Ramirez v. Phoenix, City of

Filing 47

ORDER denying 34 Motion to Dismiss. Signed by Judge John W Sedwick on 7/24/13.(JWS)

UNITED STATES DISTRICT COURT
DISTRICT OF ARIZONA
RON RAMIREZ,

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Plaintiff,
vs.
CITY OF PHOENIX,
Defendant.

2:12-cv-00639- JWS
ORDER AND OPINION
[Re: Motion at Docket 34]

I. MOTION PRESENTED
At docket 34, defendant City of Phoenix (“the City”) moves to dismiss the
amended complaint filed by plaintiff Ron Ramirez (“Ramirez”) for failure to state a claim
upon which relief can be granted. Ramirez opposes the motion at docket 40. The City
replies at docket 41. Oral argument was heard on July 19, 2013. At the oral argument,
counsel for Ramirez acknowledged that Ramirez is not seeking declaratory relief and
eschewed reliance on that section of his response which addresses declaratory relief.
II. BACKGROUND
Ramirez was employed by the City and served as president of the Administrative
Supervisory Professional and Technical Employees Association (“ASPTEA”), a labor
organization for City employees, and chairman of the Coalition of Phoenix City Unions
(“COPCU”), an organization representing all of the City’s unions. Ramirez spoke to
members of the Laborers’ International Union of North America (“LIUNA”) gathered at
the state capitol on March 23, 2011.

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At the gathering, Ramirez identified himself as chairman of COPCU and stated,
“We know that we have one rogue Councilman right now and we’ve got to get rid of him
. . . [y]ou have to vote; you have to also recall.”1
City Administrative Regulation 2.16 requires that City “[e]mployees not engage in
activities that are inconsistent, incompatible, in conflict with, or harmful to their duties as
City employees.” Among the prohibited actions are “use [of] any official City authority or
influence for the purpose of interfering with or affecting the results of an election,”
“engag[ing] in political activities involving City . . . municipal elections, including recall
elections for Mayor and City Council . . . .”2 Ramirez was given a written reprimand for
violating A.R. 2.16.
Ramirez then filed this lawsuit asserting claims against the City based on an
alleged violation of his First Amendment rights. There are no other defendants. The
City moved to dismiss, and Ramirez cross-moved for summary judgment. The court’s
order at docket 17 held that plaintiff was not pursuing a Title VII claim and that he was
not seeking declaratory relief, but denied the City’s request to dismiss the § 1983 claim.
That order also denied Ramirez’s motion for summary judgment. The court then
granted Ramirez’s motion to file an amended complaint. It is that amended complaint
which is the subject of the pending motion.
III. STANDARD OF REVIEW
Rule 12(b)(6), tests the legal sufficiency of a plaintiff’s claims. In reviewing such
a motion, “[a]ll allegations of material fact in the complaint are taken as true and
construed in the light most favorable to the nonmoving party.”3 To be assumed true, the
allegations “may not simply recite the elements of a cause of action, but must contain
sufficient allegations of underlying facts to give fair notice and enable the opposing party

1

Doc. 1 at 3.

2

A.R. 2.16.

3

Vignolo v. Miller, 120 F.3d 1075, 1077 (9th Cir. 1997).

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to defend itself effectively.”4 Dismissal for failure to state a claim can be based on either
“the lack of a cognizable legal theory or the absence of sufficient facts alleged under a
cognizable legal theory.”5 “Conclusory allegations of law . . . are insufficient to defeat a
motion to dismiss.”6
To avoid dismissal, a plaintiff must plead facts sufficient to “state a claim to relief
that is plausible on its face.”7 “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.”8 “The plausibility standard is not akin to a
‘probability requirement’ but it asks for more than a sheer possibility that a defendant
has acted unlawfully.”9 “Where a complaint pleads facts that are ‘merely consistent’
with a defendant’s liability, it ‘stops short of the line between possibility and plausibility of
entitlement to relief.’”10 “In sum, for a complaint to survive a motion to dismiss, the nonconclusory ‘factual content,’ and reasonable inferences from that content, must be
plausibly suggestive of a claim entitling the plaintiff to relief.”11
IV. DISCUSSION
In its seminal decision regarding a municipal government’s liability for deprivation
of civil rights in a lawsuit authorized by 42 U.S.C. § 1983, the Supreme Court wrote:

4

Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011).

5

Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990).

6

Lee v. City of Los Angeles, 250 F.3d 668, 679 (9th Cir. 2001).

7

Ashcroft v. Iqbal, 556 U.S. 662, 668 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007).
8

Id.

9

Id. (citing Twombly, 550 U.S. at 556).

10

Id. (quoting Twombly, 550 U.S. at 557).

11

Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009); see also, Starr v. Baca,
652 F.3d at 1216.

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[Section 1983] compels the conclusion that Congress did not intend
municipalities to be held liable unless action pursuant to official municipal
policy of some nature caused a constitutional tort. In particular, we
conclude that a municipality cannot be held liable soley because it
employs a tortfeasor–or, in other words, a municipality cannot be held
liable under § 1983 on a respondeat superior theory.12
Here, the City asserts that Ramirez’s amended complaint fails to sufficiently identify a
municipal policy which caused the deprivation of his First Amendment rights. Rather,
contends the City, Ramirez seeks to establish the City’s liability on a theory of
respondeat superior and nothing more. Ramirez argues that he is not relying on the
doctrine of respondeat superior, and that his complaint adequately identifies a municipal
policy–A.R. 2.16–which caused the harm for which he seeks relief pursuant to § 1983.
At oral argument Ramirez’s lawyer conceded that Ramirez does not contend
A.R. 2.16 is unconstitutional on its face, but urged, as he has in his briefing, that the
application of A.R. 2.16 to Ramirez was unconstitutional. A written policy may itself be
constitutional, but the Ninth Circuit has long recognized that a § 1983 claim against a
municipality may be pursued if the municipality’s policy caused a constitutional
violation.13 Thus, the question to be resolved is whether Ramirez’s amended complaint
has sufficiently pled that A.R. 2.16 caused a violation of his constitutional right to free
speech.
In the amended complaint, Ramirez alleges that he was issued a written
reprimand for violating A.R. 2.16.14 Ramirez also alleges that his conduct did not violate
A.R. 2.16 and was a protected expression of his constitutional right to free speech.15
The court reads these as allegations of fact. For purposes of this motion, these
allegations must be accepted as true. The City’s view of these allegations is that they

12

Monell v. New York City Dep’t Soc. Servs., 436 U.S. 658, 691 (1978).

13

McKinley v. City of Eloy, 705 F.2d 1110, 1117 (9th Cir. 1983).

14

Doc. 32, ¶ 14.

15

Id. ¶ 16.

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allege a wrongful act by an unnamed City official, for which the City is not liable on a
theory of respondeat superior.
The City can act only through the its employees and other agents, so the fact that
the reprimand was given by a city official is not dispositive. Had the reprimand been
issued solely on the basis of that official’s view of events, then there would be no City
policy that could have caused the harm of which Ramirez complains. Were that all that
had been alleged, the City would be entitled to prevail on its motion. However, fairly
read, what the complaint alleges actually happened is that the unnamed official used
A.R. 2.16 to issue the reprimand in contravention of Ramirez’s free speech rights. In
other words, the policy set out in A.R. 2.16 as implemented by the unnamed official is
what caused the constitutional wrong of which Ramirez complains. That is enough to
satisfy Monell and its progeny. These allegations state a claim, which is plausible on its
face.
V. CONCLUSION AND RECOMMENDATION TO COUNSEL
For the reasons set forth above the motion at docket 34 is DENIED.
By way of further comment, the court recognizes that this case has been on the
docket for a period of time and should be concluded. Furthermore, all that is at stake is
the amount of money which it would take to fairly and reasonably compensate
Ramirez–an amount which is not likely large–and possibly also an award of attorneys’
fees. There is a chance Ramirez will not prevail on the merits if this case goes to trial,
just as there is a chance that he will prevail. It is noteworthy that Ramirez is not asking
the court to declare any City policy unconstitutional. Under these circumstances, it
seems to the court that counsel should seriously explore the possibility of settling this
case.
DATED this 24th day of July 2013.
/S/
JOHN W. SEDWICK
UNITED STATES DISTRICT JUDGE

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