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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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Marta DeSoto, Plaintiff, 10 11 ORDER v. 12 No. CV-16-00996-PHX-JAT Gregory McKay, 13 Defendant. 14 15 Pending before the Court are: (1) Defendant Gregory McKay’s Motion to Strike 16 and Motion to Dismiss Plaintiff’s First Amended Complaint (“FAC”), (Doc. 23); 17 (2) Plaintiff Marta DeSoto’s Response to Defendant’s Motion to Strike and Motion to 18 Dismiss, (Doc. 24); and (3) Defendant’s Reply to Plaintiff’s Response to [Defendant’s] 19 Motion to Dismiss, (Doc. 25). The Court now rules on the Motions. 20 I. BACKGROUND 21 From 2009 to 2015, Plaintiff was employed on an independent contractor basis by 22 the Arizona Department of Child Safety (“DCS”) and, DCS’s predecessor agency, Child 23 Protective Services (“CPS”). (Doc. 21 at ¶ 4; Doc. 24 at 4 n.3). Plaintiff was originally 24 hired as a clinical and forensic neuropsychologist, and in 2015, she was appointed as the 25 Unit Consultant for DCS’s Glendale field office. (Doc. 21 at ¶ 4). In late 2015, following 26 her response to a DCS request for proposal, Plaintiff accepted DCS’s offer to provide 27 various psychological evaluation services for its clients. (Id.). Plaintiff’s contract-at-issue 28 commenced on January 1, 2016. (Id.). 1 In February 2016, KNXV, a local television station, reported about Plaintiff’s 2 marriage to Jacob Wideman. (Id. at ¶ 16). In 2004, Plaintiff treated Mr. Wideman while 3 she was a psychology associate employed by the Arizona Department of Corrections and 4 Mr. Wideman was a prisoner. (Id. at ¶¶ 6, 7). 1 In May 2010, Plaintiff became engaged to 5 Mr. Wideman and married him sometime thereafter. (Id. at ¶¶ 9, 14). As part of KNXV’s 6 report, the television station provided DCS with documentation relating to Plaintiff’s 7 marriage. (Id. at ¶ 15). 8 Following the KNXV report, DCS terminated Plaintiff’s contract effective 9 February 11, 2016 and informed Plaintiff that the “termination was done in the best 10 interest of the State.” (Id. at ¶ 16). Plaintiff alleges that DCS Director Gregory McKay 11 had direct personal participation in terminating Plaintiff’s contract. (Id.). Prior to the 12 termination, Plaintiff “never received any complaints about her job performance.” (Id. 13 at ¶ 4). 14 Plaintiff alleges that Defendant McKay, while acting in his individual capacity, 15 deprived Plaintiff of her “First Amendment Right of Intimate Association and Fourteenth 16 1 17 18 19 20 21 22 23 24 25 26 27 28 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. -2- 1 Amendment Liberty Interest in [the] Right to Marry and Right of Privacy” in violation of 2 42 U.S.C. § 1983 (2012). (Id. at 8). 2 3 II. MOTION TO STRIKE 4 Defendant argues that, pursuant to Federal Rule of Civil Procedure (“Federal 5 Rule”) 12(f), the Court should strike “from 1:23–3:4, as well as [paragraphs] 10–12 and 6 []14 of the ‘Factual Allegations’ section of” Plaintiff’s FAC. (Doc. 23 at 7). 7 A. 8 Federal Rule 12(f) provides that this Court may strike from a pleading “any 9 redundant, immaterial, impertinent, or scandalous matter.” While the determination to 10 strike is in the discretion of the trial court, a motion to strike “should not be granted 11 unless it is clear that the matter to be stricken could have no possible bearing on the 12 subject 13 758 F. Supp. 1335, 1339 (N.D. Cal. 1991); see Yount v. Regent Univ., Inc., 14 No. CV-08-8011-PCT-DGC, 2009 WL 995596, at *11 (D. Ariz. Apr. 14, 2009) (“[E]ven 15 a properly made motion to strike is a drastic remedy which is disfavored by the courts 16 and infrequently granted.” (quoting Int’l Longshoremen’s Ass’n, S.S. Clerks Local 1624 17 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., 18 The defendant bears the burden of persuading this Court that the relevant 19 paragraphs and lines should be stricken. XY Skin Care & Cosmetics, LLC v. Hugo Boss 20 USA, Inc., No. CV-08-1467-PHX-ROS, 2009 WL 2382998, at *1 (D. Ariz. 21 Aug. 4, 2009). The defendant must show (1) that the material is redundant, immaterial, 22 impertinent, or scandalous or that the requested relief is unavailable and (2) how such 23 material will cause prejudice. Id.; see also Am. Buying Ins. Servs., Inc. v. S. Kornreich & 24 Sons, Inc., 944 F. Supp. 240, 249–50 (S.D.N.Y. 1996) (noting that motions to strike have 25 frequently been denied “when no prejudice could result from the challenged allegations, 26 even though the matter literally is within the categories set forth in [Federal] Rule 12(f)” 27 28 2 Although Plaintiff includes all three constitutional rights under one count, the Court notes that these are separate constitutional rights with separate legal standards. -3- 1 (quotations omitted)). Any doubt regarding the redundancy, immateriality, impertinence, 2 scandalousness, or insufficiency of a pleading must be decided in favor of the non- 3 movant. XY Skin Care, 2009 WL 2382998, at *1. 4 B. 5 Defendant argues that portions of pages 1–3 as well as paragraphs 10–12 and 14 of 6 Plaintiff’s FAC are immaterial and impertinent. (Doc. 23 at 4–7). Defendant alleges that 7 pages 1–3 contain “immaterial case law citations and legal argument” while the specified 8 paragraphs contain “nothing but immaterial and impertinent administrative matters.” (Id. 9 at 5–6). In response, Plaintiff argues that the specified portions of her FAC provide 10 pertinent background information, and Defendant has not shown he will suffer any 11 prejudice if the Court denies his Motion to Strike. (Doc. 24 at 2–6). Analysis 12 “‘Immaterial’ matter is that which has no essential or important relationship to the 13 claim for relief or the defenses being pleaded.” Fantasy, Inc. v. Fogerty, 14 984 F.2d 1524, 1527 (9th Cir. 1993) (quoting 5 Charles A. Wright & Arthur R. Miller, 15 Federal Practice and Procedure § 1382, at 706–07 (2d ed. 1990)), rev’d on other 16 grounds, 510 U.S. 517 (1994). “‘Impertinent’ matter consists of statements that do not 17 pertain, and are not necessary, to the issue in question.” Id. (quoting Wright & 18 Miller § 1382, at 711). At this early stage in this proceeding, the Court cannot say that the 19 claims contained in paragraphs 10–12 and 14 have no bearing on the subject matter of the 20 litigation. It is possible that complaints made to the Arizona Board of Psychologist 21 Examiners could have some relevance to Plaintiff’s claims. On the other hand, Plaintiff’s 22 nearly three-page legal argument involving marital rights is immaterial and does not 23 belong in a complaint. However, Defendant has not shown—and has not argued—that 24 these legal arguments and case citations are so prejudicial that they should be stricken 25 pursuant to Federal Rule 12(f). See Vesecky v. Matthews (Mill Towne Ctr.) Real Estate, 26 LLC, No. CV-09-1741-PHX-JAT, 2010 WL 749636, at *2 (D. Ariz. Mar. 2, 2010) 27 (declining to grant a defendant’s motion to strike because of the defendant’s failure to 28 demonstrate prejudice). Thus, the Court denies Defendant’s Motion to Strike. -4- 1 III. MOTION TO DISMISS PURSUANT TO FEDERAL RULE 41(B) 2 Defendant moves to dismiss this action pursuant to Federal Rule 41(b) on grounds 3 that paragraphs 4, 6–9, 14, and 18–19 of Plaintiff’s FAC do not comply with Federal 4 Rules 8(a)(2), 8(d)(1), and 10(b). 5 Dismissal under Federal Rule 41(b) is “a sanction to be imposed only in extreme 6 circumstances.” Edwards v. Marin Park, Inc., 356 F.3d 1058, 1065 (9th Cir. 2004). 7 Therefore, a court considering a Federal Rule 41(b) motion to dismiss must consider five 8 factors: “(1) the public’s interest in expeditious resolution of litigation; (2) the court’s 9 need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public 10 policy favoring disposition of cases on their merits; and (5) the availability of less drastic 11 alternatives.” Yourish v. Cal. Amplifier, 191 F.3d 983, 990 (9th Cir. 1999). Neither party 12 addresses these factors. Although the Court recognizes Defendant’s argument that 13 Plaintiff did not follow some of the Federal Rules in drafting her FAC, the Court finds 14 that Plaintiff’s noncompliance has not significantly interfered with management of the 15 Court’s docket, the case can be disposed of expeditiously on the merits, and Defendant is 16 unlikely to be prejudiced by denial of his Motion. Thus, the Court denies Defendant’s 17 Federal Rule 41(b) Motion to Dismiss. 18 IV. MOTION TO DISMISS PURSUANT TO FEDERAL RULE 12(B)(6) 19 To survive a Federal Rule 12(b)(6) motion for failure to state a claim, a complaint 20 must meet the requirements of Federal Rule 8(a)(2). Federal Rule 8(a)(2) requires a 21 “short and plain statement of the claim showing that the pleader is entitled to relief,” so 22 that the defendant has “fair notice of what the . . . claim is and the grounds upon which it 23 rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 24 355 U.S. 41, 47 (1957)). A complaint must also contain sufficient factual matter, which, 25 if accepted as true, states a claim to relief that is “plausible on its face.” Ashcroft v. Iqbal, 26 556 U.S. 662, 678 (2009). Facial plausibility exists if the pleader sets forth factual 27 content that allows a court to draw the reasonable inference that the defendant is liable 28 for the misconduct alleged. Id. Plausibility does not equal “probability,” but requires -5- 1 more than a sheer possibility that a defendant acted unlawfully. Id. “Where a complaint 2 pleads facts that are ‘merely consistent’ with a defendant’s liability, it ‘stops short of the 3 line between possibility and plausibility of entitlement to relief.’” Id. (citing Twombly, 4 550 U.S. at 557). 5 Although a complaint attacked for failure to state a claim does not need detailed 6 factual allegations, the pleader’s obligation to provide the grounds for relief requires 7 “more than labels and conclusions, and a formulaic recitation of the elements of a cause 8 of action will not do.” Twombly, 550 U.S. at 555 (internal citations omitted). Federal 9 Rule 8(a)(2) “requires a ‘showing,’ rather than a blanket assertion, of entitlement to 10 relief,” as “[w]ithout some factual allegation in the complaint, it is hard to see how a 11 claimant could satisfy the requirement of providing not only ‘fair notice’ of the nature of 12 the claim, but also ‘grounds’ on which the claim rests.” Id. at 555 n.3 (citing 5 Charles A. 13 Wright & Arthur R. Miller, Federal Practice & Procedure § 1202, at 94–95 (3d ed. 14 2004)). Thus, Federal Rule 8’s pleading standard demands more than “an unadorned, the- 15 defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678 (citing Twombly, 16 550 U.S. at 555). 17 In ruling on a Federal Rule 12(b)(6) motion to dismiss, a court must construe the 18 facts alleged in the complaint in the light most favorable to the drafter and must accept all 19 well-pleaded factual allegations as true. See Shwarz v. United States, 234 F.3d 428, 435 20 (9th Cir. 2000); see also Cafasso v. Gen. Dynamics C4 Sys., 637 F.3d 1047, 1053 21 (9th Cir. 2011). However, a court need not accept as true legal conclusions couched as 22 factual allegations. Papasan v. Allain, 478 U.S. 265, 286 (1986). 23 A. 24 Defendant contends that Plaintiff’s claims fail because Plaintiff’s FAC “does not 25 allege facts that show that [Defendant] was personally involved in the deprivation of 26 [Plaintiff’s] civil rights, nor does [Plaintiff’s FAC] permit this Court to infer more than 27 the mere possibility that [Defendant] may have been.” (Doc. 23 at 8). 28 Defendant’s Personal Involvement of Plaintiff’s Constitutional Injury Plaintiff brought her claims under 42 U.S.C. § 1983. Section 1983 “has a -6- 1 causation requirement, with liability extending to those state officials who subject[ ], or 2 cause[ ] to be subjected, an individual to a deprivation of his federal rights. Lacey v. 3 Maricopa Cty., 693 F.3d 896, 915 (9th Cir. 2012) (en banc) (quotations omitted). This 4 “requisite causal connection can be established not only by some kind of direct personal 5 participation in the deprivation, but also by setting in motion a series of acts by others 6 which the actor knows or reasonably should know would cause others to inflict the 7 constitutional injury.” Johnson v. Duffy, 588 F.2d 740, 743–44 (9th Cir. 1978). The 8 inquiry into causation must be individualized and focus on the duties and responsibilities 9 of each individual defendant whose acts or omissions are alleged to have caused a 10 constitutional deprivation. Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988). However, 11 sweeping conclusory allegations against an official are insufficient to state a claim for 12 relief. Id. at 634 (citation omitted). 13 Here, Plaintiff has alleged: 14 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. 15 16 17 18 19 20 (Doc. 21 at ¶ 16). Taking Plaintiff’s allegations as true, Plaintiff’s injury—her 21 termination due to public revelations of her marriage—is directly traceable to Defendant, 22 who was serving as DCS’s Director at the time of her injury. The Court finds that 23 Plaintiff’s claims against Defendant sufficiently allege personal conduct. 24 B. 25 In the alternative, Defendant argues that Plaintiff’s § 1983 claims fail because he 26 is protected by qualified immunity. (See Docs. 23 at 9–14; 25 at 1–11). The doctrine of 27 qualified immunity insulates government agents from liability for actions taken in good 28 faith while exercising discretionary authority in their official capacity. Sonoda v. Defendant’s Qualified Immunity -7- 1 Cabrera, 255 F.3d 1035, 1042 (9th Cir. 2001). In a suit against a government official 2 under § 1983, a court performs a two-part analysis. To succeed on such a claim, a 3 plaintiff must show, “first, [that she] suffered a deprivation of a constitutional or statutory 4 right; and second [that such] right was clearly established at the time of the alleged 5 misconduct.” Hamby v. Hammond, 821 F.3d 1085, 1090 (9th Cir. 2016) (quoting Taylor 6 v. Barkes, 135 S. Ct. 2042, 2044 (2015) (per curiam)). A court may decide for itself 7 which step of the analysis to address first, for failure on either step will negate a 8 plaintiff’s ability to recover. Id. at 1090. Therefore, if a court determines that the 9 constitutional right was not clearly established at the relevant time, the court will grant 10 the defendant government official’s motion to dismiss. See Pearson v. Callahan, 11 555 U.S. 223, 236 (2009); see also Hamby, 821 F.3d at 1090. 12 A right is “clearly established” when “the contours of the right [are] sufficiently 13 clear that a reasonable official would understand that what he is doing violates that right.” 14 Anderson v. Creighton, 483 U.S. 635, 640 (1987). The inquiry of whether a constitutional 15 right was clearly established must be undertaken in light of the specific context of the 16 case, not as a broad general proposition. Saucier v. Katz, 533 U.S. 194, 202 (2001). 17 While “officials can still be on notice that their conduct violates established law even in 18 novel factual circumstances,” Hope v. Pelzer, 536 U.S. 730, 741 (2002), the Supreme 19 Court has clarified that a government official is entitled to qualified immunity unless 20 existing case law “squarely governs the case here,” Mullenix v. Luna, 136 S. Ct. 305, 309 21 (2015) (per curiam) (quoting Brosseau v. Haugen, 543 U.S. 194, 201 (2004) (per 22 curiam)). In pursuing this inquiry, a court looks first to Supreme Court and Ninth Circuit 23 law existing at the time of the alleged act. Osolinski v. Kane, 92 F.3d 934, 936 24 (9th Cir. 1996). In the absence of binding precedent from the appellate level, a court 25 should look to available decisions of other circuits and to district courts within its own 26 circuit to ascertain whether the law is clearly established. Id. 27 28 -8- 1 1. Right to Intimate Association 3 2 Defendant argues that the Court should dismiss Plaintiff’s § 1983 intimate 3 association claim because this right was not clearly established “in the specific context of 4 this case.” (Doc. 23 at 13). The Supreme Court has recognized that the U.S. Constitution 5 offers protection for two types of associations: (1) the right to expressive association; and 6 (2) the right to intimate association. See Bd. of Dirs. of Rotary Int’l v. Rotary Club of 7 Duarte, 481 U.S. 537, 544 (1987) (quoting Roberts v. U.S. Jaycees, 468 U.S. 609, 619– 8 20 (1984)). The right to expressive association protects the right to associate with others 9 “for the purpose of engaging in those activities protected by the First Amendment— 10 speech, assembly, petition for the redress of grievances, and the exercise of religion.” 11 Roberts, 468 U.S. at 617–18. On the other hand, the right to intimate association protects 12 “choices to enter into and maintain certain intimate human relationships . . . against 13 undue intrusion by the State because of the role of such relationships in safeguarding the 14 individual freedom that is central to our constitutional scheme.” Id. at 617–18. 15 Although it is well-settled that the right to expressive association is protected by 16 the First Amendment, see Rumsfeld v. Forum for Acad. & Institutional Rights, Inc., 17 547 U.S. 47, 68 (2006), “nature and the extent of the right are hardly clear, and . . . the 18 source of the intimate association right has not been authoritatively determined”, 19 Matusick v. Erie Cty. Water Auth., 757 F.3d 31, 61 (2d Cir. 2014) (quotations omitted). 20 Nonetheless, the Ninth Circuit has held that the right to intimate association is protected 21 by the Fourteenth Amendment’s Due Process Clause. See IDK, Inc. v. Cty. of Clark, 22 836 F.2d 1185, 1192 (9th Cir. 1988) (“In protecting certain kinds of highly personal 23 relationships, the Supreme Court has most often identified the source of the protection as 24 25 26 27 28 3 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. -9- 1 the due process clause of the fourteenth amendment, not the first amendment’s freedom 2 to assemble.” (citing Zablocki v. Redhail, 434 U.S. 374, 383–86 (1978))). But see Adler v. 3 Pataki, 185 F.3d 35, 44 (2d Cir. 1999) (“Though the matter is not free from doubt, we 4 think a spouse’s claim that adverse action was taken solely against that spouse in 5 retaliation for conduct of the other spouse should be analyzed as a claimed violation of a 6 First Amendment right of intimate association.”); Adkins v. Bd. of Educ. of Magoffin Cty., 7 Ky., 982 F.2d 952, 955–56 (6th Cir. 1993) (recognizing a right to intimate association 8 under the First Amendment); Singleton v. Cecil, 133 F.3d 631, 635 (8th Cir. 1998) 9 (same); Parks v. City of Warner Robins, Ga., 43 F.3d 609, 615–16 (11th Cir. 1995) 10 (same). 11 As with the right to privacy, the Supreme Court and Ninth Circuit have not 12 definitively prescribed the extent of constitutional protections for abridgements of the 13 right to intimate association within public employment. See, e.g., Hollenbaugh v. 14 Carnegie Free Library, 439 U.S. 1052, 1055 (1978) (Marshall, J., dissenting) (dissenting 15 from the denial of certiorari where the district court had upheld a public employer’s 16 decision to discharge a librarian and custodian for cohabitating in an adulterous 17 relationship and recognizing that the Court has “never demarcated the precise boundaries 18 of this right [to privacy]”). However, the Supreme Court has generally recognized greater 19 deference towards the government when it acts as an employer. See Waters v. Churchill, 20 511 U.S. 661, 675 (1994) (plurality opinion) (“The government’s interest in achieving its 21 goals as effectively and efficiently as possible is elevated from a relatively subordinate 22 interest when it acts as sovereign to a significant one when it acts as employer.”). 23 Here, Plaintiff argues that her right to intimate association with her husband was 24 so clearly established that a reasonable official would have understood that Defendant’s 25 conduct violated that right given the specific factual context. (Doc. 24 at 11–16). In 26 support of this argument, however, Plaintiff cites to no Supreme Court or Ninth Circuit 27 precedent. Instead, Plaintiff first cites to Adler v. Pataki, in which the Second Circuit 28 Court of Appeals (“Second Circuit”) held that a plaintiff-employee stated a valid claim - 10 - 1 against a New York State public agency that terminated him because his wife filed a 2 lawsuit against the New York Attorney General. 185 F.3d at 44–45. However, unlike the 3 Ninth Circuit, the Second Circuit based its analysis on a First Amendment right of 4 intimate association because the agency’s “adverse action was taken solely against [the 5 plaintiff] in retaliation for conduct of the other spouse.” Id. at 44 (emphasis added). Here, 6 unlike in Adler, Plaintiff has not alleged any conduct by her spouse that motivated 7 Defendant’s action. Instead, Plaintiff has only claimed that her marriage to Mr. Wideman 8 was the sole catalyst for Defendant’s decision. (Doc. 21 at ¶ 19). 9 The other cases Plaintiff cites involve similar factual contexts as Adler and are, 10 thus, quite different from the facts presented in Plaintiff’s case. For example, Plaintiff 11 cites to Adkins v. Board of Education of Magoffin County, Kentucky, in which a school 12 superintendent refused to recommend a plaintiff for continued employment within the 13 school district because plaintiff’s husband, a principal within the district, failed to follow 14 the superintendent’s commands. 982 F.2d at 953. Plaintiff also cites to Sowards v. 15 Loudon County, Tennessee, in which sheriff’s department employees retaliated against 16 the 17 203 F.3d 426, 430–31 (6th Cir. 2000). Finally, Plaintiff cites to Gray v. Bruneau-Grand 18 View School District No. 365, in which a school district retaliated against a plaintiff after 19 the plaintiff’s husband objected to a school district policy. No. CV-06-069-S-BLW, 20 2007 WL 1381785, at *1 (D. Idaho Mar. 27, 2007). In all of these cases, as in Adler, it 21 was the plaintiff’s spouse’s conduct—e.g., the spouse’s failure to follow the 22 superintendent’s requests, the spouse’s candidacy for sheriff, or the spouse’s objection to 23 a district policy—that led defendants to retaliate against the plaintiff. Here, Plaintiff has 24 solely alleged that her marriage to Mr. Wakeman was the reason Defendant allegedly 25 retaliated against her. (Doc. 21 at ¶ 19). Plaintiff has not cited, and the Court has not 26 found, any case where retaliation based solely on a marriage—and not the conduct of a 27 spouse—has been found to violate a right to intimate association. Thus, Plaintiff has 28 failed to show that her rights were clearly established. plaintiff because the plaintiff’s husband - 11 - was a candidate for sheriff. 1 The Court finds that, regardless of whether Plaintiff has established a violation of 2 her Fourteenth Amendment right to intimate association, Defendant is entitled to 3 qualified immunity on this claim because Plaintiff’s rights were not clearly established at 4 the time of Defendant’s alleged retaliation. 5 2. Right to Marry 6 Plaintiff also asserts that Defendant’s alleged retaliation against Plaintiff on the 7 basis of her marriage violated her constitutional right to marry. (Doc. 21 at 8–9). 8 Defendant again argues that he is entitled to qualified immunity because Plaintiff’s right 9 to marry was not clearly established in this specific factual context. (Doc. 23 at 13). 10 The Supreme Court has recognized that the right to marry is part of the 11 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 - 12 - 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 - 13 - 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. - 14 - 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 // - 15 - 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. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 16 -

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