court was delivered by: Present: The Honorable A. Howard Matz, U.S. District Judge


Stephen Montes Not Reported

Deputy Clerk Court Reporter / Recorder Tape No.

Attorneys NOT Present for Plaintiffs: Attorneys NOT Present for Defendants:

Proceedings: IN CHAMBERS (No Proceedings Held)


Before the Court is a motion to dismiss and strike portions of Plaintiffs' first amended complaint ("FAC"), brought by Defendants Regents of the University of California ("Regents")*fn1 , Russell Gould, James D. Herren, John Adams, Mark Littlestone, Matthew Pinkus, and Ethan Shear (collectively "Defendants"). Intervenor Defendants J. David Jentsch and Edyth D. London join in the motion. (Dkt. No. 69.) Defendants argue that (1) the Court should abstain from this case under the Younger abstention doctrine, (2) the Regents are immune from suit under the 11th Amendment, and (3) Plaintiffs have failed to raise a meritorious First Amendment claim against any Defendant.

For the following reasons, Defendants' motion to dismiss is GRANTED WITH LEAVE TO AMEND.*fn2 The motion to strike is DENIED as MOOT.*fn3 Plaintiffs are ORDERED to file any amended complaint within 21 days of the date of this order.


Plaintiffs Laura Ashmore, Pamelyn Ferdin, Carol Glasser, and Nicoal Sheen (collectively "Plaintiffs") are animal rights advocates who oppose animal testing. (FAC ¶ 16.) Since 2006, Plaintiffs have conducted organized protests near the homes of UCLA researchers who perform vivisections on monkeys for scientific research. (FAC ¶ 16-18.) During these protests, Plaintiffs march back and forth on public sidewalks within 100 feet of the researchers' homes. (FAC ¶ 18.) When Plaintiffs are stationary, they remain at least 100 feet from the property line of the targeted residence. (Id.)

Plaintiffs allege that Defendant Regents have a "policy"of "utiliz[ing] and employ[ing] defendant UCLA Police Department and other UCLA personnel to systematically eliminate all expressive activities opposing the use of animals for experiments and testing by UCLA personnel, in the neighborhoods where the plaintiffs sdek [sic] to conduct their expressive activities." (FAC ¶ 1.) Among other things, the UCLA police allegedly have followed, surveilled, photographed, videotaped, and threatened to arrest Plaintiffs. (FAC ¶¶ 21-23, ¶¶ 25-27.) Helicopters often hover over the protests, drowning out Plaintiffs' chants; Plaintiffs suggest, without directly stating, that these helicopters belong to the UCLA police. (FAC ¶ 28.)

On May 15, 2010, Plaintiffs Ashmore, Glasser, and Sheen were conducting a "peaceful and orderly" protest in their usual manner near the home of Defendant London. (FAC ¶ 31.) Plaintiff Ferdin was not participating in the protest but was videotaping the events as a "legal observer." (FAC ¶ 33.) UCLA police officers arrested Plaintiffs Ashmore, Glasser, and Sheen (collectively the "arrested Plaintiffs") and cited them for violation of Los Angeles Municipal Code Article 6.1 § 56.45(e) ("§ 56.45(e)" or "the Ordinance"), which prohibits targeted demonstrations within 100 feet of a residence. (FAC ¶ 34.) Ferdin was not arrested or cited, but her videotape was confiscated by a UCLA police officer. (Id.)

On November 19, 2010, the Los Angeles City Attorney's Office instituted state criminal proceedings against Plaintiffs Ashmore, Glasser, and Sheen. (Def. RJN, Exh. A.) Among other charges, Plaintiffs were charged with violating the Ordinance during the May 15 protest. (Id.) Plaintiff Ferdin was not charged. (See Id.)

On November 23, 2010, Plaintiffs filed this federal civil rights action under 42 U.S.C. § 1983 against Defendants, seeking (1) an injunction prohibiting Defendants and "any person or entity acting in concert with them" from enforcing the Ordinance, and (2) a declaration that the Ordinance and the "policy" of the Regents, both facially and as applied, violate the First and Fourteenth Amendments. (FAC, p. 12.)

Plaintiffs Ashmore and Sheen raised similar challenges to the Ordinance in their demurrer to the state criminal proceeding.(See Def. Supp. RJN, Exh. G p. 52; Exh. H, p. 64.) On March 7, 2010, the state court denied Plaintiffs' demurrers, holding that the Ordinance was facially constitutional. (See Def. Supp. RJN, Exh. I, p. 70.) Recently, Plaintiffs filed a "Notice of Completion of State Criminal Proceedings," claiming that the state proceeding has come to a resolution. (Dkt. 75.)


A complaint may be dismissed for failure to state a claim upon which relief can be granted. See Fed. R. Civ. P. 12(b)(6). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.' A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, - U.S.-, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "[A] plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in

Twombly, 550 U.S. at 555 (internal quotation marks and ellipsis omitted).

The plausibility standard articulated in Twombly and Iqbal, requires that a complaint plead facts demonstrating "more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief." Iqbal, 129 S.Ct. at 1949 (internal quotation marks and citation omitted). Determining whether a complaint states a plausible claim for relief is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct," the complaint has not shown that the pleader is entitled to relief. Iqbal, 129 S.Ct. at 1950 (internal citation, alteration, and quotation marks omitted); see Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009) ("[F]or a complaint to survive a motion to dismiss, the non-conclusory 'factual content,' and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the pleader to relief.") (citing Iqbal, 129 S.Ct. at 1949).

To determine whether a complaint states a claim sufficient to withstand dismissal, a court considers the contents of the complaint and its attached exhibits, documents incorporated into the complaint by reference, and matters properly subject to judicial notice. Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322-23 (2007); Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001). The court must accept as true all factual allegations contained in the complaint. That principle, however, "is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 129 S.Ct. at 1950. A complaint pro se, however, is "to be liberally construed," and "however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007).

Where a motion to dismiss is granted, a district court should provide leave to amend unless it is clear that the complaint could not be saved by any amendment. Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008) (citation omitted).


A. Younger ...

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