Opinion
ORDER
TROY L. NUNLEY, District Judge.
Defendants Ed Simmerson, John McClellan, Mike McDonald, and Matthew Cate (hereinafter collectively referred to as "Defendants") seek judgment on the pleadings on the following grounds: (1) decedent's alleged speech activities were not protected by the First Amendment; (2) Plaintiffs have failed to establish that Defendants McDonald or Cate participated in conduct that violated decedent's First Amendment rights; (3) all Defendants are entitled to qualified immunity; and (4) neither Cate nor McDonald can be liable on Plaintiffs' state law claims because decedent's suicide was an independent intervening cause of his death. ( See Defs.' Mot. J. Pleadings, ECF No. 47.) Plaintiffs oppose Defendants' motion. ( See Pl.'s Opp., ECF No. 48.) Defendants have filed a reply to Plaintiffs' opposition. (See Defs. Reply, ECF No. 49.) The Court has carefully considered the arguments presented by the parties. For the reasons set forth below, Defendants' motion (ECF No. 47) is GRANTED IN PART and DENIED IN PART.
Plaintiffs Janelle Jones and T.J. (hereinafter collectively referred to as "Plaintiffs") are the wife and son of the decedent Scott Jones.
I. Factual Background
Plaintiffs, the widow and son of Scott Jones (Jones), filed their original Complaint against Defendants on August 21, 2012. (Compl., ECF No. 1.) The instant First Amended Complaint was filed on March 22, 2013. ( See First Am. Compl. ("FAC"), ECF No. 25.) The FAC contains the following allegations.
Jones and Plaintiff Janelle Jones were married. On February 15, 2001, they had a son, Plaintiff T. J. Jones. In July 2002, Jones was hired by the California Department of Corrections and Rehabilitation (CDCR) as a correctional officer. He was assigned to work at High Desert State Prison in Susanville, California (hereinafter "High Desert"). Jones performed his job well and had "outstanding performance evaluations and complimentary peer reviews." (ECF No. 25 ¶ 20.) One of the job duties of a CDCR corrections officer, as set forth in CDCR policies and procedures, "was to disclose information regarding the wrongful and unlawful conduct of correctional peace officers." (ECF No. 25 ¶ 21.)
In 2006, Jones was assigned to work in the Z-unit at High Desert. The Z-Unit "is a stand-alone administrative segregation unit housing the most dangerous inmates." (ECF No. 25 ¶ 22.) On or about August 13, 2006, Jones "suffered a right knee injury while horsing around on duty in the Z-unit." (ECF No. 25 ¶ 23.) He reported the injury to his supervisor, Defendant Simmerson, stating that he had injured himself while engaged in horseplay with another correctional officer who had just been promoted. Defendant Simmerson ordered Jones to report the injury as an on-the-job worker's compensation injury. Jones told Defendant Simmerson that he didn't want to falsify a worker's compensation claim and that the incident had not happened the way Defendant Simmerson wanted it reported, but Defendant Simmerson ordered him to submit the report as an on-the-job worker's compensation claim. Because Jones did not want to be insubordinate and because he felt "tremendous pressure from his superior officer, " Jones did what Defendant Simmerson ordered him to do. (ECF No. 25 ¶ 23.) Jones thereafter went on a leave of absence until February 2007, when he was released to work.
In March 2007, Jones was pepper-sprayed in the eyes at close range by another correctional officer, Sergeant Derek Fletcher. The incident was witnessed by a number of other correctional officers. When the witnesses and Jones questioned Fletcher about why he had pepper-sprayed Jones, "Sergeant Fletcher flippantly responded with words to the effect of Does that mean that you are going to rat me out now?'" (ECF No. 25 ¶ 25.) Jones told his wife he thought the incident was a warning "to keep quiet about the August 2006 incident involving his knee injury and Simmerson ordering him to falsify the cause of his injury on the workers compensation forms." (ECF No. 25 ¶ 25.)
In October 2007, Jones "had knee surgery and spent the next four months in post-operative rehabilitation." (ECF No. 25 ¶ 26.) Following his return to work in January 2008, he was assigned to Fence Patrol. (ECF No. 25 ¶ 27.) He was subjected to "constant" "verbal harassment by other correctional officers." (ECF No. 25 ¶ 27.) Jones reported the harassment to his superiors at High Desert but nothing was done about it. (ECF No. 25 ¶ 27.) He was also subjected to "two random' drug tests, " which had never been required before. (ECF No. 25 ¶ 28.)
Jones was subsequently reassigned to Z-unit, where he worked with three other correctional officers, Anthony Lares (hereinafter "Lares"), Jesse Barron (hereinafter "Barron"), and Anthony Tirado (hereinafter "Tirado"). (ECF No. 25 ¶ 29.) For the rest of his employment with CDCR, Jones was often partnered with Lares. (ECF No. 25 ¶ 29.) Lares "filed several complaints regarding working conditions" at High Desert and Jones "was a witness to many of these complaints." (ECF No. 25 ¶ 30.) Lares "also filed numerous complaints of safety violations, to which [Jones] was a corroborating witness." (ECF No. 25 ¶ 30.) Management at High Desert "detested correctional officers who filed complaints regarding the working conditions" at High Desert. (ECF No. 25 ¶ 31.) While working in the Z-Unit, Jones "witnessed and complained of numerous events and actions to his supervisors, including but not limited to Defendant Simmerson, that [Jones] believed violated federal or state law" and/or rules and regulations. (ECF No. 25 ¶ 32.)
In particular, [Jones] witnessed and complained of: (1) strip-searches of inmates in the snow; (2) provocation of fighting among the inmates; (3) failure to permit inmates to shower; (4) failure to exchange inmates' laundry; and (5) failure to prohibit inmates' possession and transmission of contraband.
(ECF No. 25 ¶ 32.) All of the reports were "summarily dismissed, " and Jones decided it would be futile to report any more misconduct. (ECF No. 25 ¶ 32.)
In addition to not responding to his complaints, Jones's supervisors "falsely accused [him] of misconduct." (ECF No. 25 ¶ 33.) Defendant McClellan "constantly" accused Jones, Lares and Barron of tampering with inmates' mail and the three were threatened with discipline and termination. (ECF No. 25 ¶ 33.) The accusations were investigated and found to be "untrue" but Defendant McClellan continued the harassment. (ECF No. 25 ¶ 33.) Defendant Simmerson called Jones and Barron at home and told them to quit. (ECF No. 25 ¶ 34.) Defendants Simmerson and McClellan did not intervene when correctional officers told Jones and others "that they were fucking up' and that they were going to get fired.'" (ECF No. 25 ¶ 34.) This conduct made Jones's "working conditions intolerable." (ECF No. 25 ¶ 34.)
In mid-2009, at the conclusion of a work shift Defendant Simmerson "warned [Jones] to stay away from Lares." (ECF No. 25 ¶ 35.) When Jones questioned Simmerson, Simmerson told him he would "go down as collateral damage" if he didn't stay away from Lares. (ECF No. 25 ¶ 35.) Simmerson also told Jones "we can burn people's fences.'" (ECF No. 25 ¶ 35.) Jones told his wife he believed this was "in reference to an August 2001 criminal case in which a [High Desert] correction officer set captain's fence on fire." (ECF No. 25 ¶ 35.) He also told her he believe the threat was "another attempt to keep [Jones] from reporting officer misconduct in Z-unit." (ECF No. 25 ¶ 35.) Defendant McClellan also warned Jones to stay away from Lares or he would "go down with Officer Lares." (ECF No. 25 ¶ 36.)
As a result of all the harassment and abuse, Jones "sought medical treatment for anxiety and depression" and was "prescribed anti-anxiety medication and anti-depressive medications." (ECF No. 25 ¶ 37.) A few months later, Jones was threatened by Sergeant Amero, who said that he had seen Jones walking with his family and "thought about running [him] over and making [him] a hood ornament.'" (ECF No. 25 ¶ 38.) The harassment and abuse "continued throughout 2009." (ECF No. 25 ¶ 39.) In August 2010, Lares sent a letter to the CDCR whistleblower hotline demanding protection for himself, Jones, Barron and Tirado. (ECF No. 25 ¶ 40.) In January 2011, Jones and Lares were transferred out of Z-unit to the A-yard to handle inmate mail. (ECF No. 25 ¶ 41.) They were warned by Sergeant Hayes "to be careful with the mail because [they] were going to be set up to be fired regarding their handling of the mail." (ECF No. 25 ¶ 41.) For the next few months, Jones "experienced heightened scrutiny as to his job duties, especially as to the delivery of inmates' mail." (ECF No. 25 ¶ 42.)
On July 4, 2011, Jones "responded to a medical incident on A yard" and grabbed the arm of an inmate who was falling, in order to break the inmate's fall. (ECF No. 25 ¶ 43.) Later in the shift a correctional lieutenant told Jones he had heard Jones and other officers were "taking inmates down... and beating the shit out of them.'" (ECF No. 25 ¶ 43.) Subsequently a "meritless investigation into alleged use of excessive force" by Jones was conducted. (ECF No. 25 ¶ 43.) The investigation was "obviously a ruse to intimidate [Jones], as the officers closest to the scene were not even interviewed." (ECF No. 25 ¶ 43.) The next day Jones was "repeatedly confronted" by a correctional counselor. (ECF No. 25 ¶ 44.) Later that day he spoke with his wife. (ECF No. 25 ¶ 44.) He was "extremely distraught" and told her he didn't think he could continue to work at High Desert. (ECF No. 25 ¶ 44.)
On July 6, 2011, Jones called High Desert to quit. (ECF No. 25 ¶ 45.) The sergeant he spoke with told him "to take a short leave to consider his decision to quit." (ECF No. 25 ¶ 45.) On July 7, 2011, he received a call from another sergeant, with whom he "spoke for about an hour." (ECF No. 25 ¶ 46.) He told the sergeant about Simmerson ordering him to falsify the worker's compensation and the ensuing harassment and abuse. (ECF No. 25 ¶ 46.) The sergeant told Jones to give the information to management at High Desert. (ECF No. 25 ¶ 46.) On July 8, 2011, Jones told his wife he was going to High Desert to talk with Defendants McDonald and Simmerson. (ECF No. 25 ¶ 47.) After she couldn't find Jones that afternoon, Plaintiff Janelle Jones and her father spent the rest of the day trying to find him. (ECF No. 25 ¶ 48.) Plaintiff Janelle Jones's father called Defendants McDonald and Simmerson and was told Jones hadn't "met with, or spoken to" either of them. (ECF No. 25 ¶ 48.)
On July 9, 2011, Defendant Simmerson spoke with Plaintiff Janelle Jones's father and asked if Jones had been found yet. (ECF No. 25 ¶ 49.) He also told Plaintiff Janelle Jones's father he needed to know what Jones had been telling his wife about the prison. (ECF No. 25 ¶ 49.) On the afternoon of July 9, 2011, Jones was found dead on a dirt road outside Susanville. (ECF No. 25 ¶ 50.) His truck was about two hundred yards from his body and several notes were inside the car, including one that said "The job made me do it.'" (ECF No. 25 ¶ 50.) Plaintiffs are informed and believe that "no less than five correctional officers" from High Desert have committed suicide in the past three years. (ECF No. 25 ¶ 51.)
Plaintiffs' FAC contains five claims. The first claim is raised against Defendants McClellan and Simmerson for violation of Jones' rights under the First Amendment to be free from harassment and retaliation. (ECF No. 25 at 16-18.) Plaintiffs' second claim is also against Defendants McClellan and Simmerson for violation of Plaintiffs' Fourteenth Amendment rights to the "companionship and support" of Jones. (ECF No. 25 at 18-19.) The third claim is against Defendants Cate and McDonald for failure to properly train and supervise correctional officers, including Defendants McClellan and Simmerson. (ECF No. 25 at 19-22.) The fourth claim is a state law claim for wrongful death raised against all Defendants. (ECF No. 25 at 22-24.) Finally, the fifth claim is a state law claim for negligence against Defendants McDonald, McClellan, and Simmerson. (ECF No. 25 at 25.)
Plaintiffs cite both the Fourth and Fourteenth Amendments in their second claim for relief. (ECF No. 25 ¶ 67.) The substantive due process right to the companionship and society of family members arises under the Fourteenth Amendment. See Porter v. Osborn, 546 F.3d 1131, 1136 (9th Cir. 2008) (citing Curnow v. Ridgecrest Police, 952 F.2d 321, 325 (9th Cir. 1991) and Moreland v. Las Vegas Metro. Police Dep't, 159 F.3d 365, 371 (9th Cir. 1998)).
II. Standard of Law
Federal Rule of Civil Procedure 12(c) provides "[a]fter the pleadings are closed- but early enough not to delay trial-a party may move for judgment on the pleadings." The issue presented by a Rule 12(c) motion is the same as that posed in a 12(b) motion-whether the allegations of the complaint, together with all reasonable inferences, state a plausible claim for relief. See Cafasso v. Gen. Dynamics C4 Sys., 637 F.3d 1047, 1054-1055 (9th Cir. 2011). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).
Nevertheless, a court "need not assume the truth of legal conclusions cast in the form of factual allegations." United States ex rel. Chunie v. Ringrose, 788 F.2d 638, 643 n. 2 (9th Cir. 1986). While Rule 8(a) does not require detailed factual allegations, "it demands more than an unadorned, the defendant-unlawfully-harmed-me accusation." Iqbal, 556 U.S. at 678. A pleading is insufficient if it offers mere "labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Twombly, 550 U.S. at 555; see also Iqbal, 556 U.S. at 678 ("Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice."). Moreover, it is inappropriate to assume that the plaintiff "can prove facts which it has not alleged or that the defendants have violated the... laws in ways that have not been alleged." Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526, 103 S.Ct. 897, 74 L.Ed.2d 723 (1983).
Ultimately, a court may not dismiss a complaint in which the plaintiff has alleged "enough facts to state a claim to relief that is plausible on its face." Iqbal, 556 U.S. at 697 (quoting Twombly, 550 U.S. at 570). Only where a plaintiff has failed to "nudge [his or her] claims across the line from conceivable to plausible, " is the complaint properly dismissed. Id. at 680. While the plausibility requirement is not akin to a probability requirement, it demands more than "a sheer possibility that a defendant has acted unlawfully." Id. at 678. This plausibility inquiry is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 679.
If a complaint fails to state a plausible claim, "[c]ourts have discretion to grant leave to amend in conjunction with 12(c) motions, and may dismiss causes of action rather than grant judgment." Carmen v. San Francisco Unified Sch. Dist., 982 F.Supp. 1396, 1401 (N.D. Cal. 1997) aff'd, 237 F.3d 1026 (9th Cir. 2001) (internal quotes omitted); see also Dutciuc v. Meritage Homes of Arizona, Inc., 462 F.Appx. 658, 660 (9th Cir. 2011) (Although leave to amend is often freely given when justice so requires, a district court may deny leave to amend where a plaintiff has repeatedly failed to cure deficiencies by amendments previously allowed."); Longberg v. City of Riverside, 300 F.Supp.2d 942, 945 (C.D. Cal. 2004) ("although Rule 12(c) does not mention leave to amend, courts have discretion both to grant a Rule 12(c) motion with leave to amend and to simply grant dismissal of the action instead of entry of judgment.").
III. Analysis
Defendants contend that they are entitled to judgment on the pleadings on Plaintiffs' first and third claims for relief because the alleged speech activities of Jones were not protected by the First Amendment. Defendants Cate and McDonald also seek judgment on the pleadings on the third claim for relief on the ground that the allegations do not show they violated Jones' First Amendment rights. In addition, all Defendants contend they are entitled to qualified immunity from liability on Plaintiffs' federal claims. Finally, Defendants Cate and McDonald contend they are entitled to judgment on the pleadings on Plaintiffs' state law claims because Jones's suicide was an independent and intervening cause of death. The Court addresses each argument in turn.
A. First Amendment Rights of Public Employees
Defendants seek dismissal of Plaintiffs' first claim for relief on the grounds that none of Jones's speech activities were protected by the First Amendment, either because the speech was part of Jones's official duties as a correctional officer or because the speech did not involve matters of public concern. Plaintiffs contend that allegations within the FAC show that Jones's speech did involve matters of public concern. Plaintiffs also assert that the question of whether Jones's speech activities were part of his official duties is a factual question not susceptible to resolution on this motion for judgment on the pleadings.
Public employees have First Amendment protection "from employment retaliation for their protected speech activities." Karl v. City of Mountlake Terrace, 678 F.3d 1062, 1068 (9th Cir. 2012) (citing Garcetti v. Ceballos, 547 U.S. 410, 417, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006) and Connick v. Myers, 461 U.S. 138, 140, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983)). This right is balanced against "the State's interests as an employer in regulating the speech of its employees, ....'" Karl, 678 F.3d at 1068 (quoting Connick, 461 U.S. at 140). To strike the proper balance, when evaluating a retaliation claim raised by a public employee the court asks a series of questions:
First, we consider whether the plaintiff has engaged in protected speech activities, which requires the plaintiff to show that the plaintiff: (1) spoke on a matter of public concern; and (2) spoke as a private citizen and not within the scope of her official duties as a public employee. If the plaintiff makes these two showings, we ask whether the plaintiff has further shown that she (3) suffered an adverse employment action, for which the plaintiff's protected speech was a substantial or motivating factor. If the plaintiff meets her burden on these first three steps, thereby stating a prima facie claim of First Amendment retaliation, then the burden shifts to the government to escape liability by establishing either that: (4) the state's legitimate administrative interests outweigh the employee's First Amendment rights; or (5) the state would have taken the adverse employment action even absent the protected speech.
Karl, 678 F.3d at 1068 (citations omitted).
The question of whether an employee spoke on a matter of public concern "is a pure question of law that must be determined by the content, form, and context of a given statement, as revealed by the whole record, '" with content "generally the most important" factor. Id. at 1069 (quoting Connick, 461 U.S. at 147-48 & n.7).
"[S]peech that deals with individual personnel disputes and grievances' and that would be of no relevance to the public's evaluation of the performance of governmental agencies' is generally not of public concern.'" Coszalter v. City of Salem, 320 F.3d 968, 973 (9th Cir. 2003) (quoting McKinley v. City of Eloy, 705 F.2d 1110, 1114 (9th Cir. 1983)). By contrast, "[s]peech involves a matter of public concern when it can fairly be considered to relate to any matter of political, social, or other concern to the community.'" Johnson v. Multnomah Cnty., 48 F.3d 420, 422 (9th Cir. 1995) (quoting Connick, 461 U.S. at 146, 103 S.Ct. 1684).
Karl, 678 F.3d at 1069. "Subjects of public concern include unlawful conduct by a government employee' and the misuse of public funds, wastefulness, and inefficiency in managing and operating government entities.'" Anthoine v. North Central Counties Consortium, 605 F.3d 740, 748 (9th Cir. 2010) (internal citation omitted).
Plaintiffs allege that Jones was a corroborating witness to complaints of working conditions and safety violations at High Desert. (ECF No. 25 ¶ 30.) Plaintiffs also allege that Jones complained to his supervisors, including Defendant Simmerson, of "numerous events and actions... that [he] believed violated federal or state law, or were violations or non-compliance with a state or federal rule or regulation" including "(1) strip-searches of inmates in the snow; (2) provocation of fighting among the inmates; (3) failure to permit inmates to shower; (4) failure to exchange inmates' laundry; and (5) failure to prohibit inmates' possession and transmission of contraband." (ECF No. 25 ¶ 32.) Under Karl, these are allegations of speech involving matters of public concern.
The FAC contains no allegations that suggest Jones was harassed for reporting that Defendant Simmerson had forced him to file a false worker's compensation claim. To the contrary, Plaintiffs allege that Jones was harassed and verbally abused to ensure his silence about the false worker's compensation claim, and that Jones did not tell anyone at High Desert about the allegedly false claim until the day before his suicide. ( See ECF No. 25 ¶¶ 25-28, 46.)
The question of whether an employee spoke as a private citizen and not within official job duties is a mixed question of law and fact. See Ellins v. City of Sierra Madre, 710 F.3d 1049, 1058 (9th Cir. 2013). A public employee speaks as a private citizen when the speech at issue is not part of the employee's official duty or tasks he or she is paid to perform. See id. The scope of an employee's job is a question of fact. See id. (quoting Robinson v. York, 566 F.3d 817, 823 (9th Cir. 2009)).
The United States Court of Appeals for the Ninth Circuit has described three factors relevant to determining whether a public employee's speech activities are part of official duty and therefore outside the scope of First Amendment protection. Dahlia v. Rodriguez, 735 F.3d 1060, 1074-75 (9th Cir. 2013). The first factor, particularly relevant in the law enforcement setting, is "whether or not the employee confined his communications to his chain of command." Id. at 1074. While this factor is "not necessarily dispositive, " if a public employee speaks to "individuals or entities outside of his chain of command, it is unlikely that he is speaking pursuant to his duties." Id. (citing Freitag v. Ayers, 468 F.3d 528, 545-46 (9th Cir. 2006). Second, "the subject matter of the communication is... highly relevant." Dahlia, 735 F.3d at 1074. Routine reports about particular incidents or occurrences are generally within a public employee's job duties. Id. at 1075. "By contrast, if a public employee raises within the department broad concerns about corruption or systemic abuse, it is unlikely that such complaints can reasonably be classified as being within the job duties of an average public employee, except when the employee's regular job duties involve investigating such conduct, e.g., when the employee works for Internal Affairs or another such watchdog unit." Id. Third, speech in contravention to direct orders often falls outside the scope of a public employee's duties. Id. "[T]he fact that an employee is threatened or harassed by his superiors for engaging in a particular type of speech provides strong evidence that the act of speech was not, as a practical' matter, within the employee's job duties notwithstanding any suggestions to the contrary in the employee's formal job description." Id. (citing Garcetti v. Ceballos, 547 U.S. 410, 424-25 (9th Cir. 2006)).
Defendants contend the FAC demonstrates that Jones was not speaking as a private citizen when he reported officer misconduct to his superiors at High Desert because it contains an allegation that officers were required to report misconduct as part of their official job duties. The FAC alleges generally that "[o]ne of the job duties of a correctional peace officer employed by the CDCR, as set forth in the CDCR's policies and procedures, especially the Operations Manual, was to disclose information regarding the wrongful and unlawful conduct of correctional peace officers." (ECF No. 25 ¶ 21.) Dahlia teaches that this general allegation is insufficient, without more, to resolve the factual question of whether Jones's alleged speech was part of his official duties and therefore outside the scope of First Amendment protection.
The second and third Dahlia factors weigh in favor of Plaintiffs on this issue. As discussed above, the allegations of the FAC concerning Jones's complaints about working conditions, safety violations and systemic abuse of inmates at High Desert all point to "broad concerns about corruption or systemic abuse." Dahlia, 735 F.3d at 1075. Moreover, the FAC alleges that Jones was threatened and harassed for this speech.
The close question on this motion concerns the first factor: to whom Jones made his complaints. Plaintiffs allege that Jones made his complaints of inmate abuse to his supervisors. (ECF No. 25 ¶ 32.) This allegation suggests that Jones's complaints were made within the chain of command. Plaintiffs also allege that Officer Lares made complaints, with Jones as a "corroborating witness, " to "administration and management" at High Desert. (ECF No. 25 ¶ 30.) Prison administrators at a specific prison are generally considered to be within the "chain of command" at that prison for purposes of a First Amendment analysis. See Freitag, 468 F.3d at 546 (public employee's "internal reports of inmate sexual misconduct and documentation of the prison's failure to respond" not protected by the First Amendment).
Plaintiffs also allege, however, that ultimately the harassment to which Jones was subjected "became so great that the CDCR's whistleblower hotline was contacted." (ECF No. 25 ¶ 40.) The contact was through a letter by Officer Lares, who "demanded protection from the administration at [High Desert] for himself, [Jones], Jesse Barron and Anthony Tirado." (ECF No. 25 ¶ 40.) It appears to the Court that communication with the CDCR whistleblower hotline is likely protected by the First Amendment; in any event, the question is a factual one not susceptible of resolution on this motion for judgment on the pleadings. Cf. Freitag, 468 F.3d at 546 (whether communication with CDCR director was protected by the First Amendment is question of fact).
The FAC alleges that Officer Lares wrote the letter to the CDCR whistleblower hotline, but the allegations give rise to a reasonable inference that Jones was sufficiently involved with the letter for it to encompass his protected speech activities.
At this stage of the proceedings, the Court is unable to conclude that the pleadings establish that Jones's speech activities were all part of his official duties and therefore outside the scope of First Amendment protection. Resolution of that factual question must await a later stage of these proceedings. Therefore, the Court concludes that the foregoing reasons support that Plaintiffs have adequately alleged that Jones engaged in speech activities involving matters of public concern, and that the question of whether all of Jones's speech activities were exclusively within the scope of his official duties is a factual question not susceptible to resolution on this motion. Accordingly, Defendants are not entitled to judgment as a matter of law on this claim.
B. Supervisory Liability
Plaintiffs' third claim for relief against Defendants Cate and McDonald is that these two Defendants failed to train and supervise correctional officers, especially Defendants McClellan and Simmerson: (1) to ensure compliance with Peace Officer Standards and Training requirements for CDCR officers; (2) regarding harassment of and retaliation against officers who complain of working conditions and/or violations of state and federal law; (3) regarding compliance with CDCR policies "regarding harassment, retaliation, conspiracy and falsifying reports"; and (4) that they failed to impose discipline for known past and ongoing violations or to prevent future violations. ( See ECF No. 25 ¶¶ 72-76.) As a result, Defendants Cate and McDonald allegedly ratified and acquiesced in the constitutional violations allegedly suffered by Jones. ( See ECF No. 25 ¶ 77.)
Defendants Cate and McDonald seek judgment as a matter of law on Plaintiffs' third claim for relief. Defendants contend the claim is based solely on a theory of respondeat superior, which is not a permissible basis for liability in this § 1983 action. Specifically, Defendants contend: (1) Plaintiffs are required to, and have not, pleaded facts which show that either Defendant Cate or Defendant McDonald were motivated by retaliatory intent; (2) Plaintiffs have pleaded no facts which show that either Defendant Cate or Defendant McDonald personally participated in the alleged deprivation of Jones' First Amendment rights; (3) Plaintiffs have pleaded no facts which show either Defendant Cate or Defendant McDonald knew about the alleged First Amendment violations and acquiesced in or approved of such violations; and (4) Plaintiffs have failed to plead sufficient facts to support their failure to train theory of liability. Plaintiffs contend (1) they are not required to plead retaliatory intent to support their claim against these supervisor Defendants; and (2) the FAC adequately alleges that Defendants Cate and McDonald were responsible for policies on harassment and retaliation against correctional officers that were the moving forces of the violation of Jones' constitutional rights.
It is well-settled that:
A defendant may be held liable as a supervisor under §1983 "if there exists either (1) his or her personal involvement in the constitutional deprivation, or (2) a sufficient causal connection between the supervisor's wrongful conduct and the constitutional violation." Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989). "[A] plaintiff must show the supervisor breached a duty to plaintiff which was the proximate cause of the injury. The law clearly allows actions against supervisors under section 1983 as long as a sufficient causal connection is present and the plaintiff was deprived under color of law of a federally secured right." Redman [v. County of San Diego], 942 F.2d [1435] at 1447 [(9th Cir. 1991)] (internal quotation marks omitted).
"The requisite causal connection can be established... by setting in motion a series of acts by others, " id. (alteration in original; internal quotation marks omitted), or by "knowingly refus[ing] to terminate a series of acts by others, which [the supervisor] knew or reasonably should have known would cause others to inflict a constitutional injury, " Dubner v. City & Cnty. of San Francisco, 266 F.3d 959, 968 (9th Cir. 2001). "A supervisor can be liable in his individual capacity for his own culpable action or inaction in the training, supervision, or control of his subordinates; for his acquiescence in the constitutional deprivation; or for conduct that showed a reckless or callous indifference to the rights of others." Watkins v. City of Oakland, 145 F.3d 1087, 1093 (9th Cir. 1998) (internal alteration and quotation marks omitted).
Starr v. Baca, 652 F.3d 1202, 1207-08 (9th Cir. 2011). In Ashcroft v. Iqbal, 556 U.S. 662 (2009), the United States Supreme Court held that "constitutional tort claims against supervisory defendants turn on the requirements of the particular claim-and, more specifically, on the state of mind required by the particular claim-not on a generally applicable concept of supervisory liability." OSU Student Alliance v. Ray, 699 F.3d 1053, 1071 (9th Cir. 2012). Thus,
[f]or an official to be liable for another actor's depriving a third party of his constitutional rights, that official must have at least the same level of intent as would be required if the official were directly to deprive the third part of his constitutional rights. See [ Iqbal, 556 U.S. at 677.] With this proviso, a supervisor can be held liable for the constitutional torts of his subordinates if "a sufficient causal connection between the supervisor's wrongful conduct and the constitutional violation" exists.
Lacey v. Maricopa County, 693 F.3d 896, 916 (9th Cir. 2012) (quoting Starr, 652 F.3d at 1207 (internal citation omitted)). "Constitutional tort liability after Iqbal depends primarily on the requisite mental state for the violation alleged." OSU, 699 F.3d at 1071.
In OSU, the Ninth Circuit held that a supervisor's knowledge of and acquiescence in a First Amendment free speech violation was sufficient to impose liability on the supervisor for the constitutional tort. The court gave two reasons for the holding: first, that First Amendment free speech claims do not require specific intention; and second, that United States Supreme Court has "only in limited situations... found constitutional torts to require specific intent." Id. at 1074. The three situations cited by the OSU court are "(1) due process claims for injuries caused by a high-speed chase... (2) Eighth Amendment claims for injuries suffered during the response to a prison disturbance... (3) and invidious discrimination under the Equal Protection Clause and the First Amendment Free Exercise Clause." Id.
The case at bar presents a fourth constitutional tort that includes a specific intent requirement. Success on a retaliation claim requires proof that retaliation for the exercise of protected conduct "was a substantial' or motivating' factor" in imposing adverse employment consequences. See Mt. Health City School District Board of Education v. Doyle, 429 U.S. 274, 287 (1977). Under Iqbal and its Ninth Circuit progeny, Plaintiffs must allege facts which suggest that Defendants Cate and McDonald had the intent necessary to support a retaliation claim when they allegedly failed to train correctional officers and acquiesced in retaliatory events of which they had knowledge. There are no allegations in the FAC which suggest that either Defendant Cate or Defendant McDonald had the requisite animus in allegedly failing to train, investigate, or discipline officers. For this reason, the third claim for relief must be dismissed. It is not clear to the Court whether the deficiencies in this claim could be cured by amendment. Accordingly, the Court will grant Plaintiffs leave to file a second amended complaint.
C. Qualified Immunity
Defendants contend they are entitled to qualified immunity on all of Plaintiffs' federal claims.
"Qualified immunity shields public officials from civil damages for performance of discretionary functions. It is an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial.'" Mueller v. Auker, 576 F.3d 979, 992 (9th Cir. 2009) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985)) (emphasis omitted). Under qualified immunity, an officer is protected from suit when he or she "makes a decision that, even if constitutionally deficient, reasonably misapprehends the law governing the circumstances." Brosseau v. Haugen, 543 U.S. 194, 198, 125 S.Ct. 596, 160 L.Ed.2d 583 (2004). Qualified immunity protects "all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986). The standard leaves "ample room for mistaken judgments." Id. at 343, 106 S.Ct. 1092.
Lacey v. Maricopa County, 649 F.3d 1118, 1130-31 (9th Cir. 2011). The court conducts a two-part inquiry to determine whether Defendants are entitled to qualified immunity:
First, "[t]aken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right?" Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), overruled in part by Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 818, 172 L.Ed.2d 565 (2009). [Footnote omitted.] Second, we must ask "whether the right was clearly established." Id. A right is clearly established if "it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Id. at 202, 121 S.Ct. 2151. If we answer either of the two inquiries in the negative, then the officer's conduct is protected by qualified immunity. We have the discretion to decide "which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand." Pearson, 129 S.Ct. at 818; see also Mueller, 576 F.3d at 993-94.
Id. at 1131. The court looks at the state of the law at the time of the events complained of to determine whether Defendants would have had "fair warning" that their alleged actions were unconstitutional. See Hope v. Pelzer, 536 U.S. 730, 741 (2002).
1. Fourteenth Amendment
Defendants McClellan and Simmerson seek qualified immunity on Plaintiffs' Fourteenth Amendment loss of companionship claim on the ground that their alleged conduct did not violate clearly established federal law. Defendants contend that at the time Jones suffered the alleged harassment there was no clearly established law which would have put reasonable correctional officers on notice that their conduct violated Plaintiffs' Fourteenth Amendment right to companionship.
The substantive due process provisions of the Fourteenth Amendment guarantee a right to familial association and companionship. See Porter, 546 F.3d at 1136-37. A state actor violates this right when he or she causes the loss of association and companionship by acts or omissions which "shock the conscience." Cty. of Sacramento v. Lewis, 523 U.S. 833, 847-851 (1998). "Conscience-shocking actions are those taken with (1) deliberate indifference' or (2) a purpose to harm... unrelated to legitimate law enforcement objectives.' [ Porter, 546 F.3d at 1137.] The lower "deliberate indifference" standard applies to circumstances where actual deliberation is practical.'" A.D. v. California Highway Patrol, 712 F.3d 446, 453 (9th Cir. 2013) (quoting Wilkinson v. Torres, 610 F.3d 546, 554 (9th Cir. 2010)). To meet the "shock the conscience" standard by deliberate indifference, the defendant must "either consciously or through complete indifference disregard[ ] the risk of an unjustified deprivation" of life or liberty. Tatum v. Moody, 768 F.3d 806, 820-21 (9th Cir. 2014) (citing Gantt v. City of Los Angeles, 717 F.3d 702, 707 (9th Cir. 2013)).
Here, the FAC contains the following allegations of misconduct by Defendant Simmerson toward Jones: (1) In 2006, he ordered Jones to file a false worker's compensation claim, (ECF No. 25 ¶ 23); (2) during 2008 he and others "summarily dismissed" Jones' complaints of officer misconduct, (ECF No. 25 ¶¶ 27, 32); (3) he failed to intervene when other correctional officers told Jones he was "fucking up" and was going to get fired, (ECF No. 25 ¶ 34); and (4) in mid-2009 he told Jones to stay away from Lares or he would "go down as collateral damage" and warned Jones that they could "burn people's fences, " (ECF No. 25 ¶ 35). Liberally construed, the FAC also alleges that Defendant Simmerson was one of Jones' supervisors who failed to act on Jones' complaints of verbal harassment. ( See ECF No. 25 ¶¶ 23, 27.)
The FAC contains the following allegations of misconduct by Defendant McClellan toward Jones: (1) he "constantly" accused Jones of tampering with inmates' mail, accusations which were deemed to be untrue, (ECF No. 25 ¶ 33); (2) he subjected Jones to "an onslaught of harassment, including threats of discipline through letters of instruction, forced job changes and even termination, " (ECF No. 25 ¶ 33); (3) he failed to intervene when other correctional officers told Jones he was "fucking up" and was going to get fired, (ECF No. 25 ¶ 34); and (4) he warned Jones to leave Z-unit because management was "going to take down Officer Lares" and if Jones did not leave he would "go down with Officer Lares, " (ECF No. 25 ¶ 36).
Plaintiffs have not cited any case which suggests that the type of workplace harassment to which Defendants McClellan and Simmerson allegedly subjected Jones would shock the conscience in violation of the substantive due process clause of the Fourteenth Amendment, nor has the Court found any case so holding. For this reason, the Court finds that the law in this area was not clearly established at the time of the events complained of and, therefore, that Defendants McClellan and Simmerson are entitled to qualified immunity on Plaintiffs' Fourteenth Amendment claim.
2. First Amendment Retaliation
Defendants McClellan and Simmerson also contend they are entitled to qualified immunity on Plaintiffs' successor-in-interest retaliation claim. This contention is without merit. For the reasons set forth supra, Plaintiffs have stated a cognizable claim that Defendants McClellan and Simmerson violated Jones' constitutional rights by retaliating against him. The relevant principles of law were clearly established at all times relevant to this action. Defendants McClellan and Simmerson are not entitled to qualified immunity on this claim.
3. Supervisory Liability
Defendants Cate and McDonald contend they are entitled to qualified immunity on the third claim for relief because Plaintiffs have failed to allege facts sufficient to state a claim for relief against them. For the reasons set forth supra, this claim will be dismissed with leave to amend. The Court will not reach the qualified immunity defense at this time.
D. State Law Claims
Defendants Cate and McDonald seek judgment on the pleadings on Plaintiffs' state law claims for wrongful death and negligence on the ground that Jones's suicide was an independent intervening cause of Jones's death. Plaintiffs contend they "have alleged facts showing that the negligence of [D]efendants Cate and McDonald in failing to train, supervise and prevent unlawful retaliation, harassment and threats were a significant stressor in Decedent Jones'[s] life and such stressor caused Decedent to develop an uncontrollable impulse to commit suicide." (Pls. Opp'n., ECF No. 48 at 24.)
The page number is that stamped by the Court's electronic case filing (ECF) system at the time of filing.
Defendants contend, correctly, that both state law claims are premised on negligence as to these two Defendants. ( See ECF No. 25 ¶¶ 89, 94.)
Under California law, "[t]he elements of negligence are: (1) defendant's obligation to conform to a certain standard of conduct for the protection of others against unreasonable risks (duty); (2) failure to conform to that standard (breach of the duty); (3) a reasonably close connection between the defendant's conduct and resulting injuries (proximate cause); and (4) actual loss (damages)." McGarry v. Sax, 158 Cal.App.4th 983, 994, 70 Cal.Rptr.3d 519 (2008) (internal quotations omitted).
Corales v. Bennett, 567 F.3d 554, 572 (9th Cir. 2009). The parties agree California law controls as to whether suicide is an independent intervening cause that precludes negligence liability. Under California law, suicide is an independent intervening cause of injury where the negligent wrong only causes a mental condition in which the injured person is able to realize the nature of the act of suicide and has the power to control it if he so desires, the act then becomes an independent intervening force and the wrongdoer cannot be held liable for the death. On the other hand, if the negligent wrong causes mental illness which results in an uncontrollable impulse to commit suicide, then the wrongdoer may be held liable for the death. Tate v. Canonica, 180 Cal.App.2d 898, 915 (Cal.App.1.Dist. 1960).
Even viewed in the light most favorable to Plaintiffs, the allegations of the FAC are insufficient to support a finding that Jones had an "uncontrollable impulse to commit suicide at the time of his death." Id. Plaintiffs allege that at some point, apparently in 2009, Jones sought treatment for anxiety and depression caused by the toll that the "persistent verbal abuse and harassment" took on him, and that he was prescribed anti-anxiety medication and anti-depressants. (ECF No. 25 ¶¶ 35-36, 39.) Jones continued to work at High Desert until July 2011. A few days before his suicide he called High Desert to quit. (ECF No. 25 ¶ 45.) The sergeant with whom he spoke told him "to take a short leave to consider his decision to quit." (ECF No. 25 ¶ 45.) Jones told his wife about the call and he was "still extremely distraught and filled with despair." (ECF No. 25 ¶ 45.) The next day Jones received a call from another sergeant. (ECF No. 25 ¶ 46.) Jones spoke with him for about an hour and told him about the alleged directive from Defendant Simmerson to falsify the worker's compensation claim and the harassment and abuse that had followed. (ECF No. 25 ¶ 46.) The sergeant told Jones he would provide that information to management at High Desert. (ECF No. 25 ¶ 46.) Jones told his wife he was going to quit because he didn't want to return to work "and be labeled a rat'." (ECF No. 25 ¶ 46.) The next morning, Jones told his wife he was going to High Desert to talk with Defendants McDonald and Simmerson. (ECF No. 25 ¶ 47.) He hugged and kissed his wife and they said goodbye, and his wife had no indication that would be the last time she would see him. (ECF No. 25 ¶ 47.) Jones did not meet with Defendants McDonald or Simmerson that day. (ECF No. 25 ¶ 48.) His body was discovered the next day, approximately two hundred yards from his truck on a dirt road outside Susanville, California. (ECF No. 25 ¶ 50.) Several short notes were discovered inside the truck. (ECF No. 25 ¶ 50.)
None of the allegations in the FAC state or support an inference Jones was acting under an uncontrollable impulse when he committed suicide. See Tate, 180 Cal.App.2d at 918. Moreover, the allegations of events leading up to Jones' suicide set forth supra suggest that Jones "had the opportunity to appreciate the nature of his actions." Corales, 567 F.3d at 573. In particular, Jones had taken steps to quit his job at High Desert and had attributed the decision to the years of alleged abuse and harassment, and he wrote several notes to family members before committing suicide. See Corales, 567 F.3d at 573 (record suggested decedent had opportunity to "appreciate the nature of his actions" where he attended classes after the alleged triggering event, spoke with his mother and another person, and wrote a detailed suicide note). For this reason, Defendants Cate and McDonald are entitled to judgment as a matter of law on Plaintiffs' state law claims.
IV. Conclusion
For the foregoing reasons, Defendants' Motion for Judgment on the Pleadings (ECF No. 47) is GRANTED IN PART and DENIED IN PART. It is hereby ORDERED AND ADJUDGED that
1. Defendants' motion is DENIED as to Plaintiffs' first amendment claims against Defendants Simmerson and McClellan;
2. Defendants' motion for qualified immunity as Plaintiffs' fourteenth amendment claim for loss of companionship is GRANTED;
3. Defendants' motion is GRANTED as to Plaintiffs' third claim for relief against Defendants Cate and McDonald with leave to amend;
4. Defendants' motion is GRANTED as to Plaintiffs' state law claims against Defendants Cate and McDonald; and
5. Plaintiffs are granted twenty days from the date of this order in which to file and serve a second amended complaint.
IT IS SO ORDERED.