NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 3 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CITIZENS FOR FREE SPEECH, LLC; No. 19-17448
MICHAEL SHAW,
D.C. No.
Plaintiffs-Appellants, 4:19-cv-01026-SBA
v.
MEMORANDUM*
COUNTY OF ALAMEDA,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of California
Saundra B. Armstrong, District Judge, Presiding
Argued and Submitted November 16, 2020
San Francisco, California
Before: NGUYEN, HURWITZ, and BRESS, Circuit Judges.
This is the third suit by Citizens for Free Speech and Michael Shaw
(collectively, “Plaintiffs”) challenging the County of Alameda’s efforts to abate
billboards that Plaintiffs erected on Shaw’s property in violation of Title 17 of the
County’s General Ordinance Code (“Zoning Ordinance”). The district court granted
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
the County’s motion to dismiss Plaintiffs’ First Amendment free speech and
Fourteenth Amendment due process claims without leave to amend and declined to
exercise supplemental jurisdiction over Plaintiffs’ state law claims. We have
jurisdiction under 28 U.S.C. § 1291 and affirm.
1. The First Amendment claims are barred by claim preclusion. Identical
claims were litigated in Citizens for Free Speech, LLC v. County of Alameda
(“Citizens I”), No. 3:14-cv-02513-CRB (N.D. Cal. 2017), which resulted in a final
judgment on the merits. See Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Plan.
Agency, 322 F.3d 1064, 1077 (9th Cir. 2003). Plaintiffs’ argument that preclusion
does not apply because the County had not yet initiated nuisance abatement
procedures under the Zoning Ordinance when Citizens I was decided is unavailing.
The nuisance abatement procedures are predicated on the same Zoning Ordinance
provisions challenged in the prior action. Plaintiffs’ claims therefore “were raised
or could have been raised in the prior action.” Owens v. Kaiser Found. Health Plan,
Inc., 244 F.3d 708, 713 (9th Cir. 2001) (cleaned up).
2. Plaintiffs failed to respond to the County’s contentions concerning the
due process claims in the County’s motion to dismiss, thereby abandoning those
claims. See Carvalho v. Equifax Info. Servs., LLC, 629 F.3d 876, 888 (9th Cir.
2010). In any event, the Fourteenth Amendment due process claims fail on the
merits. Plaintiffs have not identified “a denial of adequate procedural protections”
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at the abatement hearing before the Board of Zoning Adjustments or the appeals
hearing before the Board of Supervisors. Brewster v. Bd. of Educ. of Lynwood
Unified Sch. Dist., 149 F.3d 971, 982 (9th Cir. 1998). And, because Plaintiffs do
not dispute that the signs are illegal under the Zoning Ordinance, it is also unclear
how additional hearing procedures would have mitigated “the risk of an erroneous
deprivation.” Mathews v. Eldridge, 424 U.S. 319, 335 (1976). Plaintiffs’ Federal
Rule of Civil Procedure 13(a) due process theory—which would require the County
to pursue nuisance abatement proceedings in federal court once a constitutional
challenge is raised—is unsupported by any authority and was impliedly rejected by
this Court in Citizens for Free Speech, LLC v. County of Alameda (“Citizens II”),
953 F.3d 655, 657-58 (9th Cir. 2020), which affirmed the dismissal of Plaintiffs’
second suit against the County under Younger v. Harris, 401 U.S. 37 (1971), because
it improperly sought to enjoin ongoing state administrative proceedings.
3. Because the district court dismissed all federal claims, it did not abuse
its discretion in declining to assert supplemental jurisdiction. See 28 U.S.C.
§ 1367(c)(3); Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988).
4. The district court did not abuse its discretion in denying leave to amend
given the legal deficiencies in Plaintiffs’ federal claims. See Bell v. City of Kellogg,
922 F.2d 1418, 1425 (9th Cir. 1991).
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AFFIRMED.1
1
The County’s motion to take judicial notice, Dkt. 14, is GRANTED.
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