Opinion
CIV. NO. 2:15-751 WBS KJN
11-15-2016
JUAN ESPINOZA, Plaintiff, v. CITY OF TRACY, R. LEON CHURCHILL, and DOES 1 through 40 inclusive, Defendants.
MEMORANDUM AND ORDER RE: MOTION TO DISMISS
Plaintiff Juan Espinoza filed this action against the City of Tracy ("the City"), City Chief of Police Gary Hampton, and City Manager R. Leon Churchill, alleging unconstitutional discharge and retaliation under 42 U.S.C. § 1983. (Compl. (Docket No. 1).) Plaintiff has dismissed Hampton from this action. (Docket No. 24.) The City and Churchill (collectively "defendants") are the only remaining defendants. Defendants now move to dismiss plaintiff's Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). (Defs.' Mot. (Docket No. 22).)
I. Factual and Procedural History
Plaintiff worked for the City's police department from 1995 to July 29, 2013. (Compl. ¶ 1.) In 2009, the City initiated two investigations against plaintiff--one for alleged discrimination, and another for alleged failure to report an in-custody death to the City's Chief of Police. (Id. ¶¶ 18, 20.) Plaintiff "complained formally and informally about the investigation[s]," alleging that the City: (1) "brought false accusations" against him; (2) "refused to surrender investigation, notes, tapes, and other requested materials so [that he] could defend himself"; (3) "destroyed evidence"; (4) "failed to promote [him] to acting Chief" during the investigations despite his becoming the "most senior of all sworn command officers" at that time; and (5) kept his investigations open for more than one year despite "clear [statutory] mandates" that they "be officially closed" after one year. (Id. ¶¶ 18-19, 27.) Plaintiff alleges that the City "failed to prove any misconduct" on his part from the investigations. (Id. ¶ 27.)
In March 2011, Plaintiff sued the City, Churchill, and other City executives in the California Superior Court, alleging that they violated various provisions of the California Public Safety Officers Procedural Bill of Rights Act ("PBRA") by investigating him, keeping his investigations open for more than one year, and subjecting him to adverse employment action during that time. (See id. ¶¶ 2-3; Defs.' Request for Judicial Notice ("RJN") Ex. 1, State Ct. Compl. (Docket No. 23).)
Churchill was allegedly "one of the primary policy makers for the City" during the time plaintiff was being investigated and responsible for the decision to place plaintiff on leave. (Compl. ¶ 5, 21, 37.) Plaintiff sues Churchill in his "individual and official capacities." (Id. ¶ 5.)
The court takes judicial notice of Exhibits 1 through 9 attached to defendants' Request for Judicial Notice, as such documents are on file with the California Superior Court. See U.S. ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992) (federal courts "may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue").
While the state litigation was ongoing, plaintiff became aware "that a conflict of interest likely existed" as to the City's counsel--Liebert Cassidy Whitmore ("Liebert")--because Liebert was representing the City in the state action while separately engaging in "ex parte communications with [him] about" an unrelated matter that he was working for the City on. (Compl. ¶ 34; RJN Ex. 3, Order Denying Pl.'s Mot. to Disqualify Counsel.) Plaintiff filed a motion to disqualify Liebert from the state case on April 3, 2013. (Compl. ¶ 35.) The day after he filed the motion, the City placed him on indefinite administrative leave. (Id. ¶¶ 36, 39.)
After remaining on leave for nearly four months, plaintiff resigned from the Tracy Police Department. (Id. ¶ 54.) Plaintiff dismissed his state action without prejudice on September 3, 2014. (RJN Ex. 6, Request for Dismissal at 1.)
On April 6, 2015, plaintiff filed the present action. (Compl.) In contrast to his state action, plaintiff's federal action does not raise any PBRA claims. Instead, it brings a 42 U.S.C. § 1983 claim, alleging that the City and Churchill violated plaintiff's "First, Fourth, and/or Fourteenth Amendment[]" rights by "discriminati[ng]" against him, "retaliati[ng]" against him, denying him "due process," and denying him "Equal Protection of the Law" during his investigations and the state litigation. (Id. ¶¶ 49-50.) Plaintiff does not allege that he is a member of any protected class, but claims that he was a victim of "nepotism and favoritism permeating the City . . . while Churchill was City Manager." (Id. ¶ 29.) Defendants now move to dismiss plaintiff's Complaint under Rule 12(b)(6). (Defs.' Mot.)
II. Legal Standard
On a motion to dismiss for failure to state a claim under Rule 12(b)(6), the court must accept the allegations in the pleadings as true and draw all reasonable inferences in favor of the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by Davis v. Scherer, 468 U.S. 183 (1984); Cruz v. Beto, 405 U.S. 319, 322 (1972). To survive a motion to dismiss, a plaintiff must plead "only enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
"While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions . . . ." Twombly, 550 U.S. at 555 (citation omitted). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice," and "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
The "plausibility" standard, "asks for more than a sheer possibility that a defendant has acted unlawfully," and where a plaintiff pleads facts that are "merely consistent with a defendant's liability," the facts "stop[] short of the line between possibility and plausibility." Id. (quoting Twombly, 550 U.S. at 557). "[D]etermining whether a complaint states a plausible claim is context-specific, requiring the reviewing court to draw on its experience and common sense." Id. at 663-64 (citing Twombly, 550 U.S. at 556).
III. Discussion
Section 1983 "provides a cause of action against any person who, under color of state law, deprives an individual of federal constitutional rights." Suit v. City of Folsom, No. 2:16-00807 WBS AC, 2016 WL 4192437, at *2 (E.D. Cal. Aug. 8, 2016).
With respect to plaintiff's Fourth Amendment claim, the Complaint makes no mention of any search, seizure, or invasion of privacy that took place at any time during plaintiff's investigations or at any other time. Plaintiff alleges that the City brought false accusations against him and kept his investigations open for longer than it should have, but such allegations do not in themselves suggest that there was a search, seizure, or invasion of plaintiff's privacy. Accordingly, plaintiff has not stated a Fourth Amendment claim.
Plaintiff's First Amendment claim is also deficient. To state a First Amendment claim in the public employment context, a public employee must allege that he "spoke on a matter of public concern." Karl v. City of Mountlake Terrace, 678 F.3d 1062, 1068 (9th Cir. 2012). "To address a matter of public concern, the content of the . . . speech must involve 'issues about which information is needed or appropriate to enable the members of society to make informed decisions about the operation of their government.'" Desrochers v. City of San Bernardino, 572 F.3d 703, 710 (9th Cir. 2009) (internal citation omitted). "[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.'" Id. (internal citation omitted).
The "public concern" requirement applies in both employment speech cases and in cases where the employee seeks First Amendment protection for bringing litigation against his employer. Rendish v. City of Tacoma, 123 F.3d 1216, 1220 (9th Cir. 1997) ("[A] public employee's litigation must involve a matter of public concern in order to be protected by either the Petition Clause or the Speech Clause of the First Amendment.").
Plaintiff alleges that defendants violated his First Amendment rights by denying him a promotion and placing him on administrative leave after he brought state court litigation against the City for its handling of his investigations. (Compl. ¶ 25-26, 40, 47.) The subject matter of plaintiff's state court litigation, however, does not concern any "issues about which information is needed or appropriate to enable the members of [the public] to make informed decisions about the operation of their government." Instead, it concerns only plaintiff's personal disagreement with how the City and Churchill handled his investigations and treated him while the investigations were ongoing. Because these issues amount only to "individual personnel disputes and grievances," they do not constitute protected speech under the First Amendment. Plaintiff may well have valid retaliation claims under other provisions of state or federal law, but he has not raised those provisions here.
Plaintiff also alleges that defendants violated his First Amendment rights by placing him on leave after he brought a motion to disqualify Liebert from the state court litigation. (Id. ¶ 47.) He argues that the motion was protected speech because it "address[ed] the integrity of the legal profession, a matter of public concern." (Pl.'s Opp'n at 9 (Docket No. 26).) It is evident from plaintiff's Complaint, however, that the motion was brought as part of a litigation strategy to hamper the City's defense in the state court case. The Complaint mentions nothing about the public's interest in connection with the motion. That the motion was brought under the California Rules of Professional Conduct, which makes a reference to "protect[ing] the public," see CA ST RPC Rule 1-100(A), is unavailing. See Desrochers, 572 F.3d at 711 ("[T]he fact that speech contains passing references to public safety[,] incidental to the message conveyed weighs against a finding of public concern." (internal citation omitted)). Accordingly, plaintiff's 'motion' allegations fail to amount to a First Amendment claim as well.
Plaintiff's Fourteenth Amendment claim is vague and difficult to decipher. It appears to be based on the same adverse employment actions that plaintiff bases his First Amendment claim on: denial of a promotion during his investigations, and placement on administrative leave after he brought state court litigation against defendants. Plaintiff alleges two violations of the Fourteenth Amendment: an equal protection violation and a substantive due process violation. (Compl. ¶¶ 49, 50.)
"To state a claim under 42 U.S.C. § 1983 for a violation of the Equal Protection Clause of the Fourteenth Amendment a plaintiff must show that the defendants acted with an intent or purpose to discriminate against the plaintiff based upon membership in a protected class." Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). Plaintiff has not alleged membership in any protected class. His Complaint merely states that he "was subjected to selective enforcement of the disciplinary process" due to "nepotism and favoritism permeating the City." (Compl. ¶¶ 27, 29.) He cites no case, and the court is not aware of any case, holding that "nepotism and favoritism" give rise to an equal protection claim. See Lanier v. Fresno Unified Sch. Dist., No. 1:09-CV-1779 AWI SKO, 2014 WL 346561, at *6 (E.D. Cal. Jan. 30, 2014) ("42 U.S.C. § 2000d . . . protects only against those forms of bias that are prohibited by the Fourteenth Amendment. Thus there is no protection under section 2000d for bias arising from nepotism, personal preference, familiarity or friendship."). Accordingly, plaintiff has not stated an equal protection claim.
"To establish a substantive due process claim, a plaintiff must, as a threshold matter, show a government deprivation of life, liberty, or property." Nunez v. City of Los Angeles, 147 F.3d 867, 871 (9th Cir. 1998). "[T]he absence of any claim by the plaintiff that an interest in liberty or property has been impaired is a fatal defect in [his] substantive due process argument." Id. (quoting Jeffries v. Turkey Run Consol. Sch. Dist., 492 F.2d 1, 4 (7th Cir. 1974)). The Ninth Circuit has held that "expectancy in a promotion [is not] a property interest" unless it is guaranteed "from an independent source such as state law." Id. at 872. "Until someone actually receives a promotion, or at least a binding assurance of a forthcoming promotion, he cannot claim a property interest in the promotion." Id. at 873.
Plaintiff alleges that the City "failed to promote [him] to acting Chief" during his investigations despite the fact that he had become the "most senior of all sworn command officers" during that time. (Compl. ¶¶ 19, 30.) This failure, according to plaintiff, was "in violation of past practice." (Id. ¶ 19.) "Past practice," however, is not sufficient to establish a property interest under Ninth Circuit precedent. See Nunez, 147 F.3d at 873. Plaintiff cites no statute, regulation, or contractual term entitling him to a promotion once he became the most senior officer. The court is not aware of any such statute, regulation, or term. See id. at 872 ("In California, the terms and conditions of public employment are generally fixed by the statute, rules or regulations creating it, not by contract (even if one is involved). No such law creates a property interest in a promotion." (internal citations and quotation marks omitted)). Accordingly, plaintiff has not stated a claim that the City violated his Fourteenth Amendment rights by failing to promote him during his investigations.
Plaintiff may have a property interest in his job as a police officer, however. See id. at 871 ("[O]ne's actual job as a tenured civil servant is property."); see also Dorr v. Butte Cty., 795 F.2d 875, 876 (9th Cir. 1986) ("Under California law, a 'permanent employee,' dismissible only for cause, has 'a property interest in his continued employment which is protected by due process.'" (quoting Skelly v. State Pers. Bd., 15 Cal. 3d 194, 207-08 (1975))). He alleges that the City deprived him of that interest when it placed him on indefinite administrative leave, thus constructively terminating him. (Compl. ¶ 40.)
Even assuming that defendants deprived plaintiff of a property interest by constructively terminating him, plaintiff has not alleged that the deprivation occurred without due process. The "essential principle of due process is that a deprivation of life, liberty, or property 'be preceded by notice and opportunity for hearing appropriate to the nature of the case.'" Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985) (quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950)). "[A] public employee with a property interest in his continued employment must be provided with 'oral or written notice of the charges against him, an explanation of the employer's evidence, and an opportunity to present his side of the story." Walls v. Cent. Contra Costa Transit Auth., 653 F.3d 963, 968 (9th Cir. 2011) (quoting Cleveland Bd. Of Educ., 470 U.S. at 546). The hearing for termination of public employment "need not be elaborate." Id. So long as the "individual [has] the opportunity to be heard before he is deprived" of his job, the employer has satisfied the "root" requirement of due process. Id.
Plaintiff does not allege that he was denied notice or opportunity to be heard before he resigned from the Tracy Police Department. To the contrary, his Complaint alleges that the City notified him that he was being placed on leave because he disclosed, in his motion to disqualify, "confidential material pertaining to two, other peace officers." (Compl. ¶ 37.) The Complaint also alleges that while "[o]n indefinite suspension, Plaintiff proceeded through the [City's] administrative process," indicating that he availed himself of the City's grievance procedure before resigning. (Compl. ¶ 39.) That the City placed plaintiff on leave before providing him a hearing is not itself a violation of due process. See Abel v. City of Algona, 348 F. App'x 313, 315 (9th Cir. 2009) (declining to find "due process right to a hearing before [police officers] are put on leave"); Dias v. Elique, 436 F.3d 1125, 1132 (9th Cir. 2006) (holding the same). Accordingly, plaintiff has not stated a claim that the City violated his Fourteenth Amendment rights by placing him on administrative leave.
Plaintiff states that the reason given for his suspension was "pre-textual." (Compl. ¶ 58.) That the reason may have been pre-textual, however, does not change the fact that the City gave him notice. And, as explained supra, the other reasons plaintiff cites for the City's hostility towards him--favoritism, nepotism, and retaliation for his suing the City over personal concerns--do not trigger constitutional protections. They may trigger protections under other provisions of state or federal law, but plaintiff has not raised such provisions here. --------
For the reasons discussed above, the court will dismiss plaintiff's Complaint without prejudice.
IT IS THEREFORE ORDERED that defendants' Motion to dismiss plaintiff's Complaint be, and the same hereby is, GRANTED. Plaintiff's Complaint is DISMISSED WITHOUT PREJUDICE.
Plaintiff has twenty days from the date this Order is signed to file an amended complaint, if he can do so consistent with this Order. Dated: November 15, 2016
/s/_________
WILLIAM B. SHUBB
UNITED STATES DISTRICT JUDGE