Susan Dyer Reynolds v. Dean E. Preston

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 3 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT SUSAN DYER REYNOLDS, No. 23-15504 Plaintiff-Appellee, D.C. No. 3:22-cv-08408-WHO v. MEMORANDUM* DEAN E. PRESTON, Defendant-Appellant.

Appeal from the United States District Court for the Northern District of California William Horsley Orrick, District Judge, Presiding Argued and Submitted May 30, 2024 San Francisco, California Before: KOH, H.A. THOMAS, and DESAI, Circuit Judges.

Dean E. Preston, a member of the San Francisco Board of Supervisors, appeals a district court order denying his motion to dismiss Susan Dyer Reynolds’s claim that Preston violated Reynolds’s First Amendment rights by blocking her on Twitter.1 “We have jurisdiction under the collateral order doctrine to review a district court’s rejection of a qualified immunity defense at the motion to dismiss stage, and we review such a denial de novo.” Polanco v. Diaz, 76 F.4th 918, 925 (9th Cir. 2023) (citations omitted). We reverse and remand for the district court to dismiss the case.

To overcome a qualified immunity defense at the motion to dismiss stage, a plaintiff must show that, “accepting all of [the plaintiff’s] allegations as true, [the defendant’s] conduct ‘(1) violated a constitutional right that (2) was clearly established at the time of the violation.’” Id. (quoting Ballou v. McElvain, 29 F.4th 413, 421 (9th Cir. 2022)). Reynolds argues that Preston’s conduct violated law clearly established by our decision in Garnier v. O’Connor-Ratcliff, 41 F.4th 1158 (9th Cir. 2022), vacated, 601 U.S. 205 (2024). But the Supreme Court has since vacated that decision. O’Connor-Ratcliff v. Garnier, 601 U.S. 205, 208 (2024).

This vacatur prevents our decision in Garnier “from spawning any legal consequences”—including the consequence of clearly establishing the violation of a constitutional right. Camreta v. Greene, 563 U.S. 692, 713 (2011) (quoting United States v. Munsingwear, Inc., 340 U.S. 36, 41 (1950)). Reynolds cites no other case clearly establishing that blocking her on Twitter violated her First Amendment rights.

Absent clearly established law, Preston is entitled to qualified immunity. See Polanco, 76 F.4th at 925. We therefore reverse the judgment of the district court and remand with instructions to dismiss the case.

REVERSED and REMANDED.