Mack v. California Department of Corrections and Rehabilitation et al

Filing 71

ORDER GRANTING IN PART 48 the Motion to Dismiss; ORDER DENYING AS MOOT 52 the Special Motion to Strike, signed by Magistrate Judge Jennifer L. Thurston on 7/25/2016. (Hall, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JEROME J. MACK,
Plaintiff,

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v.

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CALIFORNIA DEPT. OF CORRECTIONS
AND REHABILITATION, et al.,

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Defendants.
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Case No.: 1:15-cv-01600 --- JLT
ORDER GRANTING IN PART THE MOTION TO
DISMISS; ORDER DENYING AS MOOT THE
SPECIAL MOTION TO STRIKE
(Docs. 48, 52)

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I.

Background

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Since September 1986, the plaintiff has been employed by the California Department of

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Rehabilitation and Corrections. (Doc. 40 at2) During his tenure, he has worked at several of the

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CDCR’s prison facilities and steadily improved his position in terms of salary and job duties. Id. at 3.

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In 1999, Mack transferred to CCI. Id. at 3. Mack claims he was subject to unlawful personnel actions

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at CCI due to his race.

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In June 2013, Mr. Mack alleges he documented an incident of staff misconduct involving his

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immediate supervisors, David Mason and Brad Sanders. (Doc. 40 at 4) In December 2013, Mack

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sought to transfer to the California Men’s Colony. Id. CCI’s Warden, Holland, approved the transfer.

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Id. However, the transfer did not occur because Mason and Sharon McKay—a subordinates of

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Holland’s—told the sergeant with whom he had to interview at CMC, that Mack was the subject of a
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pending personnel investigation. Id. Mack had not been notified of a pending personnel investigation

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and did not learn of it until April 2014. Id.

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Mack applied for a Lieutenant position at CCI in February 2014. (Doc. 40 at 4) He was

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denied the promotion and told that it was due to a mistake by Holland and he would be reconsidered

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for the position later in the month. Id. However, he was not. Id.

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In May 2014, Mack filed a complaint with the EEOC/DEFH and raised claims of

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discrimination and retaliation. (Doc. 40 at 4) The next month, Mack attended a mandatory EEO

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training. Id. at 4-5. At the training, Brad Sanders asked the trainer a question that involved a

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hypothetical situation in which a person making an EEOC complaint was, at that time, the subject of a

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personnel investigation. Id. Mack felt the question was meant to “target and ridicule” him. Id. at 5.

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Also, during the training, the attendees were asked to participate in a role-playing exercise involving a

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claim of retaliation. Id. Mack felt uncomfortable. Id. Mack complained about the incident, and other

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incidents, soon after. Id. The CDCR, through Associate Warden Garcia, responded and ordered

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Mack and others listed in his complaint to refrain from interaction other than that required by their job

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duties. Id. In early June and again in July 2014, Mack amended his EEOC/DFEH complaint but the

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conditions worsened. (Doc. 40 at 5)

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In July 2014, Mack had a promotional interview at Ironwood State Prison. (Doc. 40 at 5)

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Though Mack was selected initially for the promotion, it fell through after a coworker told staff at

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Ironwood that Mack was the subject of a personnel investigation. Id. at 6. This occurred also in

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connection with a promotional opportunity at Wasco State Prison in the same month. Id. Mack

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alleges he did not learn of this personnel investigation until December 2014. Id. Notably, at an

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administrative hearing related to Mack’s whistleblower complaint1 on August 12, 2014, Garcia

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testified that he was not aware of any personnel investigations related to Mack. Id. However, Garcia

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testified he had sought an internal affairs investigation of Mack. Id. On August 19, 2014, Mack was

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temporarily reassigned due to a personnel investigation. Id.

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In September 2014, Holland denied Mack’s request for an “out of class assignment.” (Doc. 40

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This complaint was not sustained though “Mason was found to be deceptive due to providing multiple accounts
of the circumstances surrounding the allegations against [Mack].” (Doc. 40 at 10)

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at 7) Later in the month, Mack was interviewed for a promotion at CCI. Mack contends that the

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panelists assigned to conduct the interview had conflicts of interest because they were aware of the

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pending personnel investigations and the “ultimate adverse action” resulting therefrom. Id. Mack was

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not selected and though a person of the same race as Mack was selected, this person was “stripped” of

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his promotion by Holland. Id. at 7-8. Once again, in September 2014, Mack again filed a complaint

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with the EEOC/DFEH. Id.

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In December 2014, the Office of Internal Affairs notified Mack that he was under investigation

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for his action related to his conduct when attending a medical procedure performed on an inmate.

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(Doc. 40 at 8) Internal Affairs sustained one of the allegations though Mack contends it was as a

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result of several witnesses providing “false and inconsistent testimony.” Id

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In June 2015, Mack was denied a promotion at Corcoran State Prison and a Caucasian person

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with less experience received the job. (Doc. 40 at 8) Mack alleges that Sharon McKay notified all

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facilities with promotional opportunities available of Mack’s pending personnel investigation. Id.

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In February 2015, Mack was given an “Adverse Personnel Action” related to misconduct

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occurring in January 2014. (Doc. 40 at 9) Mack contends the APA was sustained due to false

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statements made by Garcia and Mason. Id. It resulted in his pay being lowered by five percent for six

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months. Id.

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In August 2015, Mack was given another Adverse Personnel Action by Holland. (Doc. 40 at

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9) In it, Mack was accused of leaving his post without notifying his supervisor, Mason. Id. This

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resulted in Mack losing pay for ten months. Id.

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II.

Motion to Dismiss/Special Motion to Strike

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In the motion to dismiss, the defendants argue that they are immune from liability based upon

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the Noerr-Pennington doctrine and/or that the complaint should be stricken as a violation of the Anti-

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SLAPP statute. Likewise, the motion to dismiss argues that the complaint violates the Rooker-

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Feldman doctrine, the Younger doctrine abstention, res judiciata and the Eleventh amendment

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immunity, among other arguments.

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A.

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The defendants request the Court take judicial notice of decisions of the SPB in case numbers

Requests for Judicial Notice

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15-0147, 15-512, 15-1498, 14-01780W. (Doc. 51) The plaintiff also asks the Court to take judicial

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notice of the outcome of SPB decision 15-1498 (Doc. 62 at 2). Despite this, however, the plaintiff

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objects to the Court taking judicial notice of the documents proposed by the defendants despite that

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one of the documents is the same as the one for which he seeks judicial notice.

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The Court may take judicial notice of facts that are “capable of accurate and ready

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determination by resort to sources whose accuracy cannot reasonably be questioned.” Fed.R.Evid.

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201(b)(2). The Court must take judicial notice for a judicially noticeable fact “if requested by a party

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and supplied with the necessary information.” Fed.R.Evid. 201(c)(2). Here, the parties agree the Court

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may take judicial notice of the SPB decisions and, indeed, for this proposition cite to the same

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authorities. Thus, the Court GRANTS the requests and the Court will take judicial notice of the fact

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that the SPB has determined these actions and the dates on which it did so. The Court will also take

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notice of the fact that the plaintiff has not sought writ relief after any of the SPB decisions at issue.2 It

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DENIES the defendants’ request that the Court to take judicial notice of the declaration of Sharon

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McKay because this is not a proper document for judicial notice. Likewise, as to the motion to

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dismiss, the Court will not consider the declarations submitted by the plaintiff (Docs. 59, 63-65) as

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doing so is improper on a motion brought under Fed. R. Civ. P. 12(b).

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B.

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The defendants argue that the whistleblower claim is not timely because it was filed more than

Statute of Limitations for the Whistleblower Claim

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one year after the events giving rise to the claim or more than one year after the SPB issued its

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decision. (Doc. 49 at 25-27) Notably, California Government Code § 8547.8 (West) provides, “[A]ny

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action for damages [in a “whistleblower” complaint] shall not be available to the injured party unless

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the injured party has first filed a complaint with the State Personnel Board pursuant to subdivision (a),

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and the board has issued, or failed to issue, findings pursuant to Section 19683.”

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The Court may take judicial notice of the public filings of the Kern County Superior Court. Fed. R. Evid.

201(b)(2).

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The parties agree that the SPB issued its findings on September 18, 2014.3 (Doc. 49 at 27;

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Doc. 60 at 11) However, they disagree as to whether the statute of limitation is tolled during the 30-

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day period (plus, the plaintiff contends, an additional five days if the decision is mailed) before the

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decision becomes final. Notably, in State Board of Chiropractic Examiners v. Superior Court, 45

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Cal.4th at 971, the California Supreme Court considered the language of § 8547.8 as follows:

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Section 8547.8(c) imposes liability “in an action for damages” on “any person who
intentionally engages in acts of reprisal, retaliation, threats, coercion, or similar acts
against a state employee” for disclosing improper governmental activities or unsafe
conditions. But this provision includes an important caveat: “However, any action for
damages shall not be available ... unless the injured party has first filed a complaint
with the State Personnel Board ..., and the board has issued, or failed to issue, findings
pursuant to Section 19683.” (§ 8547.8(c), italics added.) Section 8547.8(c) refers only
to the issuance of “findings,” nothing more. On its face, it does not require the
complaining employee to petition the State Personnel Board for a hearing before an
ALJ, nor does it require the employee to seek writ review of the board's findings.
Section 8547.8(c) also makes express reference to section 19683, thereby clarifying the
precise type of findings that satisfy the caveat.
Section 19683, subdivision (a), provides: “The State Personnel Board shall initiate a
hearing or investigation of a written complaint of reprisal or retaliation ... within 10
working days of its submission. The executive officer shall complete findings of the
hearing or investigation within 60 working days thereafter....” (Italics added.) This
provision clearly uses the term “findings” to refer to the initial decision of the board’s
executive officer (issued within 70 days of the filing of the complaint), and therefore
section 8547.8(c)’s express cross-reference to section 19683 indicates that this initial
decision constitutes the “findings” that satisfy section 8547.8(c).

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Nothing in the Supreme Court’s analysis indicates that the statute of limitations is tolled during the

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period between which the Executive Officer issues the findings and the 30-day period within which

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the parties may file for a petition for writ of administrative mandamus. Cal. Code Civ. Proc § 1094.5;

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Cal. Gov. Code § 11523 [The petition for writ of administrative mandamus must be filed within 30

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days “after the last day on which reconsideration can be ordered.”] In short, the statute of limitations

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appears to run from the issuance of the findings and not from when the findings become “final.” Thus,

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because the complaint initiating this action (assuming the claim relates back) was filed on October 20,

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2015, it was not filed timely.

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On the other hand, the plaintiff contends—though without citation to any authority—that

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because the findings of the Executive Director were mailed, the finality of the determination was

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Because the defendants do not contend that the September 18, 2014 findings by Executive Officer, Suzanne
Ambrose, are not the key findings, the Court accepts this as the operative date.

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tolled for five days. The Court disagrees. California Code of Civil Procedure § 1013 does not extend

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jurisdictional statutes of limitations. Fritts v. County of Kern, 135 Cal.App.3d 303, 307–308 (1982)

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[Section 1013 does not extend the 30-day period to file a complaint against a public entity after the

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trial court waived the claim filing requirement]; Smith v. City and County of San Francisco, 68

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Cal.App.3d 227, 231–232 (1977) [Section 1013 does not extend the period for filing an action against

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a public entity after the tort claim is denied]. In Mario Saikhon, Inc. v. Agricultural Labor Relations

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Board, 140 Cal.App.3d 581, 582 (1983), the Agricultural Labor Relations Board issued findings that

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Saikhon committed unfair labor practices and mailed notice of the findings the same day. Saikhon

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filed his petition for writ of mandate 33 days later. Id. The court dismissed the petition as untimely

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because it was required to be filed 30 days after the issuance of the findings. Id. On appeal, Saikhon

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argued that he was entitled to the extra five days provided by § 1013 because the findings were mailed

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to him. Id. at 583. In rejecting this argument, the Court of Appeal held,

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Section 1013, subdivision (a) by its terms deals only with the “case of service by mail,”
and with acts or responses which must be performed within a prescribed period “after
the service” of a document. Labor Code section 1160.8 does not say the petition for
review must be filed within 30 days after service of the Board's order; it requires the
petition be filed within 30 days of the “issuance” of the Board's decision. Only if
“issuance” is synonymous with “service” would section 1013, subdivision (a) apply in
this case.

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The court held similarly in San Mateo Fed'n of Teachers v. Pub. Employment Relations Bd., 28

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Cal.App.4th 150, 153 (1994), where the court determined that, “[t]he statutory time does not start with

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‘service’ as required by section 1013, subdivision (a), but with issuance.’” Thus, the motion is

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GRANTED without leave to amend as to the Tenth cause of action.

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C.

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The Noerr-Pennington doctrine immunizes from liability those who petition any branch of

Noerrr-Pennington

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government for redress. Manistee Town Ctr. v. City of Glendale, 227 F.3d 1090, 1092 (9th Cir.

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2000). The doctrine applies to actions brought under 42 USC § 1983 that are founded upon petitions

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to public agencies. Id. The doctrine applies to public agencies petitioning other public agencies. Id.

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Noerr-Pennington protects conduct that incidental to the government petition as well as that which is

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incidental to it. Freeman v. Lasky, Haas & Cohler, 410 F.3d 1180, 1185 (9th Cir.2005).

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Noerr-Pennington does not protect sham actions. Sham conduct may involve filing a single
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lawsuit (Kottle v. Northwesr Kidney Centers, 146 F.3d 1056, 1060 (9th Cir. 1998)) that is “objectively

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baseless in the sense that no reasonable litigant could realistically expect success on the merits” and

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“an attempt to interfere directly with the business relationship of a competitor through the use of the

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governmental process—as opposed to the outcome of that process.” Hard 2 Find Accessories, Inc. v.

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Amazon.com, Inc., 2014 WL 6452173, at *3 (W.D. Wash. Nov. 17, 2014) citing Rock River

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Communs., Inc. v. Universal Music Group, Inc., 745 F.3d 343, 351 (9th Cir.2014). It may also

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include filing multiple lawsuits—whether some have merit—if they are filed for the purpose of injury

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a rival or where the opponent makes intentional misrepresentations to the court that “deprive the

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litigation of its legitimacy.” Kottle, at 1060.

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In White v. Lee, 227 F.3d 1214, 1231 (9th Cir. 2000), the Court recognized that the doctrine

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extends to all types of cases. The Court observed, “Noerrr–Pennington is a label for a form of First

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Amendment protection; to say that one does not have Noerrr–Pennington immunity is to conclude that

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one’s petitioning activity is unprotected by the First Amendment.” However, the Court was quick to

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add, “We do not mean to imply that the converse is true. Whether or not Noerrr–Pennington provides

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greater protection than the First Amendment is a question we need not consider in this case.” Id. at

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1232, n.14.

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Notably, however, public employees do not have First Amendment protection except when

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speaking as private citizens on topics of public concern. Garcetti v. Ceballos, 547 U.S. 410, 420

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(2006). Indeed, “[s]peech that deals with individual personnel disputes and grievances and that would

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be of no relevance to the public’s evaluation of the performance of governmental agencies is generally

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not of public concern.” Eng v. Cooley, 552 F.3d 1062, 1070 (9th Cir.2009). The pleading seems to

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demonstrate that these alleged statements were not made as a private citizen. Thus, according to

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Garcetti, it appears that the First Amendment would not protect the statements.

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On the other hand, except for the statements made at the State Personnel Board4, all of the
other speech alleged relates to initiating internal investigations of plaintiff’s conduct or was

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Even assuming Noerr-Pennington applies to petitions by one agency of a state to another agency of the same
state, the statements made to the Personnel Board were not made by a state agency but by an individual within the course
and scope of his employment; this is not speech protected by the First Amendment. The defendants do not address the
interaction between Noerr-Penington and Garcetti.

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communicated to other employees of the CDCR. Notably, Manistee found that the Noerr-Pennington

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doctrine applied to petitions of a government agency to another in order to protect the petitioning

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agency’s constituents. Manistee held, “Government officials are frequently called upon to be

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ombudsmen for their constituents. In this capacity, they intercede, lobby, and generate publicity to

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advance their constituents' goals, both expressed and perceived. This kind of petitioning may be nearly

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as vital to the functioning of a modern representative democracy as petitioning that originates with

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private citizens.” Manistee, at1093. The suggestion that statements made within a single government

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agency does not appear to be the type of advocacy that Manistee intended to protect.

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The Court has found no authority and the defendants have not cited any to the Court that

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supports that Noerr-Pennington should apply to these circumstances. Thus, the Court DENIES the

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motion to dismiss on this grounds.

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D.

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According to the Rooker-Feldman doctrine, a party may not seek appellate review in federal

Rooker-Feldman

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court of a decision made by a state court. See Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); D.C.

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Court of Appeals v. Feldman, 460 U.S. 462 (1983). “Essentially, the doctrine bars ‘state-court losers

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complaining of injuries caused by state-court judgments rendered before the district court proceedings

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commenced’ from asking district courts to review and reject those judgments.” Henrichs v. Valley

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View Dev., 474 F.3d 609, 613 (9th Cir. 2007) (quoting Exxon Mobile Corp. v. Saudi Basic Indus.

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Corp., 544 U.S. 280, 284 (2005)); accord Reusser v. Wachovia Bank, N.A., 525 F.3d 855, 859 (9th

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Cir. 2008).

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However, Rooker-Feldman does not apply to decisions of state agencies. The Ninth Circuit
holds5,
The Rooker–Feldman doctrine does not apply to the actions of the Commission because
it is a state administrative agency, not a court. The primary statute from which the
Rooker–Feldman doctrine has been drawn—28 U.S.C. § 1257—does not, by its terms,
describe state administrative decisions. More importantly, the Supreme Court has
recently rejected a claim that the Rooker–Feldman doctrine barred federal district court
review of adjudicatory decisions of state administrative agencies. As the Court noted:

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The Commission also suggests that the Rooker–Feldman doctrine precludes a

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So. Cal. Edison Co. v. Lynch, 307 F.3d 794, 805 (9th Cir.), modified, 307 F.3d 943 (9th Cir. 2002), and certified
question answered sub nom. So. Cal. Edison Co. v. Peevey, 31 Cal.4th 781 (2003).

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federal district court from exercising jurisdiction over Verizon's claim. See
District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 103 S.Ct.
1303, 75 L.Ed.2d 206 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413, 44
S.Ct. 149, 68 L.Ed. 362 (1923). The Rooker–Feldman doctrine merely
recognizes that 28 U.S.C. § 1331 is a grant of original jurisdiction, and does not
authorize district courts to exercise appellate jurisdiction over state-court
judgments, which Congress has reserved to this Court, see 28 U.S.C. § 1257(a).
The doctrine has no application to judicial review of executive action, including
determinations made by a state administrative agency.

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Verizon Md. Inc. v. Pub. Serv. Comm'n of Md., 535 U.S. 635, –––– n. 3, 122 S.Ct.
1753, 1759 n. 3, 152 L.Ed.2d 871 (2002) (emphasis added).

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Thus, the motion to dismiss any cause of action on this basis is DENIED.
E.

Younger Abstention

The defendants are correct that the Younger6 abstention doctrine requires federal court to

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refuse to become involved in certain state proceedings. Younger requires the Court to abstain where,

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“(1) a state-initiated proceeding is on-going; (2) the proceeding implicates important state interests; (3)

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the federal plaintiff is not barred from litigating the federal constitutional issues in the state

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proceeding; and (4) the federal court action would enjoin the proceeding or have the practical effect of

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doing so, i.e., would interfere with the state proceeding in a way that Younger disapproves.” San Jose

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Silicon Valley Chamber of Commerce, 546 F.3d 1087, 1092 (9th Cir.2008); Baffert v. California

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Horse Racing Bd., 332 F.3d 613, 617 (9th Cir.2003).

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However, the parties note that there is no decision pending by the SPB. (Doc. 60 at 6; Doc. 66

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at 4). Moreover, as discussed above, the Court finds the whistleblower action is not timely. Thus, the

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motion to dismiss on Younger grounds is DENIED.

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F.

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The defendants argue that the CDCR is not a proper defendant under § 1983. The Eleventh

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Amendment bars suit against a state unless Congress has abrogated state sovereign immunity or the

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state has waived it. Holley v. California Dep't of Corrections, 599 F.3d 1108, 1111 (9th Cir.2010). In

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Seminole Tribe of Florida v. Florida, 517 U.S. 44, 54 (1996), the Supreme Court stated: “[E]ach State

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is a sovereign entity in our federal system; and [ ... ] it is inherent in the nature of sovereignty not to be

Eleventh Amendment Immunity

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Younger v. Harris, 401 U.S. 37 (1971).

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amenable to the suit of an individual without its consent.” However, when enacting Title VII under its

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Fourteenth Amendment powers, Congress abrogated the sovereign immunity of states to suits under

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Title VII. See, e .g., Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (1976). Thus, the Eleventh Amendment

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does not bar the claims brought under Title VII. Thus, the motion is GRANTED as to the Fourth,

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through Tenth7 causes of action as to the CDCR and as to Holland in her official capacity and

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DENIED as to Holland in her individual capacity.

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G.

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A complaint must state the elements of the plaintiff's claim in a plain and succinct manner.

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Failure to State a Claim Against Holland

Jones v. Cmty Redevelopment Agency, 733 F.2d 646, 649 (9th Cir.1984). The purpose of a complaint

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is to give the defendant fair notice of the claims against him, and the grounds upon which the

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complaint stands. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002). The Supreme Court noted,

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Rule 8 does not require detailed factual allegations, but it demands more than an
unadorned, the-defendant-unlawfully-harmed-me accusation. A pleading that offers
labels and conclusions or a formulaic recitation of the elements of a cause of action will
not do. Nor does a complaint suffice if it tenders naked assertions devoid of further
factual enhancement.

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Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks and citations omitted).

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Conclusory and vague allegations do not support a cause of action. Ivey v. Board of Regents, 673 F.2d

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266, 268 (9th Cir.1982). The Court clarified further,

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[A] complaint must contain sufficient factual matter, accepted as true, to “state a claim
to relief that is plausible on its face.” [Citation]. A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged. [Citation]. The
plausibility standard is not akin to a “probability requirement,” but it asks for more than
a sheer possibility that a defendant has acted unlawfully. [Citation]. Where a complaint
pleads facts that are “merely consistent with” a defendant's liability, it “stops short of
the line between possibility and plausibility of ‘entitlement to relief.’

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Iqbal, 556 U.S. at 678 (citations omitted). If factual allegations are well-pled, a court should assume

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their truth and determine whether the facts would make the plaintiff entitled to relief; conclusions in

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the pleading are not entitled to the same assumption of truth. Id.

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Review of the allegations against Holland are generally conclusory. For example, the plaintiff

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The Court has already concluded the Tenth cause of action should be dismissed based upon statute of limitations
grounds. However, it also grants the motion as to the Tenth cause of action, in the alternative.

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claims Holland “punitively job-changed” him. (Doc. 40 at 3) There are no facts to support this

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conclusion or, indeed, what this even means. The plaintiff claims Holland acted “through Mason and

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McKay” when they reported to B. Philips that there was a pending personnel action against the

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plaintiff.8 Id. at 4. The plaintiff admits that the allegations of these types of allegations are based upon

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“information and belief.” Id. at 10. This is insufficient. Iqbal, 556 U.S. at 678

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Likewise, the plaintiff fails to allege facts to demonstrate that the mistake Holland made

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related to the promotion the plaintiff sought was something other than a mistake. Id. Though plaintiff

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alleges that Holland denied him the ability to work “out of class,” he fails to allege facts to support

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that this denial was either retaliatory or discriminatory. Id. at 7. Though the plaintiff complains that

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Garcia “was allowed to participate” on an interview panel involving the plaintiff, there are no facts

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alleged that Holland had any hand in this action. Id. Though the plaintiff alleges that he was denied a

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promotion by Holland, three white and one black staff members were given the promotion. Id.

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Though the plaintiff claims that Holland later “stripped” the black staff member of the promotion, he

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fails to allege any facts to support that this was unlawful. Id.

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On the other hand, the plaintiff claims that Holland charged him with a Direct Adverse Action

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in January 2015. (Doc. 40 at 8) This was after the plaintiff had filed complaints of discrimination and

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retaliation against the CDCR (Doc. 40 at 2, 4) and after he filed a whistleblower complaint with the

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SBP (Id. at 3). Notably, however, there are no facts alleged that Holland was aware of these prior

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complaints, though she was named in the May 2014 complaint (Id. at 4).9

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Moreover, the Court cannot determine to which causes of action the allegations are intended to

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address. Notably, each cause of action incorporates all previous allegations and causes of action

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creating significant ambiguity. Likewise, the factual allegations are set forth sometimes in a

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chronological fashion and other times not. This makes it unclear whether the plaintiff is simply

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repeating events or whether he is alleging that events that seem to be the same, in fact, are different.

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Indeed, Holland’s involvement in the claimed improper conduct is belied by the previous paragraph in which the
plaintiff admits that Holland approved the transfer the plaintiff sought. Id.
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Though the plaintiff claims that Holland would not have issued the Adverse Action had the plaintiff been
interviewed before it issued, he notes, “had he not engaged in protected activity, Defendant Holland’s act in creating an
Adverse Action would not have occurred in light of OIA’s declination to proceed.” (Doc. 40 at 8) In light of the next
allegation that, in fact, OIA did investigate, the Court cannot determine what these allegations mean.

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Thus, the second amended complaint is vague and ambiguous and the motion is GRANTED with

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leave to amend as to Holland on the First through Ninth causes of action.

3

H.

4

Because the Court finds the plaintiff has not stated a claim against Holland but has granted

5

leave to amend, consideration of the qualified immunity is premature. The motion on this basis is

6

DENIED without prejudice.

Qualified Immunity

7

I.

8

The defendants argue the plaintiff is seeking, in effect, to have the Court “reverse the prior

9

Res Judicata/Collateral Estoppel

SPB decisions pertaining to his administrative cases.” (Doc. 49 at 16) The defendants argue that the

10

plaintiff challenged each of the three Notices of Adverse Actions he received and that he has “litigated

11

each of those in front of an Administrative Law Judge.”10 (Doc. 49 at 10)

12

Under California law, a state employee may challenge a discriminatory on-the-job action either

13

by pursuing remedies through the State Personnel Board or via a FEHA claim. State Pers. Bd. v. Fair

14

Employment & Hous. Com., 39 Cal. 3d 422, 431, 703 P.2d 354, 359 (1985) [“The FEHA was meant

15

to supplement, not supplant or be supplanted by, existing antidiscrimination remedies, in order to give

16

employees the maximum opportunity to vindicate their civil rights against discrimination . . .”] If the

17

employee chooses to proceed via the administrative process, he must file a petition for writ of

18

administrative mandamus and challenge the findings of the State Personnel Board before he can seek

19

relief via a civil action under FEHA and under 42 U.S.C §§ 1981 or 1983. Ruiz v. Dep't of Corr., 77

20

Cal.App.4th 891, 899 (2000) quoting Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280,

21

292); University of Tennessee v. Elliott, 478 U.S. 788, 796-798 (1986). This requirement does not

22

apply when the employee seeks relief under Title VII. Elliott, 478 U.S. at 796. In Elliott, the Court

23

held, “On the basis of our analysis in Kremer and Chandler of the language and legislative history of

24

Title VII, we conclude that the Sixth Circuit correctly held that Congress did not intend unreviewed

25

state administrative proceedings to have preclusive effect on Title VII claims.”

26
27
28

10

The defendants note also that the plaintiff’s “whistleblower” complaint has been heard and decided against him.
Id. at 10; Doc. 40 at 10. Notably, however, the defendants’ admit, “Within the context of this type of hearing, the findings
of the SPB are not afforded preclusive effect if a subsequent civil action is initiated. State Bd. of Chiropractic Examiners v.
Superior Court (Arbuckle), 45 Cal.4th 963, 976 (2009).” (Doc. 49 at 26)

12

1

The plaintiff had the right to raise his claims of retaliation and discrimination whether as a

2

defense to the charges brought against him with the SPB or as an affirmative action. 2 CCR 64.5(d).

3

In this action, the plaintiff complains that these SPB actions are evidence of the discriminatory and

4

retaliatory actions of the defendants and of the hostile environment in which he was forced to work.

5

Thus, the motion is GRANTED as to the Fourth through Ninth Causes of action. On the other hand,

6

because of the ambiguous, vague and repetitive manner in which the second amended complaint is

7

pleaded, there may be claims raised in it that are not impacted by his failure to challenge the SPB’s

8

decisions; the Court just can’t tell. Thus, the Court will grant leave to amend. However, the

9

unreviewed decisions of the SPB are binding upon the Court such that the SPB decisions demonstrate

10

the defendants acted properly in seeking discipline against the plaintiff for his inappropriate conduct

11

on the job. Thus, the plaintiff is advised he SHALL NOT be permitted to rely upon the unreviewed

12

decisions of the SPB to support his claims. On the other hand, because the determination of the State

13

Personnel Board has no preclusive impact on claims brought under the whistleblower act or Title VII,

14

the motion is DENIED as to the First, Second, Third and Tenth11 causes of action.

15

J.

16

In Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 731–32 (1989), the United States Supreme

17

Court determined that 42 USC § 1981 as set forth in the 1866 Act did not apply to states or to state

18

actors. The Court held, “We think the history of the 1866 Act and the 1871 Act recounted above

19

indicates that Congress intended that the explicit remedial provisions of § 1983 be controlling in the

20

context of damages actions brought against state actors alleging violation of the rights declared in §

21

1981.” The Ninth Circuit adopted this rationale in Cerrato v. San Francisco Community College

22

District, 26 F.3d 968, 972 (9th Cir. 1994). However, two years later in Federation of African American

23

Contractors v. City of Oakland, 96 F.3d 1204, 1205 (9th Cir. 1996), the Court held, “We hold that the

24

Civil Rights Act of 1991 creates an implied cause of action against state actors under 42 U.S.C. §

25

1981, and thus statutorily overrules Jett’s holding that 42 U.S.C. § 1983 provides the exclusive federal

26

remedy against municipalities for violation of the civil rights guaranteed by 42 U.S.C. § 1981.” Thus,

Redundancy of § 1981 and § 1983 Claims

27
28

11

The Court has already concluded the Tenth cause of action should be dismissed based upon statute of
limitations grounds. However, it also grants the motion as to the Tenth cause of action, in the alternative.

13

1

the motion to dismiss the Fifth cause of action on this basis is DENIED.

2

K.

3

The defendants seek to strike Plaintiff's state law claims pursuant to Cal.Code Civ. Proc. §

Anti-SLAAP motion

4

425.16. This statute “provides for the pre-trial dismissal of certain actions, known as Strategic

5

Lawsuits Against Public Participation, or SLAPPs, that ‘masquerade as ordinary lawsuits' but are

6

intended to deter ordinary people ‘from exercising their political or legal rights or to punish them for

7

doing so.” Makaeff v. Trump University, 715 F.3d 254, 261 (9th Cir.2013) (quoting Batzel v. Smith,

8

333 F.3d 1018, 1024 (9th Cir.2003); Wilcox v. Superior Court, 27 Cal.App.4th 809 (1994)).

9

The anti-SLAPP statute was enacted “to allow early dismissal of meritless first amendment

10

cases aimed at chilling expression through costly, time-consuming litigation.” Metabolife Int'l, Inc. v.

11

Wornick, 264 F.3d 832, 839 (9th Cir.2001); see also Dickens v. Provident Life and Acc. Ins. Co., 117

12

Cal.App.4th 705, 713 (2004) (explaining a SLAPP is “a meritless suit filed primarily to chill the

13

defendant's exercise of First Amendment rights”). In relevant part, Section 425.16 provides:

16

A cause of action against a person arising from any act of that person in furtherance of
the person's right of petition or free speech under the United States or California
Constitution in connection with a public issue shall be subject to a special motion to
strike, unless the court determines that the plaintiff has established that there is a
probability that the plaintiff will prevail on the claim.

17

Cal.Code Civ. Proc. § 425.16(b). Accordingly, “the defendant’s act underlying the plaintiff's cause of

18

action must itself have been an act in furtherance of the right of petition or free speech.” City of Cotati

19

v. Cashman, 29 Cal.4th 69, 78 (2002).

14
15

20

When ruling on a motion to strike pursuant to Section 425.16, the Court engages in a two-step

21

process. Metabolife Int'l, 264 F.3d at 839; Daniels v. Robbins, 182 Cal.App.4th 204, 214 (2010). First,

22

a defendant bears the initial burden to demonstrate the challenged causes of action arise from an act in

23

furtherance of the defendant's right of petition or free speech, including:

24
25
26
27
28

(1) any written or oral statement or writing made before a legislative, executive, or
judicial proceeding, or any other official proceeding authorized by law, (2) any written
or oral statement or writing made in connection with an issue under consideration or
review by a legislative, executive, or judicial body, or any other official proceeding
authorized by law, (3) any written or oral statement or writing made in a place open to
the public or a public forum in connection with an issue of public interest, or (4) any
other conduct in furtherance of the exercise of the constitutional right of petition or the
constitutional right of free speech in connection with a public issue or an issue of public
interest.
14

1

Cal.Code Civ. Proc. § 425.16(e). If the moving party satisfies this burden, the burden shifts to the

2

plaintiff to demonstrate the probability of prevailing on the challenged claim. Metabolife Int'l, 264

3

F.3d at 840; Daniels, 182 Cal.App.4th at 214. Specifically, the plaintiff “must demonstrate that the

4

complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to

5

sustain a favorable judgment if the evidence submitted by the plaintiff is credited.” Jarrow Formulas,

6

Inc. v. LaMarche, 31 Cal.4th 728, 741 (2003) (citation omitted).
The anti-SLAPP statute does not apply unless the defendant’s conduct underpinning a

7
8

plaintiff’s cause of action involved an act in furtherance of the defendant’s “right of petition or free

9

speech under the United States Constitution or the California Constitution in connection with a public

10

issue.” See § 425.16, subd. (b)(1); and see also City of Cotati, 29 Cal.4th at 78.

11

In Schaffer v. City & County of San Francisco, 168 Cal.App.4th 992, 1001 (2008), a California

12

Court of Appeal rejected that Garcetti was determinative because Cal.Code Civ. Pro. § 425.16 “also

13

applies to acts protected under the California Constitution.” After this, the California Supreme Court

14

held,

19

Whether or not the First Amendment of the federal Constitution or article I, section 2 of
the California Constitution directly protects government speech in general or the types
of communications of a municipality that are challenged here—significant
constitutional questions that we need not and do not decide—we believe it is clear, in
light of both the language and purpose of California's anti-SLAPP statute, that the
statutory remedy afforded by section 425.16 extends to statements and writings of
governmental entities and public officials on matters of public interest and concern that
would fall within the scope of the statute if such statements were made by a private
individual or entity.

20

Vargas v. City of Salinas, 46 Cal.4th 1, 17 (2009). Thus, the fact that the statements were made within

21

the course and scope of their governmental employment, does not exclude Defendants from the

22

protections of Cal. Code Civ. Pro. § 425.16.

15
16
17
18

23

On the other hand, the Court has determined already that the plaintiff may not claim that

24

statements made to the SPB and the actions in seeking to impose discipline on the plaintiff that

25

resulted in the SPB actions cannot form a basis to impose liability for the causes of action raised based

26

upon res judicata, the motion to strike is DENIED as MOOT.

27
28

ORDER
1.

The motion to dismiss (Doc. 48) the Fourth through Tenth causes of action against the
15

1

CDCR and Holland in her official capacity is GRANTED without leave to amend;

2

2.

3

to amend;

4

3.

5
6
7
8

The motion to dismiss (Doc. 48) the Tenth cause of action is GRANTED without leave

The motion to dismiss (Doc. 48) the First through Third causes of action against the

CDCR is DENIED12;
4.

The motion to dismiss (Doc. 48) the First through Ninth causes of action against

Holland is GRANTED with 20 days leave to amend;
5.

The special motion to strike (Doc. 52) is DENIED as MOOT.

9
10
11

IT IS SO ORDERED.
Dated:

July 25, 2016

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

12

However, as noted above, the plaintiff SHALL NOT be permitted to rely upon the unreviewed decisions of the
SPB as evidence of discrimination, retaliation or a hostile work environment against either defendant as barred by res
judicata.

16