Arellano v. San Luis, City of et al

Filing 89

ORDER: Defendant Lara's motion to dismiss 80 is granted. Defendant Van Riper's motion to dismiss 77 is denied.City Council Defendants' motion to dismiss 73 is granted. City Defendants' motion to dismiss 75 is granted. Plaintiff may file a second amended complaint by June 9, 2017. Signed by Judge David G Campbell on 5/08/2017. (REK)

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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 Javier Arellano, Plaintiff, 10 11 ORDER v. 12 No. CV-16-03423-PHX-DGC San Luis, City of, et al., 13 Defendants. 14 15 16 17 18 19 20 21 22 23 24 25 26 Plaintiff Javier Arellano filed a complaint against numerous Defendants seeking monetary and equitable relief for an alleged violation of his rights under the Fourteenth Amendment to the United States Constitution. Doc. 1. Four separate motions to dismiss have been filed by various Defendants. Docs. 73, 75, 77, 80. These motions are fully briefed, and the Court concludes that oral argument is not necessary. For the reasons that follow, the Court will grant three of the four motions to dismiss. I. Background. According to Plaintiff’s amended complaint, he was hired as a police officer with the City of San Luis Police Department in 1995.1 Doc. 7, ¶ 23. He received various promotions over the years, ultimately reaching the rank of Commander. Id., ¶ 25. In 2014, City of San Luis Police Chief Arturo Ramos took a leave of absence, and Plaintiff became Acting Chief of Police. Id., ¶¶ 25, 27. Chief Ramos had a standing verbal order 27 28 1 At this stage, Plaintiff’s factual allegations are accepted as true. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 1 that any San Luis police officer who had on-duty contact with any person who was 2 widely known, celebrated, or politically connected, should reported the contact to the 3 Chief. Id., ¶ 26. 4 On January 21, 2014, a San Luis police officer issued a traffic citation to Luz 5 Harper, the wife of City Council Member Joe Harper. Id., ¶ 29. Within minutes, Harper 6 contacted on-duty police lieutenant Ernesto Lugo allegedly to complain about the ticket. 7 Lugo advised Plaintiff about the issuance of the ticket, and Plaintiff retrieved the citation 8 and kept it in his office unprocessed for several months. Id., ¶¶ 31-32. On August 4, 9 2014, David Lara, a private citizen, requested a copy of the citation. Plaintiff located the 10 ticket in his office, noted that it was over six months old and thus legally void, and 11 dismissed it before providing the copy to Lara. Id., ¶ 37. An administrative investigation 12 into the incident was undertaken by the City Manager, City Attorney, and City Council. 13 Id., ¶ 38. An administrative termination hearing on December 11, 2014 resulted in a 14 termination recommendation. 15 employment termination matters, Ellen Van Riper, upheld the recommendation. 16 Id., ¶¶ 40, 42. 17 II. Id., ¶¶ 41-42. The hearing officer for appeals of Legal Standard. 18 A successful motion to dismiss under Rule 12(b)(6) must show either that the 19 complaint lacks a cognizable legal theory or fails to allege facts sufficient to support its 20 theory. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). A 21 complaint that sets forth a cognizable legal theory will survive a motion to dismiss as 22 long as it contains “sufficient factual matter, accepted as true, to ‘state a claim to relief 23 that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. 24 Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim has facial plausibility when “the 25 plaintiff pleads factual content that allows the court to draw the reasonable inference that 26 the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 27 556). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for 28 -2- 1 more than a sheer possibility that a defendant has acted unlawfully.” Id. (citing Twombly, 2 550 U.S. at 556). 3 III. Analysis. 4 Plaintiff alleges that Defendants violated his Fourteenth Amendment Due Process 5 rights by depriving him of a protected property interest in his continued employment 6 without valid pre-termination and post-termination proceedings. Doc. 7, ¶¶ 21, 39.2 The 7 Court will address each of the four motions to dismiss in turn. 8 A. 9 Defendant Lara argues that Plaintiff’s claims against him should be dismissed 10 because Plaintiff has not alleged that Lara had anything to do with Plaintiff’s termination 11 and thus has failed to state a claim upon which relief can be granted. Doc. 80. Plaintiff 12 contends that his complaint, taken as a whole, shows that Lara was part of a conspiracy or 13 “illegal agreement to remove the Plaintiff from his job and is therefore subject to suit.” 14 Doc. 84. Defendant David Lara’s Motion. 15 Plaintiff’s amended complaint alleges that “[t]he City and its officials used biased 16 and corrupt termination procedures to deprive Plaintiff of his Constitutional right to earn 17 a living as a law enforcement officer. The rights violated are guaranteed by the Due 18 Process and Equal Protection Clauses of the 14th Amendment to the United States 19 Constitution and protected by 42 U.S.C. § 1983.” Doc. 7, ¶ 1. With respect to Defendant 20 Lara specifically, Plaintiff contends only that Lara, “in coordination with Miguel Alvarez, 21 Lt. Lugo, the city officer and Does 1-20, delivered to the police department a request for 22 a copy of the citation specifying the citee by name, the citation number, the date of 23 issuance and what the citation was for.” Id., ¶ 36. Plaintiff alleges that he directed a 24 copy of the citation to be provided to Lara. Id., ¶ 37. 25 Broadly, Plaintiff contends: 26 27 28 2 Plaintiff appears to allege that other statutory and state constitutional rights were violated, but does not state any cause of action based on these rights. Id., ¶¶ 50, 51. -3- 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 [E]ach of the defendants herein was, at all times relevant to this action, the agent, employee, partner, political ally or joint venture of the remaining defendants and was acting within the course and scope of that relationship at all times described in this complaint. . . . [E]ach of the defendants herein gave consent to, participated in matters wherein they had a conflict of interest, ratified, and authorized the acts alleged herein to each of the remaining defendants. Id., ¶ 5. “Section 1983 is a vehicle by which plaintiffs can bring federal constitutional and statutory challenges to actions by state and local officials.” Naffe v. Frey, 789 F.3d 1030, 1035 (9th Cir. 2015) (quotation marks and citation omitted). To state a claim under § 1983, a plaintiff must allege two distinct elements: (1) the violation of a right secured by the Constitution or laws of the United States, (2) by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). Dismissal of a § 1983 claim “is proper if the complaint is devoid of factual allegations that give rise to a plausible inference of either element.” Naffe, 789 F.3d at 1036. A person acts under color of state law if he exercises “power possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.” West, 487 U.S. at 49 (quotation marks omitted). This requirement generally limits § 1983 suits to claims against public officials. To establish that a private individual, like Lara, acted under color of state law, a plaintiff must show that the individual “conspired or acted jointly with state actors to deprive the plaintiff[] of [his] constitutional rights.’” Radcliffe v. Rainbow Const. Co., 254 F.3d 772, 783 (9th Cir. 2001) (citing United Steelworkers v. Phelps Dodge Corp., 865 F.2d 1539, 1540 (9th Cir. 1989)). This requires evidence of “an agreement or meeting of the minds to violate constitutional rights.” Id. (quoting Phelps Dodge, 865 F.2d at 1540-41). “A relationship of cause and effect between the complaint and the prosecution is not sufficient, or every citizen who complained to a prosecutor would find himself in a conspiracy.” Id. The Supreme Court has made clear that a “pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’” -4- 1 Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). Discovery will not be 2 available to a party “armed with nothing more than conclusions.” Id. at 678-79. 3 Plaintiff relies on his contention that an “illegal agreement” existed between Lara 4 and the other Defendants. Plaintiff’s “assertion of an unlawful agreement [i]s a legal 5 conclusion” not entitled to an assumption of truth. Iqbal, 556 U.S. at 680. Plaintiff 6 provides no factual allegations that would show an agreement or meeting of the minds. 7 See Radcliffe, 254 F.3d at 783. He argues in his motion, but did not assert in his amended 8 complaint, that Lara delivered the copy of the citation “to whomever initiated the process 9 that led to the ultimate dismissal of the Plaintiff.” Doc. 84 at 3. But merely furnishing 10 information to a police officer, prosecutor, or other government official is not sufficient 11 to establish a conspiracy and satisfy the second element of a § 1983 claim. Radcliffe, 254 12 F.3d at 783; Banerjee v. Cont’l Inc., Inc., No. 216CV669JCMVCF, 2016 WL 5939748, at 13 *3 (D. Nev. Oct. 11, 2016) (quoting Lockhead v. Weinstein, 24 F. App’x 805, 806 (9th 14 Cir. 2001)). Nor does submitting a request for public information as a private citizen 15 constitute action under color of state law. As a result, Plaintiff has provided no facts, 16 accepted as true, that would establish Lara acted under color of state law in causing a 17 violation of Plaintiff’s rights. Plaintiff’s claims against Lara will be dismissed. 18 B. 19 Defendant Van Riper argues that she has absolute immunity from suit related to Defendant Ellen Van Riper’s Motion. 20 her performance of quasi-judicial functions. 21 absolute immunity does not apply because Van Riper is a contract worker, not a full time 22 employee of the City of San Luis; the City exercised financial control over her 23 compensation; and Van Riper consulted with and was directed by the City’s Attorney and 24 Managers throughout the matter. 25 establishing absolute immunity. Burton v. Infinity Capital Mgmt., 753 F.3d 954, 959 (9th 26 Cir. 2014) (“The proponent of a claim for absolute immunity bears the burden of 27 establishing that such immunity is justified.”) (quotation marks omitted). Doc. 77 at 2. Doc. 81 at 5. 28 -5- Plaintiff contends that Van Riper bears the burden of 1 “It has long been established that judges are absolutely immune from liability for 2 acts done by them in the exercise of their judicial functions[,]” and “[t]he Supreme Court 3 has extended such absolute immunity to other public officials who perform activities that 4 are functionally comparable to those of judges.” Miller v. Davis, 521 F.3d 1142, 1145 5 (9th Cir. 2008) (citations and quotation marks omitted). To determine whether a public 6 official is performing “quasi-judicial functions” entitled to absolute immunity, courts 7 consider “the nature of the responsibilities of the individual official,” rather than his rank, 8 title, or location within the government. Cleavinger v. Saxner, 474 U.S. 193, 201 (1985). 9 The Supreme Court has provided several specific factors to consider when making this 10 determination: “(a) the need to assure that the individual can perform his functions 11 without harassment or intimidation; (b) the presence of safeguards that reduce the need 12 for private damages actions as a means of controlling unconstitutional conduct; 13 (c) insulation from political influence; (d) the importance of precedent; (e) the adversary 14 nature of the process; and (f) the correctability of error on appeal.” Id. at 202 (citing Butz 15 v. Economou, 438 U.S. 478, 512 (1978)). 16 Plaintiff’s amended complaint alleges only that Van Riper “is the Hearing Officer 17 for appeals of employment termination matters[,]” and that she “decided to uphold the 18 City’s termination recommendation[.]” Doc. 7, ¶ 40, 42. Van Riper is additionally 19 identified as “a Hearing Officer for the City of San Luis.” Id., ¶ 8. The Court has not 20 been provided with any information concerning Van Riper’s responsibilities as hearing 21 officer, how she was selected and may be removed from it, what procedures she 22 employed in the hearing regarding Plaintiff’s termination, the nature of the hearing 23 process, or any appeal mechanisms. As a result, Van Riper has not met her burden of 24 establishing absolute immunity for purposes of this motion to dismiss.3 Because the 25 26 27 28 3 Van Riper cites a Ninth Circuit case for the proposition that hearing officers are entitled to absolute immunity. Doc. 77 at 3 (citing Demoran v. Witt, 781 F.2d 155, 156 (9th Cir. 1985)). Demoran points out that the Supreme Court in Butz extended absolute immunity to federal hearing officers and administrative law judges. 781 F.2d at 156. In extending absolute immunity in this way, Butz explicitly reviewed the characteristics of “adjudication within a federal administrative agency” and concluded that “[t]here can be -6- 1 Court is denying Van Riper’s motion on this ground, the Court will also deny her related 2 request for attorneys’ fees. Doc. 77 at 4-5. 3 In the alternative, Van Riper asks the Court to dismiss Plaintiff’s claim under 4 Federal Rule of Civil Procedure 12(b)(5) for failure to effect service within the 90 days 5 prescribed under Rule 4(m). Id. at 3-4. Rule 4(m) provides that the court “must extend 6 the time for service” upon a showing of “good cause,” but “even without a showing of 7 good cause, a district court may utilize its ‘broad’ discretion to extend the time for 8 service.” United States v. 2,164 Watches, 366 F.3d 767, 772 (9th Cir. 2004) (quoting In 9 re Sheehan, 253 F.3d 507, 513 (9th Cir. 2001)). The Ninth Circuit has recognized that, 10 “[a]t a minimum, ‘good cause’ means excusable neglect.” In re Sheehan, 253 F.3d at 512 11 (quoting Boudette v. Barnette, 923 F.2d 754, 756 (9th Cir. 1991)). 12 Plaintiff filed his complaint on October 6, 2016, and his amended complaint on 13 October 24, 2016. Docs. 1, 7. On February 8, the Court ordered Plaintiff to show cause 14 as to why his complaint should not be dismissed for failure to serve the summonses and 15 complaint on Defendants. Doc. 52. Plaintiff executed service on Van Riper and the other 16 Defendants on February 17. Doc. 58. He filed these summonses and a response to the 17 Court’s order on February 21. Doc. 53, 58. Thus, Plaintiff served Van Riper 134 days 18 after the filing of his initial complaint and 116 days after the filing of the amended 19 complaint. Plaintiff’s response to the Court’s order appears to be incomplete and does 20 not explain why he failed to effect service within the time prescribed. He attached 21 several emails between Plaintiff’s counsel’s office and the process server discussing 22 service. Doc. 53-1. The earliest of these emails was sent on February 10, 2017, and it 23 does not indicate when Plaintiff’s counsel first made an effort to serve Defendants or why 24 service was delayed. Id. 25 26 27 28 little doubt that the role of the modern federal hearing examiner or administrative law judge within this framework is ‘functionally comparable’ to that of a judge.” 438 U.S. at 512-13 (emphasis added). Van Riper, a local hearing officer, has not provided the facts to show that she is entitled to absolute immunity. -7- 1 Plaintiff now presents new reasons why he was unable to comply with Rule 4(m). 2 Doc. 81 at 3-4. 3 November 15, 2016, but was asked to resubmit by the clerk due to a failure to provide 4 attorney information. Id. at 3. He resubmitted on November 18, but a further notice of 5 defect was received on December 8. The summonses were resubmitted on December 21. 6 All summonses were issued by the clerk and provided to the process server, Luis 7 Figueroa, in Yuma County on the same day. Plaintiff’s counsel followed up on the 8 service progress on January 17, 2017 and was told that “all was in order and [Luis 9 Figueroa] was still checking on current addresses for some defendants and specifically 10 Plaintiff’s counsel submitted the summonses in this matter on Joe Harper.” Id. at 4. 11 Plaintiff alleges that service should have been completed on all Defendants by 12 January 22, 2017, and his counsel did not learn that no Defendants had been served until 13 February 10, 2017. 14 relationship of the process server to one of the defendants,” id. at 8, a relationship which 15 he first discovered on February 15, 2017, when the process server “indicated he was 16 unwilling to serve his relative and that the documents have been given to the Yuma 17 County Sheriff for service,” id. at 4. Plaintiff further argues that the process server 18 declined to serve anyone because his relative was involved. Id. at 7. He emphasizes that 19 all Defendants have been served as of February 17, Defendant has not alleged prejudice 20 resulting from the delay, and the statute of limitations has passed so that Plaintiff could 21 not refile if his claim is dismissed. Id. Plaintiff alleges that he “was blind-sided by the hidden blood 22 Plaintiff’s contentions appear to be contradicted by the emails he attaches to his 23 response to the Court’s order to show cause. On February 15, 2017, the process server 24 indicated that he had already served Defendant Harper and was still attempting to serve 25 Defendants Lara and Lugo. Doc. 53-1 at 3. He did state that the “sheriff’s office is going 26 to serve Victor Figueroa’s documents due to him being related to me,” but did not 27 otherwise refuse to serve any of the other Defendants. Moreover, on February 14, an 28 assistant to Plaintiff’s counsel indicated to the process server that he did not need to make -8- 1 the service on individuals outside of Yuma County – namely Defendants Eads and Van 2 Riper. Id. at 6. Thus, any issue stemming from the process server’s relationship to one 3 of the Defendants does not appear to be relevant to Plaintiff’s failure to timely serve Van 4 Riper. Luis Figueroa also appears to have signed the affidavits of service for the majority 5 of Defendants. Docs. 54-57, 59-68, 70. The Court concludes that Plaintiff has not shown 6 good cause for his failure to comply with Rule 4(m). 7 Even if a plaintiff fails to establish good cause, a Court may exercise its “broad 8 discretion” to extend the time for service. 2,164 Watches, 366 F.3d at 772 (citation 9 omitted). The Court will do so here. Plaintiff’s counsel obtained all of the summonses 10 within 90 days, and all Defendants have been served as of February 17. Moreover, Van 11 Riper has not alleged that she suffered any prejudice as a result of Plaintiff’s delayed 12 service. The parties agree that the statute of limitations has passed on Plaintiff’s claim, 13 meaning that any dismissal for improper service would result in Plaintiff’s inability to 14 refile. The Court will exercise its discretion to deny Van Riper’s motion to dismiss for 15 failure to comply with Rule 4(m). 16 C. 17 Defendants Joe Harper, Matias Rosales, Africa Luna-Carrasco, Marco Pinzon, 18 Gloria Torres, and Maria C. Ramos (collectively, the “City Council Defendants”) 19 similarly argue that they have absolute immunity from suit related to their performance of 20 quasi-judicial functions. Doc. 73 at 3. Plaintiff sues these Defendants in their individual 21 and official capacities, alleging that they violated his rights by voting to uphold his 22 termination. Doc. 82 at 3. Plaintiff argues that the “administrative act of termination is 23 not protected by absolute immunity for a Council person just as a judge is not given 24 absolute immunity when he terminates an employee.” Id. at 5. City Council Defendants’ Motion. 25 City Council Defendants cite a Ninth Circuit case for the proposition that board 26 members who are substantive decision makers are entitled to absolute judicial immunity. 27 Doc. 73 at 4 (citing Buckles v. King Cty., 191 F.3d 1127, 1136 (9th Cir. 1999)). Buckles 28 held that the board members were entitled to absolute immunity only after engaging in an -9- 1 analysis of the characteristics of the board and the relevant proceedings using the Butz 2 factors. 191 F.3d at 1134-35 (discussing Washington code which delineates the rules, 3 procedures, and regulations of the growth management hearings board). Neither party 4 has provided the court with any information about the City Council and the procedures it 5 employed in upholding Plaintiff’s termination. As a result, the Court is unable to apply 6 the Butz factors and determine whether the City Council Defendants were engaged in 7 quasi-judicial activities. Because the burden of proof lies with Defendants, the Court will 8 not dismiss Plaintiff’s claim on this ground. 9 City Council Defendants also seek dismissal of Plaintiff’s claim because the 10 complaint does not provide fair notice of what the claim is and the grounds upon which it 11 rests, as required by Rule 8 of the Federal Rules of Civil Procedure. Doc 73 at 4-5. 12 Plaintiff does not address this argument in his brief.4 The Court agrees that Plaintiff has 13 not pleaded sufficient factual allegations, accepted as true, to state a claim against City 14 Council Defendants “that is plausible on its face.’” Iqbal, 556 U.S. at 678. 15 As discussed, to state a claim under § 1983, a plaintiff must allege two distinct 16 elements: (1) the violation of a right secured by the Constitution or laws of the United 17 States, (2) by a person acting under the color of state law. West, 487 U.S. at 48. 18 Plaintiff’s general allegation that Defendants engaged in a conspiracy to violate his 19 Fourteenth Amendment rights is a legal conclusion not entitled to an assumption of truth, 20 and Plaintiff has provided no facts which would support his allegation of a conspiracy. 21 Plaintiff provides the same allegations with respect to each individual city council 22 member: the member “was aware of the illegal termination conduct which was known, 23 permitted and ratified by the City Administration, City Attorney and the City Council. 24 25 26 27 28 4 Defendants argue that Plaintiff has conceded this point by failing to respond to it. Doc. 86 at 4. “Even where a party fails to oppose a Rule 12(b)(6) motion, a court may assess the legal sufficiency of a complaint.” Bolbol v. City of Daly City, No. C-09-1944 EMC, 2011 WL 3156866, at *2 (N.D. Cal. July 26, 2011); see also McCall v. Pataki, 232 F.3d 321, 323 (2d Cir. 2000) (“If a complaint is sufficient to state a claim on which relief can be granted, the plaintiff’s failure to respond to a Rule 12(b)(6) motion does not warrant dismissal.”); Martinez v. Aycock-W., 164 F. Supp. 3d 502, 508 (S.D.N.Y. 2016). - 10 - 1 Later this Defendant, on information and belief, encouraged the termination of the 2 Plaintiff and voted to uphold the termination of the Plaintiff. 3 Defendant protected the political position of fellow councilman Joe Harper with the City 4 of San Luis.” Doc. 7, ¶¶ 11-15.5 Additionally, Plaintiff alleges that Defendants failed “to 5 provide valid pre-termination and post-termination proceedings.” Id., ¶ 53. He contends 6 that the City Manager, City Attorney, and City Council improperly ordered the scope of 7 the investigation into the dismissal of the citation to be limited to Plaintiff and another 8 police officer. Id., ¶ 38. The actions of this 9 Plaintiff has not sufficiently pleaded a violation of his procedural due process 10 rights committed by the City Council Defendants.6 “A procedural due process claim has 11 two distinct elements: (1) a deprivation of a constitutionally protected liberty or property 12 interest, and (2) a denial of adequate procedural protections.” Brewster v. Bd. of Educ. of 13 Lynwood Unified Sch. Dist., 149 F.3d 971, 982 (9th Cir. 1998). The City Council 14 Defendants do not dispute that Plaintiff had a property interest in his employment. As a 15 result, they were required to provide him with sufficient process before depriving him of 16 that interest. 17 opportunity to be heard. 18 (1985). Relevant here, the Ninth Circuit has held that a city employee is entitled to be 19 heard by an impartial adjudicator before his employment may be terminated. Walker v. 20 City of Berkeley, 951 F.2d 182, 183 (9th Cir. 1991). The essential elements of due process are notice and a meaningful Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546 21 22 23 24 25 26 27 28 5 Plaintiff’s allegations regarding Defendant Harper contain some differences, but these differences do not alter the Court’s analysis. See Doc. 7, ¶ 10. 6 Plaintiff also contends that his equal protection rights were violated. He has failed to allege that he was treated differently from any other similarly situated individual, and thus has not sufficiently pleaded a violation of equal protection. Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (“Our cases have recognized successful equal protection claims brought by a ‘class of one,’ where the plaintiff alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.”). - 11 - 1 An allegation that Defendants did not provide valid pre-termination and post- 2 termination proceedings is a legal conclusion not entitled to an assumption of truth. 3 Plaintiff does not assert how his termination proceedings were invalid other than to allege 4 that Defendants were biased and caused the hearing officer, Van Riper, to be biased. 5 Doc. 7, ¶¶ 39, 40 (“The City Manager, City Attorney, Council of the City of San Luis and 6 its staff had a direct conflict of interest in this investigation,” and Van Harper “was made 7 biased by the City Administration and City Attorney”). Plaintiff provides no factual 8 allegations to support his contention that the City Council Defendants improperly 9 controlled Van Riper or caused her to be biased. Instead, he merely asserts that Van 10 Riper “received impermissible direction from city staff as to the scope of the case against 11 Plaintiff and the evidence to be adduced at his trial.” Id., ¶ 8. Such an allegation is “a 12 legal conclusion couched as a factual allegation.” Iqbal, 556 U.S. at 678. Even accepting 13 as true that Van Harper conferred with City officials, the lack of factual allegations 14 against the City Council means that the Court cannot “infer more than the mere 15 possibility of misconduct[.]” Id. at 679. 16 The fact that the City Council Defendants voted to uphold the termination of 17 Plaintiff may be consistent with a deprivation of Plaintiff’s procedural due process rights, 18 but it is equally consistent with lawful behavior. 19 investigation into the citation’s dismissal be limited to Plaintiff and another police officer 20 is similarly consistent with lawful behavior. What is more, Plaintiff does not provide, 21 and the Court is not aware of, any case law suggesting that an adequate prehearing 22 investigation is a required component of procedural due process. See Diaz v. McGuire, 23 154 F. App’x 81, 85 (10th Cir. 2005) (“An adequate prehearing investigation is not 24 among the minimum due process protections”); Brown v. Frey, 889 F.2d 159, 171 (8th 25 Cir. 1989) (same); Whitford v. Boglino, 63 F.3d 527, 532 (7th Cir. 1995) (same). “Where 26 a complaint pleads facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops 27 short of the line between possibility and plausibility of ‘entitlement to relief.’” Iqbal, 556 28 U.S. at 678 (quoting Twombly, 550 U.S. at 557). Because Plaintiff has not sufficiently - 12 - Ordering that the scope of the 1 pleaded that he was deprived of the opportunity to be heard by an impartial adjudicator, 2 he has not sufficiently pleaded a violation of his due process rights. Plaintiff’s claims 3 against the City Council Defendants will be dismissed. 4 D. 5 Defendants City of San Luis, Gerardo Sanchez, Ralph Velez, Robert Eads, Tadeo 6 De La Hoya, Miguel Alvarez, Ernesto Lugo, Victor Figueroa, and Glenn Gimbut 7 (collectively, the “City Defendants”) also seek dismissal for failure to comply with 8 Rule 8. Doc. 75. Plaintiff argues that, taken as a whole, his complaint sufficiently 9 alleges a plausible claim for relief against the City Defendants. Doc. 83 at 5. He 10 contends that he does not know the role each Defendant played in the violation of his 11 rights, but “he does know the end result was to make him the scape goat for a ticket fixed 12 by a councilman and deny the Plaintiff a fair termination hearing. The overall picture is 13 laid out in the complaint. Discovery will expose the role of each participant.” Id. He 14 only specifically addresses the allegations against Alvarez and the City of San Luis. Id. 15 at 5-6. As already stated, Plaintiff’s general assertion that all Defendants were part of a 16 conspiracy to deny his Fourteenth Amendment rights is insufficient. The Court will 17 consider the sufficiency of the specific allegations against each City Defendant in turn. 18 City Defendants’ Motion. 1. City of San Luis. 19 Under § 1983, municipalities may not be held vicariously liable for violations of 20 constitutional rights committed by employees. Flores v. Cty. of Los Angeles, 758 F.3d 21 1154, 1158 (9th Cir. 2014). “[W]hile a municipality may not be held liable under § 1983 22 for the torts of its employees on a theory of respondeat superior, liability may attach 23 where the municipality itself causes the constitutional violation through the execution of 24 an official policy, practice or custom.” Fairley v. Luman, 281 F.3d 913, 916 (9th Cir. 25 2002) (emphasis in original). Additionally, a municipality may be held liable “where the 26 failure to train [its employees] amounts to deliberate indifference to the rights of persons 27 with whom the [employees] come into contact.” City of Canton, Ohio v. Harris, 489 28 U.S. 378, 388 (1989). - 13 - 1 Plaintiff alleges that Defendants were “negligent and deliberately indifferent in the 2 hiring, training, retention, discipline and supervision of defendants Lugo, and Does I 3 through 10[.]” Doc. 7, ¶ 66. Plaintiff also contends that the City of San Luis: 4 5 6 7 8 9 10 11 12 13 has a longstanding custom, practice or policy of protecting its elected politicians by terminating employees, managers, police chiefs and police officers to protect the elected officials from the consequences of their misconduct. The City Council, City Managers, City Attorney and other staff have knowingly permitted direct interaction and control by elected politicians with the City’s employees for the personal benefit of the elected officials. The City Staffers and Managers have permitted this circumvention of the proper functioning and organization of the City by permitting, encouraging, ratifying and covering up direct city employee contacts by politicians for personal benefit. This state of affairs has permitted the City’s elected officials to directly control the city’s employees, including law enforcement, in their jurisdiction, with impunity and leading to miscarriages of justice, violation of the Constitutional rights of employees to their property interest in continued employment and the denial of fair hearings for the employees before termination. 14 15 Id., ¶ 7. Plaintiff alleges that the City of San Luis has a policy of “permitting the 16 improper dismissal of tickets for friends and politically connected individuals,” and has 17 failed “to create a reliable tracking system on all issued tickets resulting in the negligent 18 and/or intentional failure to pursue tickets issued to enforce the public order and safety.” 19 Id., ¶ 67. 20 These allegations are insufficient to establish that the City of San Luis has a 21 policy, practice, or custom that violated Plaintiff’s constitutional rights. 22 provides a conclusory legal allegation that such a policy, practice, or custom exists, he 23 provides no factual support. He does not provide any example of other individuals who 24 were terminated “to protect the elected officials from the consequences of their 25 misconduct.” Nor does he allege how the city officials have allowed elected officials to 26 directly control city employees, or allege any examples of city officials covering up 27 improper contacts between politicians and employees, or even any such improper 28 contacts. He does not discuss his conclusory assertion of the City officials’ deliberate - 14 - While he 1 indifference to Plaintiff’s rights in the hiring, training, retention, discipline and 2 supervision of City employees. Plaintiff’s conclusory contentions and minimal factual 3 allegations do not allow the Court to infer that the City of San Luis plausibly has a policy, 4 practice, or custom that has violated his Fourteenth Amendment rights. 5 Plaintiff also contends that the “City of San Luis made the Plaintiff’s emails, 6 working papers and calendar unavailable for use by the Plaintiff to defend himself at trial 7 in order to deprive him of essential evidence and did not disclose evidence” of council 8 misconduct and conflicts of interest. Id., ¶ 47. He adds that the City “never interviewed, 9 nor disclosed if it did interview, or considered critically the role of its City Councilman in 10 the events,” or “reveal[ed] or ma[d]e available the evidence related to the telephone calls, 11 communications, orders and instructions involving various council members and their 12 contacts with the police involved in this incident.” Id., ¶ 48. As a city itself is incapable 13 of making evidence available, interviewing individuals, or disclosing whether or not it 14 completed interviews, the Court assumes that these allegations refer to actions or failures 15 to act by City officials and employees. But, as discussed, a municipality cannot be held 16 vicariously liable through a theory of respondeat superior. A municipality will only be 17 held liable under § 1983 if it has a policy, practice, or custom which has injured the 18 plaintiff. Plaintiff’s claims against the City of San Luis will be dismissed. 19 2. Sanchez, Velez, and Eads. 20 Defendant Sanchez is the mayor of San Luis. Doc. 7, ¶ 9. Defendant Velez was 21 the city manager at the time of the events in question, and Defendant Eads is the 22 successor city manager. Id., ¶¶16, 17. Plaintiff sues all three only in their official 23 capacities, and argues vaguely that they were “involved in,” “permitted,” “ratified,” and 24 “supervised” the conduct of the other Defendants, as well as “protected the councilman.” 25 Id. Thus it appears that Plaintiff is trying to sue these individuals under a theory of 26 respondeat superior. 27 “An official capacity suit against a municipal officer is equivalent to a suit against 28 the entity. When both a municipal officer and a local government entity are named, and - 15 - 1 the officer is named only in an official capacity, the court may dismiss the officer as a 2 redundant defendant.” Ctr. for Bio-Ethical Reform, Inc. v. Los Angeles Cty. Sheriff 3 Dep’t, 533 F.3d 780, 799 (9th Cir. 2008) (citation omitted). The Court will dismiss the 4 claims against Sanchez, Velez, and Eads as redundant.7 5 3. De La Hoya. 6 Defendant De La Hoya was the City’s Director of Operations, and Plaintiff sues 7 him in his individual and official capacities. Doc. 7. Plaintiff’s complaint does not even 8 mention De La Hoya, let alone give him fair notice of the claim against him. Twombly, 9 550 U.S. at 555, 570. Plaintiff’s claims against De La Hoya will be dismissed. 10 4. Alvarez. 11 Defendant Alvarez is a police officer for the City of San Luis, and Plaintiff sues 12 him in his official and individual capacities. Doc. 7, ¶ 18. Plaintiff contends that Alvarez 13 was “involved in the divulging of police information to a political activist to assist in [] 14 obtaining the firing of the Plaintiff in order to protect Councilman Harper. Mr. Alvarez 15 was subsequently rewarded by the defendants by being promoted[.]” Id. But Plaintiff 16 himself concedes that the copy of the citation was provided to Lara, the “political 17 activist,” under Plaintiff’s own orders and “as required by law.” Id., ¶ 37. Plaintiff does 18 not provide any cognizable legal theory for how Alvarez’s actions cause a deprivation of 19 Plaintiff’s Fourteenth Amendment rights. Plaintiff tries to rely on Alvarez being “part of 20 a larger group working to use the City’s resources to further their individual political or 21 financial interests,” doc. 7 at 5, but general allegations of the existence of an agreement 22 or conspiracy to deprive Plaintiff of his rights do not suffice to state a claim under 23 § 1983. Plaintiff’s claims against Defendant Alvarez will be dismissed. 24 25 26 5. Lugo. Defendant Lugo is a former police lieutenant for the City of San Luis, and Plaintiff sues him in his official and individual capacities. Id., ¶ 19. Plaintiff contends: 27 7 28 The Court also reiterates that a municipality may not be held liable under a theory of respondeat superior. Thus, even if the claims were not dismissed, Plaintiff has not alleged a cognizable claim against these three Defendants in their official capacities. - 16 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Lugo was directed by Councilman Harper to ‘fix’ the traffic ticket given to Mrs. Harper by a police officer of the City of San Luis, AZ. Mr. Lugo then involved the Plaintiff by having Plaintiff retrieve the traffic ticket from the issuing officer. Lugo . . . then secreted the ticket until such time as it became a political and employment issue. He then replaced the ticket in the Plaintiff’s office to inculpate the Plaintiff in Lugo’s and Harper’s ticket fixing scheme which sought to protect Lugo’s employment position and the elected position of councilman Harper[.] Id. Assuming that Lugo was acting under the color of state law, Plaintiff has not alleged that Lugo violated Plaintiff’s Fourteenth Amendment rights. Plaintiff contends that, after receiving the phone call from Harper directing that the ticket be “fixed,” Lugo advised Plaintiff that “a patrol officer had cited a politician’s wife and that Chief Ramos would want to be informed as soon as possible.” Id., ¶ 31. Plaintiff then retrieved the citation and placed it in his office “for the express and sole purpose of informing Chief Ramos of the contact with a politician’s wife and thereby complying with the Chief’s orders.” Id. Plaintiff “did not remember the ticket nor touch it” until August 4, 2014. Id., ¶¶ 32, 36. Plaintiff emphasizes that “Lugo did not share the source of his information [about the ticket] with [Plaintiff] nor indicate Lugo’s desire to make the ticket disappear.” Id., ¶ 31. It is hard to see how this last allegation is relevant. Plaintiff maintained that his conduct was done to comply with Ramos’ policy. He does not allege that he was terminated because the ticket was in his desk when it was requested by Lara, and whether or not Lugo had “secreted” the ticket away and later replaced it, Plaintiff contends that he forgot about the ticket’s existence in his office and did not look for or touch it until after August 4. Moreover, it appears that Lugo’s conduct, like Plaintiff’s, was undertaken in compliance with Ramos’ policy. Plaintiff’s allegations, accepted as true, do not show that Lugo violated Plaintiff’s procedural due process rights related to his protected property interest in continued employment. The Court will dismiss Plaintiff’s claims against Defendant Lugo. 6. Figueroa. Defendant Figueroa is a police officer for the City of San Luis, and Plaintiff sues him in his official and individual capacities. Doc. 7, ¶ 20. Plaintiff contends that - 17 - 1 Figueroa “directed the investigation [into the actions of Lugo, Harper and Plaintiff], 2 limited the scope of the inquiry to protect a sitting politician and thereafter directed the 3 termination of the Plaintiff to protect the politician.” Id. Plaintiff adds that “Figueroa 4 was subsequently rewarded by the defendants by being promoted by the City[.]” Id. 5 The plausibility standard “asks for more than a sheer possibility that a defendant 6 has acted unlawfully,” demanding instead sufficient factual allegations to allow “the 7 court to draw the reasonable inference that the defendant is liable for the misconduct 8 alleged.” Iqbal, 556 U.S. at 678. Taking as true the allegations that Figueroa directed 9 and limited the scope of the investigation, Plaintiff provides no explanation of how this 10 conduct violated his Fourteenth Amendment rights. Plaintiff has not shown that he has a 11 right to investigation without a limited scope. Moreover, Plaintiff has not alleged any 12 facts to support his allegation that Figueroa “directed the termination” of Plaintiff. 13 Doc. 7, ¶ 20. “The pleading standard Rule 8 announces does not require ‘detailed factual 14 allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-harmed- 15 me accusation.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). 16 7. Gimbut. 17 Defendant Gimbut was the City Attorney at the time of the events in question. 18 Plaintiff sues him in his individual and official capacities, arguing that he “knowingly 19 guided the City Council and City Staff as it and they permitted and then ratified the 20 actions of a sitting councilman to directly influence the law enforcement conduct of a 21 police officer and then protected the City and the Councilman while assisting in the firing 22 of the Plaintiff and others[.]” Doc. 7, ¶ 21. Plaintiff also alleges that Gimbut, together 23 with the City Manager and the City Council, improperly directed the investigation of the 24 citation dismissal in which he had a direct conflict of interest. Id., ¶¶ 38-39. For the 25 reasons already discussed, these allegations are insufficient to establish that Gimbut 26 violated Plaintiff’s Fourteenth Amendment rights. 27 28 - 18 - 1 IV. Leave to Amend. 2 “Dismissal with prejudice and without leave to amend is not appropriate unless it 3 is clear . . . that the complaint could not be saved by amendment.” Eminence Capital, 4 LLC v. Aspeon, Inc ., 316 F.3d 1048, 1052 (9th Cir. 2003). Plaintiff may file an amended 5 complaint by June 9, 2017. Because this will be Plaintiff’s third complaint, he is advised 6 that further failures to state a claim will not result in leave to amend. 7 IT IS ORDERED: 8 1. Defendant Lara’s motion to dismiss (Doc. 80) is granted. 9 2. Defendant Van Riper’s motion to dismiss (Doc. 77) is denied. 10 3. City Council Defendants’ motion to dismiss (Doc. 73) is granted. 11 4. City Defendants’ motion to dismiss (Doc. 75) is granted. 12 5. Plaintiff may file a second amended complaint by June 9, 2017. 13 14 Dated this 8th day of May, 2017. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 19 -

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