Opinion
No. 2:12-cv-12 64 JAM-AC
03-22-2013
MICHAEL OSTER, Plaintiff, v. COUNTY OF SOLANO; SOLANO COUNTY SHERIFF'S DEPARTMENT; and DOES 1 through 50, inclusive, Defendants.
ORDER GRANTING DEFENDANTS'
MOTION TO DISMISS
This matter is before the Court on Defendants County of Solano and Solano County Sheriff's Department's (collectively, "Defendants") Motion to Dismiss (Doc. #14). Plaintiff Michael Oster ("Plaintiff") opposes the motion (Doc. #18) and Defendants replied (Doc #20). For the reasons set forth below, Defendants' motion is GRANTED.
This motion was determined to be suitable for decision without oral argument. E.D. Cal. L.R. 230(g). The hearing was scheduled for February 6, 2013.
I. FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND
Defendants previously moved to dismiss Plaintiff's complaint and that motion was granted with leave to amend (Doc. #12). On October 30, 2012, Plaintiff filed a First Amended Complaint ("FAC") (Doc. #13). In the FAC, Plaintiff alleges two causes of action: (1) a Monell claim pursuant to 42 U.S.C. § 1983 and (2) a First Amendment retaliation claim. Defendants now move to dismiss Plaintiff's FAC for failure to state a claim.
Plaintiff was employed as Deputy Sheriff for the County of Solano from October 28, 2001 until July 10, 2010 when he resigned. Plaintiff allegedly resigned in 2010 after years of harassment, retaliatory and invasive investigations, surveillance, and unwarranted intrusions into his and his family's lives. Plaintiff alleges that this occurred pursuant to a tacit policy in which senior management level officers of the Solano County Sheriff's Department ("SCSD") were allowed with impunity to follow laws and regulations they chose to follow while disregarding others, and they were allowed to harass and retaliate against certain disfavored SCSD employees who made complaints in a public forum.
Plaintiff allegedly suffered the following derogatory, harassing, and retaliatory actions: In May 2002, Plaintiff alleges that Defendant Solano County Sheriff's Department ("SCSD") assigned him to SCSD's Canine Unit. The head of SCSD's chapter of the Deputy Sheriff's Association then allegedly threatened "to drag (Plaintiff) through the mud" unless Plaintiff resigned the Canine Unit Handler's position, but Plaintiff did not resign. FAC ¶ 14. Later in 2002, the Canine Unit manager allegedly threatened Plaintiff with termination after reading private emails between Plaintiff and the SCSD Captain that questioned the manager's competence. Plaintiff was allegedly forced to resign from the Canine Unit in late 2002 or face possible termination.
In or about 2003, Plaintiff allegedly took time off to recuperate from an injured knee. In early 2004, once Plaintiff had returned to a light duty assignment, the SCSD Captain allegedly threatened Plaintiff with termination because a workers' compensation supervisor allegedly lied to the Captain about details of Plaintiff's injury.
Plaintiff alleges that once he returned to active duty he was subject to undeserved employment actions by his superiors, including an involuntary transfer, having his workers' compensation benefit payments delayed after a 2006 on-duty injury, having his request to wear a knee brace denied, undergoing a "bogus" investigation, and having his workers' compensation benefits and medical treatment delayed after a 2007 on-duty injury.
Further, Plaintiff now alleges that he was arrested in June 2010 for workers' compensation fraud within mere days of sending a letter to his local government representatives "to complain of, among other things, the dangerous and lawless culture with the SCSD management and the negative impact this lawlessness would have on taxpaying citizens." FAC ¶ 30.
II. OPINION
A. Legal Standard
A party may move to dismiss an action for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). In considering a motion to dismiss, the court must accept the allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. 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). Assertions that are mere "legal conclusions," however, are not entitled to the assumption of truth. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). To survive a motion to dismiss, a plaintiff needs to plead "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570. Dismissal is appropriate where the plaintiff fails to state a claim supportable by a cognizable legal theory. Balistreri v. Pacifica Police Department, 901 F.2d 696, 699 (9th Cir. 1990).
Upon granting a motion to dismiss for failure to state a claim, the court has discretion to allow leave to amend the complaint pursuant to Federal Rule of Civil Procedure 15(a). "Dismissal with prejudice and without leave to amend is not appropriate unless it is clear . . . that the complaint could not be saved by amendment." Eminence Capital, L.L.C. v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003).
B. Discussion
1. Monell Claim
Defendants argue that Plaintiff has failed to allege sufficient facts to establish the requisite elements of a claim under Monell v. Department of Social Services, 436 U.S. 658, 690-91 (1978). Plaintiff responds that Defendants are trying to impose the heightened pleading requirement of Federal Rule of Civil Procedure ("FRCP") 9.
Under Monell, to prevail in a civil action against a local governmental entity, a plaintiff must establish "(1) that he possessed a constitutional right of which he was deprived; (2) that the municipality had a policy; (3) that this policy 'amounts to deliberate indifference' to the plaintiff's constitutional right; and (4) that the policy is the 'moving force behind the constitutional violation.'" Oviatt By & Through Waugh v. Pearce, 954 F.2d 1470, 1474 (9th Cir. 1992) (quoting City of Canton v. Harris, 489 U.S. 378, 389-91 (1989)).
In the FAC, as to the Monell claim, Plaintiff has added new allegations regarding an unofficial policy that allowed supervising officers to act outside of state laws and regulations, harass, retaliate against, demote, and terminate department employees who make internal and public complaints about the department's workings. FAC 55 20, 21, 25, and 26. Moreover, he alleges that "Plaintiff's superiors were aware at all relevant times of the Department's unofficial policy, and that this awareness and failure to act amounts to deliberate indifference to Plaintiff's [c]onstitutional rights of free speech and petitioning the government of grievances." Id. ¶ 21.
Although detailed factual allegations similar to those required under FRCP 9 are not required under FRCP 8, a claim must set forth sufficient factual content that allows the "court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 663. Unlike in the original complaint, Plaintiff now identifies a constitutional right of which he was allegedly deprived--free speech and petitioning the government of grievances. However, Plaintiff does not identify how his constitutional right to free speech was violated, or any facts to show the existence of a custom or policy, or any facts to support the allegation of deliberate indifference. To sufficiently state a claim under Monell, it is not enough to state that there is a policy and the policy amounted to deliberate indifference; there must be facts showing the plausibility of those statements. Id.; see also Via v. City of Fairfield, 833 F. Supp. 2d 1189, 1196 (E.D. Cal. 2011) (noting "[s]ince Iqbal, courts have repeatedly rejected such conclusory allegations that lack factual content from which one could plausibly infer Monell liability"). Therefore, Plaintiff's bare allegations of the Monell elements are insufficient.
Accordingly, because Plaintiff has failed to allege sufficient facts for a Monell claim, the Court dismisses Plaintiff's first cause of action. Plaintiff gives no indication of what more he could plead to state a claim, signaling that indeed there are no additional facts Plaintiff could include in the complaint were he granted leave to amend. Therefore, the Court dismisses this claim without leave to amend.
2. First Amendment Retaliation Claim
Defendants move to dismiss Plaintiff's First Amendment retaliation claim for failure to allege that Plaintiff engaged in constitutionally protected speech. Plaintiff argues that he has sufficiently alleged that his letter addressed a matter of legitimate public concern.
To state a claim against a government employer for violating the First Amendment, an employee must show (1) that he engaged in protected speech; (2) that the employer took an "adverse employment action" and (3) that his speech was a "substantial or motivating" factor for the adverse employment action. Coszalter v. City of Salem, 320 F.3d 968, 973 (9th Cir. 2003) (citations omitted).
A public employee's speech is constitutionally protected if it addresses a matter of legitimate public concern. Id. For instance, speech regarding corruption in government can be protected speech depending on the statements. See, e.g., Lambert v. Richard, 59 F.3d 134, 136 (9th Cir. 1995) (9th Cir. 1995) (holding that speech regarding a supervisor who mismanaged the library department and treated employees in an abusive and intimidating manner was a matter of public concern); Allen v. Scribner, 812 F.2d 426, 431 amended, 828 F.2d 1445 (9th Cir. 1987) (noting that speech "related to the competency of ... management as well as the efficient performance of [government] duties" addressed a matter of public concern).
In this case, Plaintiff alleges that he wrote "to his local government representatives to complain of, among other things, the dangerous and lawless culture within the SCSD management and the negative impact this lawlessness would have on taxpaying citizens." FAC ¶ 30. Plaintiff did not attach the letter to the FAC, which would have been the clearest indication of the content of Plaintiff's speech, but, as the parties agree, Plaintiff is not at this point required to do so. Opp. at 5; Reply at 4. Nevertheless, Plaintiff has failed to provide sufficient facts to support his allegations because the terms "dangerous" and "unlawfulness" are too vague and conclusory to allow the Court to determine whether Plaintiff's speech was a matter of public concern. See Armstrong v. California State Corr. Inst., 1:10-CV-01856 OWW, 2011 WL 773425, at *4 (E.D. Cal. Feb. 25, 2011) (holding that the term "illegalities" as used by the plaintiff was vague and conclusory to demonstrate that she was engaged in speech of public concern). Because Plaintiff has failed to allege the first element of a First Amendment retaliation claim, the Court does not find it necessary to analyze the other two elements.
Defendants request judicial notice of a 2010 Press Release announcing Plaintiff's arrest (Doc. #14). However, the Court finds the press release unnecessary for the determination of this motion and therefore, Defendants' request for judicial notice is denied.
Accordingly, Plaintiff's second cause of action is dismissed. The Court denies Plaintiff leave to amend because Plaintiff has had two opportunities to properly plead this claim and has been unable to do so. The Court finds that any further amendment would be futile.
III. ORDER
For the reasons set forth above, Defendants' Motion to Dismiss is GRANTED WITH PREJUDICE.
IT IS SO ORDERED.
______________________
JOHN A. MENDEZ,
UNITED STATES DISTRICT JUDGE