Lindsay v. Fryson, et al

Filing 116

ORDER signed by Judge Kimberly J. Mueller on 5/20/15 ORDERING the motion to dismiss is denied. This order resolves ECF No. 109 . (Becknal, R)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

CHRISTOPHER LINDSAY,

12

Plaintiff,

13
14

No. 2:10-cv-02842-KJM-KJN

v.

ORDER

YOLANDA FRYSON,

15

Defendant.

16
17
Defendant moves to dismiss this case for lack of subject matter jurisdiction under

18
19

Federal Rule of Civil Procedure 12(b)(1). Def.’s Mot., ECF No. 109. Plaintiff opposes the

20

motion, ECF No. 110, and defendant has replied, ECF No. 111. The court decides the matter

21

without a hearing. For the following reasons, defendant’s motion is denied.

22

I.

23

BACKGROUND
At the pretrial conference, defendant took the position that the court may not have

24

subject-matter jurisdiction over this action. The court set a briefing schedule on the issue in its

25

pretrial order, ECF No. 108, and defendant filed the instant motion on April 20, 2015.

26

The court briefly reviews the relevant facts as alleged in plaintiff’s third amended

27

complaint, ECF No. 40 (TAC). Defendant was, during the relevant time period, a social worker

28

with Yuba County Child Protective Services on paid administrative leave. TAC ¶ 27. While on
1

1

paid leave, defendant allegedly called plaintiff and told him that she had a report on her desk

2

accusing him of molesting a 17-year-old girl, though no such report existed. Id. ¶ 17. Defendant

3

told plaintiff she could make the report “go away” if plaintiff paid her $10,000. Id. ¶ 18. Plaintiff

4

met with defendant to discuss the matter, and defendant showed her Yuba County Child

5

Protective Services badge to plaintiff. Id. ¶ 18. Plaintiff filed the complaint in this action against

6

defendant and Yuba County Child Protective Services1 for deprivation of constitutional due

7

process under 42 U.S.C. § 1983, negligent supervision and hiring, intentional infliction of

8

emotional distress, negligent infliction of emotional distress, and fraud. TAC at 1.

9

II.

LEGAL STANDARD

10

Federal courts are courts of limited jurisdiction and, until proven otherwise, cases

11

lie outside their jurisdiction. Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375,

12

377-78 (1994). Lack of subject matter jurisdiction may be challenged by either party or raised

13

sua sponte. Fed. R. Civ. P. 12(b)(1); Fed. R. Civ. P. 12(h)(3); see also Ruhrgas AG v. Marathon

14

Oil Co., 526 U.S. 574, 583–84, 119 S. Ct. 1563 (1983). A Rule 12(b)(1) jurisdictional attack may

15

be either facial or factual. White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). In a facial attack

16

such as this one, the complaint is challenged as failing to establish federal jurisdiction, even

17

assuming all the allegations are true and construing the complaint in the light most favorable to

18

plaintiff. See Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004).

19

III.

DISCUSSION

20

Defendant argues the court may not exercise federal question jurisdiction over

21

plaintiff’s federal claims because defendant was on administrative leave at the time of her alleged

22

unlawful actions and therefore did not act under color of law as required by section 1983. Def.’s

23

Mot. at 2.

24

“It is firmly established that a defendant in a § 1983 suit acts under color of state

25

law when he abuses the position given to him by the State. Thus, generally, a public employee

26
27
28

1

Defendant Yuba County was dismissed from all claims on November 26, 2013. ECF
No. 76. Plaintiff appealed this decision in an interlocutory appeal, ECF No. 78, and the Ninth
Circuit dismissed the appeal for lack of jurisdiction because the district court’s dismissal of one
defendant was not an appealable final judgment, ECF No. 85.
2

1

acts under color of state law while acting in his official capacity or while exercising his

2

responsibilities pursuant to state law.” W. v. Atkins, 487 U.S. 42, 50 (1988) (citations omitted).

3

The acts must be performed while the officer is acting, purporting, or pretending to act in the

4

performance of his or her official duties. See Van Ort v. Estate of Stanewich, 92 F.3d 831, 838

5

(9th Cir. 1996); see also Monroe v. Pape, 365 U.S. 167, 171 (1961), overruled on other grounds

6

by Monell v. New York City Dept. of Social Services, 436 U.S. 658, 658 (1978) (“There can be no

7

doubt . . . that Congress has the power to enforce provisions of the Fourteenth Amendment

8

against those who carry a badge of authority of a State and represent it in some capacity, whether

9

they act in accordance with their authority or misuse it.”). The inquiry turns on whether the actor

10

committed actions under the pretense of law, not whether the actions were authorized by the state

11

or within the scope of her duties. Screws v. United States, 325 U.S. 91 (1945); see also Jahed v.

12

I.N.S., 356 F.3d 991, 1000 (9th Cir. 2004) (citing with approval Screws’ holding that state officers

13

may act under color of law even if acting in violation of law they were sworn to enforce).

14

Even if plaintiff abused her authority or acted outside the scope of her paid leave,

15

she still may have been acting under color of law. The case of McDade v. W., 223 F.3d 1135,

16

1140–41 (9th Cir. 2000), is instructive. There, defendant was employed by the Ventura County

17

District Attorney Child Support Division, and as part of her job, had access to a statewide

18

database containing names and addresses of all persons eligible to receive certain public benefits.

19

Unbeknownst to her employer and in violation of policy, defendant used her password to find

20

plaintiff’s confidential location. Even though defendant took action “in the ambit of her personal

21

pursuits,” she was held to have acted under color of law. Id. She “acted under color of state law

22

[because] there [was] undisputed evidence that [defendant] abused her responsibilities and

23

purported or pretended to be a state officer during” the alleged unlawful act. Id. Defendant need

24

not be “on duty” to act under color of state law. Traver v. Meshriy, 627 F.2d 934, 940 (9th Cir.

25

1980) (off-duty police officer working in bank as security teller was acting under color of state

26

law when he detained bank customer).

27
28

Here, defendant’s actions were made under the guise of her authority as a Child
Protective Services officer. She was a paid employee of the County and was purporting to
3

1

exercise her authority as a CPS officer when she allegedly extorted the plaintiff. She allegedly

2

showed plaintiff her state-issued badge, and told plaintiff she discovered the allegedly false

3

allegations against him while performing her duties as a public employee. Therefore, defendant

4

acted under color of law for the purposes of a section 1983 claim. The court maintains federal

5

question jurisdiction over this claim and the supplemental state law claims.

6

IV.

CONCLUSION

7

The motion to dismiss is denied. This order resolves ECF No. 109.

8

IT IS SO ORDERED.

9

DATED: May 20, 2015.

10
11

UNITED STATES DISTRICT JUDGE

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4