The opinion
NOT FOR PUBLICATION FILED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
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
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
1
Since Reynolds filed her complaint, Twitter has been renamed X.
Irina Ivanova, Twitter is Now X. Here’s What That Means., CBS News (July 31,
2023, 2:18 PM), https://www.cbsnews.com/news/twitter-rebrand-x-name-change-
elon-musk-what-it-means/ [https://perma.cc/98P6-QDD4].
2
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.
3