Gaona v. Arizona, State of et al
Filing
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ORDER - IT IS ORDERED that "Defendants State of Arizona and Angela Bonner's Amended Motion to Dismiss" (Doc. 11 ) is GRANTED. FURTHER ORDERED that "Defendants City of Page and Shawn Stice's Motion to Dismiss With Prejudice a nd- Joinder in State of Arizona and Angela Bonner's Motion to Dismiss as to Counts Three, Four and Five" (Doc. 10 ) is DENIED AS MOOT.FURTHER ORDERED that the Clerk shall enter judgment dismissing Gaona's first cause of action (42 U.S.C. § 1983) with prejudice, and dismissing Gaona'sremaining causes of action without prejudice. The Clerk shall terminate this case. Signed by Judge Neil V Wake on 4/25/11. (SAT)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Gabriel Gaona, an individual,
Plaintiff,
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ORDER
vs.
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No. CV-11-08007-PCT-NVW
State of Arizona; Roger Vanderpool, in his
individual and official capacity; City of
Page; Shawn E. Stice, an individual; and
Angela Bonner, in her individual and
official capacity,
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Defendants.
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Before the Court is “Defendants City of Page and Shawn Stice’s Motion to
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Dismiss With Prejudice –and- Joinder in State of Arizona and Angela Bonner’s Motion
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to Dismiss as to Counts Three, Four and Five” (Doc. 10) and “Defendants State of
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Arizona and Angela Bonner’s Amended Motion to Dismiss” (Doc. 11). For the reasons
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explained below, the Court will grant Arizona’s and Bonner’s motion as to Gaona’s
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§ 1983 claim. Without that § 1983 claim, Gaona has no basis for federal jurisdiction.
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The Court will therefore deny as moot Page’s and Stice’s motion (which argues only
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state-law issues), and dismiss the remainder of the case without prejudice to refiling in
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state court.
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I.
BACKGROUND
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Plaintiff Gabriel Gaona states in his complaint that he previously worked for the
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Arizona Department of Public Safety (DPS). His DPS duty station was Page, Arizona.
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In July 2008, DPS terminated Gaona. Gaona challenged his termination, resulting in a
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settlement agreement in which DPS agreed to withdraw Gaona’s termination and remove
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evidence of such termination from his personnel file, in exchange for Gaona’s
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resignation. Through that settlement agreement, both sides disclaimed any admission of
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fault.
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Gaona then got a job with BCSi, a private security guard company with which the
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federal government had contracted to provide security at the Glen Canyon Dam. As a
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condition for keeping this job, Gaona was required to pass a federal background check.
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Ten months after beginning the job, Gaona learned that he had failed the background
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check and he was immediately fired. This firing took place in front of co-workers.
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Through a FOIA request, Gaona obtained a copy of his background investigation.
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The investigation allegedly “shows that DPS, by and through ‘Angela Bonner, HR Asst.’
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documented that Gaona’s ‘Employment Status Change’ is ‘Terminated’ and stated that
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‘The subject Gabriel Gaona was terminated as a Dept of Public Safety (DPS) Officer for
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dishonesty.’” (Doc. 1 ¶ 22.) The background investigation also allegedly contains
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purportedly false and misleading statements by City of Page police detective Shawn
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Stice, including a statement that Gaona lied to Stice during a police investigation.
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Gaona has now brought this lawsuit, alleging a § 1983 cause of action, as well as
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causes of action for breach of contract, tortious interference with contract, defamation,
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intentional infliction of emotional distress, and negligent supervision.
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II.
LEGAL STANDARD
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Dismissal under Rule 12(b)(6) can be based on “the lack of a cognizable legal
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theory” or “the absence of sufficient facts alleged under a cognizable legal theory.”
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Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). The principle that
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a court accepts as true all of the allegations in a complaint does not apply to legal
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conclusions or conclusory factual allegations. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1951
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(2009). “Threadbare recitals of the elements of a cause of action, supported by mere
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conclusory statements, do not suffice.” Id.
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III.
ANALYSIS
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Gaona’s only claim entitling him to federal court jurisdiction is his § 1983 claim,
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based on the assertion that he has a constitutionally protected liberty interest in his
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reputation and a constitutionally protected property interest in his job. (Doc. 1 ¶ 31.)
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Both assertions are incorrect. The Constitution does not protect Gaona’s alleged liberty
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interest in his reputation because the allegedly false and defamatory statements were “not
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uttered incident to the termination of [his] employment by [a public employer, i.e.,
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DPS].” Siegert v. Gilley, 500 U.S. 226, 234 (1991). The Constitution does not protect
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Gaona’s alleged property interest in his job because Gaona was fired by a private
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employer. Of course, Gaona alleges that his private employer fired him because of what
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his former (public) employer said about him. But that is garden-variety defamation, and
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(as already explained) not actionable under § 1983. Accordingly, as a matter of law,
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Gaona has not alleged a viable § 1983 claim.
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Although leave to amend should be freely given “when justice so requires,” Fed.
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R. Civ. P. 15(a)(2), Gaona will not be granted leave to amend his § 1983 claim for two
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reasons.
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contradictory story. Second, Gaona has not requested leave to amend or filed any
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amended complaint. Under previous practice, it may have been acceptable to wait until
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resolution of the motion to dismiss before deciding to amend. However, the 2009
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amendments to Rule 15 now strongly encourage filing an amended complaint once the
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defects in a complaint become evident, usually as pointed out by a motion to dismiss.
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See Fed. R. Civ. P. 15, advisory committee note to 2009 amendments. Defendant State
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of Arizona’s and Defendant Bonner’s motion to dismiss raised the previously discussed
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defects in Gaona’s § 1983 claim (Doc. 11 at 4–5), but Gaona neither proposed to amend
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his complaint, nor did he respond to Arizona’s and Bonner’s arguments except with cases
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involving discharge from public employment and a case about state-law defamation
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(Doc. 19 at 4). Therefore, Gaona will not be granted leave to amend his § 1983 claim.
First, Gaona could not satisfy the § 1983 standards without asserting a
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Without his § 1983 claim, there is no basis for federal jurisdiction — all of
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Gaona’s remaining claims are based on state law and alleged against in-state defendants.
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Considering such lack of jurisdiction, the Court will not reach Defendants’ arguments to
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dismiss the state law claims. Instead, the § 1983 claim will be dismissed with prejudice,
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and all other claims will be dismissed without prejudice for lack of jurisdiction.
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IT IS THEREFORE ORDERED that “Defendants State of Arizona and Angela
Bonner’s Amended Motion to Dismiss” (Doc. 11) is GRANTED.
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IT IS FURTHER ORDERED that “Defendants City of Page and Shawn Stice’s
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Motion to Dismiss With Prejudice –and- Joinder in State of Arizona and Angela
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Bonner’s Motion to Dismiss as to Counts Three, Four and Five” (Doc. 10) is DENIED
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AS MOOT.
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IT IS FURTHER ORDERED that the Clerk shall enter judgment dismissing
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Gaona’s first cause of action (42 U.S.C. § 1983) with prejudice, and dismissing Gaona’s
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remaining causes of action without prejudice. The Clerk shall terminate this case.
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Dated this 25th day of April, 2011.
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