Opinion
No. C-03-4392 MJJ.
July 28, 2004
ORDER GRANTING MOTION TO DISMISS
INTRODUCTION
Before the Court is Defendant City of Emeryville's motion to dismiss Plaintiff Frank Batiste's second amended complaint ("SAC") pursuant to Federal Rule of Civil Procedure 12(b)(6). For the following reasons, the Court GRANTS the motion without oral argument.
FACTUAL BACKGROUND
Plaintiff filed his original complaint on September 30, 2003, alleging violations of Title VII of the Civil Rights Act of 1964 against his former employer, Defendant City of Emeryville. Plaintiff's temporary employment with Defendant began on September 14, 1999 and ended on April 14, 2000. On his penultimate day, Plaintiff was involved in an automobile accident. On February, 10, 2004, at oral argument before this Court on Defendant's motion to dismiss the original complaint, Plaintiff made clear to the Court that his claims stemmed from Defendant's treatment of him and from Defendant's actions during the workers' compensation process relating to injuries Plaintiff sustained in the accident, and not from actions taken by Defendant during Plaintiff's employment. The Court dismissed the employment discrimination claims in the original complaint with prejudice because any claim arising during Plaintiff's employment was time-barred. However, based on Plaintiff's assertions at oral argument on February 10, 2004, the Court granted Plaintiff leave to amend his complaint to include equal protection and due process claims arising out of the post-employment administration of his workers' compensation claim as well as any appropriate state common law claims supplemental to his federal claims.
The Court liberally construed the pro se complaint to include a claim under Title I of the Americans with Disabilities Act as well.
Plaintiff filed his first amended complaint ("FAC") on February 27, 2004, alleging violations under Title I, ERISA, the Fourteenth Amendment, the California Labor Code, and state common law. Plaintiff attached several documents to the FAC, some numbered for identification, others identified simply by handwritten allegations. Defendant filed a motion to dismiss the FAC on March 17, 2004, arguing that dismissal was appropriate because (1) the complaint presented no proper federal question; (2) the exclusivity doctrine of the Workers' Compensation Act ("WCA") precluded this Court's jurisdiction; and (3) Plaintiff's failure to timely exhaust his administrative remedies under the Government Tort Claims Act barred his state common law claims.
Documents submitted with a complaint may be considered incorporated into the complaint by reference. See Kaufman and Broad-South Bay v. Unisys Corp., 822 F. Supp. 1468 (N.D. Cal. 1993); see also Fed.R.Civ.P. 10(c).
Without explanation, Defendant filed an amended motion to dismiss on April 9, 2004. Plaintiff then filed his own amended opposition to the motion. Accordingly, the Court considered the original motion and opposition abandoned, and instead reviewed only the amended papers.
On May 11, 2004, the Court dismissed Plaintiff's FAC on the following grounds: (1) the Court had not granted Plaintiff leave to amend or reiterate any claim related to Title I because these claims were dismissed with prejudice; (2) pursuant to 29 U.S.C. § 1003(b)(1), employee benefit plans established by municipalities such as Defendant City of Emeryville qualify as governmental plans which are exempt from ERISA coverage; (3) Plaintiff failed to clearly establish a factual basis connecting Defendant to Plaintiff's alleged loss of due process and equal protection. As a result of Plaintiff's inability to state a viable Fourteenth Amendment claim, this Court had no basis for exercising subject matter jurisdiction to review any pendent state law claims. The Court granted Plaintiff leave to amend his complaint.
Plaintiff filed his SAC on May 25, 2004 alleging violations under the Fourteenth Amendment, OSHA, 42 U.S.C. § 1981 and 1983, the California Labor Code, and state common law. Now before the Court is Defendant's motion to dismiss Plaintiff's SAC in its entirety, without leave to amend, on the following six grounds: (1) this Court has no jurisdiction because Plaintiff cannot state a federal question; (2) Plaintiff exceeds the permissible scope of amendment granted in this Court's previous two Orders dated February 17, 2004 and May 11, 2004; (3) Plaintiff is barred from asserting a violation of OSHA standards because the six-month limitations period for the Secretary of Labor to issue a citation has run; (4) Plaintiff cannot state any violation of 42 U.S.C. § 1981 because the Court did not grant him leave to pursue this claim; California's two-year personal injury statute of limitations bars this claim; and public employees hold employment pursuant to statute, not contract; (5) Plaintiff cannot state any violation of 42 U.S.C. § 1983 because California's two-year personal injury statute of limitations bars this claim; and Plaintiff has not alleged any specific municipal policy or custom that deprived him of any federal right; (6) the exclusivity doctrine of the WCA bars Plaintiff from using the U.S. District Court to pursue his workers' compensation claim.
LEGAL STANDARD
A court may dismiss a complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for lack of a cognizable legal theory or for the pleading of insufficient facts under an adequate theory. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 533-34 (9th Cir. 1984). When deciding upon a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6), a court must take all of the material allegations in the plaintiff's complaint as true, and construe them in the light most favorable to the plaintiff. Parks School of Business, Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). Moreover, a complaint should not be dismissed unless a plaintiff could prove no set of facts in support of his claim that would entitle him to relief. Id.
ANALYSIS
In order to maintain subject matter jurisdiction in U.S. District Court, a plaintiff must assert either diversity jurisdiction or federal question jurisdiction. 28 U.S.C. § 1331, 1332, 1367. In its May 11, 2004 Order, the Court dismissed Plaintiff's employment discrimination claims with prejudice and granted Plaintiff leave to amend only those claims under the Fourteenth Amendment and 42 U.S.C. § 1983. (5/11/04 Order at 6:1-2). Plaintiff's SAC asserts both causes of action which, if proper, would allow the Court to exercise federal question subject matter jurisdiction. Plaintiff also includes two causes of action that exceed the scope of the Court's permitted amendment: violations of OSHA standards and 42 U.S.C. § 1981. This memorandum addresses the latter two causes of action first.A. Occupational Safety and Health Act
Plaintiff now alleges a violation of OSHA standards because the City of Emeryville "knew or should have known" that the city vehicle Plaintiff was driving during the time of the accident had defective brakes. (SAC at Section F, ¶¶ 1-2). Plaintiff's allegations of OSHA violations exceed the scope of the leave to amend that this Court granted in its Order of May 11, 2004 (see Introduction to Analysis) and they are also time-barred. Pursuant to 29 U.S.C. § 658(c), no citation for a violation of OSHA standards can be issued "after the expiration of six months following the occurrence of any violation." This Court judicially noticed Plaintiff's temporary employment with the City of Emeryville as beginning September 14, 1999, and ending April 14, 2000. (2/17/04 Order at 2, footnote 1). Therefore, any citation not issued on or before October 14, 2000 falls beyond the limitations period. Plaintiff's OSHA claim is therefore dismissed with prejudice.
This Court took judicial notice of Exhibit 1 to the Declaration of Dolores Turner, which consists of Employee Transaction Forms demonstrating that Plaintiff's temporary employment with the City of Emeryville began on September 14, 1999 and ended on April 14, 2000.
In his SAC, Plaintiff argues that he entered into a legal contract within the meaning of 42 U.S.C. § 1981 with the City of Emeryville on September 14, 1999. (SAC at 1, ¶ 4). He alleges that the contract was an "employment contract" (SAC at 5, ¶ 4), and that he has been "denied his property rights and his fundamental right to contract with an employer: pursuant to 42 U.S.C. § 1981." (SAC at 5, ¶ 6; see also SAC at 4 at ¶ 5).
Here, Plaintiff's 42 U.S.C. § 1981 allegation may be dismissed for any of the following reasons. First, Plaintiff has exceeded the scope of the Court's leave to amend. (see Introduction to Analysis). Second, the statute of limitations has run on Plaintiff's 42 U.S.C. § 1981 claim. The Ninth Circuit Court of Appeals has determined that claims brought under 42 U.S.C. § 1981 in California are governed by California's statute of limitations for personal injury actions. Taylor v. Regents of University of California, 993 F.2d 710 (9th Cir. 1993). Accordingly, Plaintiff's 42 U.S.C. § 1981 claim is governed by California's statute of limitations for personal injury actions, which is two years. (Cal. Code of Civ. Proc. § 335.1). This Court previously took judicial notice of the fact that Plaintiff's temporary employment with the City of Emeryville began in September 1999 and ended on April 14, 2000. (2/17/04 Order at 2, footnote 1). His time to allege a violation of 42 U.S.C. § 1981 ended April 14, 2002, two years after his last day of employment with the City of Emeryville. Since a 42 U.S.C. § 1981 claim is predicated on the existence of a contract, Plaintiff's claim must fail. Therefore, this claim is dismissed with prejudice.
Plaintiff's SAC also alleges violations of 42 U.S.C. § 1983. He argues that the City "has a duty to provide all of its city employees who has [sic] sustained work-related injuries, to which Plaintiff was a permanent city employee under said city policy, with proper medical treatment." (SAC at 4, ¶ 7). He further argues that his back injury has "disabled [him] from engaging in any of the common and lawful occupations of life, which constitutes a violation pursuant to: 42 U.S.C. § 1983." (SAC at 4, ¶ 9). Plaintiff's 42 U.S.C. § 1983 claim must fail because it is time-barred by the statute of limitations and he has not asserted a specific municipal policy or custom practiced by the City of Emeryville that deprived him of his rights.
First, the statute of limitations has run on Plaintiff's 42 U.S.C. § 1983 claim. The Ninth Circuit Court of Appeals has determined that claims brought under 42 U.S.C. § 1983 in California are governed by California's statute of limitations for personal injury actions. Taylor v. Regents of University of California, 993 F.2d 710 (9th Cir. 1993). Accordingly, Plaintiff's 42 U.S.C. § 1983 claim is governed by California's statute of limitations for personal injuries, which is two years. (Cal. Code of Civil Proc. § 335.1). This Court previously took judicial notice of the fact that Plaintiff's temporary employment with the City of Emeryville began in September 1999, and ended on April 14, 2000. (2/17/04 Order at 2, footnote 1). Even if meritorious, the period during which Plaintiff could have asserted a claim under 42 U.S.C. § 1983 ran in April 2002, two years after his last day of employment with the City. Since Plaintiff did not assert the 42 U.S.C. § 1983 claim until May 25, 2004, the claim is barred.
Moreover, this Court's Order of May 11, 2004 specified that in order to state a viable Section 1983 claim, Plaintiff would need to assert a specific municipal policy or custom that deprived him of his rights. (5/11/04 Order at 5:4-6). Plaintiff does not allege in his SAC that there are any specific municipal policies or customs implemented by the City of Emeryville which have deprived him of his federal rights. Without any such allegation, Plaintiff cannot state a viable claim for relief under 42 U.S.C. § 1983. Monell v. Dep't of Social Services, 436 U.S. 658, 691-692 (1978). Therefore, this claim is dismissed with prejudice.
D. Fourteenth Amendment
In the SAC, Plaintiff also alleges that the City of Emeryville infringed upon his Fourteenth Amendment rights. In this Court's previous Order dated May 11, 2004, Plaintiff's claim, which alleged a violation of due process and equal protection, was dismissed with leave to amend. The Order stated that Plaintiff would need to allege interference with a liberty or property interest protected by the U.S. Constitution in order for his claim to be viable. (5/11/04 Order at 5:2-3). Here, Plaintiff alleges that the City interfered with his "fundamental right to contract with employers" resulting in a violation of his due process rights under the Fourteenth Amendment. (SAC at 5, ¶ 6). First, Plaintiff still does not provide a factual basis connecting the actions of the City of Emeryville to any deprivation of his constitutional rights. Second, Plaintiff improperly attempts to equate his "fundamental right to contract" under 42 U.S.C. § 1981 to a constitutionally-protected property interest in an effort to satisfy the requirements of the May 11 Order. (SAC at 5, ¶¶ 6, 7). Third, Plaintiff's "right to contract" claim is inapposite here because California case law precludes public employees from holding employment by contract. Miller, 18 Cal.3d at 808, 813-815. Therefore, Plaintiff fails to pinpoint a valid property interest that is protected by the Constitution.
Plaintiff also argues that his "lay off constitutes a violation of [his] right to job security and medical treatment." (SAC at 1, ¶ 10). However, this Court took judicial notice of the City of Emeryville's "Employee Transaction Form" which attributed temporary status to Plaintiff as a City employee. (2/17/04 Order at 2, footnote 1). Plaintiff's temporary employment status by the City of Emeryville does not afford him an unfettered right to job security. Therefore, Plaintiff's SAC does not give rise to a violation of a constitutionally-protected interest.
CONCLUSION
For the foregoing reasons, the Court hereby GRANTS Defendant's motion to dismiss the SAC because Plaintiff has not provided a factual basis to support a viable federal cause of action against the City of Emeryville. Plaintiff's claims under OSHA and 42 U.S.C. § 1981 and 1983 are dismissed with prejudice. Additionally, Plaintiff has not stated any violation of his Fourteenth Amendment Rights. To the extent that Plaintiff's claims arise under California common law or statute, the Court dismisses these claims under 28 U.S.C. § 1367 without prejudice.
IT IS SO ORDERED.
JUDGMENT IN A CIVIL CASE
() Jury Verdict. This action came before the Court for a trial by jury. The issues have been tried and the jury has rendered its verdict.(X) Decision by Court. This action came to trial or hearing before the Court. The issues have been tried or heard and a decision has been rendered.
IT IS SO ORDERED AND ADJUDGED
Pursuant to the order dated July 28, 2004, The Defendant's Motion to Dismiss is granted.