DeSoto v. McKay

Filing 30

ORDER - IT IS ORDERED the Clerk of the Court shall strike Defendant's Exhibit 1 (Doc. 23-1).IT IS FURTHER ORDERED the Court DENIES Defendant's Motion to Strike Portions of Plaintiff's First Amended Complaint (part of Doc. 23 ). IT IS FURTHER ORDERED the Court DENIES Defendant's Motion to Dismiss pursuant to Federal Rule of Civil Procedure 41(b) (part of Doc. 23 ). IT IS FURTHER ORDERED the Court GRANTS Defendant's Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim (part of Doc. 23 ). The Clerk of the Court shall enter judgment of dismissal with prejudice. (See document for further details). Signed by Senior Judge James A Teilborg on 12/5/16. (LAD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Marta DeSoto,
Plaintiff,

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ORDER

v.

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No. CV-16-00996-PHX-JAT

Gregory McKay,

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Defendant.

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Pending before the Court are: (1) Defendant Gregory McKay’s Motion to Strike

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and Motion to Dismiss Plaintiff’s First Amended Complaint (“FAC”), (Doc. 23);

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(2) Plaintiff Marta DeSoto’s Response to Defendant’s Motion to Strike and Motion to

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Dismiss, (Doc. 24); and (3) Defendant’s Reply to Plaintiff’s Response to [Defendant’s]

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Motion to Dismiss, (Doc. 25). The Court now rules on the Motions.

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I.

BACKGROUND

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From 2009 to 2015, Plaintiff was employed on an independent contractor basis by

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the Arizona Department of Child Safety (“DCS”) and, DCS’s predecessor agency, Child

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Protective Services (“CPS”). (Doc. 21 at ¶ 4; Doc. 24 at 4 n.3). Plaintiff was originally

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hired as a clinical and forensic neuropsychologist, and in 2015, she was appointed as the

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Unit Consultant for DCS’s Glendale field office. (Doc. 21 at ¶ 4). In late 2015, following

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her response to a DCS request for proposal, Plaintiff accepted DCS’s offer to provide

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various psychological evaluation services for its clients. (Id.). Plaintiff’s contract-at-issue

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commenced on January 1, 2016. (Id.).

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In February 2016, KNXV, a local television station, reported about Plaintiff’s

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marriage to Jacob Wideman. (Id. at ¶ 16). In 2004, Plaintiff treated Mr. Wideman while

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she was a psychology associate employed by the Arizona Department of Corrections and

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Mr. Wideman was a prisoner. (Id. at ¶¶ 6, 7). 1 In May 2010, Plaintiff became engaged to

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Mr. Wideman and married him sometime thereafter. (Id. at ¶¶ 9, 14). As part of KNXV’s

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report, the television station provided DCS with documentation relating to Plaintiff’s

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marriage. (Id. at ¶ 15).

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Following the KNXV report, DCS terminated Plaintiff’s contract effective

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February 11, 2016 and informed Plaintiff that the “termination was done in the best

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interest of the State.” (Id. at ¶ 16). Plaintiff alleges that DCS Director Gregory McKay

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had direct personal participation in terminating Plaintiff’s contract. (Id.). Prior to the

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termination, Plaintiff “never received any complaints about her job performance.” (Id.

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at ¶ 4).

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Plaintiff alleges that Defendant McKay, while acting in his individual capacity,

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deprived Plaintiff of her “First Amendment Right of Intimate Association and Fourteenth

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Defendant attaches a “copy of the February 2016 media reporting by local ABC
television station, KNXV, channel 15” to its Motion to Dismiss as Exhibit 1. (Doc. 23
at 4). Citing to Lee v. City of L.A., 250 F.3d 668, 688–89 (9th Cir. 2001), Defendant
argues that the Court may consider this extrinsic evidence because Plaintiff referenced
the media in her FAC. (Doc. 23 at 3–4). Defendant, however, misreads Lee. “As a
general rule, a district court may not consider any material beyond the pleadings in ruling
on a [Federal] Rule [of Civil Procedure] 12(b)(6) motion.” Lee, 250 F.3d at 688
(quotations omitted). Under one exception to this rule, however, “a court may consider
material which is properly submitted as part of the complaint on a motion to dismiss
without converting the motion to dismiss into a motion for summary judgment.” Id.
(quotations omitted). “If the documents are not physically attached to the complaint, they
may be considered if the documents’ ‘authenticity . . . is not contested’ and ‘the
plaintiff’s complaint necessarily relies’ on them.” Id. (quoting Parrino v. FHP, Inc.,
146 F.3d 699, 705–06 (9th Cir. 1998)).
Here, Defendant is asking the Court to review evidence that Plaintiff did not attach
to her FAC, and Plaintiff’s FAC does not necessarily rely on the information contained in
the evidence. Although a court may take judicial notice of news publications, the Ninth
Circuit Court of Appeals (“Ninth Circuit”) has generally restricted notice of these
publications to “indicate what was in the public realm at the time, not whether the
contents of those articles were in fact true.” Von Saher v. Norton Simon Museum of Art at
Pasadena, 578 F.3d 1016, 1022 (9th Cir. 2009) (quoting Premier Growth Fund v. All.
Capital Mgmt., 435 F.3d 396, 401 n.15 (3d Cir. 2001)). Consequently, the Court declines
to consider the contents of Defendant’s Exhibit 1, (Doc. 23-1), in ruling on Defendant’s
Motions.
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Amendment Liberty Interest in [the] Right to Marry and Right of Privacy” in violation of

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42 U.S.C. § 1983 (2012). (Id. at 8). 2

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II.

MOTION TO STRIKE

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Defendant argues that, pursuant to Federal Rule of Civil Procedure (“Federal

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Rule”) 12(f), the Court should strike “from 1:23–3:4, as well as [paragraphs] 10–12 and

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[]14 of the ‘Factual Allegations’ section of” Plaintiff’s FAC. (Doc. 23 at 7).

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A.

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Federal Rule 12(f) provides that this Court may strike from a pleading “any

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redundant, immaterial, impertinent, or scandalous matter.” While the determination to

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strike is in the discretion of the trial court, a motion to strike “should not be granted

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unless it is clear that the matter to be stricken could have no possible bearing on the

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subject

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758 F. Supp. 1335, 1339 (N.D. Cal. 1991); see Yount v. Regent Univ., Inc.,

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No. CV-08-8011-PCT-DGC, 2009 WL 995596, at *11 (D. Ariz. Apr. 14, 2009) (“[E]ven

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a properly made motion to strike is a drastic remedy which is disfavored by the courts

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and infrequently granted.” (quoting Int’l Longshoremen’s Ass’n, S.S. Clerks Local 1624

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v. Va. Int’l Terminals, 904 F. Supp. 500, 504 (E.D. Va. 1995))).

Legal Standard

matter

of

the

litigation.”

Colaprico

v.

Sun

Microsystems,

Inc.,

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The defendant bears the burden of persuading this Court that the relevant

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paragraphs and lines should be stricken. XY Skin Care & Cosmetics, LLC v. Hugo Boss

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USA, Inc., No. CV-08-1467-PHX-ROS, 2009 WL 2382998, at *1 (D. Ariz.

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Aug. 4, 2009). The defendant must show (1) that the material is redundant, immaterial,

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impertinent, or scandalous or that the requested relief is unavailable and (2) how such

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material will cause prejudice. Id.; see also Am. Buying Ins. Servs., Inc. v. S. Kornreich &

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Sons, Inc., 944 F. Supp. 240, 249–50 (S.D.N.Y. 1996) (noting that motions to strike have

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frequently been denied “when no prejudice could result from the challenged allegations,

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even though the matter literally is within the categories set forth in [Federal] Rule 12(f)”

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Although Plaintiff includes all three constitutional rights under one count, the
Court notes that these are separate constitutional rights with separate legal standards.
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(quotations omitted)). Any doubt regarding the redundancy, immateriality, impertinence,

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scandalousness, or insufficiency of a pleading must be decided in favor of the non-

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movant. XY Skin Care, 2009 WL 2382998, at *1.

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B.

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Defendant argues that portions of pages 1–3 as well as paragraphs 10–12 and 14 of

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Plaintiff’s FAC are immaterial and impertinent. (Doc. 23 at 4–7). Defendant alleges that

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pages 1–3 contain “immaterial case law citations and legal argument” while the specified

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paragraphs contain “nothing but immaterial and impertinent administrative matters.” (Id.

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at 5–6). In response, Plaintiff argues that the specified portions of her FAC provide

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pertinent background information, and Defendant has not shown he will suffer any

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prejudice if the Court denies his Motion to Strike. (Doc. 24 at 2–6).

Analysis

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“‘Immaterial’ matter is that which has no essential or important relationship to the

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claim for relief or the defenses being pleaded.” Fantasy, Inc. v. Fogerty,

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984 F.2d 1524, 1527 (9th Cir. 1993) (quoting 5 Charles A. Wright & Arthur R. Miller,

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Federal Practice and Procedure § 1382, at 706–07 (2d ed. 1990)), rev’d on other

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grounds, 510 U.S. 517 (1994). “‘Impertinent’ matter consists of statements that do not

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pertain, and are not necessary, to the issue in question.” Id. (quoting Wright &

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Miller § 1382, at 711). At this early stage in this proceeding, the Court cannot say that the

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claims contained in paragraphs 10–12 and 14 have no bearing on the subject matter of the

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litigation. It is possible that complaints made to the Arizona Board of Psychologist

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Examiners could have some relevance to Plaintiff’s claims. On the other hand, Plaintiff’s

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nearly three-page legal argument involving marital rights is immaterial and does not

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belong in a complaint. However, Defendant has not shown—and has not argued—that

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these legal arguments and case citations are so prejudicial that they should be stricken

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pursuant to Federal Rule 12(f). See Vesecky v. Matthews (Mill Towne Ctr.) Real Estate,

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LLC, No. CV-09-1741-PHX-JAT, 2010 WL 749636, at *2 (D. Ariz. Mar. 2, 2010)

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(declining to grant a defendant’s motion to strike because of the defendant’s failure to

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demonstrate prejudice). Thus, the Court denies Defendant’s Motion to Strike.

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III.

MOTION TO DISMISS PURSUANT TO FEDERAL RULE 41(B)

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Defendant moves to dismiss this action pursuant to Federal Rule 41(b) on grounds

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that paragraphs 4, 6–9, 14, and 18–19 of Plaintiff’s FAC do not comply with Federal

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Rules 8(a)(2), 8(d)(1), and 10(b).

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Dismissal under Federal Rule 41(b) is “a sanction to be imposed only in extreme

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circumstances.” Edwards v. Marin Park, Inc., 356 F.3d 1058, 1065 (9th Cir. 2004).

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Therefore, a court considering a Federal Rule 41(b) motion to dismiss must consider five

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factors: “(1) the public’s interest in expeditious resolution of litigation; (2) the court’s

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need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public

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policy favoring disposition of cases on their merits; and (5) the availability of less drastic

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alternatives.” Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th Cir. 1999). Neither party

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addresses these factors. Although the Court recognizes Defendant’s argument that

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Plaintiff did not follow some of the Federal Rules in drafting her FAC, the Court finds

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that Plaintiff’s noncompliance has not significantly interfered with management of the

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Court’s docket, the case can be disposed of expeditiously on the merits, and Defendant is

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unlikely to be prejudiced by denial of his Motion. Thus, the Court denies Defendant’s

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Federal Rule 41(b) Motion to Dismiss.

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IV.

MOTION TO DISMISS PURSUANT TO FEDERAL RULE 12(B)(6)

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To survive a Federal Rule 12(b)(6) motion for failure to state a claim, a complaint

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must meet the requirements of Federal Rule 8(a)(2). Federal Rule 8(a)(2) requires a

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“short and plain statement of the claim showing that the pleader is entitled to relief,” so

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that the defendant has “fair notice of what the . . . claim is and the grounds upon which it

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rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson,

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355 U.S. 41, 47 (1957)). A complaint must also contain sufficient factual matter, which,

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if accepted as true, states a claim to relief that is “plausible on its face.” Ashcroft v. Iqbal,

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556 U.S. 662, 678 (2009). Facial plausibility exists if the pleader sets forth factual

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content that allows a court to draw the reasonable inference that the defendant is liable

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for the misconduct alleged. Id. Plausibility does not equal “probability,” but requires

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more than a sheer possibility that a defendant acted unlawfully. Id. “Where a complaint

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pleads facts that are ‘merely consistent’ with a defendant’s liability, it ‘stops short of the

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line between possibility and plausibility of entitlement to relief.’” Id. (citing Twombly,

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550 U.S. at 557).

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Although a complaint attacked for failure to state a claim does not need detailed

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factual allegations, the pleader’s obligation to provide the grounds for relief requires

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“more than labels and conclusions, and a formulaic recitation of the elements of a cause

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of action will not do.” Twombly, 550 U.S. at 555 (internal citations omitted). Federal

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Rule 8(a)(2) “requires a ‘showing,’ rather than a blanket assertion, of entitlement to

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relief,” as “[w]ithout some factual allegation in the complaint, it is hard to see how a

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claimant could satisfy the requirement of providing not only ‘fair notice’ of the nature of

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the claim, but also ‘grounds’ on which the claim rests.” Id. at 555 n.3 (citing 5 Charles A.

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Wright & Arthur R. Miller, Federal Practice & Procedure § 1202, at 94–95 (3d ed.

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2004)). Thus, Federal Rule 8’s pleading standard demands more than “an unadorned, the-

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defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678 (citing Twombly,

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550 U.S. at 555).

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In ruling on a Federal Rule 12(b)(6) motion to dismiss, a court must construe the

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facts alleged in the complaint in the light most favorable to the drafter and must accept all

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well-pleaded factual allegations as true. See Shwarz v. United States, 234 F.3d 428, 435

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(9th Cir. 2000); see also Cafasso v. Gen. Dynamics C4 Sys., 637 F.3d 1047, 1053

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(9th Cir. 2011). However, a court need not accept as true legal conclusions couched as

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factual allegations. Papasan v. Allain, 478 U.S. 265, 286 (1986).

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A.

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Defendant contends that Plaintiff’s claims fail because Plaintiff’s FAC “does not

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allege facts that show that [Defendant] was personally involved in the deprivation of

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[Plaintiff’s] civil rights, nor does [Plaintiff’s FAC] permit this Court to infer more than

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the mere possibility that [Defendant] may have been.” (Doc. 23 at 8).

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Defendant’s Personal Involvement of Plaintiff’s Constitutional Injury

Plaintiff brought her claims under 42 U.S.C. § 1983. Section 1983 “has a

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causation requirement, with liability extending to those state officials who subject[ ], or

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cause[ ] to be subjected, an individual to a deprivation of his federal rights. Lacey v.

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Maricopa Cty., 693 F.3d 896, 915 (9th Cir. 2012) (en banc) (quotations omitted). This

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“requisite causal connection can be established not only by some kind of direct personal

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participation in the deprivation, but also by setting in motion a series of acts by others

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which the actor knows or reasonably should know would cause others to inflict the

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constitutional injury.” Johnson v. Duffy, 588 F.2d 740, 743–44 (9th Cir. 1978). The

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inquiry into causation must be individualized and focus on the duties and responsibilities

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of each individual defendant whose acts or omissions are alleged to have caused a

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constitutional deprivation. Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988). However,

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sweeping conclusory allegations against an official are insufficient to state a claim for

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relief. Id. at 634 (citation omitted).

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Here, Plaintiff has alleged:

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Plaintiff is informed and believes and therefore alleges that
Defendant McKay participated in, directed, set in motion,
acquiesced in, was consulted about, participated in, knew of,
ratified or approved the termination of Plaintiff’s contractual
relationship with DCS and therefore had direct personal
participation in the deprivation of Plaintiff’s constitutional
rights of freedom of intimate association, Fourteenth
Amendment liberty interest in the right to marry and right of
privacy.

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(Doc. 21 at ¶ 16). Taking Plaintiff’s allegations as true, Plaintiff’s injury—her

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termination due to public revelations of her marriage—is directly traceable to Defendant,

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who was serving as DCS’s Director at the time of her injury. The Court finds that

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Plaintiff’s claims against Defendant sufficiently allege personal conduct.

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B.

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In the alternative, Defendant argues that Plaintiff’s § 1983 claims fail because he

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is protected by qualified immunity. (See Docs. 23 at 9–14; 25 at 1–11). The doctrine of

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qualified immunity insulates government agents from liability for actions taken in good

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faith while exercising discretionary authority in their official capacity. Sonoda v.

Defendant’s Qualified Immunity

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Cabrera, 255 F.3d 1035, 1042 (9th Cir. 2001). In a suit against a government official

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under § 1983, a court performs a two-part analysis. To succeed on such a claim, a

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plaintiff must show, “first, [that she] suffered a deprivation of a constitutional or statutory

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right; and second [that such] right was clearly established at the time of the alleged

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misconduct.” Hamby v. Hammond, 821 F.3d 1085, 1090 (9th Cir. 2016) (quoting Taylor

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v. Barkes, 135 S. Ct. 2042, 2044 (2015) (per curiam)). A court may decide for itself

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which step of the analysis to address first, for failure on either step will negate a

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plaintiff’s ability to recover. Id. at 1090. Therefore, if a court determines that the

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constitutional right was not clearly established at the relevant time, the court will grant

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the defendant government official’s motion to dismiss. See Pearson v. Callahan,

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555 U.S. 223, 236 (2009); see also Hamby, 821 F.3d at 1090.

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A right is “clearly established” when “the contours of the right [are] sufficiently

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clear that a reasonable official would understand that what he is doing violates that right.”

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Anderson v. Creighton, 483 U.S. 635, 640 (1987). The inquiry of whether a constitutional

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right was clearly established must be undertaken in light of the specific context of the

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case, not as a broad general proposition. Saucier v. Katz, 533 U.S. 194, 202 (2001).

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While “officials can still be on notice that their conduct violates established law even in

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novel factual circumstances,” Hope v. Pelzer, 536 U.S. 730, 741 (2002), the Supreme

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Court has clarified that a government official is entitled to qualified immunity unless

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existing case law “squarely governs the case here,” Mullenix v. Luna, 136 S. Ct. 305, 309

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(2015) (per curiam) (quoting Brosseau v. Haugen, 543 U.S. 194, 201 (2004) (per

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curiam)). In pursuing this inquiry, a court looks first to Supreme Court and Ninth Circuit

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law existing at the time of the alleged act. Osolinski v. Kane, 92 F.3d 934, 936

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(9th Cir. 1996). In the absence of binding precedent from the appellate level, a court

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should look to available decisions of other circuits and to district courts within its own

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circuit to ascertain whether the law is clearly established. Id.

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1.

Right to Intimate Association 3

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Defendant argues that the Court should dismiss Plaintiff’s § 1983 intimate

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association claim because this right was not clearly established “in the specific context of

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this case.” (Doc. 23 at 13). The Supreme Court has recognized that the U.S. Constitution

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offers protection for two types of associations: (1) the right to expressive association; and

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(2) the right to intimate association. See Bd. of Dirs. of Rotary Int’l v. Rotary Club of

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Duarte, 481 U.S. 537, 544 (1987) (quoting Roberts v. U.S. Jaycees, 468 U.S. 609, 619–

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20 (1984)). The right to expressive association protects the right to associate with others

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“for the purpose of engaging in those activities protected by the First Amendment—

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speech, assembly, petition for the redress of grievances, and the exercise of religion.”

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Roberts, 468 U.S. at 617–18. On the other hand, the right to intimate association protects

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“choices to enter into and maintain certain intimate human relationships . . . against

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undue intrusion by the State because of the role of such relationships in safeguarding the

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individual freedom that is central to our constitutional scheme.” Id. at 617–18.

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Although it is well-settled that the right to expressive association is protected by

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the First Amendment, see Rumsfeld v. Forum for Acad. & Institutional Rights, Inc.,

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547 U.S. 47, 68 (2006), “nature and the extent of the right are hardly clear, and . . . the

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source of the intimate association right has not been authoritatively determined”,

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Matusick v. Erie Cty. Water Auth., 757 F.3d 31, 61 (2d Cir. 2014) (quotations omitted).

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Nonetheless, the Ninth Circuit has held that the right to intimate association is protected

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by the Fourteenth Amendment’s Due Process Clause. See IDK, Inc. v. Cty. of Clark,

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836 F.2d 1185, 1192 (9th Cir. 1988) (“In protecting certain kinds of highly personal

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relationships, the Supreme Court has most often identified the source of the protection as

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Plaintiff conflates the right to intimate association with the right to marry and
right to privacy. In fact, besides the case law and vague legal reasoning Plaintiff wrongly
incorporated within her FAC, Plaintiff’s pleadings contain no analysis of the
constitutional right to marry. (See Doc. 24 at 11–16). For the reasons stated below, the
Court believes the right to intimate association and the right to marry are distinct. See
also Quiroz v. Short, 85 F. Supp. 3d 1092, 1107–12 (N.D. Cal. 2015) (analyzing the right
to intimate association and the right to marry separately). Thus, although Plaintiff does
not supply separate arguments, the Court presents its analysis for each right separately.
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the due process clause of the fourteenth amendment, not the first amendment’s freedom

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to assemble.” (citing Zablocki v. Redhail, 434 U.S. 374, 383–86 (1978))). But see Adler v.

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Pataki, 185 F.3d 35, 44 (2d Cir. 1999) (“Though the matter is not free from doubt, we

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think a spouse’s claim that adverse action was taken solely against that spouse in

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retaliation for conduct of the other spouse should be analyzed as a claimed violation of a

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First Amendment right of intimate association.”); Adkins v. Bd. of Educ. of Magoffin Cty.,

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Ky., 982 F.2d 952, 955–56 (6th Cir. 1993) (recognizing a right to intimate association

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under the First Amendment); Singleton v. Cecil, 133 F.3d 631, 635 (8th Cir. 1998)

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(same); Parks v. City of Warner Robins, Ga., 43 F.3d 609, 615–16 (11th Cir. 1995)

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(same).

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As with the right to privacy, the Supreme Court and Ninth Circuit have not

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definitively prescribed the extent of constitutional protections for abridgements of the

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right to intimate association within public employment. See, e.g., Hollenbaugh v.

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Carnegie Free Library, 439 U.S. 1052, 1055 (1978) (Marshall, J., dissenting) (dissenting

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from the denial of certiorari where the district court had upheld a public employer’s

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decision to discharge a librarian and custodian for cohabitating in an adulterous

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relationship and recognizing that the Court has “never demarcated the precise boundaries

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of this right [to privacy]”). However, the Supreme Court has generally recognized greater

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deference towards the government when it acts as an employer. See Waters v. Churchill,

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511 U.S. 661, 675 (1994) (plurality opinion) (“The government’s interest in achieving its

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goals as effectively and efficiently as possible is elevated from a relatively subordinate

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interest when it acts as sovereign to a significant one when it acts as employer.”).

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Here, Plaintiff argues that her right to intimate association with her husband was

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so clearly established that a reasonable official would have understood that Defendant’s

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conduct violated that right given the specific factual context. (Doc. 24 at 11–16). In

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support of this argument, however, Plaintiff cites to no Supreme Court or Ninth Circuit

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precedent. Instead, Plaintiff first cites to Adler v. Pataki, in which the Second Circuit

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Court of Appeals (“Second Circuit”) held that a plaintiff-employee stated a valid claim

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against a New York State public agency that terminated him because his wife filed a

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lawsuit against the New York Attorney General. 185 F.3d at 44–45. However, unlike the

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Ninth Circuit, the Second Circuit based its analysis on a First Amendment right of

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intimate association because the agency’s “adverse action was taken solely against [the

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plaintiff] in retaliation for conduct of the other spouse.” Id. at 44 (emphasis added). Here,

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unlike in Adler, Plaintiff has not alleged any conduct by her spouse that motivated

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Defendant’s action. Instead, Plaintiff has only claimed that her marriage to Mr. Wideman

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was the sole catalyst for Defendant’s decision. (Doc. 21 at ¶ 19).

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The other cases Plaintiff cites involve similar factual contexts as Adler and are,

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thus, quite different from the facts presented in Plaintiff’s case. For example, Plaintiff

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cites to Adkins v. Board of Education of Magoffin County, Kentucky, in which a school

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superintendent refused to recommend a plaintiff for continued employment within the

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school district because plaintiff’s husband, a principal within the district, failed to follow

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the superintendent’s commands. 982 F.2d at 953. Plaintiff also cites to Sowards v.

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Loudon County, Tennessee, in which sheriff’s department employees retaliated against

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the

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203 F.3d 426, 430–31 (6th Cir. 2000). Finally, Plaintiff cites to Gray v. Bruneau-Grand

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View School District No. 365, in which a school district retaliated against a plaintiff after

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the plaintiff’s husband objected to a school district policy. No. CV-06-069-S-BLW,

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2007 WL 1381785, at *1 (D. Idaho Mar. 27, 2007). In all of these cases, as in Adler, it

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was the plaintiff’s spouse’s conduct—e.g., the spouse’s failure to follow the

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superintendent’s requests, the spouse’s candidacy for sheriff, or the spouse’s objection to

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a district policy—that led defendants to retaliate against the plaintiff. Here, Plaintiff has

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solely alleged that her marriage to Mr. Wakeman was the reason Defendant allegedly

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retaliated against her. (Doc. 21 at ¶ 19). Plaintiff has not cited, and the Court has not

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found, any case where retaliation based solely on a marriage—and not the conduct of a

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spouse—has been found to violate a right to intimate association. Thus, Plaintiff has

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failed to show that her rights were clearly established.

plaintiff

because

the

plaintiff’s

husband

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was

a

candidate

for

sheriff.

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The Court finds that, regardless of whether Plaintiff has established a violation of

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her Fourteenth Amendment right to intimate association, Defendant is entitled to

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qualified immunity on this claim because Plaintiff’s rights were not clearly established at

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the time of Defendant’s alleged retaliation.

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2.

Right to Marry

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Plaintiff also asserts that Defendant’s alleged retaliation against Plaintiff on the

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basis of her marriage violated her constitutional right to marry. (Doc. 21 at 8–9).

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Defendant again argues that he is entitled to qualified immunity because Plaintiff’s right

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to marry was not clearly established in this specific factual context. (Doc. 23 at 13).

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The Supreme Court has recognized that the right to marry is part of the

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fundamental “right of privacy” implicit in the Fourteenth Amendment’s Due Process

12

Clause. Zablocki, 434 U.S. at 384. “While the outer limits of [the right of personal

13

privacy] have not been marked by the [Supreme] Court, it is clear that among the

14

decisions that an individual may make without unjustified government interference are

15

personal decisions ‘relating to marriage . . . .’” Id. at 385. However, in order to implicate

16

the right to marry, a plaintiff must demonstrate that a defendant’s action directly and

17

substantially impaired that right. See Parsons v. Del Norte Cty., 728 F.2d 1234, 1237

18

(9th Cir. 1984) (per curiam) (“Only when a government regulation directly and

19

substantially interferes with the fundamental incidents of marriage is such strict scrutiny

20

applicable. Where fundamental rights are not substantially burdened the regulation will

21

be upheld unless there is no rational basis for its enactment.” (citing Zablocki, 434 U.S.

22

at 386; Califano v. Jobst, 434 U.S. 47, 53–54 (1978))).

23

The Supreme Court has “intimated that conduct less than ‘a direct legal obstacle’

24

to an individual’s choice to marry did not trigger a fundamental right” to marry. Quiroz,

25

85 F. Supp. 3d at 1111. In cases in which the Supreme Court has recognized a

26

“substantial burden” on the right to marry, the government regulation at issue has been a

27

complete ban on marriage. See, e.g., Obergefell v. Hodges, 135 S. Ct. 2584, 2604 (2015)

28

(holding that statutes banning same-sex marriage substantially burdened the plaintiff’s

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1

right to marry); Zablocki, 434 U.S. at 384 (holding that a statute forbidding noncustodial

2

parents with child support obligations from marrying without first obtaining court

3

permission substantially burdened the plaintiff’s right to marry); Loving v. Virginia,

4

388 U.S. 1 (1967) (holding that a statute prohibiting all interracial marriage substantially

5

burdened the plaintiff’s right to marry).

6

Here, Plaintiff’s right to marry was not clearly established given the specific facts

7

of this case. Plaintiff has cited to no case law indicating that Defendant’s allegedly

8

retaliatory action substantially burdened Plaintiff’s right to marry. To the contrary, case

9

law appears to recognize no substantial burden in cases where government action simply

10

“touches upon the incidents of marriage” rather than prohibiting marriage. Parsons,

11

728 F.2d at 1237; see also Jobst, 434 U.S. at 58 (holding no substantial interference with

12

the plaintiff’s right to marry where the government terminated a disabled dependent

13

child’s Social Security benefits after plaintiff married someone ineligible for benefits).

14

Moreover, Plaintiff has failed to state any facts indicating any burden on—let alone the

15

dissolution of—Plaintiff’s marriage to Mr. Wideman. Thus, under these facts, Plaintiff

16

has failed to show that her rights were clearly established.

17

The Court finds that, regardless of whether Plaintiff has established a violation of

18

her Fourteenth Amendment right to marry, Defendant is entitled to qualified immunity on

19

this claim because Plaintiff’s rights were not clearly established at the time of

20

Defendant’s alleged retaliation.

21

3.

Right to Privacy

22

Plaintiff finally asserts that Defendant’s alleged retaliation against Plaintiff

23

violated her constitutional right to privacy. (Doc. 21 at 8–9). Defendant again argues that

24

he is entitled to qualified immunity because Plaintiff’s right to privacy was not clearly

25

established in this specific factual context. (Doc. 23 at 13).

26

The Supreme Court has recognized a right to privacy implicit within the

27

Fourteenth

28

381 U.S. 479, 485–86 (1965). The Court has since recognized that the right to privacy

Amendment’s

Due

Process

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Clause.

Griswold

v.

Connecticut,

1

involves “at least two different kinds of interests.” Whalen v. Roe, 429 U.S. 589, 599

2

(1977). “One is the individual interest in avoiding disclosure of personal matters, and

3

another is the interest in independence in making certain kinds of important decisions.”

4

Id. at 599–600; see also Nixon v. Adm’r of Gen. Servs., 433 U.S. 425, 457 (1977). The

5

first interest—a right to informational privacy—is the interest at issue here. Since Whalen

6

and Nixon, however, the Supreme Court “has said little else on the subject of an

7

individual interest in avoiding disclosure of personal matters.” NASA v. Nelson,

8

562 U.S. 134, 135 (2011).

9

Case law on the issue of privacy interests related to the disclosure of personal

10

information is “murky at best.” O’Phelan v. Loy, Civil No. 09-00236 SOM/KSC,

11

2011 WL 719053, at *11 (D. Haw. Feb. 18, 2011). The Ninth Circuit has recognized a

12

right to informational privacy in a number of factual circumstances. See, e.g., Planned

13

Parenthood of S. Ariz. v. LaWall, 307 F.3d 783, 789–90 (9th Cir. 2002) (recognizing a

14

female minor’s protected privacy interest in her pregnancy status as part of a judicial

15

bypass proceeding used as an alternative to parental consent); In re Crawford,

16

194 F.3d 954, 958 (9th Cir. 1999) (recognizing a protected privacy interest in social

17

security numbers); Norman-Bloodsaw v. Lawrence Berkeley Lab., 135 F.3d 1260, 1269–

18

70 (9th Cir. 1998) (recognizing a protected privacy interest for an employer’s

19

nonconsensual preemployment blood test); Doe v. Attorney Gen. of the U.S.,

20

941 F.2d 780, 796 (9th Cir. 1991) (recognizing a protected privacy interest for a

21

physician’s HIV-AIDS status); Thorne v. City of El Segundo, 726 F.2d 459, 468–69 (9th

22

Cir. 1983) (recognizing a police officer’s protected privacy interest in answers given

23

during a polygraph examination on the subject of abortions and the identity of past sexual

24

partners). Where there is no previously recognized protected privacy interest, the Ninth

25

Circuit has noted that “if the existence of a right or the degree of protection it warrants in

26

a particular context is subject to a balancing test, the right can rarely be considered

27

‘clearly established’ at least in the absence of closely corresponding factual and legal

28

precedent.” Baker v. Racansky, 887 F.2d 183, 187 (9th Cir. 1989) (quoting Myers v.

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1

Morris, 810 F.2d 1437, 1462 (8th Cir. 1987)).

2

Here, Plaintiff has cited to no cases and no facts implicating a protected privacy

3

interest. Plaintiff claims a privacy interest in the existence of her marriage, which is a

4

matter of public record. See generally Cox Broad. Corp. v. Cohn, 420 U.S. 469, 494–95

5

(1975) (recognizing that an interest in privacy fades when information is in the public

6

record). Moreover, Plaintiff has not cited to any case recognizing a protected privacy

7

interest for one’s marital status. Thus, under these facts, Plaintiff has failed to show that

8

her rights were clearly established.

9

The Court finds that, regardless of whether Plaintiff has established a violation of

10

her Fourteenth Amendment right to privacy, Defendant is entitled to qualified immunity

11

on this claim because Plaintiff’s rights were not clearly established at the time of

12

Defendant’s alleged retaliation.

13

//

14

//

15

//

16

//

17

//

18

//

19

//

20

//

21

//

22

//

23

//

24

//

25

//

26

//

27

//

28

//

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1

V.

CONCLUSION

2

For the foregoing reasons,

3

IT IS ORDERED the Clerk of the Court shall strike Defendant’s Exhibit 1

4
5
6
7
8

(Doc. 23-1).
IT IS FURTHER ORDERED the Court DENIES Defendant’s Motion to Strike
Portions of Plaintiff’s First Amended Complaint (part of Doc. 23).
IT IS FURTHER ORDERED the Court DENIES Defendant’s Motion to
Dismiss pursuant to Federal Rule of Civil Procedure 41(b) (part of Doc. 23).

9

IT IS FURTHER ORDERED the Court GRANTS Defendant’s Motion to

10

Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim

11

(part of Doc. 23). The Clerk of the Court shall enter judgment of dismissal with

12

prejudice.

13

Dated this 5th day of December, 2016.

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