Donaghe v. Sherman Elementary

── Donaghe v. Sherman Elementary ── Court: Court of Appeals for the Ninth Circuit Date: April 27, 2026 Category: General NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 27 2026 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT JAMES DONAGHE; ALVARO ORTIZ, No. 24-7799 D.C. No. Plaintiffs - Appellants, 3:24-cv-00359-MMA-DDL v. MEMORANDUM* SHERMAN ELEMENTARY; SAN DIEGO UNIFIED SCHOOL DISTRICT; NICOLE ENRIQUEZ; SAN DIEGO UNIFIED SCHOOL DISTRICT POLICE DEPARTMENT; JOSCLYN HOPE DAVIS, Defendants - Appellees. Appeal from the United States District Court for the Southern District of California Michael M. Anello, District Judge, Presiding Submitted April 23, 2026** Pasadena, California Before: FRIEDLAND and MILLER, Circuit Judges, and SCARSI, District Judge.*** * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Mark C. Scarsi, United States District Judge for the Central District of California, sitting by designation.  Plaintiffs-Appellants James Donaghe and Alvaro Ortiz, a gay couple who live across the street from Sherman Elementary, began filming traffic conditions around the school during student pick-up and drop-off times to document their concerns about driver behavior in the area. Parents of children at the school became upset about their children being filmed, and the resulting tension led to a physical altercation between Donaghe and a parent, as well as a different parent yelling homophobic epithets at Donaghe. Plaintiffs filed suit against Defendants- Appellees the San Diego Unified School District (“SDUSD”), Sherman Elementary,1 and Nicole Enriquez (the principal of Sherman Elementary), asserting Title IX sex discrimination, 42 U.S.C. § 1983 First Amendment retaliation, federal common law nuisance, and state law claims. The district court dismissed without leave to amend and with prejudice: Sherman Elementary as a defendant, the Title IX claims against all Defendants, and the § 1983 and federal nuisance claims against SDUSD. It dismissed with leave to amend the § 1983 and federal nuisance claims against Enriquez. It dismissed without prejudice the state law claims, declining to exercise supplemental jurisdiction. Plaintiffs filed an amended complaint that named as Defendants the SDUSD 1 Although Plaintiffs originally named “Sherman Heights Elementary” as Defendant, the school’s actual name is “Sherman Elementary.” 2 24-7799 Police Department, Enriquez, and Josclyn Hope Davis (a Sherman Elementary parent), realleging the § 1983, federal nuisance, and state law claims. The next day, Plaintiffs filed a notice of voluntary dismissal, dismissing their amended complaint without prejudice, pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i). Plaintiffs then appealed the district court’s earlier dismissal order but stated they did so only “with respect to” certain claims that had been dismissed with prejudice and without leave to amend. Plaintiffs refiled the other claims in state court.2 We must determine whether we have jurisdiction over the case before considering any of the parties’ arguments about the merits. With limited exceptions not applicable here, we have appellate jurisdiction only over appeals from “