Ortiz et al v. Alvarez et al

Filing 66

ORDER signed by District Judge Kimberly J. Mueller on 1/12/2016. In light of the plaintiffs' 52 Statement of Non-Opposition the claims for negligent infliction of emotional distress are DISMISSED with prejudice. The plaintiffs do not address t he YCAs and Laras arguments that the complaint states no claim against them for state-law wrongful termination in violation of public policy. This claim is therefore DISMISSED with leave to amend. The plaintiffs are again reminded of their obligation s under Federal Rule of Civil Procedure 11. Complaint's theory of YCA's and Lara's liability as private entities under § 1983 is incoherent. The claims under § 1983 are DISMISSED with leave to amend to clear up this confusio n, if possible in light of the authorities cited above and the requirement that defendants can only be liable under § 1983 for actions undertaken under color of state law. "The 59 Stipulation is APPROVED in part as follows. Because not a ll defendants stipulated to the filing of a Third Amended Complaint, and that pleading was filed without leave of court, it is STRICKEN. See Fed. R. Civ. P. 15(a)(2). The plaintiffs are however GRANTED leave to file a fourth amended complaint, which may (1) address the matters discussed above with respect to the YCA's and Lara's motion; and (2) implement the changes made in the stricken third amended complaint with respect to the PUSD defendants. The PUSD motion to dismiss is therefore DENIED AS MOOT, and the PUSD defendants may file a renewed Motion to Dismiss, including to dismiss any claim under 42 U.S.C. § 1983, once an amended complaint is on file. A Fourth Amended Complaint shall be filed within 14 days of the date this order is filed. (Marciel, M)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

SANDRA ORTIZ, et al.,

12

Plaintiffs,

13
14

No. 1:15-cv-0535-KJM-EPG

v.

ORDER

GERARDO ALVAREZ, SUPT., et al.,

15

Defendants.

16
17
Having reviewed the allegations of the Second Amended Complaint and the

18
19

parties’ briefing, the court orders as follows:1

20

I.

21

YOUTH CENTERS OF AMERICA (YCA) AND ISRAEL LARA
A.

In light of the plaintiffs’ statement of non-opposition, ECF No. 52, the claims for

22
23

Negligent Infliction of Emotional Distress

negligent infliction of emotional distress are DISMISSED with prejudice.

24
25
26
1

27
28

In an effort to streamline resolution of motions to dismiss in cases where the parties have
counsel, when the court is granting leave to amend it is adopting a shortened form of order
consistent with the order issued here.
1

1

B.

2

Wrongful Termination
The plaintiffs do not address the YCA’s and Lara’s arguments that the complaint

3

states no claim against them for state-law wrongful termination in violation of public policy. The

4

plaintiffs’ brief in opposition to the YCA’s and Lara’s motion focuses solely on the YCA’s and

5

Lara’s municipal liability under federal law. See Opp’n YCA Mot. 3–4, ECF No. 51. By

6

omitting any argument on this point, the plaintiffs implicitly concede dismissal of this claim. See,

7

e.g., Silva v. U.S. Bancorp, No. 10-01854, 2011 WL 7096576, at *3 (C.D. Cal. 2011). This claim

8

is therefore DISMISSED with leave to amend. The plaintiffs are again reminded of their

9

obligations under Federal Rule of Civil Procedure 11.

10
11

C.

42 U.S.C. § 1983
Section 1983 imposes liability only a defendant who acts under color of law. See,

12

e.g., Stein v. Ryan, 662 F.3d 1114, 1118 (9th Cir. 2011). “[P]rivate parties are not generally

13

acting under color of state law . . . .” Price v. State of Hawaii, 939 F.2d 702, 707–08 (9th Cir.

14

1991). But “[u]nder familiar principals, even a private entity can, in certain circumstances, be

15

subject to liability under section 1983.” Villegas v. Gilroy Garlic Festival Ass’n, 541 F.3d 950,

16

954 (9th Cir. 2008) (en banc). This is true only when “the conduct allegedly causing the

17

deprivation of a federal right [is] fairly attributable to the State.” Lugar v. Edmondson Oil Co.,

18

457 U.S. 922, 937 (1982).

19

Here, the complaint’s theory of YCA’s and Lara’s liability as private entities under

20

§ 1983 is incoherent. The complaint alleges both (1) Alfonso Padron was an employee of YCA

21

and worked under a contract YCA had negotiated with the PUSD, see, e.g., Second Am. Compl.

22

¶¶ 5, 35, 40, Ex. B, ECF No. 33; and (2) Padron was employed by the PUSD, see, e.g., id. ¶¶ 35–

23

36, 40. It is also unclear whether Padron’s employment was terminated or whether only the

24

PUSD contract was terminated. See id. ¶¶ 135–136. The claims under § 1983 are DISMISSED

25

with leave to amend to clear up this confusion, if possible in light of the authorities cited above

26

and the requirement that defendants can only be liable under § 1983 for actions undertaken

27

“under color of state law.”

28
2

1

II.

PARLIER UNIFIED SCHOOL DISTRICT (PUSD), ET AL.

2

The stipulation at ECF No. 59 is approved in part as follows. Because not all

3

defendants stipulated to the filing of a third amended complaint, and that pleading was filed

4

without leave of court, it is STRICKEN. See Fed. R. Civ. P. 15(a)(2). The plaintiffs are however

5

GRANTED leave to file a fourth amended complaint, which may (1) address the matters

6

discussed above with respect to the YCA’s and Lara’s motion; and (2) implement the changes

7

made in the stricken third amended complaint with respect to the PUSD defendants. The PUSD

8

motion to dismiss is therefore DENIED AS MOOT, and the PUSD defendants may file a renewed

9

motion to dismiss, including to dismiss any claim under 42 U.S.C. § 1983, once an amended

10

complaint is on file.

11

III.

AMENDMENT

12
13
14
15

A fourth amended complaint shall be filed within fourteen days of the date this
order is filed.
IT IS SO ORDERED.
DATED: January 12, 2016.

16
17
18

UNITED STATES DISTRICT JUDGE

19
20
21
22
23
24
25
26
27
28
3