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Eugene Forte v. County of Merced

January 10, 2012



Doc. #'s 24, 27, 32, 33 and 35 (Motions to Dismiss) Doc. # 34 (Motion to Strike)

Doc. # 45 (Motion to Quash)

Doc. # 92 (Motion for Sur-Reply)

This is an action for damages, injunctive and declaratory relief pursuant to 42 U.S.C. § 1983 that arises from a series of encounters between plaintiff Eugene Forte ("Plaintiff") and a number of both private and governmental actors. Currently before the court are five motions to dismiss, one motion to strike and one motion to quash service of summons and dismiss. Because the various Defendants stand in different relationships to Plaintiff, the court will decide the motions to dismiss and related motions in separate portions of this order. Federal subject matter jurisdiction exists pursuant to 28 U.S.C. § 1331. Venue is proper in this court.


Plaintiff is an on-line journalist who writes a publication called the "Badger Flats Gazette." To the extent there is anything that unifies the claims in Plaintiff's First Amended Complaint ("FAC"), it is the fact that his purpose appears to be, at least in part, to root out and make public the misdeeds and/or malfeasance of public officials. In pursuant of this purpose, Plaintiff appears to have placed himself in positions of confrontation with both public officials and a number of private individuals, particularly journalists. The allegations in Plaintiff's FAC center around three instances where he was allegedly arrested by police and other instances in which officials allegedly displayed indifference to death threats directed in Plaintiff's direction. Along the way, Plaintiff appears to allege that various actors, both public and private, infringed his right to engage in protected speech and to petition for redress of his grievances.

The first of the instances of arrest occurred on February 24, 2009, when Plaintiff attended what was scheduled to be a case management conference in a case in superior court in which Plaintiff was a cross-defendant. Plaintiff alleges he had previously objected to a pro-tem judge in that case and the case management proceedings were set before Defendant James Padron ("Padron") who was acting as judge pro tem for the purposes of that case management conference. Apparently, a dispute developed between Plaintiff and Padron wherein Plaintiff demanded an explanation why the proceedings were to be before a pro tem judge and Padron declined to answer and told Plaintiff that the conference had been rescheduled and that Plaintiff was required to leave chambers or be removed.

According to Plaintiff's FAC, Plaintiff decided to vacate the chambers and, while waiting outside, he summoned police to help him perform a "citizen's arrest" on Padron. The legal basis for the contemplated citizen's arrest is not explained. While there is a good deal of narrative in Plaintiff's FAC describing what happened in the hallway outside the judge's chambers while Plaintiff was waiting to make his citizen's arrest, the upshot is that Plaintiff was ultimately placed in custody (hereinafter, the February 24 Arrest) as soon as he attempted to confront Padron. Plaintiff alleges that his arrest was accomplished by means of excessive force, without probable cause and in violation of his rights under the First Amendment. Plaintiff's narrative concerning the "first arrest" continues on to describe how the incident was misrepresented in the local newspaper and how distribution of copies of the Badger Flats Gazette at a school function at the local Catholic school was initially opposed, but the Gazette was later relegated to a cardboard box under a table.

Plaintiff's account of his "second arrest and charges filed" consists of two apparently unrelated events. The first was a Los Banos city council meeting, held on or about June 3, 2009, at which Plaintiff took the opportunity to rebut what he alleges was a prior incorrect statement made by the mayor of Los Banos. After the meeting, Plaintiff was approached by Defendant Corey Pride ("Pride") who is not an official and is alleged to be a reporter for the local Los Banos Enterprise newspaper. Pride is alleged to have performed the "two-fingered chest poke" on Plaintiff in the presence of Los Banos Police Chief Dan Fitchie*fn1 . Plaintiff requested that Pride be arrested, but no arrest was forthcoming. The following day a commentary appeared in the Enterprise that Plaintiff alleges was written by Defendant Lieb that Plaintiff alleges cast him in falsely in a negative light.

In an apparently unrelated event, Plaintiff, his wife and his son went to the Los Banos branch of the Merced County Superior Court on July 21, 2009, on a matter pertaining to his son's traffic citation. Plaintiff had an audio recorder with him at the time and was initially barred from entry by the court guards. Eventually, Defendant Picinich determined that Plaintiff could enter the court with the recorder but could not take the recorder into a courtroom. Plaintiff argued that he was entitled to take the recording device into a courtroom but could not turn it on without permission of the judge. Plaintiff alleges that a fairly lengthy discussion over the recording device ensued between Plaintiff and Picinich including a discussion on the idea that it would have been beneficial to have had the recording device during the time Picinich was trying to provoke Plaintiff into an altercation during his arrest on February 24, 2009. The conversation apparently ended when Plaintiff told Picinich that Picinich had bad breath. At that point Picinich forced Plaintiff to the ground and, with the aid of officers Hill and Meldon handcuffed Plaintiff (hereinafter, the "July 21 Arrest"). Plaintiff alleges excessive force was used both during the handcuffing and later as Plaintiff was taken to a holding area. Plaintiff further alleges that he was never told that he was being placed under arrest nor was he advised of his rights under Miranda. Plaintiff alleges he required hospital treatment for injuries suffered and additional medical expenses as a result of his treatment.

The remainder of Plaintiff's allegations regarding his "second arrest and charges filed" focuses on the Los Banos Enterprise's erroneous reporting of the events and its refusal to apologize or correct the story. Plaintiff's narrative also focuses on the failure of Defendants Morse and Pazin to adequately investigate the incident or to take corrective action. Plaintiff alleges that the accounts of Picinich and Leuchner contain many false statements.

Plaintiff's narrative recounting his third arrest is particularly convoluted. Apparently in response to an article written by Plaintiff in the Badger Flats Gazette concerning misdeeds of Los Banos Mayor Jones regarding conflict of interest, Plaintiff received a number of threatening e-mail correspondences from a then-minor named Anthony Donaldson ("Donaldson") who was a fan of the mayor but not of Plaintiff. Plaintiff reported the emails in an edition of the Badger Flats Gazette in an article entitled "Death Threats." Plaintiff, who had a child at Our Lady of Fatima School ("OLF") at the time, distributed some copies of the Gazette to the office of the school's principal. On February 28, 2010, Plaintiff brought a number of copies of the Gazette with him to OLF where he had volunteered to cook for a pancake breakfast fund raising event. Plaintiff placed copies of the Gazette at the ends of the long dining tables and read the article concerning the death threats to the other volunteers that were present. OLF's principal, Defendant McGhee, apparently concerned over safety issues and/or the possibility of alarming the patrons, allegedly conferred with the Diocese of Fresno and summoned police to remove Plaintiff and his copies of the Gazette from the breakfast. Plaintiff describes the removal as a request by McGhee for a "citizen's arrest" (hereinafter, the "February 28 Arrest") Plaintiff also alleges that he was required to remove his children from the school and to sign a statement stating his belief that there was no threat to himself or his children before the children would be allowed to return to school. Plaintiff did not sign such a statement and his children were not allowed to attend the school. Plaintiff alleges that police, under the direction of Brizzee, added an undisclosed "misdemeanor charge onto the police report." So far as the court is aware, the criminal charge or charges against Plaintiff arising from his removal from the pancake breakfast are still pending.

Plaintiff alleges that he continued to receive death threats, although he does not specify whether the threats were from the same person. Early in the morning on March 3, 2010, Plaintiff signed and delivered to the Los Banos Police Department "a request for Citizen's Arrest to arrest Mayor Tommy Jones." FAC at ¶ 106. Although the legal theory behind Plaintiff's attempt at a citizen's arrest is not explicit, it appears to be based on the idea that, since the party that was threatening Plaintiff was a backer of Mayor Jones, the individual was influenced by Jones and therefore Jones was somehow criminally liable for failing to intervene for the sake of Plaintiff's protection. Plaintiff drove to Mayor Jones' residence and waited there for police to arrive and assist in the "Citizen's Arrest." When police did not arrive, Plaintiff left.

Plaintiff alleges Los Banos police requested that Merced County Mental Health evaluate Plaintiff to determine if he was a danger to himself or others. Allegedly, Plaintiff's wife and children talked to the mental health nurse and a determination was made that Plaintiff was not a danger to himself or others. Plaintiff alleges that the call from Merced Mental Health convinced him that he and his family were not safe in Los Banos so the family traveled to a Hyatt hotel in the town of Pleasanton, California.

While staying at the Hyatt in Pleasanton, Plaintiff decided to offer copies of the Badger Flatts edition that contained the "Death Threats" article. Plaintiff alleges that the manager of the Hyatt Hotel objected to the content of plaintiff's speech and sought to evict Plaintiff from the hotel calling Pleasanton City Police officers to aide in the eviction. Plaintiff alleges that the Pleasanton Police officers spoke to Defendant Brizzee who "suggested that [Plaintiff] was potentially mentally unstable to the point of being dangerous to others or himself even though the evening before, the Merced Department of Health hade determined that [Plaintiff] was not." FAC at ¶ 119. Given that the Plaintiff's FAC does not name anyone from Pleasanton as a defendant, it appears that the point of Plaintiff's Pleasanton narrative is to support Plaintiff's claims against Brizzee.

Plaintiff also alleges some "Other Events." In sum, the "Other Events" amplify Plaintiff's allegations against: (1) Defendant Morse, for filing five misdemeanor counts against Plaintiff despite having notified Plaintiff that he could not prosecute because there was a conflict arising from a prior case in which Morse was a defendant and for refusing to prosecute Pride ; (2) Defendant Pride and the McClatchy newspapers for portraying Plaintiff in a bad light; and (3) against Defendant Fincher for tampering with the proceedings of the Merced County Grand Jury.

The foregoing is a condensed version of the allegations set forth in Plaintiff's FAC. The factual detail that is omitted has been reviewed by the court. The court concludes that much of the information alleged by Plaintiff in his FAC, including the information that is not present in the above summary of facts, is not legally relevant to Plaintiff's claims for relief as the court understands them. The court has excluded the material it deems not legally relevant in the interests of efficient use of judicial resources.


The complaint in this action was filed on February 24, 2011. The currently operative FAC was filed on May 4, 2011. The McClatchy Paper Defendants, including Defendants Los Banos Enterprise, Lieb, and Pride filed their motion to dismiss on June 24, 2011. Doc. # 24.

All other Defendants filed their motions to dismiss on June 29, 2011. The moving parties include: Catholic Diocese of Fresno, Doc. # 27; individual Defendant Padron, Doc. # 32; the Los Banos Defendants including Brizzee, Parker, City of Los Banos, Doc. # 34; and the Merced County Defendants including Defendants County of Merced, Fincher, Hill, Jaskowiac, Leuchner, O'Banion, Morse, Pazin, Picinich, and Turner. Doc. # 35. On July 15, 2011, Defendant McGhee filed her motion to quash summons and to dismiss. Doc. # 45. Plaintiff filed opposition to all motions to dismiss or quash on September 19, 2011. Replies by Defendants were filed on July 26, 2011. On September 30, 2011, the court vacated the hearing on Defendants' motions to dismiss and to quash and took the matter under submission as of October 3, 2011. On January 3, 2012, Plaintiff filed a motion for leave to file a sur-reply. Doc. # 92.


For the most part, Defendants' motions to dismiss are pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.

A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure can be based on the failure to allege a cognizable legal theory or the failure to allege sufficient facts under a cognizable legal theory. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 533-34 (9th Cir.1984). To withstand a motion to dismiss pursuant to Rule 12(b)(6), a complaint must set forth factual allegations sufficient "to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) ("Twombly"). While a court considering a motion to dismiss must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740 (1976), and must construe the pleading in the light most favorable to the party opposing the motion, and resolve factual disputes in the pleader's favor, Jenkins v. McKeithen, 395 U.S. 411, 421, reh'g denied, 396 U.S. 869 (1969), the allegations must be factual in nature. See Twombly, 550 U.S. at 555 ("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"). The pleading standard set by Rule 8 of the Federal Rules of Civil Procedure "does not require 'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) ("Iqbal").

The Ninth Circuit follows the methodological approach set forth in Iqbal for the assessment of a plaintiff's complaint:

"[A] court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief."

Moss v. U.S. Secret Service, 572 F.3d 962, 970 (9th Cir. 2009) (quoting Iqbal, 129 S.Ct. at 1950).


For purposes of analysis, Plaintiff's action will be divided into five groups of individuals or entities: (1) non-governmental individual actors and entities; (2) governmental actors sued in their individual capacities who are supervisors or who are not directly involved in acts alleged to have infringed Plaintiff's Fourth Amendment rights; (3) individual governmental actors, other than governmental entities, that are alleged to have violated Plaintiff's Fourth Amendment right against arrest without probable cause; (4) individual governmental actors, other than governmental entities, that are alleged to have violated Plaintiff's Fourth Amendment right against application of unreasonable force; and (5) governmental entities. The court will consider Defendants' motions to dismiss with regard to each group in turn.

I. Non-Governmental Individual Actors and Entities

This group of Defendants includes the McClatchy Defendants (including McClatchy Newspapers, the Los Banos Enterprise, and individual Defendants Lieb and Pride), the Catholic Diocese of Fresno and Defendant McGhee. "To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law." West v. Atkins, 487 U.S. 42, 48 (1988). "In other words, the deprivation 'must be caused by the exercise of some right or privilege created by the [government] or a rule of conduct imposed by the [government].' [Citation.]" Sutton v. Providence St. Joseph Med. Ctr., 192 F.3d 826, 835 (9 Cir. 1999) (quoting Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 937 (1982)) "'Second, "the party charged with the deprivation must be a person who may fairly be said to be a [governmental] actor.' The Court adopted that test because '§ 1983 excludes from its reach merely private conduct, no matter how discriminatory or wrong.'" Id. (quoting American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40 (1999)).

Both the McClatchy and the Diocese of Fresno Defendants contend that all claims alleged by Plaintiff against them must fail because neither entity or any person working for either entity was operating under color of law. Both Defendant groups also contend that Plaintiff's FAC fails to allege the violation of any right secured by the United States Constitution or its laws.

A. The McClatchy Defendants

Although "[a] civil rights plaintiff suing a private individual under § 1983 must demonstrate that the private individual acted under color of state law," Franklin, 312 F.3d at 444, it is well-settled that "even a private entity can, in certain circumstances, be subject to liability under section 1983," Villegas v. Gilroy Garlic Festival Ass'n, 541 F.3d 950, 954 (9th Cir.2008) (en banc). "A private individual may be liable under § 1983 if she conspired or entered joint action with a state actor." Crowe v. County of San Diego, 608 F.3d 406, 440 (9th Cir.2010) (internal citation and quotation marks omitted); see also Kirtley v. Rainey, 326 F.3d 1088, 1092 (9th Cir.2003) ("While generally not applicable to private parties, a § 1983 action can lie against a private party when he is a willful participant in joint action with the State or its agents.") (internal citation and quotation marks omitted).

In his opposition to Defendants' motions to dismiss, Plaintiff appears to invoke the conspiracy theory of private action in order to attach liability to the McClatchy Defendants' actions.

A conspiracy claim brought under section 1983 requires proof of "'an agreement or meeting of the minds to violate constitutional rights,'" [. . .] and an actual deprivation of constitutional right [. . ..] To be liable, each participant in the conspiracy need not know the exact details of the plan, but each participant must at least share the common objective of the conspiracy." Quezada v. Herrera, 2011 WL 794813 (E.D. Cal. 2011) at *3 (internal citations omitted). In essence, "'[a] civil conspiracy claim operates to extend, beyond the active wrongdoer, liability in tort to actors who have merely assisted, encouraged or planned the wrongdoer's acts.'" 16 Am.Jur. 2D Conspiracy § 57 (1998).

When assessing a claim under color of law by a private actor, the court "start[s] with the presumption that private conduct does not constitute governmental action." Sutton, 192 F.3d at 835. It is therefore Plaintiff's burden to allege facts that, if true, would constitute a conspiracy on the part of the McClatchy Defendants. At the outset the court notes that Plaintiff's claim of conspiracy as alleged in the FAC alleges nothing but the bare existence of a conspiracy between all Defendants and is therefore not at all sufficient to state a conspiracy with regard to the actions of the McClatchy Defendants. The court will, however, address briefly the facts and argument asserted in Plaintiff's opposition to the motion to dismiss in order to determine if leave to further amend the complaint would be warranted.

Plaintiff's opposition consists of a long and difficult to follow narrative that describes a series of instances in which Plaintiff alleges he was the victim of articles written primarily by Defendant Pride that tended to portray Plaintiff in a bad light and to falsely associate Plaintiff with acts of apparently racially motivated vandalism against Mayor Jones. In addition, Plaintiff was apparently in contact with a committee to recall the mayor and Plaintiff alleges that the articles and bad-light-reporting was carried out at the direction of officials in the city including the city counsel and mayor to somehow disassociate Plaintiff from the recall committee. The court has reviewed Plaintiff's allegations regarding the conspiracy or common scheme of Los Banos officials and the McClatchy reporters and finds that at its core, the allegations are based on nothing more than innuendo and rank speculation. What Plaintiff has done is allege an elaborate narrative to explain why Los Banos officials might have wanted to manipulate news coverage of some events , cast those events as constituting a personal vendetta by Los Banos officials and indignant McClatchy reporters against Plaintiff, and then alleging in conclusory fashion that the collusion between the McClatchy Defendants and Los Banos officials happened. When the innuendo and characterizations of vindictive false reporting are peeled away, all that remains is the bare and frankly improbable assertion that Pride and the McClatchy Defendants wrote character assassination articles at the behest of Los Banos officials as part of a scheme to dissuade Plaintiff from the exercise of his First Amendment rights. There are absolutely no facts alleged to indicate that such collaboration actually took place.

The court finds that Plaintiff has failed to allege facts sufficient to show that there existed a common course of action or conspiracy between the McClatchy Defendants and the Los Banos officials to constitute a showing that the McClatchy Defendants at any time were acting under color of law.

Very briefly, the court will also address the McClatchy Defendants' contention that they did not carry out acts would constitute any violation of Plaintiff's First Amendment Rights even if those actions were taken under color of law. In this circuit a plaintiff seeking to establish a claim for violation of his First Amendment rights must allege evidence to show that the defendant took action to deter or chill the Plaintiff's protected speech and that the actions taken by the defendant were of such a nature as to "'chill or silence a person of ordinary firmness from future First Amendment Activities.' [Citation.]" Mendocino Envtl. Ctr. v. Mendocino County, 192 F.3d 1283, 1300 (9 Cir. 1999) (quoting Crawford-El v. Britton, 93 F.3d 813, 826 (D.C. Cir. 1996)).

Plaintiff contends that Defendants actions -- casting Plaintiff in a bad light and failing to report on death threats to Plaintiff -- would be sufficient to chill a person of ordinary firmness from Plaintiff's protected speech. The court finds nothing particularly coercive in the reporting activities of any of the McClatchy Defendants. Plaintiff, a reporter himself, is in the business of reporting and reflecting negatively on those who he perceives to be abusing the public's trust. Plaintiff can rationally expect similar treatment from those who disagree deeply with his published views. This is simply part of the give-and-take of unregulated journalism. Innuendo, salacious rumor mongering and generalized mud-slinging are part and parcel of free speech; and while a claim for slander may occasionally arise from such activity, a claim for First Amendment violation will not. Plaintiff's FAC makes it clear that Plaintiff has gone to some lengths to insert himself into public controversies and to publish on them. Having thus availed himself of constitutionally protected free speech to the discomfort of the subjects of his writing, Plaintiff may not complain when others avail themselves of the same rights in inflicting discomforture upon him.

The court finds Plaintiff has alleged neither action under color of law or interference with a constitutionally guaranteed right against the McClatchy Defendants. The court further finds that amendment of the pleading cannot cure the basic flaws in Plaintiff's claims against the McClatchy Defendants; they cannot be construed as operating under color of law and their reporting, no matter how biased or incomplete or inaccurate it may be, does not rise to the level of an abridgement of Plaintiff's rights under the First Amendment. Plaintiffs FAC will therefore be dismissed in its entirety as to the McClatchy Defendants without leave to amend.

B. Diocese of Fresno Defendants

The Diocese of Fresno Defendants also contend that Plaintiff's FAC fails to state a claim for relief because it fails to allege facts to establish that they acted under color of law or that any of Plaintiff's constitutional rights were violated as a result of Defendants' actions. In the case of the Diocese Defendants, there are two claims of constitutional violation; Plaintiff alleges his rights under the Fourth Amendment were violated when Plaintiff was placed under citizen's arrest by Defendant McGhee and his rights under the First Amendment were violated when he was prevented from participating in constitutionally protected speech at the pancake breakfast at Our Lady of Fatima School ("OLF").

As was the case with Plaintiff's opposition to the McClatchy Defendants' motion to dismiss, Plaintiff seeks here to extend liability under section 1983 to the actions of Defendants who are admittedly private persons by alleging the Defendants engaged in conspiracies with City of Los Banos officials. As above, Plaintiff's claims of conspiracy are wholly inadequate as set forth in the FAC, a fact which Plaintiff tacitly acknowledges by requesting leave to further amend the complaint by adding both alleged facts and Defendants to the complaint. In regard to the Diocese Defendants, Plaintiff's opposition to Defendants' motion alleges conspiracy on two fronts. With regard to the liability of McGhee and the Diocese in the violation of Plaintiff's rights under the First Amendment, Plaintiff's opposition alleges that Defendant McGhee and Defendant Brizzee were connected through the OLF where McGhee was principal and Brizzee had a child at the school. Plaintiff goes on to explain that both McGhee and Brizzee had reason to be hostile toward Plaintiff and, in particular, to Plaintiff's activities as a reporter. In the case of McGhee, Plaintiff alleges McGhee "had animus against [Plaintiff] and his writings in the Badger Flats Gazette due to [Plaintiff's] exposure of her past actions in previous articles." Doc. # 57 at 4:25-27. With regard to Brizzee, Plaintiff alleges that Brizzee was motivated to be of service to Mayor Jones since Jones had strong influence over the hiring of the new Chief of Police and that Jones's interests would be served if distribution of Plaintiff's "Death Threats" article in the Badger Flats Gazette was impeded. From the allegations of animus, Plaintiff asserts the existence of a conspiracy between McGhee and Brizzee to violate Plaintiff's First Amendment Rights.

As discussed above, the concoction of a narrative that imagines the evil motives of other actors is insufficient to establish the conspiracy of parties to interfere in Plaintiff's First Amendment rights. This is particularly true where a completely independent and reasonable set of facts can be derived from Plaintiff's narrative that provide a perfectly reasonable basis to support the legally-required presumption that McGhee acted independently. The obvious conclusion that can be drawn from the facts as alleged in Plaintiff's FAC is that McGhee wanted to prevent Plaintiff from upsetting/alarming the patrons/helpers attending the pancake breakfast with his accounts of death threats and conspiracies. In short, it can very reasonably be assumed that McGhee acted for reasons that were entirely her own. No conspiracy is needed and none will be presumed based only on the motivations Plaintiff attempts to project on others.

Plaintiff's attempt to extend liability to McGhee and the Diocese Defendants for violation of his First Amendment rights fails first because the actions that were taken by a private actor (McGhee) acting privately and second because Plaintiff's rights under the First Amendment are not implicated where his freedom to speak is limited by a private actor in a private forum. It is elementary that the First Amendment safeguards against governmental interference in the right to public speech; it does not guarantee a forum at private expense. See Pacific Gas & Elec. Co. v. Pub. Util. Comm'n of California, 475 U.S. 1, 28 (1986) ("First Amendment does not itself grant a right of access to private forums"). Even public schools are not generally public fora. Nurre v. Whitehead, 580 F.3d 1087, 1093 (9th Cir 2009). And where a school, public or private, does open its facilities for a particular purpose, it does not infringe on the free speech rights of others where it limits expressive activity that is inconsistent with the purpose of the public function. Id. at 1094 ("In a nonpublic forum opened for a limited purpose, restrictions on access 'can be based on subject matter ... so long as the distinctions drawn are reasonable in light of the purpose served by the forum' and all the surrounding circumstances").

Here, McGhee opened the school facilities for the express purpose of hosting a pancake breakfast to raise funds. There was no unconstitutional restriction on Plaintiff's rights of free speech where he was prevented by McGhee from expressive activities that she reasonably felt were incompatible with the purposes of the event.

The court finds that Plaintiff's FAC fails to state a claim for infringement of Plaintiff's rights under the First Amendment as to the McGhee, nor can amendment of the pleadings cure the defect in view of both McGhee's status as a private person and OLF's status as a private school. Since the Diocese of Fresno Educational Corporation, sued by Plaintiff as Diocese of Fresno, is sued on a theory of respondeat superior, ...

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