NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAY 8 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARY JONES, No. 18-55664

Plaintiff-Appellant, D.C. No. 2:17-cv-07846-CJC-AS v.

XAVIER BECERRA, MEMORANDUM*

Defendant-Appellee.

Appeal from the United States District Court for the Central District of California Cormac J. Carney, District Judge, Presiding

Submitted May 6, 2020** San Francisco, California

Before: SCHROEDER, CANBY, and TROTT, Circuit Judges.

Mary Jones appeals pro se the district court’s sua sponte dismissal pursuant

to 28 U.S.C. §1915(e)(2) of her action challenging the constitutionality of two

California civil anti-harassment statutes, Cal. Civ. Proc. Code §§ 527.6 and 527.8,

that allow private parties to obtain restraining orders against other private parties.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). We review de novo. We reverse and remand for further proceedings.

The district court erred in dismissing Jones’s second amended complaint on

the ground that defendant Xavier Becerra, Attorney General of California, is

protected by Eleventh Amendment immunity. Invoking Ex parte Young, 209 U.S.

123 (1908), Jones sought to bring suit seeking declaratory and injunctive relief

against Becerra in his official capacity for his potential violation of federal law.

See Moore v. Urquhart, 899 F.3d 1094, 1103 (9th Cir. 2018) (under Ex parte

Young, a court may enjoin enforcement of state statutes that violate the

Constitution or other federal laws), cert. denied, 139 S. Ct. 2615 (2019); Coalition

to Defend Affirmative Action v. Brown, 674 F.3d 1128, 1134 (9th Cir. 2012)

(Eleventh Amendment “does not bar actions for declaratory or injunctive relief

against state officers in their official capacities for their alleged violations of

federal law”). Although Jones sued Becerra in his “individual capacity,” the

second amended complaint must be liberally construed as suing Becerra in his

official capacity. See Watison v. Carter, 668 F.3d at 1108, 1112 (9th Cir. 2012)

(pro se complaints are liberally construed). As Becerra candidly explains in his

answering brief, pursuant to Ex parte Young, he may have a sufficiently direct

connection to the enforcement of any restraining order against Jones. See

Coalition, 674 F.3d at 1134 (state official being sued must have some connection

with the enforcement of the challenged law). We therefore reverse the district

2 court’s judgment and remand for further proceedings.

We decline to address Becerra’s argument for the first time on appeal that

Jones never achieved service of process sufficient to subject Becerra to the

jurisdiction of the court. See Tauscher v. Phoenix Bd. of Realtors, Inc., 931 F.3d

959, 966 (9th Cir. 2019) (vacating and remanding to allow district court to address

issue it did not previously consider).

Jones’s objection to Becerra’s motion for reconsideration (Docket Entry No.

14) is construed as a motion for reconsideration of this court’s order of December

4, 2018, allowing Becerra to file an answering brief. So construed, the motion is

denied. Becerra’s motion for judicial notice is denied (Docket Entry No. 21).

REVERSED and REMANDED.

3