Gaona v. Arizona, State of et al

Filing 23

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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