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Unless otherwise stated, the facts are taken from Spears’ First Amended Complaint

(Doc. 7).

WO

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Roy E. Spears,

Plaintiff, 

vs.

Arizona Board of Regents, et al.,

Defendants. 

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 No. CIV 18-126-TUC-CKJ

ORDER 

Pending before the Court is the Motion to Dismiss (“MTD”) (Doc. 27) filed by State

Defendants and the Motion for Preliminary Injunction (Doc. 35) filed by Plaintiff Roy E.

Spears (“Spears”). The parties have thoroughly presented the facts and briefed the legal

issues. Therefore, the Court declines to set this matter for oral argument. See LRCiv 7.2(f);

27A Fed.Proc., L. Ed. § 62:367 (March 2016) ("A district court generally is not required to

hold a hearing or oral argument before ruling on a motion.");

I. Factual and Procedural Background1

Spears attended the 2017 Festival of Books on the University of Arizona (“UA”)

campus mall (“UA Mall”) on March 17, 2017. Within minutes of arriving on campus,

“booming sound amplification immersed Spears.” Amended Complaint (“FAC”) (Doc. 7,

¶ 33). Spears put on his GoPro, amplification system, headset microphone, placed Gospel
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The Court notes that Spears objects to the characterization by Defendants of his

conduct as “disruptive.” A “disruption must be an ‘actual disruption’ and not ‘any violation

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signs around a tree, held one Gospel sign, and began to speak at approximately 12:20 p.m.

Within seven minutes, Rebekah Salcedo (“Salcedo”), a UA “First Amendment

Monitor,” approached and said, “I’m going to ask you to turn off your microphone. The only

sound permission for the Festival are the sound stages. You can certainly be here and talk

with people but not with the microphone.” Id. at ¶ 35. She further stated, “The permit for

this weekend for the sound stages were given to the sound stages. There is no permits for

amplified sound[.]” Id. at ¶ 37. When Spears disagreed with “Salcedo’s arbitrary

interpretation of the long-standing weekend UA policy allowing amplification being

superseded by the presence of the Festival[,]” id. at ¶ 38, Salcedo replied, “No, it is not

arbitrary because the Festival of Books reserved the stage and the sound licenses for this

weekend were given to the stages.” Id. at ¶ 39. The FAC alleges:

84. Though the UA admits that sound amplification is allowed on the weekends, they

adopt a curious policy for banning all amplified speech from either UA students or the

public during the Festival. In fact, no one without a permit can amplify sound during

the Festival except those who are officially part of it: the authors, musicians,

non-profits, vendors, etc.

85. The UA accomplishes this permitting scheme through an ad hoc, unwritten and

unnamed policy referred to as the “sound amplification policy” and is only applicable

once a year during the Festival.

86. Though UA officials refer to this vague policy when denying students and the

public’s first amendment right to amplify during the Festival, they cannot produce

official documentation detailing precisely what this policy states—it does not exist

except, perhaps, in a single section on a Mall form titled, “The University of Arizona

Commercial and Campus Use Activity Form.” 11

11https://drive.google.com/open?id=0B9m1G5k2wXI6TDB6QzJaaW1uQn

JPZ1 hpSU5vajBuU2tYR0Jj[.] See middle of page 1, “Sound Amplification?”

FAC (Doc. 7, ¶¶ 84-86).

Dean of Students Kathy Adams Riester (“Riester”) arrived several minutes later.

Riester told Spears his amplifying sound was disruptive to the Festival of Books and that

volunteers from the Festival had complained.2

 
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of . . . decorum’ or a ‘constructive disruption, technical disruption, virtual disruption, nunc

pro tunc disruption, or imaginary disruption[.]’” Fitzgerald v. Cty. of Orange, 570 F. Appx

653, 657 (9th Cir. 2014). The FAC alleges Spears was informed that his sound amplification

was disruptive to the sound amplification by permitted persons/entities and that volunteers

from the Festival of Books had complained about the sound disrupting the ability of people

to do their business. Spears asserts in his response to the Motion to Dismiss that it is not

credible that three persons complained within one minute and 39 seconds of Spears

beginning his amplified speech.

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Spears was given three warnings, but he continued to speak with amplification.

University of Arizona Police Department (“UAPD”) Officer Ian Theel (“Theel”) advised

Spears that, if he continued to speak using amplification, he would face arrest if he failed to

obey Riester. After Spears continued to speak using amplification, Spears was arrested.

Spears was subsequently stripped of his possessions and placed in the police cruiser of

UAPD Officer Picktrom (“Picktrom”). Picktrom transported Spears to the Pima County

Adult Detention Center. Spears was held for nine hours. On March 28, 2018, Spears was

found guilty of third-degree criminal trespass. Spears has appealed his conviction.

On March 8, 2018, Spears filed a civil rights Complaint (Doc. 1) with this Court. On

May 29, 2018, Spears filed his FAC (Doc. 7). The FAC lists the Arizona Board of Regents

(“ABOR”), Brian Seastone (“Seastone”) in his official capacity as Chief of Police for the

University, Greg Ewer (“Ewer”), individually and in his official capacity as police officer

for the UAPD, Theel, individually and in his official capacity as police officer for the UAPD;

Picktrom, individually and in his official capacity as police officer for the UAPD, Riester,

individually and in her official capacity as Dean of Students for the UA, as Defendants.

Spears alleges claims of Count I, violation of freedom of speech, Count II, violation of due

process clause, Count III, violation of Fourteenth Amendment right to equal protection,

Count IV, intentional infliction of emotional distress, Count V, abuse of process, Count VI,

false light, Count VII, violation of Fourth Amendment - arrest without probable cause, and

Count VIII, false arrest/false imprisonment.

On July 5, 2018, Defendants filed a Motion to Dismiss (Doc. 27). Spears has filed a
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response (Doc. 31) and Defendants have filed a reply (Doc. 34).

On December 18, 2018, Spears filed a Motion for Preliminary Injunction (Doc. 35).

Defendants have filed a response (Doc. 38) and Spears has filed a reply (Doc. 40).

II. Requirement that Action State a Claim on Which Relief Can be Granted

Defendants assert Spears has failed to state a claim against them. A complaint is to

contain a "short and plain statement of the claim showing that the pleader is entitled to

relief[.]" Fed.R.Civ.P. 8(a). A complaint must set forth a set of facts that serves to put

defendants on notice as to the nature and basis of the claim(s). The United States Supreme

Court has found that a plaintiff must allege “enough facts to state a claim to relief that is

plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). While a

complaint need not plead “detailed factual allegations,” the factual allegations it does include

“must be enough to raise a right to relief above the speculative level.” Id. at 555; see also

Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011) ("If there are two alternative explanations,

one advanced by defendant and the other advanced by plaintiff, both of which are plausible,

plaintiff's complaint survives a motion to dismiss[.]"). Further, Fed.R.Civ.P. 8(a)(2) requires

a showing that a plaintiff is entitled to relief “rather than a blanket assertion” of entitlement

to relief. Twombley, 127 S.Ct. at 1965 n. 3. The complaint “must contain something more

. . . than . . . a statement of facts that merely creates a suspicion [of] a legally cognizable right

to action.” Id. at 1965. 

The Court considers the Complaint in light of Twombly and must determine if Spears

has “nudge[d] [the] claims across the line from conceivable to plausible.” Id. at 570. The

Court also considers that the Supreme Court has cited Twombly for the traditional proposition

that “[s]pecific facts are not necessary [for a pleading that satisfies Rule 8(a)(2)]; the

statement need only ‘give the defendant fair notice of what the . . . claim is and the grounds

upon which it rests.” Erickson v. Pardue, 551 U.S. 89, 93 (2007). Indeed, Twombly requires

“a flexible ‘plausibility standard,’ which obliges a pleader to amplify a claim with some
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factual allegations in those contexts where such amplification is needed to render the claim

plausible.” Iqbal v. Hasty, 490 F.3d 143, 157-58 (2nd Cir. 2007); see also Moss v. U.S.

Secret Service, 572 F.3d 962 (9th Cir. 2009) (for 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 plaintiff to relief).

This Court must take as true all allegations of material fact and construe them in the

light most favorable to Spears. See Cervantes v. United States, 330 F.3d 1186, 1187 (9th Cir.

2003). In general, a complaint is construed favorably to the pleader. See Scheuer v. Rhodes,

416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), overruled on other grounds, 457

U.S. 800. Nonetheless, the Court does not accept as true unreasonable inferences or

conclusory legal allegations cast in the form of factual allegations. Western Mining Council

v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). Furthermore, the Court is not to serve as an

advocate of a pro se litigant, Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987), in

attempting to decipher a complaint. 

If a court determines that dismissal is appropriate, a plaintiff must be given at least

one chance to amend a complaint when a more carefully drafted complaint might state a

claim. Bank v. Pitt, 928 F.2d 1108, 1112 (11th Cir. 1991). Moreover, when dismissing with

leave to amend, a court is to provide reasons for the dismissal so a plaintiff can make an

intelligent decision whether to file an amended complaint. See Bonanno v. Thomas, 309 F.2d

320 (9th Cir. 1962); Eldridge v. Block, 832 F.2d 1132 (9th Cir. 1987). 

III. Consideration of Materials Outside the Pleadings

In deciding a Rule 12(b)(6) motion, the court generally looks only to the face of the

complaint and documents attached thereto. Van Buskirk v. Cable News Network, Inc., 284

F.3d 977, 980 (9th Cir.2002). A court must normally convert a Rule 12(b)(6) motion into

a Rule 56 motion for summary judgment if it “considers evidence outside the pleadings . .

. A court may, however, consider certain materials—documents attached to the complaint,
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documents incorporated by reference in the complaint, or matters of judicial notice—without

converting the motion to dismiss into a motion for summary judgment.” United States v.

Ritchie, 342 F.3d 903, 907–08 (9th Cir.2003); see also Tellabs, Inc. v. Makor Issues &

Rights, Ltd., 551 U.S. 308, 322, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007) (a court may

consider “other sources courts ordinarily examine when ruling on Rule 12(b)(6) motions to

dismiss, in particular, documents incorporated into the complaint by reference, and matters

of which a court may take judicial notice”); Branch v. Tunnell, 14 F.3d 449, 453 (9th

Cir.1994) (noting that a court may consider a document whose contents are alleged in a

complaint, so long as no party disputes its authenticity) (overruled on other grounds).

The FAC in this case references and incorporates numerous documents and videos.

Spears does not dispute the authenticity of the documents and videos; indeed, he has not

objected to this request. The Court finds it may consider those documents and videos in

determining the MTD without converting it into a motion for summary judgment. 

IV. Qualified Immunity 

Government officials are entitled to qualified immunity "insofar as their conduct does

not violate clearly established statutory or constitutional rights of which a reasonable person

would have known." Liston v. County of Riverside, 120 F.3d 965, 975 (9th Cir. 1997), citing

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Qualified immunity protects governmental

defendants from liability, but is also “‘an entitlement not to stand trial or face the other

burdens of litigation.’ [It] is ‘an immunity from suit rather than a mere defense.’” Saucier

v. Katz, 533 U.S. 194, 200-01 (2001) (citing Mitchell v. Forsyth, 472 U.S. 511, 526 (1985).

Indeed, qualified immunity allows for errors in judgment and protects "all but the plainly

incompetent or those who knowingly violate the law . . . [I]f officers of reasonable

competence could disagree on the issue [whether or not a specific action was constitutional],

immunity should be recognized." Malley v. Briggs, 475 U.S. 335, 341 (1986). The Court

must determine "whether, in light of clearly established principles governing the conduct in
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question, [defendants] objectively could have believed that [their] conduct was lawful."

Watkins v. City of Oakland, 145 F.3d 1087, 1092 (9th Cir. 1998).

In determining qualified immunity, a court considers "this threshold question: Taken

in the light most favorable to the party asserting the injury, do the facts alleged show

[defendants’] conduct violated a constitutional right?" Saucier v. Katz, 533 U.S. 194, 201

(2001); see also Billington v. Smith, 292 F.3d 1177, 1183 (9th Cir. 2002). If no constitutional

right was violated, then there is no need for any further inquiries into qualified immunity.

See e.g., Scott, 127 S.Ct. at 1774. If the evidence supports a finding that a constitutional

rights has been violated, the court then “ask[s] whether the right was clearly established”

such that “it would be clear to a reasonable officer that [his] conduct was unlawful in the

situation he confronted.” Saucier, 533 U.S. at 201-202. Additionally, the United States

Supreme Court has determined that the sequence set forth in Saucier is not mandatory and

that district courts may "exercise their sound discretion in deciding which of the two prongs

of the qualified immunity analysis should be addressed first in light of the circumstances in

the particular case at hand." Pearson v. Callahan, 555 U.S. 223, 236 (2009); see also Olivier

v. Baca, 913 F.3d 852, 860 (9th Cir. 2019) (“Qualified immunity shields federal and state

officials from money damages unless a plaintiff pleads facts showing (1) that the official

violated a statutory or constitutional right, and (2) that the right was ‘clearly established’ at

the time of the challenged conduct.”) (citation omitted).

A plaintiff has the burden of showing the alleged violation of a clearly established

federal right. Davis v. Scherer, 468 U.S. 183, 197 (1984); Olivier, 913 F.3d at 860;

Clairmont v. Sound Mental Health, 632 F.3d 1091, 1109 (9th Cir. 2011). The Supreme Court

has stated that:

the right the official is alleged to have violated must have been “clearly established”

in a more particularized, and hence more relevant, sense. The contours of the right

must be sufficiently clear that a reasonable official would understand that what he is

doing violates that right. This is not to say that an official action is protected by

qualified immunity unless the very action in question has previously been held

unlawful, but it is to say that in light of pre-existing law the unlawfulness must be

apparent.
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Anderson v. Creighton, 483 U.S. 635, 640 (1987) (citation omitted). Further, the Supreme

Court has repeatedly stated that courts are not to define clearly established law at a high level

of generality; rather, “[t]he dispositive question is ‘whether the violative nature of particular

conduct is clearly established.’” Mullenix v. Luna, ––– U.S. –––, 136 S.Ct. 305, 308, (2015)

(citation omitted, emphasis in original).

V. Alleged Violation of First Amendment Right to Free Speech (Count I)

Spears alleges Defendants violated his right to free speech. The First Amendment

prohibits government officials from "abridging the freedom of speech . . . or the right to the

people peaceably to assemble." U.S. Const. amend. I. "[T]he First Amendment reflects a

'profound national commitment' to the principle that debate on public issues should be

uninhibited, robust, and wide-open . . . and [the Supreme Court] ha[s] consistently

commented on the central importance of protecting speech on public issues." Boos v. Barry,

485 U.S. 312, 318, 108 S.Ct. 1157, 1162, 99 L.Ed.2d 333 (1988). 

A. Forum Analysis

The first step in analyzing Spears’ claim is to determine the nature of the relevant

forum. OSU Student All. v. Ray, 699 F.3d 1053, 1062 (9th Cir. 2012) (citing Ariz. Life Coal.

Inc. v. Stanton, 515 F.3d 956, 968 (9th Cir. 2008)). “Forum analysis has traditionally divided

government property into three categories: public fora, designated public fora, and nonpublic

fora.” Flint v. Dennison, 488 F.3d 816, 830 (9th Cir. 2007) (internal quotation marks

omitted). A traditional public forum is a place “which by long tradition ... ha[s] been devoted

to assembly and debate.” Id. (internal quotation marks omitted). A designated public forum

“exists when the government intentionally dedicates its property to expressive conduct.” Id.

(internal quotation marks omitted). A non-public forum is “any public property that is not

by tradition or designation a forum for public communication.” Id. (internal quotation marks

omitted). A limited public forum has also been recognized. This is a partially designated
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While the vacated authority cited by Spears, “Arkansas E. Television Comm’n v.

Forbes (96-779) 93 F.3d 497,” does not provide the quoted remarks included in the

Response, the statement of law relied upon by Spears is accurate: “A traditional public

forum is government property ‘which “by long tradition or by government fiat [has] been

devoted to assembly and debate,”’ such as public streets and parks.” Wright v. Incline Vill.

Gen. Improvement Dist., 665 F.3d 1128, 1134 (9th Cir. 2011) (citations omitted).

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public forum:

The government is not left with only the two options of maintaining a non-public

forum or creating a designated public forum; if the government chooses to open a

non-public forum, the First Amendment allows the government to open the non-public

forum for limited purposes. The limited public forum is a sub-category of a designated

public forum that refers to a type of nonpublic forum that the government has

intentionally opened to certain groups or to certain topics.

Id. at 830–31 (internal quotation marks omitted). 

As summarized by the Ninth Circuit:

In traditional and designated public forums, content-based restrictions on speech are

prohibited, unless they satisfy strict scrutiny. Pleasant Grove [City, Utah v. Summum, 555 U.S. 460, 469–70 (2009)]. In limited public forums, content-based restrictions

are permissible, as long as they are reasonable and viewpoint neutral. See id. at 470

[].

Seattle Mideast Awareness Campaign v. King Cty., 781 F.3d 489, 496 (9th Cir. 2015).

The parties dispute whether the UA Mall is a traditional public forum. Spears asserts

the UA’s own policy on the forum characteristics of the property refers to an “open public

forum” as well as a “designated public forum.” Because open is defined by an online

dictionary as “accessible to all; unrestricted as to participants. Free from limitations,

boundaries, or restrictions[,] https://www.thefreedictionary.com/open, Spears argues this

suggests a traditional rather than a designated public forum: “There can be no question that

the public sidewalk Spears was arrested upon is ‘by long tradition or by government fiat’

been ‘devoted to assembly and debate.’” Response (Doc. 31, p. 13).3

 Defendants assert,

however, that “a public university’s mall, surrounding streets and sidewalks are [not] a

traditional public forum[.]” The Supreme Court has stated:

A university differs in significant respects from public forums such as streets or parks

or even municipal theaters. A university’s mission is education, and decisions of this
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Court have never denied a university’s authority to impose reasonable regulations

compatible with that mission upon the use of its campus and facilities. We have not

held, for example, that a campus must make all of its facilities equally available to

students and nonstudents alike, or that a university must grant free access to all of its

grounds or buildings.

Widmar v. Vincent, 454 U.S. 263, 268, n. 5 (1981).

Contrary to Spears’ arguments, the UA Mall “is not akin to a public street, park, or

theater, but instead is an institute of higher learning that is devoted to its mission of public

education. This mission necessarily focuses on the students and other members of the

University of Arizona (“UA”) community. Accordingly, it has not traditionally been open

to the public at large, but instead has been a “special type of enclave” that is devoted to

higher education.” Am. Civil Liberties Union v. Mote, 423 F.3d 438, 444 (4th Cir. 2005)

(citing United States v. Grace, 461 U.S. 171, 180, (1983)). Spears seems to emphasize that

he was on a public sidewalk. However, that sidewalk was within a public university and the

UA Mall. 

Spears asserts the UA relies on an unwritten policy regarding sound amplification.

However, he does refer to the UA Policy and Regulations Governing the Use of the Campus,

MTD, Ex. A (Doc. 27-1) in his FAC. See e.g. FAC (Doc. 7, p. 26). Spears asserts the

applicable UA policy is confusing. The policy defines relevant terms as follows:

7. “Designated Public Forums”: The University’s campus contains buildings and

property whose primary purpose is to provide education, research, and outreach.

However, the University often designates areas to allow access by the University

Community or to create limited forums for the discussion of certain topics or subject

matter by certain speakers, each at times when the property is not being used for its

devoted purposes.

8. “Limited Public Forum” is a subcategory of the Designated Public Forum that

occurs when the University intentionally opens a Non-Public Forum to speech or to

activities related specifically to defined subject matters for certain groups on certain

topics.

9. "Mall" refers to the grassy areas between Park Avenue and Campbell Avenue and

along University Boulevard East and University Boulevard West that is designated

for expressive activities or Limited Public Forums, subject to the qualifications,

definitions, and procedures set forth in this policy.

a. "Reserved Area" refers to those portions of the University campus

designated for reservations only which are scheduled to maximize the
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availability and use of the space consistent with the University's educational,

research, service, and business functions. Use of Reserved Areas is subject to

reasonable time, place, and manner restrictions.

b. "Unreserved Area" refers to that part of the Mall which may be used

without advance reservations or scheduling for expressive activities, including

but not limited to the passing of petitions, distribution of written information,

picketing, and carrying of placards. Such use is subject to the time, place, and

manner limitations set forth in this policy. For the location of the Unreserved

Area, see the available space map at http://union.arizona.edu/mall/maps.php.

10. “Non Public Forums” are University buildings, structures, and property that are

not designated as spaces open for public communication, activities, or expression, but

instead are reserved for normal business, education, research, or other dedicated

purposes.

11. "Official University Activity" means regularly scheduled academic classes,

operations, research, business, and other activities, including special events of the

University as approved by the University President, Provost, or Senior Vice President

for Student Affairs and Enrollment Management.

* * * * *

13. "Open Public Forums" consist of the streets and sidewalks generally open to the

public during the times the University is open. Open Public Forums do not include,

among other places defined in this policy, the interiors of University Structures or

Designated Public Forums.

UA Policy and Regulations Governing the Use of the Campus (3/23/15) (“UA Policy”), §

C, MTD, Ex. A (Doc. 27-1). The UA Policy also discusses the use of designated public

forums:

1. Designated Public Forums on the campus may be used by the University

Community for free expression activities, including passing of petitions, distribution

of written information, picketing, and carrying of placards, at times when the

University property is not being used for its devoted purpose. Use of Designated

Public Forums is subject to time, place, and manner restrictions.

2. Activities within Designated Public Forums shall neither impede pedestrian nor

vehicular traffic, ingress to or egress from University Structures, nor disrupt or

interfere with Official University Activities or Authorized Activities on University

Property. In addition, activities in Designated Public Forums shall not endanger public

health, safety, or welfare.

Id. at § D. The UA Policy also specifies “the Mall and Designated Public Forum areas may

be reserved for use by a Sponsoring Organization/Individual.” Id. at § L.2.a.

Initially, the Court recognizes that the FAC alleges the “UA and Riester understand

there is no law criminalizing Spears’ amplified speech—no such law or ordinance exists[,]”
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FAC (Doc 7, ¶ 244), and Spears repeatedly argues in his response to the MTD that no such

law or ordinance exists. However, Spears has not set forth any authority that an entity must

rely on a statute or ordinance to establish a policy or that a such a policy is not enforceable

on its own.

The Court does not agree with Spears that the UA Policy is confusing. Rather, the

definition of “open public forums” specifically refers to streets and sidewalks that are

generally open to the public. Yet this provision falls within the overview of the policy which

clarifies that the campus grounds and properties are “not places of unrestricted public

access.” UA Policy at A.1. Moreover, open public forums do not include designated public

areas. In other words, only areas that are not designated public areas may even arguably be

an open public forum. The UA Policy further specifies that the UA Mall “is designated for

expressive activities or Limited Public Forums, subject to the qualifications, definitions, and

procedures set forth in this policy.” Id. at § C.9. The UA Policy clearly evidences an intent

to recognize the UA’s primary purpose, limit open public forums, and to open non-public

forums for limited purposes. The UA Mall is not a traditional public forum and the UA

policies and actions indicate the UA designated the UA Mall as a limited public forum.

Accordingly, the Court finds the UA Mall was a limited public forum during the Festival of

Books.

B. Limited Public Forum Restrictions - Festival of Books

In limited public forums, “a government entity may impose restrictions on speech that

are reasonable and viewpoint neutral.” Pleasant Grove City, Utah v. Summum, 555 U.S. 460,

470 (2009); see also Davenport v. Wash. Educ. Ass'n, 551 U.S. 177, 189 (2007) (explaining

that restrictions on speech in a non-public forum are permissible if they are “reasonable in

light of the purpose served by the forum” and “viewpoint neutral”); Eagle Point Educ.

Ass'n/SOBC/OEA v. Jackson Cty. Sch. Dist. No. 9, 880 F.3d 1097, 1105 (9th Cir. 2018)

(citations omitted) (In a limited public forum, the “restrictions must be (1) ‘reasonable’ and
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(2) ‘not an effort to suppress expression merely because public officials oppose the speaker's

view.’”). The UA implemented a permit/reservation procedure and followed it in scheduling

the Festival of Books. This festival “is a temporary event attracting great numbers of visitors

who come to the event for a short period to see and experience the host of exhibits and

attractions at the [festival]. The flow of the crowd and demands of safety are more pressing

in the context of the [festival].” Heffron v. Int'l Soc. for Krishna Consciousness, Inc., 452

U.S. 640, 651 (1981). As argued by Defendants:

“Permit systems are the embodiment of time, place, and manner restrictions that have

long enjoyed the approbation of the Supreme Court.” Kroll v. U.S. Capitol Police, 847 F.2d 899, 903 (D.C. Cir. 1988) (citing [Heffron]). The permit system is intended

“to avoid conflicts with and disruption of normal educational, business, or other

legitimate University purposes.” ([UA Policy], p. 9, § (L)(2)).

MTD (Doc. 27, p. 19). The UA Mall was intentionally opened to the scheduled event (the

Festival of Books), thereby becoming a limited public forum. Under the UA Policy, the UA

Mall and surrounding areas were permitted to be a limited public forum during the Festival

of Books. The policy allowed an organization/individuals to reserve space in advance.

Under the UA Policy, the UA was allowed to open its property “to speech, or activities

related specifically to defined subject matters for certain groups on certain topics.” UA

Policy at § C.8; see also Flint, 488 F.3d at 831.

The parties disagree whether the restriction on amplified speech was content neutral

and reasonable in light of the forum’s purpose. The Court consider that “it is well established

that ‘[t]he First Amendment's hostility to content-based regulation extends not only to

restrictions on particular viewpoints, but also to prohibition of public discussion of an entire

topic.’” Reed v. Town of Gilbert, Ariz., — U.S. —, 135 S. Ct. 2218, 2230 (2015) (quoting

Consolidated Edison Co. of N.Y. v. Public Serv. Comm'n of N.Y., 447 U.S. 530, 537 (1980).

For example, “a law banning the use of sound trucks for political speech—and only political

speech—would be a content-based regulation, even if it imposed no limits on the political

viewpoints that could be expressed.” Id. 

On its face, the UA Policy is content neutral. See Reed, 135 S. Ct. at 2228 (“A law
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that is content based on its face is subject to strict scrutiny regardless of the government's

benign motive, content-neutral justification, or lack of ‘animus toward the ideas contained’

in the regulated speech.”). Although Spears argues that the ban and his arrest were a pretext

to silence his message, the allegations contained within the FAC indicate that Salcedo and

Riester both informed Spears that sound amplification during the Festival of Books was

restricted to the sound stages. The allegations further indicate that Spears’ speech itself was

not restricted, but the use of sound amplification was prohibited. Although Spears argues

that the UA Policy only targets open-air preachers and their unwanted religious message,

there is no allegation that religious or biblical speech was restricted from the sound stages

(e.g., a participant of the Festival of Books could/may have included religious discussions).

The distinction between speech and the amplification of speech indicates Defendants did not

adopt a restriction because of a disagreement with the message conveyed. Rather, the

restriction was “without reference to the content of the regulated speech.” Virginia

Pharmacy Board v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 771 (1976).

The Ninth Circuit has stated:

A speech restriction is content-neutral if it is “justified without reference to the

content of the regulated speech.” Clark v. Community for Creative Non–Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 3068, 82 L.Ed.2d 221 (1984). “A regulation that

serves purposes unrelated to the content of expression is deemed neutral, even if it has

an incidental effect on some speakers or messages but not others.” [Ward v. Rock

Against Racism, 491 U.S. 781, 791 (1989)]. The test is whether the government has

adopted the restriction “because of disagreement with the message it conveys.” Id.

One World One Family Now v. City & Cty. of Honolulu, 76 F.3d 1009, 1012 (9th Cir. 1996)

This case is similar to Ward v. Rock Against Racism. As argued by Defendants, “[i]n

Ward, New York City’s justification for the sound-amplification guideline was its desire to

control noise levels at band shell events and to avoid undue intrusion into residential areas

and other areas of the park. The Court held that this justification had nothing to do with

content and satisfied the requirement that time, place, or manner regulations be content

neutral.” MTD (Doc. 27, pp. 20-21). The UA Policy states that “amplified sound is

restricted to prevent unreasonable interference with or disruption to normal Campus
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activities[.]” MTD, Ex. A, § J(1)(c). The normal Campus activities included a reserved

space – in this case, the Festival of Books. Spears has alleged he was informed the

reservation included the only permission to amplify sound. He has not alleged any nonpermitted individual/entity was allowed to amplify sound. This restriction was reasonable

to control noise levels and avoid undue intrusion into the reserved event. See e.g. Grayned

v. City of Rockford, 408 U.S. 104, 116 (1972) (speech is subject to reasonable regulation, and

“[if] overamplified loudspeakers assault the citizenry, government may turn them down”).

Indeed, as pointed out by Defendants, if Spears is correct that any person could

constitutionally use amplified speech at this special event, “then that right would extend to

everyone—that is, the University could not prohibit anyone who showed up with an amplifier

from broadcasting their speech. With this premise, it does not take a great leap of the

imagination to see the chaos that could ensue.” MTD Reply (Doc. 34, p. 7). 

Spears argues, however, that this case is similar to Gathright v. City of Portland, 439

F.3d 573 (9th Cir. 2006). But the restriction in Gathright was in a public park, which is a

traditional public forum rather than on university property that has been opened as a limited

public forum. Moreover, Spears speech was not shut down as was Gathright’s speech –

Spears was merely restricted from amplifying his speech. See e.g. Rosenbaum v. City &

County of San Francisco, 484 F.3d 1142, 1168 (9th Cir. 2007) (San Francisco’s enforcement

of a noise ordinance that prohibited amplified speech and music from being “unreasonably

loud, raucous, jarring or disturbing to persons of normal sensitiveness” and companion

permit system was permissible); Costello v. City of Burlington, 632 F.3d 41 (2d Cir. 2011)

(“[T]o secure for [plaintiff] a right to preach at the top of his lungs in a pedestrian mall lined

with shops, cafes and dwellings, we would have to impair the rights of all other Burlington

residents who shop, work, and dine in the same compact area. Respect for Costello’s right

to preach does not trump the rights of everyone else.”). While the Gathright court

determined, for purposes of the appeal, that the government’s policy was content neutral, the

effect was used to restrict speech based on disruption caused by its content, not its volume
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as was the case with Spears.

C. Qualified Immunity

Even if Spears had stated a free speech claim upon which relief could be granted, the

Court would consider whether Defendants are entitled to qualified immunity. Spears, as the

party contesting qualified immunity, has the burden to allege “a law was clearly established

at the time of an alleged violation.” Olivier, 913 F.3d at 860. Spears’ “alleged constitutional

right would be ‘clearly established’ if ‘controlling authority or a robust consensus of cases

of persuasive authority’ [that the First Amendment is violated in a case similar to this one].

But no such precedent exists.” Hines v. Youseff, 914 F.3d 1218, 1229 (9th Cir. 2019)

(quoting Dist. of Columbia v. Wesby, ––– U.S. –––, 138 S.Ct. 577, 589–90 (2018)). 

Rather, the case law generally indicates university property is not a traditional public

forum. Further, no case law exists clearly establishing a right to Spears to amplify his voice

under facts as presented herein. Moreover, a robust consensus of persuasive authority does

not exist to establish such a right. Although an officer may “be on notice that their conduct

violates established law even in novel factual circumstances, United States v. Lanier, 520

U.S. 259, 271 (1997), it is not sufficiently clear that Defendants would have known their

conduct in this case violated a constitutional right. Even if Spears had stated a free speech

claim upon which relief could be granted, Defendants would be entitled to qualified

immunity on this claim. The Court will dismiss this claim.

VI. Right to Due Process (Count II)

Spears also alleges that Defendants violated his right to due process. The United

States Supreme Court has found that, to state a claim for a violation of the Due Process

Clause of the Fourteenth Amendment, a plaintiff must allege that a defendant denied plaintiff

a specific right protected by the federal constitution without procedures required by the

Constitution to ensure fairness (procedural due process), or deliberately abused his power
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without any reasonable justification in aid of any government interest or objective and only

to oppress in a way that shocks the conscience (substantive due process). Sandin v. Connor,

515 U.S. 472, 483-84 (1995); Daniels v. Williams, 474 U.S. 327 (1986); Board of Regents

of State Colleges v. Roth, 408 U.S. 564, 569 (1972). Substantive due process rights are those

not otherwise constitutionally protected but which are deeply rooted in this country’s history

and tradition and “implicit in the concept of ordered liberty” such that “neither liberty or

justice would exist if it were sacrificed.” Washington v. Glucksberg, 521 U.S. 702, 721

(1997). Negligence is not sufficient to state a claim for substantive due process. See e.g.,

Daniels v. Williams, 474 U.S. 327, 333 (1986); Maddox v. City of Los Angeles, 792 F.2d

1408, 1413 (9th Cir. 1986).

It appears Spears is seeking to allege a procedural due process claim with his

allegation the UAPD violated his “right to due process because they arrested and incarcerated

Spears without providing him with due notice that he was committing any criminal act.”

FAC (Doc. 7, ¶ 205). However, the FAC alleges he was given “the customary three

warnings” and Theel advised Spears that, if he continued to speak using amplification, he

would face arrest if he failed to obey Riester. FAC (Doc. 7, §49). 

Spears appears to also be seeking to state both a claim of procedural due process and

substantive due process as to his allegation that the UA Policy is vague, lacks sufficient

objective standards, and permits arbitrary, discriminatory, and overzealous enforcement. To

state a procedural due process claim on the basis of a vague regulation, a plaintiff must first

allege a deprivation of a constitutionally protected interest, and second, allege that the

deprivation was achieved by means of a constitutionally vague policy or procedure.

Zinermon v. Burch, 494 U.S. 113, 125 (1990). Unconstitutional vagueness implicates dual

concerns of fair notice of the line between lawful and unlawful conduct, and sufficiently

explicit statutory limitations on the discretion of officials to avoid arbitrary and

discriminatory enforcement. Grayned.

The FAC’s own allegations indicate the UA Policy is not vague. Spears alleges:
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The UA lacks an amplified sound permit that Spears or the public could apply for in

seeking permission to use amplified sound during the Festival. Only Festival

participants are allowed to fill out a permit to amplify sound.

FAC (Doc. 7, ¶ 203). In other words, it is not that the policy is vague, but that Spears and

other non-Festival of Books affiliates, were not permitted to apply for a permit to amplify

sound under the policy. This does not allege the policy is vague, but that Spears objects to

the policy limiting permits to those affiliated with the Festival of Books. Although the FAC

conclusorily alleges the UA Policy is vague and lacks “sufficient objective standards to

curtail the discretion of UA officials and police officers, FAC (Doc. 7, ¶ 198), the FAC does

not allege facts to support these conclusory allegations. Rather, as Riester explained to

Spears, persons not affiliated with the Festival of Books were not allowed to amplify sound

within and during the Festival of Books. The policy and its enforcement is clear and certain.

To any extent Spears is seeking to state a substantive due process claim, the FAC fails

to state a claim upon which relief can be granted. Rather, an alleged infringement of the right

to free speech does not provide the basis for a due process violation. The Supreme Court has

determined that, “where a particular amendment ‘provides an explicit textual source of

constitutional protection’ against a particular sort of government behavior, ‘that Amendment,

not the more generalized notion of “substantive due process,” must be the guide for analyzing

these claims.’” Albright v. Oliver, 510 U.S. 266, 273 (1994) (Rehnquist, C.J., for plurality)

(quoting Graham v. Connor, 490 U.S. 386, 395 (1989)); Hufford v. McEnaney, 249 F.3d

1142, 1151 (9th Cir. 2001). As the First Amendment provides for free speech protection,

Spears may not additionally base a due process claim on a violation of his right to free

speech.

In addition to his general allegations regarding a due process violation, Spears also

alleges that neither the State nor the UAPD can cite any law, ordinance or Arizona Board of

Regents policy infraction Spears was violating by amplifying his speech. However, Spears

has failed to cite to any authority that a UA policy cannot adequately state a policy – i.e., that

a policy has to be more formally enacted. Indeed, Spears has cited to the UA policy in his
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FAC. Moreover, the policy was repeatedly explained to Spears.

The Court finds Spears has failed to state a due process claim upon which relief could

be granted against Defendants. Even if Spears had adequately stated a claim, Defendants are

entitled to qualified immunity on this claim. UA provided a written policy that, on its face,

does not discriminate against any class or content. Spears was advised of the policy and how

it restricted Spears’ ability to use amplification during the Festival of Books. The Court will

dismiss this claim for failure to adequately stating a claim.

VII. Equal Protection Clause (Count III)

Spears also alleges the UA Policy restricting amplified speech violated his right to

equal protection. "The Equal Protection Clause . . . is essentially a direction that all persons

similarly situated should be treated alike." City of Cleburne v. Cleburne Living Center, Inc.,

473 U.S. 432, 439 (1985). "‘To state a claim . . . for a violation of the Equal Protection

Clause . . . a plaintiff must show that the defendants acted with an intent or purpose to

discriminate against the plaintiff based upon membership in a protected class.'" Lee v. City

of Los Angeles, 250 F.3d 668, 686 (9th Cir. 2001) (quoting Barren v. Harrington, 152 F.3d

1193, 1194 (9th Cir. 1998)); Rosenbaum v. City & Cty. of San Francisco, 484 F.3d 1142,

1153 (9th Cir. 2007) (“To show discriminatory purpose, a plaintiff must establish that ‘the

decision-maker . . . selected or reaffirmed a particular course of action at least in part

“because of,” not merely “in spite of,” its adverse effects upon an identifiable group.’”)

(citations omitted).

Here, the FAC does not allege a membership in a protected class or that Defendants

acted in a course of action because of its effect upon an identifiable group. Moreover, the

Supreme Court has held:

“[A] government entity may create a forum that is limited to use by certain groups or

dedicated solely to the discussion of certain subjects.” [Perry Educ. Ass'n v. Perry

Local Educators' Ass'n, 460 U.S. 37, 46 n. 7 (1983)]. In such a forum, a government

entity may impose restrictions on speech that are reasonable and viewpoint neutral.

See Good News Club v. Milford Central School, [533 U.S. 98, 106–107] (2001).
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Summum, 555 U.S. at 470. In this case, the UA created a forum for the Festival of Books.

Spears has not alleged that he was part of the Festival of Books organization. In other words,

he was not similarly situated with Festival of Books participants who obtained permission

to amplify speech. Moreover, Spears has not alleged that other individuals who were not

Festival of Books participants, i.e., others with whom Spears was similarly situated, obtained

permission to amplify speech. The Ninth Circuit has stated:

As for permit issuance, the district court correctly held that a proper control group

would have been smaller groups that applied for permits for sound amplification at

similar times and locations. By contrast, appellants' undifferentiated control group of

permitted and non-permitted groups, large and small, using amplified sound was not

comparable because these groups were not similarly situated because of their varying

characteristics. Because appellants did not identify a bona fide control group, they

cannot demonstrate a discriminatory effect in the City's issuance of permits for

amplified sound.

Rosenbaum v. City & Cty. of San Francisco, 484 F.3d 1142, 1154 (9th Cir. 2007). Spears

similarly appears to be arguing that any persons (i.e., persons within an undifferentiated

group of permitted and non-permitted groups seeking to use amplified sound), including

Spears, who were not allowed to amplify sound, were similarly situated. However, the FAC

does not include any allegations establishing such persons are similarly situated as opposed

to being a group of varying characteristics. The Court finds Spears has not stated an equal

protection claim upon which relief can be granted.

Additionally, Defendants are entitled to qualified immunity on this claim. The UA

Policy, on its face, does not discriminate against any class or content. Spears was advised

of the policy and how it restricted Spears’ ability to use amplification during the Festival of

Books. The Court will dismiss this claim for failure to adequately state a claim.

VIII. Fourth Amendment Claim (Count VII)

Spears alleges his arrest was in violation of the Fourth Amendment. Under the Fourth

Amendment, to arrest a suspect on probable cause, the facts and circumstances within the

officer's knowledge must be sufficient to warrant a prudent person, or one of reasonable
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caution, in believing, in the circumstances shown, that the suspect has committed, is

committing or is about to commit an offense. Michigan v. DeFillippo, 443 U.S. 31, 37

(1979). In considering alleged violations of the Fourth Amendment, a court undertakes an

objective assessment of an officer's actions in light of the facts and circumstances then

known to the officer. Scott v. United States, 436 U.S. 128, 137, 98 S.Ct. 1717, 56 L.Ed.2d

168 (1978).

Police may arrest a person without a warrant if the arrest is supported by probable

cause. See United States v. Hoyos, 892 F.2d 1387 (9th Cir.1989). Indeed, probable cause

to arrest is a complete defense to the liability of a police officer for an action under § 1983

arising out of an arrest. Owen v. City of Independence, 445 U.S. 622, 637 (1980); United

States v. Del Vizo, 918 F.2d 821, 825 (9th Cir.1990). An officer has probable cause to arrest

when the officer has knowledge of facts and circumstances sufficient to cause a reasonable

person to believe an offense has been committed. Beck v. Ohio, 379 U.S. 89, 91 (1964);

Henry v. United States, 361 U.S. 98, 102 (1959); Brinegar v. United States, 338 U.S. 160,

175 (1949). In evaluating a custodial arrest executed by state officials, federal courts must

determine the reasonableness of the arrest in reference to state law governing the arrest.

United States v. Mota, 982 F.2d 1384, 1388 (9th Cir.1993); see also Barry v. Fowler, 902

F.2d 770, 771 (9th Cir.1990) (finding that arrest without probable cause that the arrestee

committed a crime constitutes a violation of the Fourth Amendment). “[W]arrantless arrests

for crimes committed in the presence of an arresting officer are reasonable under the

Constitution, and that while States are free to regulate such arrests however they desire, state

restrictions do not alter the Fourth Amendment's protections.” Virginia v. Moore, 553 U.S.

164, 176 (2008). 

Under Arizona law, an officer is allowed to make a warrantless arrest when a

misdemeanor is committed in the officer’s presence. A.R.S. § 13-3883(A)(2). The UA

police officers in this case had probable cause to arrest Spears. As alleged in the FAC,

Spears remained on the property after he was reasonably directed to leave because he was
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not complying with the UA Policy. See A.R.S. § 13-502(A)(1) (“[k]nowingly entering or

remaining unlawfully on any real property after a reasonable request to leave by a law

enforcement officer, the owner or any other person having lawful control over such

property”). Further, as alleged in the FAC, Riester advised Spears he was being disruptive.

See A.R.S. § 13-2911(A)(2) (interference with or disruption of an educational institution).

As probable cause existed to arrest Spears for criminal trespass, the Court finds Spears

has failed to state a claim upon which relief may be granted. Further, even if Spears had

adequately stated a claim, Defendants are entitled to qualified immunity on this claim. The

FAC makes clear that officers observed Spears committing a misdemeanor in their presence,

knew that Spears had been advised of the UA Policy, and knew that Spears had been advised

he would be arrested if he did not comply with the orders of Riester (who was acting

pursuant to the UA Policy). Defendants could have objectively believed that their conduct

was lawful. Watkins, 145 F.3d at 1092. The Court will dismiss this claim.

IX. State Law Claims

Defendants argue that, because Spears’ state law claims flow from the alleged First

and Fourth Amendment violations, they are not viable on their own. Defendants fail to cite

to any authority supporting this position. While a finding of probable cause may result in

some state law claims to fail as a matter of law, see e.g. Hansen v. Garcia, 713 P.2d 1263,

1265, 1265-66 (Ariz.App.1985) (holding that because probable cause existed to arrest the

plaintiff, summary judgment was appropriate on plaintiff's malicious prosecution, false arrest,

false imprisonment, gross negligence, negligence, and civil rights claims), Defendants have

failed to cite to any authority that the state law claims in this case are necessarily contingent

upon a civil rights violation. Indeed, although civil liability cannot be imposed on a law

enforcement officer for “engaging in [justified] conduct,” regardless of the theory of

recovery, A.R.S. § 13-413, it appears such justification may be an issue for a trier of fact, see

e.g. Ryan v. Napier, 425 P.3d 230, 239 (Ariz. 2018). The Court declines to dismiss the state
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law claims on this basis alone.

A. Notice of Claim

Defendants assert Spears failed to serve individual defendants with Notices of Claims

as required by A.R.S. § 12-821.01. The statute provides:

Persons who have claims against a public entity, public school or a public employee

shall file claims with the person or persons authorized to accept service for the public

entity, public school or public employee as set forth in the Arizona rules of civil

procedure within one hundred eighty days after the cause of action accrues. The

claim shall contain facts sufficient to permit the public entity, public school or public

employee to understand the basis on which liability is claimed. The claim shall also

contain a specific amount for which the claim can be settled and the facts supporting

that amount. Any claim that is not filed within one hundred eighty days after the

cause of action accrues is barred and no action may be maintained thereon.

A.R.S. § 12-821.01.A. Spears asserts he has complied with the statute in that he served a

Notice of Claim on the Arizona Board of Regents. Spears does not assert he served the

individually named Defendants.

The Court of Appeals of Arizona has stated:

When a person asserts claims against a public entity and public employee, the person

“must give notice of the claim to both the employee individually and to his

employer.” Crum v. Superior Court, 186 Ariz. 351, 352, 922 P.2d 316, 317

(App.1996). The purpose of the statute is to allow the entity and employee the

opportunity to “investigate and assess their liability, to permit the possibility of

settlement prior to litigation and to assist the public entity in financial planning and

budgeting.” Id. “Compliance with the notice provision of § 12–821.01(A) is a

‘mandatory’ and ‘essential’ prerequisite to such an action . . . ” Salerno v. Espinoza, 210 Ariz. 586, ¶ 7, 115 P.3d 626, 628 (App.2005). Failure to comply with the statute

is not cured by actual notice or substantial compliance. Falcon ex rel. Sandoval v.

Maricopa County, 213 Ariz. 525, ¶ 10, 144 P.3d 1254, 1256 (2006). 

Harris v. Cochise Health Sys., 215 Ariz. 344, 351, 160 P.3d 223, 230 (Ct. App. 2007). The

statute “requires that those persons asserting claims against pubic entities or public

employees do so by actually delivering or ensuring that the actual delivery of the notice of

claim to the appropriate person within the statutory period.” Lee v. State, 161 P.3d 583, 587

(Ariz.App. 2007) (emphasis in original) (vacated on other grounds). Although Spears seeks

to distinguish Harris based on the content included within the Notice of Claim, Spears does

not address the requirement that each individual be served. 
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The Court finds Spears did not deliver or ensure delivery of the Notice of Claim to the

individual Defendants. Accordingly, the state law claims against the individual Defendants

are barred and must be dismissed.

B. Intentional Infliction of Emotional Distress (Count IV)

“A plaintiff suing for intentional infliction of emotional distress must prove the

defendant caused severe emotional distress by extreme and outrageous conduct committed

with the intent to cause emotional distress or with reckless disregard of the near-certainty that

such distress would result.” Watkins v. Arpaio, 367 P.3d 72, 74–75 (Ariz. Ct. App. 2016);

Citizen Publishing Co. v. Miller, 210 Ariz. 513, 517, 115 P.3d 107, 111 (2005); Wells Fargo

Bank v. Arizona Laborers, Teamsters, and Cement Masons Local No. 395 Pension Trust

Fund, 38 P.3d 12 (Ariz. 2002) (discussing difference between negligent and intentional

torts). “The trial court determines whether the alleged acts are sufficiently extreme and

outrageous to state a claim for relief.” Wallace v. Casa Grande Union High Sch. Dist. No.

82 Bd. of Governors, 909 P.2d 486, 495 (Ariz. Ct. App. 1995); Restatement (Second) of

Torts § 46, comment h. 

Defendants assert the facts alleged in the FAC (and in the incorporated videos) do not

rise to the shocking and offensive level to state a claim for intentional infliction of emotional

distress. Spears does not respond to this argument. Here, a policy regarding the use of the

UA Mall, including sound amplification, was established and followed. The individual

Defendants were following that policy and enforcing state laws in directing Spears to cease

the amplification and subsequently arresting him. The Court finds, under the facts as alleged

in the FAC, a claim for intentional infliction of emotional distress has not been adequately

stated and will be dismissed.

C. Abuse of Process (Count V)

“The essential elements of an abuse of process claim are (1) ‘an ulterior purpose’ and
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(2) ‘a willful act in the use of judicial process not in the regular conduct of the proceeding.’”

Pochiro v. Prudential Ins. Co. of America, 827 F.2d 1246, 1252 (9th Cir. 1987) (quoting

Rondelli v. County of Pima, 586 P.2d 1295, 1301 (Ariz.App. 1978). An abuse of process

claim “requires some act beyond the initiation of a lawsuit[.]” Joseph v. Markovitz, 551 P.2d

571, 575 (Ariz.App. 1976). Indeed, process refers to the use of “procedures incident to the

litigation process.” Nienstedt v. Wetzel, 651 P.2dd 876, 880 (Ariz.App. 1982); see e.g.,

Twyford v. Twyford, 63 Cal.App.3d 916, 134 Cal.Rptr. 145 (1976) (request for admissions);

Hopper v. Drysdale, 524 F.Supp. 1039 (D.Mont. 1981) (noticing of depositions). 

Defendants assert Spears’ claim fails because he does not allege the essential elements

of a willful act in the use of judicial process and for an ulterior purpose not proper in the

regular conduct of the proceedings. The FAC alleges the UA, acting through Riester, has

engaged in a campaign to hinder the amplified religious speech of Spears on campus and that

his arrest is one such example. 

However, Spears has not alleged an act of abuse beyond the initiation of the criminal

complaint against Spears. An “‘[a]buse of process . . . is not commencing an action or

causing process to issue without justification,’ Prosser & Keeton on Torts § 121 at 897 (5th

ed. 1984), but requires an overt act other than the initiation of a lawsuit to effect the

illegitimate end.” In re American Continental Corporation/Lincoln Sav. & Loan Securities

Litigation, 845 F.Supp. 1377, 1385 (D.Ariz. 1993), citing Markovitz. “It is immaterial that

the process may have been properly obtained or issued as a normal incident of the litigation

involved. It is the subsequent misuse which constitutes the misconduct for which liability

is imposed.” Nienstedt v. Wetzel, 133 Ariz. at 354, emphasis added. In fact, “there is no

liability when the defendant has done nothing more than legitimately utilize the process for

its authorized purposes, even though with bad intentions.” Id. Indeed, the UA police officers

in this case had probable cause to arrest Spears for a misdemeanor committed in their

presence, irrespective of the conduct of Riester. The Court finds Spears has failed to state

a claim for abuse of process upon which relief may be granted. The Court will dismiss this
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claim.

D. False Light (Invasion of Privacy) (Count VI)

To state a claim for false light invasion of privacy, a plaintiff must alleged “(1) the

defendant, with knowledge of falsity or reckless disregard for the truth, gave publicity to

information placing the plaintiff in a false light, and (2) the false light in which the plaintiff

was placed would be highly offensive to a reasonable person in the plaintiff's position.”

Desert Palm Surgical Grp., P.L.C. v. Petta, 343 P.3d 438, 450 (Ariz.App. 2015) (citing

Godbehere v. Phoenix Newspapers, Inc., 783 P.2d 781, 786 (1989). The Arizona Court of

Appeals has stated:

Although a cause of action for false light invasion of privacy may arise when

someone publishes something untrue about a person, in some instances, even a true

statement may form the basis for false light liability if it creates a false implication

about the person. See [Godbehere, 783 P.2d at 787] (“[T]he false innuendo created

by the highly offensive presentation of a true fact constitutes the injury.” (citing

Restatement § 652E)).

Desert Palm Surgical Grp., 343 P.3d at 450. Spears has not responded to this argument.

The FAC alleges, in essence, that Defendants’ conduct intended to misrepresent

Spears’ character, history, activities and beliefs; the conduct in having Spears arrested

created a false implication about Spears. However, a policy regarding the use of the UA

Mall, including sound amplification, was established and followed. The individual

Defendants were following that policy and enforcing state laws in directing Spears to cease

the amplification and subsequently arresting him. The Court finds, under the facts as alleged

in the FAC, a claim for false light invasion of privacy has not been adequately stated.

Dismissal of this claim is appropriate.

E. False Arrest/False Imprisonment (Count VIII)

As summarized by another court:

Under Arizona law, the intentional torts of false arrest and false imprisonment differ

only in terminology and are defined as “the detention of a person without his consent
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and without lawful authority.” Slade v. City of Phoenix, [541 P.2d 550, 552

(Ariz.1975)] (citation omitted); see also Al–Asadi v.. City of Phoenix, 2010 WL

3419728, at *3 (D.Ariz. Aug. 27, 2010). “The essential element necessary to

constitute either false arrest or false imprisonment is unlawful detention.” Id., [541

P.2d at 552]. “Further, false arrest or imprisonment does not require physical

detention—the tort may be committed by intimidation.” Gortarez v. Smitty's Super

Valu, Inc., [680 P.2d 807, 811 n. 2 (Ariz.1984)] (citing W. Prosser, Law of Torts § 11,

at 42–43 (4th ed.1971) (finding trial court erred in directing a verdict for defendants

on false arrest and imprisonment counts alleged against a shopkeeper brought by a

customer suspected of shoplifting as issues whether the detention was carried out in

a reasonable manner and for a reasonable length of time were for the jury). 

Martinez v. City of Avondale, No. CV-12-1837-PHX-LOA, 2014 WL 178144, at *7 (D. Ariz.

Jan. 16, 2014).

As the Court has previously found probable cause existed to arrest Spears, the Court

finds Spears has failed to state a claim for false arrest upon which relief may be granted and

will dismiss this claim.

X. Claims Against the State or State Agencies

The ABOR has been named as a defendant in this case. The applicable statute

provides the ABOR is a public corporate body that governs the state universities in Arizona

and is authorized to sue and be sued in its own name. A.R.S. § 15-1625(B)(3). However,

states and state agencies are not “persons” within the meaning of 42 U.S.C. § 1983. Will v.

Michigan Department of State Police, 491 U.S. 58, 70 (1989); Hafer v. Melo, 502 U.S. 21,

31 (1991) (only individual state officials or employees, sued in their personal capacity,

qualify as “persons” within the meaning of §1983); Harris v. Arizona Bd. of Regents, 528 F.

Supp. 987, 995 (D. Ariz. 1981). 

Rather, compensatory damages against state defendants are not allowed because the

Eleventh Amendment “bars suits for money damages in federal court against a state, its

agencies, and state officials acting in their official capacities.” Aholelei v. Dept of Public

Safety, 488 F. 3d 1144, 1147 (9th Cir. 2007) ). It also provides immunity for state officials

sued in their official capacities. “[A] suit against a state official in his or her official capacity

is not a suit against the official but rather is a suit against the official’s office.” Will, 491 U.S.
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Dismissal is appropriate, however, for failing to allege sufficient facts to state a claim

upon which relief may be granted. 

5

Dismissal is appropriate, however, for failing to allege sufficient facts to state a claim

upon which relief may be granted. 

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at 71 (citation omitted). “As such, it is no different from a suit against the State itself.” Id.

(citing Kentucky v. Graham, 473 U.S. 159, 165-66 (1985); Monell v. Dep't of Soc. Servs. of

City of N.Y., 436 U.S. 658, 690 n.55 (1978)). Any constitutional claims for damages against

the ABOR, therefore, must be dismissed. Such claims will be dismissed without leave to

amend. To any extent the FAC states a claim for prospective injunctive relief, however,

dismissal on this basis is not appropriate.4

 Flint v. Dennison, 488 F.3d 816, 825 (9th Cir.

2007);

XI. Official Capacities of Defendants

Defendants argue that claims against state actors in their official capacities must be

dismissed. Indeed, the Eleventh Amendment bars a section 1983 damages claim against state

actors sued in their official capacities. Will, 491 U.S. at 66. In Will, the Supreme Court held

that “a suit against a state official in his or her official capacity is not a suit against the

official but rather is a suit against the official's office . . . As such, it is no different from a

suit against the state itself.” Will, 491 U.S. at 66. The Ninth Circuit has “held that a state

university is an arm of the state entitled to Eleventh Amendment immunity.” Flint, 488 F.3d

at 825. To the extent Spears is seeking to sue state officials in official capacities for

damages, the claims will be dismissed without leave to amend. However, to the extent

Spears seeks to sue state official in official capacities for injunctive relief to prevent an

ongoing violation of federal law, dismissal on this basis is not appropriate.5

 Id. (“When sued

for prospective injunctive relief, a state official in his official capacity is considered a

“person” for § 1983 purposes.”).
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"Governmental entities have no inherent power and possess only those powers and

duties delegated to them by their enabling statutes. Thus, a governmental entity may be sued

only if the legislature has so provided." Braillard v. Maricopa County,232 P.3d 1263, 1269

(Ariz.App. 2010) (citations omitted). 

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XII. Supervisory Liability

Defendants argue that neither the ABOR nor Seastone, the Chief of the UA police

department, are liable under the doctrine of respondeat superior for the actions of the other

individual defendants within the scope of their employment. 

A government entity “cannot be held liable solely because it employs a tortfeasor.”

Monell, 436 U.S. at 691, 98 S.Ct. at 2018. The local government “itself must cause the

constitutional deprivation.” Gilette v. Delmore, 979 F.2d 1342, 1346 (9th Cir.1992), cert.

denied, 510 U.S. 932, 114 S.Ct. 345, 126 L.Ed.2d 310 (1993). Because liability of a local

governmental unit must rest on its actions, not the actions of its employees, a plaintiff must

go beyond the respondeat superior theory and demonstrate that the alleged constitutional

violation was the product of a policy or custom of the local governmental unit. City of

Canton, Ohio v. Harris, 489 U.S. 378, 385 (1989); Pembaur v. City of Cincinnati, 475 U.S.

469, 478–480 (1986). The Court finds Spears has failed to state a claim for respondeat

superior liability against ABOR.

To state a civil rights claim against a government entity6

, Plaintiffs must allege the

requisite culpability (a “policy or custom” attributable to municipal policymakers) and the

requisite causation (the policy or custom as the “moving force” behind the constitutional

deprivation). Monell, 436 U.S. at 691–694; Gable v. City of Chicago, 296 F.3d 531, 537 (7th

Cir.2002). Additionally, a government entity “may be liable if it has a ‘policy of inaction and

such inaction amounts to a failure to protect constitutional rights.’” Lee v. City of Los

Angeles, 250 F.3d 668, 681 (9th Cir.2001), quoting Oviatt v. Pearce, 954 F.2d 1470, 1474

(9th Cir.1992); Blankenhorn v. City of Orange, 485 F.3d 463, 484 (9th Cir.2007). However,

“[l]iability for improper custom may not be predicated on isolated or sporadic incidents; it
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must be founded upon practices of sufficient duration, frequency and consistency that the

conduct has become a traditional method of carrying out policy.” Trevino v. Gates, 99 F.3d

911, 918 (9th Cir.1995), cert. denied, 520 U.S. 1117, 117 S.Ct. 1249 (1997).

Here, Spears implicitly alleges the ABOR and Seastone, by implementing and

enforcing the UA Policy regarding amplified sound (including the policy regarding special

events), violated Spears’ rights to free speech and due process. As previously discussed, a

claim for prospective injunctive relief may be brought against the ABOR and Seastone in his

official capacity. Spears alleges the UA Policy and its resulting constitutional violations are

not predicated on isolated or sporadic incidents, but has been ongoing since at least 2012 and

has become the UA’s traditional method of carrying out the policy. However, the allegations

do not state a free speech or due process violation as discussed herein. The Court finds

Spears has not stated a claim against the ABOR or for Seastone for which relief may be

granted. Any claim for prospective injunctive relief against the ABOR and Seastone will be

dismissed.

Further, as to Seastone, the Court recognizes that Congress did not intend to “impose

liability vicariously on [employers or supervisors] solely on the basis of the existence of an

employer-employee relationship with a tortfeasor.” Monell, 436 U.S. at 692. Supervisory

personnel are not generally liable under section 1983 for actions of their employees under

a respondeat superior theory; therefore, when a named defendant holds a supervisory

position, the causal link between him and the claimed constitutional violation must be

specifically alleged. See Jeffers v. Gomez, 267 F.3d 895, 915 (9th Cir.2001); Fayle v.

Stapley, 607 F.2d 858, 862 (9th Cir.1979).

To state a claim for supervisor liability, a plaintiff must allege facts to indicate that

the supervisor defendant either: (1) personally participated in the alleged deprivation of

constitutional rights; (2) knew of the violations and failed to act to prevent them; or (3)

promulgated or implemented a policy “so deficient that the policy itself ‘is a repudiation of

constitutional rights' and is ‘the moving force of the constitutional violation.’” Hansen v.
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Black, 885 F.2d 642, 646 (9th Cir.1989); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989);

see also Larez v. City of Los Angeles, 946 F.2d 630 (9th Cir. 1991) (supervisory liability in

an individual capacity requires: (1) that defendant's “own culpable action or inaction in the

training, supervision, or control of his subordinates” caused the constitutional injury, (2) that

the defendant “acquiesce[d] in the constitutional deprivations of which [the] complaint is

made,” or (3) that his conduct showed a “reckless or callous indifference to the rights of

others”). 

Here, the FAC does not allege Seastone personally participated in the alleged

deprivation. Further, as discussed herein, the alleged facts and UA Policy do not state a

constitutional violation, so the FAC fails to allege Seastone knew of violations and failed to

act to prevent them. Lastly, the FAC does not allege Seastone implemented a policy that

repudiated constitutional rights. The Court finds the FAC fails to allege a claim against

Seastone for which relief may be granted. The claims against Seastone will be dismissed.

XIII. Punitive Damages

Defendants argue that “[n]either a public entity nor a public employee acting within

the scope of his employment is liable for punitive or exemplary damages.” A.R.S. §

12-820.04. Therefore, Defendants assert Spears’ prayer for punitive damages against the

State Defendants on his state law claims must be stricken. Spears asserts, however, that the

FAC alleges sufficient tortious, outrageous and reckless conduct to warrant exemplary and

punitive damages. Smith v. Wade, 461 US 30 (1983). Smith, however, was addressing §

1983 claims, while Defendants are seeking to preclude Spears’ prayer for punitive damages

on the state law claims.

Although “punitive damages arising under state law claims are not recoverable against

public employees acting within the scope of their public responsibilities[,]” Sweet v. City of

Mesa, No. CV-17-00152-PHX-GMS, 2018 WL 2464111, at *2 (D. Ariz. June 1, 2018),

punitive damages are allowed under § 1983 “when a defendant’s conduct was driven by evil
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motive or intent, or when it involved a reckless or callous indifference to the constitutional

rights of others.” Dang v. Cross, 422 F.3d 800, 807 (9th Cir. 2005) (quoting Morgan v.

Woessner, 997 F.2d 1244, 1255 (9th Cir. 1993)); Binkovich v. Barthelemy, 672 F. Appx 648,

650 (9th Cir. 2016). Spears’ request for punitive damages on his state law claims will be

stricken. 

XIV. Motion for Preliminary Injunction

Injunctive relief is an equitable remedy. "The basis for injunctive relief in the federal

courts has always been irreparable injury and the inadequacy of legal remedies." Weinberger

v. Romero-Barcelo, 456 U.S. 305, 312, 102 S.Ct. 1798, 1803 (1982). Injunctive relief is not

automatic: "In each case, a court must balance the competing claims of injury and must

consider the effect on each party of the granting or withholding of the requested relief.

Although particular regard should be given to the public interest . . . a federal judge sitting

as chancellor is not mechanically obligated to grant an injunction for every violation of law."

Amoco Production Co. v. Village of Gambell, Alaska, 480 U.S. 531, 107 S.Ct. 1396, 1402

(1987). The standard for issuing a TRO is the same as that for issuing a preliminary

injunction. See Brown Jordan Int'l, Inc. v. The Mind's Eye Interiors, Inc., 236 F.Supp.2d

1152, 1154 (D.Haw. 2007). 

To obtain injunctive relief, a plaintiff must show either "(a) probable success on the

merits combined with the possibility of irreparable injury or (b) that [it] has raised serious

questions going to the merits, and that the balance of hardships tips sharply in [its] favor."

Bernhardt v. Los Angeles County, 339 F.3d 920, 925 (9th Cir.2003). The Ninth Circuit has

explained that "these two alternatives represent 'extremes of a single continuum,' rather than

two separate tests. Thus, the greater the relative hardship to the moving party, the less

probability of success must be shown." Immigrant Assistant Project of Los Angeles County

Fed'n of Labor (AFLCIO) v. INS, 306 F.3d 842, 873 (9th Cir. 2002) (citation omitted).

Because a preliminary injunction is an extraordinary remedy, the moving party must carry
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its burden of persuasion by a "clear showing." Mazurek v. Armstrong, 520 U.S. 968, 117

S.Ct. 1865 (1997); City of Angoon v. Marsh, 749 F.2d 1413 (9th Cir. 1984). Therefore,

Spears must prove with a clear showing that there is either a probable success on the merits

combined with the possibility of irreparable injury or that he has raised serious questions

going to the merits and that the balance of hardships tips sharply in his favor. 

However, the Court has found it appropriate to dismiss the claims in the FAC. In

other words, there can be no probable success on the merits because Spears, at this time, has

failed to state a claim against any Defendant(s). See e.g., Stewart v. United States I.N.S., 762

F.2d 193, 199 (2nd Cir. 1985) (no jurisdictional basis for preliminary injunctive relief where

no complaint was filed; although the "filing of a complaint will not necessarily satisfy other

jurisdictional requirements, it is certainly a necessary condition"); Devose v. Herrington, 42

F.3d 470, 471 (8th Cir. 1994) (party moving for preliminary injunctive relief "must

necessarily establish a relationship between the injury claimed in the party's motion and the

conduct asserted in the complaint"); see also Fed.R.Civ.P. 3 ("A civil action is commenced

by filing a complaint with the court."). The request for injunctive relief will be denied.

XV. Leave to Amend

Within 30 days, Spears may submit a second amended complaint to cure the

deficiencies outlined above. 

Spears must clearly designate on the face of the document that it is the “Second

Amended Complaint.” The second amended complaint must be retyped or rewritten in its

entirety and may not incorporate any part of the original complaint or FAC by reference.

Spears may include only one claim per count.

A second amended complaint supersedes the original complaint and a first amended

complaint. Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir. 1992); Hal Roach Studios v.

Richard Feiner & Co., 896 F.2d 1542, 1546 (9th Cir. 1990). After amendment, the Court

will treat an original complaint (and previous amended complaints) as nonexistent. Ferdik,
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963 F.2d at 1262. Any cause of action that was raised in the original complaint and that was

voluntarily dismissed or was dismissed without prejudice is waived if it is not alleged in a

first amended complaint. Lacey v. Maricopa County, 693 F.3d 896, 928 (9th Cir. 2012) (en

banc).

XVI. Warnings

A. If Spears’ address changes, Spears must file and serve a notice of a change of

address in accordance with LRCiv 83.3(d). Spears must not include a motion for other relief

with a notice of change of address. Failure to comply may result in dismissal of this action.

B. All parties must submit a paper courtesy copy of filings for use by the Court in

conformance with the ECF Policies and Procedures Manual § II.D.3; see also LRCiv 5.4.

Failure to comply may result in the filing being stricken without further notice.

C. If Spears fails to timely comply with every provision of this Order, including these

warnings, the Court may dismiss this action without further notice. See Ferdik, 963 F.2d at

1260-61 (a district court may dismiss an action for failure to comply with any order of the

Court).

Accordingly, IT IS ORDERED:

1. The Motion to Dismiss (Doc. 27) is GRANTED. 

2. The claims for a violation of free speech (Count I), a violation of due process

(Count II), a violation of equal protection (Count III), intentional infliction of emotional

distress (Count IV), abuse of process (Count V), false light invasion of privacy (Count VI),

arrest without probable cause (Count VII), and false arrest/false imprisonment (Count VIII)

are DISMISSED WITH LEAVE TO AMEND.

3. State law claims against individual Defendants are DISMISSED WITHOUT

LEAVE TO AMEND for failure to comply with the Notice of Claim statute.

4. Claims for non-prospective injunctive relief against the Arizona Board of
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Regents and Seastone in his official capacity are DISMISSED WITHOUT LEAVE TO

AMEND.

5. Claims against individual defendants in their official capacities for damages

are DISMISSED WITHOUT LEAVE TO AMEND.

6. The First Amended Complaint is DISMISSED for the reasons discussed herein.

Spears has 30 days from the date of this Order is filed to file a second amended complaint

in compliance with this Order. If Spears fails to file an amended complaint within 30 days,

the Clerk of Court must, without further notice, enter a judgment of dismissal of this action.

7. The Motion for Preliminary Injunction (Doc. 35) is DENIED.

DATED this 6th day of March, 2019.