Summary
finding that "the vaccination requirement imposed by former O.A.R. 333-019-1030 does not violate the Constitution"
Summary of this case from Becker v. Hood River Cnty. Sch. Dist.Opinion
3:22-cv-01417-YY
08-11-2023
DANIEL PENNA, Plaintiff, v. NORTH CLACKAMAS SCHOOL DISTRICT, and the OREGON DEPARTMENT OF EDUCATION, ODE agents JOHN DOES 1-3, NCSD agents JOHN DOES 1-3, RYAN RICHARDSON, CHELSI RENO, COLT GILL, former GOVERNOR KATE BROWN in her personal and official capacity, Defendants.
FINDINGS AND RECOMMENDATIONS
YOULEE YIM YOU UNITED STATES MAGISTRATE JUDGE
FINDINGS
Plaintiff Daniel Penna brings this lawsuit alleging claims arising from his termination from employment as head custodian at Rex Putnam High School due to his noncompliance with the mandatory COVID-19 vaccination requirement imposed on all school staff pursuant to former O.A.R. 333-019-1030. Defendants are North Clackamas School District (“NCSD”), Chelsi Reno, Associate Director of Human Services, Ryan Richardson, Principal of Rex Putnam High School, and NCSD John Does 1-3 (collectively “NCSD Defendants”), the Oregon Department of Education (“ODE”), Colt Gill, former Director of the Oregon Department of Education, former Governor Kate Brown, and ODE John Does 1-3 (collectively “ODE Defendants”).
O.A.R. 333-019-1030 was repealed after the end of the pandemic.
The NCSD Defendants and ODE Defendants have each filed motions to dismiss. See ECF 18, 24. Because plaintiff has failed to allege valid federal claims against any of the defendants, the federal claims should be dismissed with prejudice. In the absence of a viable federal claim, and given the early stage of the case, supplemental jurisdiction over plaintiff's state law claims should be declined and those claims should be dismissed without prejudice.
I. Motion to Dismiss Standards
To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a complaint must contain sufficient non-conclusory factual allegations to state a claim for relief that is “plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). This requires the plaintiff to plead facts that “allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. While a complaint need not contain “detailed factual allegations,” a pleading that offers only “labels and conclusions” or a “formulaic recitation of the elements of a cause of action” is not sufficient. Id. (quoting Twombly, 550 U.S. at 555). In the absence of a cognizable legal theory or sufficient factual allegations to support a cognizable legal theory, the claim should be dismissed. Taylor v. Yee, 780 F.3d 928, 935 (9th Cir. 2015). The court must accept all allegations of material facts as true and construe them in the light most favorable to the plaintiff. Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009).
II. Title VII
Plaintiff asserts that NCSD violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000, et seq. (“Title VII”), by refusing to grant his accommodations request for either total exemption from COVID-19 masking, testing, and quarantining requirements, or paid administrative leave, and ultimately terminating plaintiff because of his religious objections to the COVID-19 vaccine mandate. Am. Compl. ¶¶ 38, 51-52, ECF 16. Plaintiff further asserts that NCSD and ODE failed to conduct an individualized assessment of his ability to complete the essential functions of his job with the accommodations he requested, and instead provided plaintiff with the same list of accommodations that was distributed to multiple employees across the state. Id. ¶¶ 16, 51. Plaintiff argues that ODE is liable for NCSD's actions under several theories of liability: NCSD operated as ODE's agent by enforcing ODE's vaccine mandate, ODE constituted a joint employer with NCSD because ODE asserted a right to terminate plaintiff for failing to comply with the vaccine mandate, and ODE interfered with plaintiff's employment relationship. Id. ¶¶ 16, 49-50. ODE contends that plaintiff's claim cannot be sustained because ODE was not plaintiff's employer under Title VII. ODE Mot. Dismiss 5-6, ECF 18. NCSD argues that plaintiff has failed to state a religious discrimination claim because NCSD offered plaintiff a reasonable alternative to vaccination-namely, wearing a mask, testing, and distancing-which satisfied NCSD's obligations to plaintiff under Title VII. NCSD Mot. Dismiss 3, ECF 24.
Plaintiff's Title VII claim fails because the vaccination requirement imposed by former O.A.R. 333-019-1030 does not violate the Constitution. See Johnson v. Brown, 614 F.Supp.3d 776, 782 (D. Or. 2022) (finding that former O.A.R. 333-019-1030 satisfied the rational basis test); Williams v. Brown, 567 F.Supp.3d 1213, 1227 (D. Or. 2021) (same). A policy that is constitutional cannot be the basis for a Title VII claim. See Ass'n of Mexican-Am. Educators v. State of California, 231 F.3d 572, 579 (9th Cir. 2000) (“As a threshold matter, we note that, because we ultimately hold that the CBEST was validated properly . . . we could decline to decide whether Titles VI and VII apply.”).
Plaintiff argues that “an individualized examination of each employee's job location, role and risk factors” was constitutionally required. Am. Compl. ¶ 109, ECF 16. But while an individualized assessment has been mandated in the context of the Americans with Disabilities Act, plaintiff has not provided, and the court is not aware, of any similar requirement that would support a Title VII claim. See Delay v. Dollar Energy Fund, No. 2:21-CV-1037, 2023 WL 3173985, at *8 (W.D. Pa. May 1, 2023) (dismissing plaintiff's Title VII claim because the requirement to conduct individualized assessments was limited to the context of the Americans with Disabilities Act). Furthermore, to the extent plaintiff argues that he was subject to discriminatory treatment because he was required to wear a mask, distance himself from others during lunchtime, and test for COVID-19, these policies do not support a Title VII violation. See Breshears v. Oregon Dep't of Transportation, No. 2:22-CV-01015-SB, 2023 WL 136550, at *3 (D. Or. Jan. 9, 2023) (rejecting mask requirement as a basis for a Title VII claim); Leake v. Raytheon Techs. Corp., No. CV-22-00436-TUC-RM, 2023 WL 2242857, at *5 (D. Ariz. Feb. 27, 2023) (same for safety conditions for vaccination-exempt employees); Schmidt v. City of Pasadena, No. LACV2108769JAKJCX, 2023 WL 4291440, at *8 (C.D. Cal. Mar. 8, 2023) (same for testing requirements). In sum, plaintiff fails to allege a Title VII violation against either NCSD or ODE. Thus, the court need not reach the issue of whether ODE was plaintiff's employer.
See Albertson's, Inc. v. Kirkingburg, 527 U.S. 555, 566 (1999) (affirming that the Americans with Disabilities Act requires employers to determine the extent and impact of a disability on the performance of job functions).
III. 42 U.S.C. § 1983 and § 1985
Plaintiff brings claims pursuant to 42 U.S.C. § 1983 and § 1985, alleging that all defendants committed various constitutional violations under the contracts clause of Article I of the U.S. Constitution, the First, Fourth, Fifth, Eighth, Ninth, Tenth, and Fourteenth amendments, and unspecified federal laws relating to the practice of medicine without a license and the failure to obtain informed consent for individuals undergoing experimental medical procedures. The ODE Defendants contend they are immune from suit under § 1983 and § 1985 under the doctrine of sovereign immunity. ODE Mot. Dismiss 10, ECF 18. NCSD argues that plaintiff has failed to allege a violation of constitutional rights or a conspiracy to violate such rights. NCSD Mot. Dismiss 8-10, ECF 24. Individual NCSD defendants Chelsi Reno and Ryan Richardson assert they are protected from liability for civil damages by the doctrine of qualified immunity. NCSD Mot. Dismiss 11, ECF 24. At the hearing on the motions, counsel for individual ODE defendants Colt Gill and Kate Brown indicated that they also joined in the qualified immunity argument.
A. Sovereign Immunity-ODE Defendants
“Generally, States are immune from suit under the terms of the Eleventh Amendment and sovereign immunity.” Whole Women's Health v. Jackson, 142 S.Ct. 522, 532 (2021). Sovereign immunity extends to state agencies and “arms of the state,” Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 429-30 (1997), and state officials in their official capacities, Holley v. California Dep't Of Corr., 599 F.3d 1108, 1111 (9th Cir. 2010).
“Congress did not abrogate state sovereign immunity when it enacted §§ 1983 and 1985.” Rote v. Comm. on Jud. Conduct & Disability of Jud. Conf. of United States, 577 F.Supp.3d 1106, 1125 (D. Or. 2021) (citing Milstein v. Cooley, 257 F.3d 1004, 1007 (9th Cir. 2001)); see also Quern v. Jordan, 440 U.S. 332, 345 (1979) (“[Section] 1983 does not explicitly and by clear language indicate on its face an intent to sweep away the immunity of the States.”). And “the State of Oregon has not consented to suit in federal court by removal or express waiver.” Rote, 577 F.Supp.3d at 1125. Because of sovereign immunity, plaintiff's § 1983 and § 1985 claims against the ODE Defendants must be dismissed. Plaintiff's arguments related to Ex Parte Young, 209 U.S. 123 (1908), textualism, procedural due process, and the takings clause of the Fifth Amendment in no way modify the import of Supreme Court and Ninth Circuit cases above, which are controlling. See Resp. 4-9, ECF 25.
B. ODE-Not a “Person”
Additionally, ODE, which is a state agency, is an arm of the state and not a “person” for purposes of a § 1983 claim. Ranton-Ried v. Alcazar, No. 07-CV-0383-PK, 2007 WL 2669714, at *2 (D. Or. Sept. 7, 2007) (finding ODE is a state agency and cannot be sued under § 1983); see also Will v. Michigan Dep't of State Police, 491 U.S. 58, 64 (1989) (“A State is not a person within the meaning of § 1983.”); Maldonado v. Harris, 370 F.3d 945, 951 (9th Cir. 2004) (“State agencies . . . are not ‘persons' within the meaning of § 1983, and are therefore not amenable to suit under that statute.”). Thus, plaintiff's § 1983 and § 1985 claims cannot be sustained against ODE for this reason as well.
C. Qualified Immunity-All Defendants Sued in Individual Capacity
To the extent plaintiff sues any of the defendants in an individual capacity, qualified immunity bars his claims. “In § 1983 actions, the doctrine of qualified immunity protects city officials from personal liability in their individual capacities for their official conduct so long as that conduct is objectively reasonable and does not violate clearly-established federal rights.” Cmty. House, Inc. v. City of Boise, Idaho, 623 F.3d 945, 964 (9th Cir. 2010) (emphasis in original). The Supreme Court as “mandated a two-step sequence for resolving government officials' qualified immunity claims.” Pearson v. Callahan, 555 U.S. 223, 232 (2009) (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)). “First, a court must decide whether the facts that a plaintiff has alleged (see Fed. Rules Civ. Proc. 12(b)(6), (c)) or shown (see Rules 50, 56) make out a violation of a constitutional right.” Id. “Second, if the plaintiff has satisfied this first step, the court must decide whether the right at issue was ‘clearly established' at the time of defendant's alleged misconduct.” Id.
Courts are “permitted to exercise their sound discretion in deciding 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.” Id. at 236. In other words, if the court finds either that plaintiff's constitutional rights were not violated or that there was no clearly established right bearing on defendant's alleged conduct, qualified immunity bars the plaintiff's claim.
While a plaintiff need not identify “‘a case directly on point . . . existing precedent must have placed the statutory or constitutional question beyond debate,' such that ‘every' reasonable official' . . . would have understood that he was violating a clearly established right.” Morales v. Fry, 873 F.3d 817, 822 (9th Cir. 2017) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)) (emphasis in original). Furthermore, the right must be defined with sufficient granularity-the “violative nature of [the] particular conduct” at issue must be clearly established. Mullenix v. Luna, 577 U.S. 7, 12 (2015) (emphasis in original).
Plaintiff has not shown that the individual defendants violated a clearly established right. Plaintiff identifies no precedent where a court found that a government official was liable for a vaccination mandate or any COVID-19 mitigation measures. In fact, courts have consistently held the opposite. See, e.g., Abiding Place Ministries v. Newsom, No. 321CV00518RBMDDL, 2023 WL 1999488, at *8 (S.D. Cal. Feb. 14, 2023) (finding qualified immunity barred constitutional violation claims against government officials for COVID-19 mitigation policies); Does 1-11 v. Bd. of Regents of The Univ. of Colorado, No. 21-CV-02637-RM-KMT, 2022 WL 4547563, at *5 (D. Colo. Sept. 29, 2022) (same); Northland Baptist Church of St. Paul, Minnesota v. Walz, 530 F.Supp.3d 790, 807 (D. Minn. 2021), aff'd sub nom. Glow In One Mini Golf, LLC v. Walz, 37 F.4th 1365 (8th Cir. 2022), cert. denied sub nom. Glow In One Mini Golf, L.L.C. v. Walz, 143 S.Ct. 574 (2023) (same). In the absence of precedent indicating that a vaccine mandate or related countermeasures such as masking and testing violate the federal constitution, plaintiff has no basis to assert that defendants should have known they were violating a clearly established constitutional right.
Plaintiff attempts to distinguish Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905), in which the Supreme Court upheld the constitutionality of a Massachusetts law requiring vaccination against smallpox. Plaintiff argues that the risks and benefits of the smallpox vaccination were more well-known, smallpox was deadlier than COVID-19, the mandate was limited to one city, and the punishment for failure to comply was a fine, rather than termination of employment. Am. Compl. ¶¶ 32-34, ECF 16. Plaintiff has not shown how these differences would have clearly established that the holding in Jacobson was inapposite, such that the individual defendants here should have believed their actions were unlawful. In fact, if anything, Jacobson affirms that a mandatory vaccination policy does not violate a clearly established right. See Bellatoni v. Lamont, No. 3:22-CV-238 (SRU), 2023 WL 3125669, at *3 (D. Conn. Apr. 26, 2023) (“In actuality, Jacobson provides support that it was objectively reasonable for Governor Lamont to believe his acts were constitutional at the time of the challenged action.”).
D. No Violation of Federal Right
Plaintiff has otherwise failed to allege that he was deprived of a right “secured by the Constitution and laws” of the United States. 42 U.S.C. § 1983.
Plaintiff alleges defendants violated the contract clause of Article I of the United States Constitution by interfering in plaintiff's employment contract. To state a claim for a violation of the contract clause, plaintiff must show the law at issue “operated as a substantial impairment of a contractual relationship,” such that it “undermines the contractual bargain, interferes with a party's reasonable expectations, and prevents the party from safeguarding or reinstating his rights.” Sveen v. Melin, 138 S.Ct. 1815, 1821-22 (2018). If there is a substantial impairment, the court examines whether the law “is drawn in an appropriate and reasonable way to advance a significant and legitimate public purpose.” Apartment Ass'n of Los Angeles Cty., Inc. v. City of Los Angeles, 10 F.4th 905, 913 (9th Cir. 2021). Because ODE's COVID-19 policy, including the alternatives to vaccination that were offered to plaintiff, advanced the health and safety of the public in an appropriate and reasonable way, plaintiff has failed to state a violation of the contract clause. Wise v. Inslee, No. 2:21-CV-0288-TOR, 2022 WL 1243662, at *7 (E.D. Wash. Apr. 27, 2022), appeal dismissed, No. 22-35426, 2022 WL 17254335 (9th Cir. Oct. 7, 2022) (“In any event, the Court need not decide whether the Proclamation is a substantial impairment of contractual relations because there is no doubt that it is an appropriate and reasonable way to advance a significant and legitimate public purpose, which is curbing the spread of COVID-19.”).
Plaintiff alleges defendants violated his First Amendment rights to free speech and free exercise of religion by requiring him to disclose his vaccination status and the results of his COVID-19 tests, and requiring him to wear an N95 mask and isolate at lunch, while not subjecting individuals who were vaccinated to the same requirements. Plaintiff misunderstands the First Amendment's prohibition on compelled speech. “[I]t has never been deemed an abridgment of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed.” Rumsfeld v. F. for Acad. & Institutional Rts., Inc., 547 U.S. 47, 62 (2006). In Rumsfeld, the Supreme Court upheld a Congressional mandate requiring law schools to send students scheduling e-mails on behalf of military recruiters, like they did for other prospective employers, finding that speech was “incidental” to the “regulation of conduct.” See id. at 60-62. “Compelling a law school that sends scheduling e-mails for other recruiters to send one for a military recruiter is simply not the same as forcing a student to pledge allegiance, or forcing a Jehovah's Witness to display the motto ‘Live Free or Die,' and it trivializes” those freedoms “to suggest that it is.” Id. at 62. Likewise, speech related to vaccination status and test results is plainly incidental to carrying out ODE's vaccination policy. Courts have routinely upheld vaccine mandates in the face of free exercise challenges. See, e.g., Doe v. San Diego Unified Sch. Dist., 19 F.4th 1173, 1181 (9th Cir. 2021), reconsideration en banc denied, 22 F.4th 1099 (9th Cir. 2022) (rejecting free exercise claim based on student vaccine mandate); Does 1-6 v. Mills, 566 F.Supp.3d 34, 52 (D. Me.), aff'd, 16 F.4th 20 (1st Cir. 2021), cert. denied sub nom.Does 1-3 v. Mills, 142 S.Ct. 1112 (2022) (rejecting free exercise claim based on vaccine mandate for healthcare workers). Thus, plaintiff fails to state a claim under the First Amendment.
Plaintiff alleges defendants violated his Fourth Amendment “right to be secure in his person.” However, plaintiff has not alleged that a search or seizure occurred. Furthermore, “[t]he Fourth Amendment prohibits only unreasonable searches.” Bell v. Wolfish, 441 U.S. 520, 558 (1979). Even if a search or seizure had occurred, plaintiff has not shown that defendants' actions were unreasonable. See Richson-Bey v. Bell, No. 122CV00447BAMPC, 2022 WL 1541688, at *5 (E.D. Cal. May 16, 2022) (finding COVID testing of prisoners was not unreasonable).
Plaintiff alleges defendants violated his Fifth Amendment right against selfincrimination. The Fifth Amendment provides that “[n]o person . . . shall be compelled in any criminal case to be a witness against himself.” U.S. Const. amend. V. This privilege attaches only to criminal proceedings. Aguilera v. Baca, 394 F.Supp.2d 1203, 1219 (C.D. Cal. 2005), aff'd, 510 F.3d 1161 (9th Cir. 2007). Plaintiff has provided no indication that he is or will be involved in a criminal proceeding relating to the matters at issue here; therefore, plaintiff has not met the criteria to invoke the Fifth Amendment.
Plaintiff asserts defendants violated the Eighth Amendment's prohibition on excessive fines. Plaintiff has not shown that termination of employment constitutes a fine. To the contrary, the Supreme Court has made clear that “fines” as used in the Eighth Amendment exclusively pertains to monetary fines paid to the government. See Browning-Ferris Indus. of Vermont, Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 264 (1989) (“[T]he history of the Eighth Amendment convinces us that the Excessive Fines Clause was intended to limit only those fines directly imposed by, and payable to, the government.”). Therefore, plaintiff fails to state a cognizable Eighth Amendment claim.
Plaintiff alleges defendants violated the due process clause and the privileges and immunities clause of the Ninth, Tenth, and Fourteenth amendments. As discussed above, ODE's vaccination policy withstands rational basis review; therefore, plaintiff's arguments in this regard are foreclosed.
Finally, plaintiff's vague references to a right to be free from the practice of medicine without a license and the requirement of informed consent for medical experiments in relation to the COVID-19 vaccines are, plainly, insufficient to state a constitutional violation.
In sum, all of plaintiff's § 1983 claims fail because defendants are immune from suit or the claim is otherwise deficient. Furthermore, “the absence of a section 1983 deprivation of rights precludes a section 1985 conspiracy claim predicated on the same allegations.” Caldeira v. County of Kauai, 866 F.2d 1175, 1182 (9th Cir. 1989). Because plaintiff has not alleged a § 1983 claim, plaintiff's § 1985 claim likewise fails.
IV. 10 U.S.C. § 4701
10 U.S.C. § 4701(a)(1)(A) provides that “[a]n employee of a contractor [or] grantee . . . may not be discharged, demoted, or otherwise discriminated against as a reprisal for disclosing to a person or body . . . information that the employee reasonably believes is evidence of . . . a violation of law, rule, or regulation related to a Department [of Defense (“DoD”)] contract (including the competition for or negotiation of a contract) or grant.” “Contractors” and “grantees” are persons awarded a contract or grant, respectively, with a covered agency, which includes the DoD, a branch of the United States armed forces, or the National Aeronautics and Space Administration. 10 U.S.C. §§ 4701(g)(1), (4), (7); 10 U.S.C. § 3063.
To survive a motion to dismiss a claim under 10 U.S.C. § 4701, a plaintiff must plausibly allege that: “(1) [the plaintiff] made a disclosure that the plaintiff ‘reasonably believe[d]' is evidence of a violation related to a DoD contract; and (2) [the plaintiff's] employer discharged, demoted, or otherwise discriminated against [the plaintiff] because of that disclosure.” Kappouta v. Valiant Integrated Servs., LLC, 60 F.4th 1213, 1216 (9th Cir. 2023). The Ninth Circuit has clarified that a violation of law is sufficiently “related to” a DoD contract if the violation is “related to the purpose of the contract or affects the services provided by the defense contractor to the DoD.” Id. at 1217. In Kappouta, the plaintiff failed to demonstrate a nexus between a shove by an intoxicated co-worker and the contract between the plaintiff's employer and the DoD, even though plaintiff cited provisions of the contract pertaining to an “ethical code of conduct” and requiring disclosure of criminal conduct, including assault. Id. at 1217-18. The court held that “no reasonable observer would think that the incident described in the complaint would implicate” the cited contract clauses, and to find that the provisions applied “would render any complaint of interpersonal disagreement protected under § 4701, a result plainly not intended by the statute.” Id. at 1218.
Plaintiff asserts that all defendants, except the ODE John Doe defendants, breached § 4701 because they were “part of a distribution chain of Covid-19 Vaccines purchased and distributed under Department of Defense Contracts.” Am. Compl. ¶ 62, ECF 16. Defendants argue that § 4701 is inapposite because plaintiff has failed to allege that they were contractors or grantees to the Department of Defense, and plaintiff has not alleged that he made a disclosure relating to a DoD contract. ODE Mot. Dismiss 8-9, ECF 18; NCSD Mot. Dismiss 4, ECF 24. Plaintiff contends that ODE and NCSD are contractors of the federal government because they received federal education grants. Am. Compl. ¶ 2, ECF 16; Resp. 9-10, ECF 25. And, plaintiff argues, because all COVID-19 vaccines were purchased via DoD contracts, “any violation of federal or state law” that concerns COVID-19 vaccines constitutes a violation of law related to a DoD contract. Resp. 9-10, ECF 25.
Plaintiff's claim is deficient in two respects. At the outset, plaintiff has not shown that § 4701 applies to defendants. To establish a § 4701 claim, plaintiff must identify a contract between plaintiff's employer and DoD, or another one of the agencies listed in § 4701(g)(1). Plaintiff has not alleged such a contract exists. The amended complaint only identifies one contract to which defendants are parties-the grants defendants allegedly received from DOE- and, because DOE is not a covered agency under § 4701, these grants cannot sustain an action under the statute. To the extent plaintiff contends that the DoD contracts purchasing COVID-19 vaccines furnish a basis for plaintiff's § 4701 claim, plaintiff has failed to show that defendants are in any way parties to those contracts and plaintiff has not demonstrated a nexus between the alleged violation of law and the DoD contracts. See Kappouta, 60 F.4th at 1217. Plaintiff's argument that all violations of federal or state law relating to COVID vaccines satisfy § 4701 is unavailing. To find that all violations of federal and state law touching on COVID-19 vaccines trigger § 4701 protections vitiates the requirement that the violation must be “related to” the purpose of the contract or affect the carrying out of the contract and would create the same kind of expansive liability that the Ninth Circuit squarely rejected in Kappouta. Id. at 1218. Thus, plaintiff has failed to allege a claim under § 4701.
V. State Law Claims
Where a district court has original jurisdiction in a civil action, it retains supplemental jurisdiction over state law claims that form part of the same case or controversy. 28 U.S.C. § 1367(a). However, the court has discretion to decline to exercise supplemental jurisdiction where it has dismissed all claims over which it has original jurisdiction. 28 U.S.C. § 1367(c)(3); Brown v. Lucky Stores, Inc., 246 F.3d 1182, 1189 (9th Cir. 2001). The court's discretion is guided by considerations of judicial economy, convenience, fairness, and comity. Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988). Where all federal claims have been eliminated, these factors usually favor relinquishing jurisdiction over the remaining state law claims. Id. (“When the balance of these factors indicates that a case properly belongs in state court, as when the federal-law claims have dropped out of the lawsuit in its early stages and only state-law claims remain, the federal court should decline the exercise of jurisdiction by dismissing the case without prejudice.”).
Here, all of plaintiff's federal claims fail are being dismissed on a Rule 12(b)(6) motion against the complaint. Where the federal claims are dismissed at an early stage in the proceedings, declining supplemental jurisdiction is appropriate so that the state court has the opportunity to resolve the remaining issues of state law.
RECOMMENDATIONS
Defendants' motions to dismiss (ECF 18, ECF 24) should be GRANTED IN PART and DENIED IN PART in that the federal claims should be dismissed with prejudice and any remaining state law claims should be dismissed without prejudice.
SCHEDULING ORDER
These Findings and Recommendations will be referred to a district judge. Objections, if any, are due Friday, August 25, 2023. If no objections are filed, then the Findings and Recommendations will go under advisement on that date.
If objections are filed, then a response is due within 14 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendations will go under advisement.
NOTICE
These Findings and Recommendations are not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any Notice of Appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of a judgment.