Appeal from the United States District Court for the District of Oregon Ann L. Aiken, Chief District Judge, Presiding DC No. 6:09 cv-6269 AA
The opinion of the court was delivered by: Tashima, Circuit Judge:
May 2, 2011-Portland, Oregon
Before: A. Wallace Tashima, Carlos T. Bea, and Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Tashima; Dissent by Judge Ikuta
The complaint alleges that employees in Oregon State University's Facilities Department gathered up the outdoor news-bins belonging to the Liberty, a conservative student monthly, and threw them in a heap by a dumpster in a storage yard. The employees acted pursuant to an unwritten and previously unenforced policy governing newsbins on campus. They did not notify anyone at the Liberty before confiscating the news-bins. After the confiscation, University officials denied the paper permission to replace the bins anywhere but in two designated campus areas - limited areas to which the University's traditional student paper, the Daily Barometer, was not confined.
Plaintiffs, the Liberty's student editors and student publishers, sue under 42 U.S.C. § 1983. We have little trouble finding constitutional violations. The real issue is whether the complaint properly ties the violations to the four individual defendants, who are senior University officials. Plaintiffs confront a familiar problem: they do not know the identities of the employees who threw the newsbins into the trash heap, and they do not know which University official devised the unwritten policy or which official gave the order to confiscate the bins. Plaintiffs do know, however, that three of the four defendants participated in the decision to deny them permission to place bins outside of the designated areas after the confiscation. We conclude that the complaint states claims against those three defendants based on this post-confiscation decision. We also hold that the complaint states a claim against one defendant - the Director of Facilities Services - based on the confiscation itself.
We accept as true the well-pleaded facts in the complaint. Starr v. Baca, 652 F.3d 1202, 1220 (9th Cir. 2011). Plaintiff- appellant OSU Students Alliance is a registered student organization at Oregon State University ("OSU" or the "University"). Its members are all OSU students. OSU Students Alliance publishes the Liberty, an independent student newspaper distributed to students on OSU's campus in Corvallis, Oregon. The Liberty is a conservative student newspaper that styles itself as an alternative to the University's official student paper, the Daily Barometer. The Liberty is funded through private donations and advertising revenue. OSU Students Alliance may apply for and receive student fees to fund the Liberty, but has chosen not to apply for those funds to maintain its independence. The Daily Barometer is funded through student fees and advertising revenue.
In 2002, OSU Students Alliance began distributing the Liberty on campus via newsbins. The OSU Facilities Services gave OSU Students Alliance permission to place these bins around campus, including in dining halls and the Memorial Union.
In 2005, OSU Students Alliance placed eight new bins around campus. OSU Students Alliance placed the bins in the areas of campus with the heaviest student traffic - near the bookstore, dorms, football stadium, and other locations. Most of these locations already had the Barometer bins, and OSU Students Alliance's goal was to place bins next to the Barometer so that students would pick up a copy of both student newspapers. After one bin was stolen, OSU Students Alliance used wire bicycle chains to secure the remaining seven bins to nearby light or sign poles. In total, the Liberty had seven outdoor distribution bins.
At the time of the complaint, the Barometer had 24 distribution bins, which were located throughout campus. Off-campus newspapers, including the Corvallis Gazette-Times, Eugene Weekly, and USA Today also had distribution bins on campus. Each of these newspapers had bins chained to fixtures such as light posts or building columns.
During the 2008-09 winter term, all seven of the Liberty's outdoor distribution bins disappeared from campus.*fn1 The bins of the other papers, including the other off-campus papers, were left untouched. Because OSU had given the Liberty per-mission to place its bins at specific locations throughout campus, and had not revoked that permission, the Liberty's editors had no reason to suspect their bins had been confiscated by the University. Thus, they called the police. Only through the police investigation did they learn of the University's involvement. After contacting the Facilities Department, the student editors recovered the seven newsbins from the storage yard, where they had been left "heaped on the ground." One bin was cracked and others had spilled open, resulting in the loss of 150 copies of the Liberty to water damage. The wire bicycle locks that the editors used to secure the bins against theft had been cut.
The Facilities Department's customer service manager told plaintiff William Rogers, the Liberty's executive editor, that the Department had removed the bins because it was "catching up" on its enforcement of a 2006 University policy that prohibited newsbins in all but two designated campus locations, one near the bookstore and another by the student union. The customer service manager told Rogers that, going forward, the Liberty could not place newsbins anywhere but in the designated areas.
Rogers complained by email to defendant Ed Ray, President of OSU, who responded that the events surrounding the Liberty were "news to him." Ray copied defendant Mark McCambridge, Vice President of Finance and Administration, and defendant Larry Roper, Vice Provost for Student Affairs, on the email and indicated that these individuals would contact Rogers about the incident. Several days later, defendant Vincent Martorello, the Director of Facilities Services, called Rogers and explained, much like the customer service manager had, that the University's newsbin policy prohibited the Liberty from placing bins anywhere but in the two designated locations. Martorello said the purpose of the 2006 policy was to keep the campus clean by regulating newsbins belonging to "off-campus" publications. Martorello also said that the policy did not allow bins to be chained to school property Martorello's explanation perplexed Rogers. He did not consider the Liberty an "off-campus" paper, because it was written and edited entirely by OSU students and published by the OSU Student Alliance, a Registered Student Organization ("RSO").*fn2 Also, OSU had not applied the policy against the Daily Barometer, the traditional school paper, nor against the other off-campus newspapers such as the Corvallis Gazette-Times, Eugene Weekly, and USA Today, which continued to place their newsbins throughout the campus, not just in the designated areas. The only apparent difference between the two papers' connection to the OSU community was that the Barometer supplemented its advertising revenue by accepting student fees from the University, whereas the Liberty received private funding and advertising revenue but no student fees.*fn3
Rogers challenged the application of the policy against the Liberty. He wrote Martorello a long email explaining that the Liberty was a student paper and requesting permission to place newsbins outside of the designated areas, just as the Barometer was allowed to do. Martorello initially agreed to assess the "potential of adding additional [Liberty] bins on campus. But two weeks later, Martorello tersely denied Rogers' request: "The Liberty is not in the same situation as the Barometer and will need to be located at the approved locations . . . ."
In an earlier email to Rogers, Vice President McCambridge had explained the more onerous restrictions on the Liberty, as opposed to the Barometer, as follows: "As a newspaper that is not funded by ASOSU [the Associated Students of OSU], we don't have the same communications availability between your paper and the University . . . ." McCambridge also said that OSU would work with Rogers on finding newsbin locations for the Liberty, but that those locations would "be agreed to within the parameters that the University determines." McCambridge left ultimate resolution of the matter in Martorello's hands, writing that Martorello would keep both him and President Ray informed about the progress of the Liberty's request for better campus access.
After Martorello definitively denied the request, the Liberty's editors asked him for a copy of the policy governing newsbins. In response, they received an email from Charles Fletcher, Esq., Associate General Counsel of OSU, who explained that the 2006 policy was unwritten:
There is no specific written policy that governs the placement of publication bins, and none is required. OSU's control over its grounds, buildings, and facilities . . . is plenary under ORS Chapters 351 and 352 . . . subject only to limited exceptions that do not apply here. I hope this helps.
Fletcher also suggested that the policy did not apply to the Barometer because it had been "the campus newspaper since 1896" and because it was funded by ASOSU. In another message, Fletcher explained:
The mere fact that The Liberty has students on staff does not mean that it is entitled to the same bin locations as the Daily Barometer.
The Daily Barometer was established over 100 years ago as the OSU student newspaper. It's published by the OSU Student Media Committee on behalf of ASOSU. The Liberty, on the other hand, is not published by OSU and receives almost all of its funding from outside sources.
Arguing that the unwritten policy arbitrarily distinguished between the Liberty and the Barometer, the Liberty's editors drafted a proposed alternative policy under which both publications would receive equal campus access. The administration refused to consider the proposal. In a final email reaffirming the University's commitment to the policy, Fletcher wrote that he had "been in communication with President Ray and Vice President McCambridge" about plaintiffs' objections to the policy, but asserted that the policy was constitutional.
Plaintiffs filed an action under 42 U.S.C. § 1983 alleging violations of their constitutional rights to free speech, due process, and equal protection. They sought injunctive and declaratory relief and damages. Soon thereafter, OSU adopted a written policy on newspaper bins which, in contrast to its unwritten predecessor, does not distinguish between "on-campus" and "off-campus" publications. Rather, the written policy allows any person to obtain permission to place a newsbin on campus by submitting a request form and complying with certain physical requirements, such as that bins "shall be placed on a level surface and kept in an upright position."
In light of the new policy, the district court dismissed as moot the claims for injunctive and declaratory relief. As for the damages claims, it held them deficient because the complaint did not allege that any of the four defendants had participated in the confiscation of the newsbins. The district court did not consider the allegations about the aftermath of the confiscation, when the University continued to apply the unwritten policy against the Liberty. The court dismissed the damages claims for failure to state a claim, and granted judgment for defendants without leave to amend. See OSU Student Alliance v. Ray, 692 F. Supp. 2d 1278 (D. Or. 2010). It also denied plaintiffs' post-judgment motion seeking leave to amend. Plaintiffs appeal only the dismissal of the damages claims and the denial of leave to amend.
We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo the dismissal of a complaint for failure to state a claim. Starr, 652 F.3d at 1205. To avoid dismissal under Federal Rule of Civil Procedure 12(b)(6), a plaintiff must "allege 'sufficient factual matter . . . to state a claim to relief that is plausible on its face.' " Pinnacle Armor, Inc. v. United States, 648 F.3d 708, 721 (9th Cir. 2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949 (2009)); see also Starr, 652 F.3d at 1216 ("[T]he factual allegations that are taken as true must plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation."). In reviewing a dismissal under Rule 12(b)(6), we accept the well-pleaded factual allegations of the complaint as true and construe them in the light most favorable to plaintiffs. Id.; Daniels-Hall v. Nat'l Educ. Ass'n, 629 F.3d 992, 998 (9th Cir. 2010).
To state a claim under § 1983 against state officials in their individual capacities, a plaintiff must plead that the officials, "acting under color of state law, caused the deprivation of a federal right." Suever v. Connell, 579 F.3d 1047, 1060 (9th Cir. 2009) (quoting Hafer v. Melo, 502 U.S. 21, 25 (1991)). No one disputes that the four defendants acted under color of state law. Defendants argue that plaintiffs fail to plead the other two elements: (1) the deprivation of a federal right; and (2) causation. We begin our analysis with the first element.
The complaint asserts violations of three constitutional rights: free speech, equal protection, and procedural due process.
 The circulation of newspapers is expressive conduct protected by the First Amendment. See City of Lakewood v. Plain Dealer Publ'g Co., 486 U.S. 750, 760 (1988); Honolulu Weekly, Inc. v. Harris, 298 F.3d 1037, 1047 (9th Cir. 2002) ("[I]t is beyond dispute that the right to distribute newspapers is protected under the First Amendment . . . .") (citation omitted). Therefore, if the government wishes to regulate the placement of newsbins in a public forum, it must do so according to established, content-neutral standards. See Plain Dealer, 486 U.S. at 760. A city ordinance violates the First Amendment if it allows the mayor to grant or deny applications for newsbin permits without creating standards to limit the mayor's discretion - beyond requiring that he "state the reasons" for a denial - because the absence of established decision-making criteria makes it "far too easy" for the mayor to practice censorship by offering "post hoc rationalizations" and "shifting or illegitimate" justifications. Id. at 758; see id. at 763 ("[The] danger [of content and viewpoint censorship] is at its zenith when the determination of who may speak and who may not is left to the unbridled discretion of a government official."); see also G.K. Ltd. Travel v. City of Lake Oswego, 436 F.3d 1064, 1082 (9th Cir. 2006) ("To avoid impermissible discretion, the challenged ordinance should 'contain adequate standards to guide the official's decision and render it subject to effective judicial review.' ") (quoting ...