Osu Student Alliance v. Ed Ray

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

OSU STUDENT ALLIANCE; WILLIAM 

ROGERS,

Plaintiffs-Appellants, No. 10-35555 v.  DC No. 6:09 cv-6269 AA

ED RAY; MARK MCCAMBRIDGE;

LARRY ROPER; VINCENT OPINION

MARTORELLO,

Defendants-Appellees.  Appeal from the United States District Court for the District of Oregon Ann L. Aiken, Chief District Judge, Presiding

Argued and Submitted May 2, 2011—Portland, Oregon

Filed October 23, 2012

Before: A. Wallace Tashima, Carlos T. Bea, and Sandra S. Ikuta, Circuit Judges.

Opinion by Judge Tashima; Dissent by Judge Ikuta

12757 12762 OSU STUDENT ALLIANCE v. RAY

COUNSEL

Heather Gebelin Hacker, Alliance Defense Fund, Folsom, California, for the plaintiffs-appellants.

Karla H. Ferrall, Assistant Attorney General, State of Oregon, Salem, Oregon, for the defendants-appellees.

Steven W. Fitschen, Virginia Beach, Virginia, for amicus curiae The National Legal Foundation.

James J. Manning, Jr., Reid & Hellyer, Riverside, California, and Frank D. LoMonte, Arlington, Virginia, for amicus curiae Student Press Law Center. OSU STUDENT ALLIANCE v. RAY …

Opinion by Judge TASHIMA;

OPINION

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 newsbins. After the confiscation, University officials denied the paper permission to replace the bins any *1058 where 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…

dissenting in part:

Simply put, to state a claim under § 1983 against a government official, a plaintiff must allege that the official’s “own misconduct” violated the plaintiffs constitutional rights. Ashcroft v. Iqbal, 556 U.S. 662, 677 , 129 S.Ct. 1937 , 173 L.Ed.2d 868 (2009). What the plaintiff must plead and prove “will vary with the constitutional provision at issue,” based on the Supreme Court’s decisions regarding what conduct violates that particular provision. Id. at 676 , 129 S.Ct. 1937 . But the Supreme Court is quite clear that “supervisory liability” is a “misnomer” in § 1983 cases, and that officials “may not be held accountable for the misdeeds of their agents.” Id. at 677, 129 S.Ct. 1937 .

The majority muddles and obscures this simple principle. Plaintiffs’ complaint adequately alleges that Vincent Martorello, OSU’s facilities services director, violated their First Amendment rights under § 1983 by personally and arbitrarily limiting The Liberty’s distribution on campus. But their complaint nowhere indicates how OSU’s president, Ed Ray, and the vice president of finance and administration, Mark McCambridge, also violated those rights through their “own…