Newfarmer-Fletcher v. County of Sierra et al

Filing 22

ORDER granting 17 Motion to Dismiss signed by Judge John A. Mendez on 2/29/12: If Plaintiff wishes to file a Second Amended Complaint that is in accordance with this order, she must do so within 20 days. Defendants must file a responsive pleading within 20 days after a Second Amended Complaint is filed by Plaintiff, or within 40 days of this order if no amended complaint is filed. (Kaminski, H)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 17 18 19 20 21 22 JEAN NEWFARMER-FLETCHER, ) ) Plaintiff, ) ) v. ) ) COUNTY OF SIERRA, a California ) Municipality, SIERRA COUNTY ) DEPT. OF HUMAN SERVICES/SOCIAL ) SERVICES DEPARTMENT, a ) government agency organized and ) existing pursuant to the law and ) policy of the COUNTY OF SIERRA, ) CAROL ROBERTS, Director of the ) DEPT. OF HUMAN SERVICES, JAMES ) MARKS, LARRY ALLEN, VAN MADDOX, ) JODI BENSON, CAROL IMAN, and ) DOES 1-50, ) ) Defendants. ) Case No. 2:11-CV-02054 JAM-CKD ORDER GRANTING DEFENDANTS’ MOTON TO DISMISS Before the Court is Defendants’ County of Sierra, Sierra 23 County Department of Human Services/Social Services Department, 24 Carol Roberts (“Roberts”), James Marks (“Marks”), Larry Allen 25 (“Allen”), Van Maddox (“Maddox”), and Jodi Benson (“Benson”), 26 (collectively “Defendants”), Motion to Dismiss (Doc. #17) the First 27 Amended Complaint (“FAC,” Doc. #16) filed by Plaintiff Jean 28 Newfarmer-Fletcher (“Plaintiff”). 1 Plaintiff opposes the motion 1 (Doc. #19).1 2 3 I. 4 FACTUAL ALLEGATIONS According to the FAC, Plaintiff is a social worker employed by 5 Sierra County. In approximately May 2010, Plaintiff alleges that 6 she participated in the initiation of a child dependency proceeding 7 previously handled by Benson, another social worker at Sierra 8 County Health and Human Services. 9 prior handling of the case was inaccurate and contained unspecified Plaintiff believed that Benson’s 10 false information. Plaintiff alleges she reported her findings to 11 her direct supervisor, Marks. 12 an inappropriate personal relationship with Benson and as a result 13 of this relationship, Plaintiff alleges that she was targeted by 14 Benson and Marks. 15 Roberts, the Director of Health and Human Services in Sierra County 16 and Curtis, an unknown party not named in this lawsuit. 17 Plaintiff alleges several incidents of harassment, four key events 18 are most relevant to this motion: (1) In approximately June 2010, 19 Plaintiff alleges that she received telephone calls from her 20 clients who asked why Defendant Carol Iman, a union representative 21 for California United Homecare Workers Union, was visiting them to 22 obtain negative information about her; (2) On or about August 5, 23 2010, Plaintiff contends she informed Marks of a problem with a 24 court file. 25 the court form and breaking confidentiality. 26 that the error was assignable to the court and was corrected, but Plaintiff alleges that Marks was in Plaintiff alleges she was also harassed by While Plaintiff alleges that Marks accused her of forging Plaintiff contends 27 1 28 This motion was determined to be suitable for decision without oral argument. E.D. Cal. L.R. 230(g). The hearing was scheduled for January 25, 2012. 2 1 Marks failed to acknowledge this fact or apologize to her; (3) On 2 or about March 8, 2011, Plaintiff alleges that Marks and Benson 3 entered her office and removed files without permission. 4 subsequently requested that a lock be installed on her filing 5 cabinet. 6 following day, the newly installed lock had been broken. 7 contends that Marks admitted to breaking the lock; and (4) On or 8 about April 8, 2011, Plaintiff alleges that she was forced to 9 submit to an alcohol test at the direction of Roberts. Plaintiff Plaintiff alleges that when she arrived at work the Plaintiff Plaintiff 10 alleges that the test occurred at the Sheriff’s Department in a 11 room with clear glass windows, visible to the public, and not in 12 private. 13 Plaintiff’s FAC alleges ten causes of action: (1) Retaliation 14 in violation of 42 U.S.C. § 1983; (2) Retaliation in violation of 15 California Lab. Code § 1102.5; (3) Invasion of privacy in violation 16 of U.S. Const. amend XIV; (4) Due process violation; (5) Slander; 17 (6) Intentional infliction of emotional distress; (7) Harassment in 18 violation of Govt. Code § 12940; (8) Defamation, in violation of 19 Civ. Code § 46(3)-(4); (9) False Light, in violation of Civ. Code 20 45 or 48a; and (10) Invasion of privacy- publicity [sic.] placing 21 person in false light in public eye, in violation of Civ. Code 22 § 3422; Code of Civ. Proc. § 526. 23 24 II. OPINION 25 A. Legal Standard 26 A party may move to dismiss an action for failure to state a 27 claim upon which relief can be granted pursuant to Federal Rule of 28 Civil Procedure 12(b)(6). In considering a motion to dismiss, the 3 1 court must accept the allegations in the complaint as true and draw 2 all reasonable inferences in favor of the plaintiff. 3 Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by 4 Davis v. Scherer, 468 U.S. 183 (1984); Cruz v. Beto, 405 U.S. 319, 5 322 (1972). 6 are not entitled to the assumption of truth. 7 129 S. Ct. 1937, 1950 (2009), (citing Bell Atl. Corp. v. Twombly, 8 550 U.S. 544, 555 (2007)). 9 plaintiff needs to plead “enough facts to state a claim to relief Scheuer v. Assertions that are mere “legal conclusions,” however, Ashcroft v. Iqbal, To survive a motion to dismiss, a 10 that is plausible on its face.” 11 Dismissal is appropriate where the plaintiff fails to state a claim 12 supportable by a cognizable legal theory. 13 Police Department, 901 F.2d 696, 699 (9th Cir. 1990). 14 Twombly, 550 U.S. at 570. Balistreri v. Pacifica Upon granting a motion to dismiss for failure to state a 15 claim, the court has discretion to allow leave to amend the 16 complaint pursuant to Federal Rule of Civil Procedure 15(a). 17 “Dismissal with prejudice and without leave to amend is not 18 appropriate unless it is clear . . . that the complaint could not 19 be saved by amendment.” 20 316 F.3d 1048, 1052 (9th Cir. 2003). 21 22 B. Eminence Capital, L.L.C. v. Aspeon, Inc., Claims for Relief 1. Causes of Action Against Defendants Allen and Maddox 23 Defendants argue that the FAC is devoid of any facts or 24 conduct attributable to Allen or Maddox, Personnel Directors for 25 the County of Sierra, other than vague assertions that they 26 permitted unlawful activities to exist. 27 Allen and Maddox, by their position as duel Personnel Managers, had 28 a duty over all County personnel, of implementation and oversight 4 Plaintiff counters that 1 of all county policies, state and federal law, and the duty to make 2 sure all departments are in compliance of said policies and laws. 3 Plaintiff fails to identify any facts in the FAC that would 4 establish a cognizable claim against Allen or Maddox. 5 Plaintiff alleges that Allen and Maddox were supervisors, her 6 claims are based on respondeat superior and vicarious liability. 7 However, there is no respondeat superior or vicarious liability in 8 Section 1983 claims. 9 Cir. 1989). Because See Taylor v. List, 880 F.2d 1040, 1045 (9th Moreover, concerning the state law claims, Allen and 10 Maddox are not responsible for the actions of other employees as a 11 matter of law. 12 Motion to Dismiss all causes of action against Allen and Maddox is 13 GRANTED WITH PREJUDICE. 14 /// 15 16 2. Cal. Govt. Code § 820.8. Accordingly, Defendants’ County of Sierra Defendants argue that since Plaintiff cannot establish an 17 underlying constitutional violation against the individual 18 defendants, her causes of action against the County of Sierra must 19 fail. 20 Los Angeles v. Heller, 475 U.S. 796 (1986) (per curium), a civil 21 rights damages action in which the Supreme Court held that since a 22 jury found that the defendant police officer did not inflict a 23 constitutional injury on the plaintiff, there was no basis for 24 liability against the city and the members of the police 25 commission. 26 Defendants, without providing any analysis, rely on City of Plaintiff does not oppose Defendants’ arguments. Here, Plaintiff might be able to plead constitutional 27 violations against the individual defendants. 28 claim against the County of Sierra, as a public entity it may be 5 However, to state a 1 held liable only for a constitutional violation that was caused by 2 a policy, custom or practice of the public entity. 3 of Social Services, 436 U.S. 658, 691 (1978). 4 violation, Plaintiff must allege that the entity’s policy or custom 5 must have been the “moving force” behind the alleged deprivation. 6 See Monell, 436 U.S. at 694. 7 unconstitutional incident, without more, cannot bind a 8 municipality. 9 (1985). Monell v. Dept. To plead a Monell Moreover, an isolated, City of Oklahoma City v. Tuttle, 471 U.S. 808, 823 Plaintiff does not allege a Monell-type claim or provide 10 any opposition to the County of Sierra’s argument that it should be 11 dismissed from this lawsuit. 12 cognizable legal claims against the County of Sierra, the Court 13 GRANTS WITH PREJUDICE Defendants’ Motion to Dismiss the County of 14 Sierra. 15 /// 16 17 3. Accordingly, because there are no Invasion of Privacy One type of constitutionally-protected privacy interest is 18 “the individual interest in avoiding disclosure of personal 19 matters. . . .” 20 (internal quotations omitted). 21 alleges that Marks and Benson entered her office without permission 22 and went through her personal items. 23 indicate how this alleged trespass constitutes a constitutional 24 claim for invasion of privacy or how Defendants disclosed whatever 25 personal information they allegedly found in her office. 26 Accordingly, Defendants’ Motion to Dismiss Plaintiff’s third cause 27 of action for invasion of privacy is GRANTED WITH LEAVE TO AMEND. 28 In the amended complaint, Plaintiff must state with greater In re Crawford, 194 F.3d 954, 958 (9th Cir. 1999) Plaintiff’s third cause of action 6 Plaintiff’s claim does not 1 specificity how her invasion of privacy claim is a violation of her 2 constitutional right to privacy. 3 4. 4 Due Process Violations Defendants argue that Plaintiff’s fourth cause of action 5 alleging a due process violation fails to identify the type of 6 protected life, liberty, or property interest of which she was 7 deprived. 8 Plaintiff lost her job as a result of the alcohol screening, or 9 even that she was disciplined. Defendants argue that there are no facts to suggest that Furthermore, Defendants argue that 10 even if Plaintiff had been disciplined in some way following the 11 alcohol screening, she admits that due process was available 12 through the County personnel grievance process, but she chose not 13 to pursue it because she believed that it would be biased against 14 her. 15 alcohol test without notice and without reasonable suspicion in 16 violation of Sierra County Personnel Code 3.12. 17 Personnel Code 3.12(e)(“Code 3.12(e)”) requires employees to submit 18 “to reasonable and appropriate alcohol testing . . . 19 are reasons to believe that drug or alcohol use has occurred and/or 20 is adversely affecting job performance.” 21 Plaintiff counters that she was required to submit to the Sierra County when there Plaintiff’s reliance on the Sierra County Personnel Code is 22 unpersuasive. Plaintiff provides the language of Code 3.12(e) and 23 summarily concludes that her rights were violated. 24 argue, Plaintiff must allege more. 25 possesses a liberty or property interest, Board of Regents of State 26 Colleges v. Roth, 408 U.S. 564 (1972); (2) she was deprived of that 27 interest by government action; Gilbert v. Homar, 520 U.S. 924 28 (1997), and (3) the deprivation occurred without adequate notice 7 As Defendants She must allege (1) she 1 2 and an opportunity to be heard. Id. In addition to failing to plead the due process elements, 3 Plaintiff admits that due process was available though the County 4 personnel grievance process, but she chose not to pursue it because 5 she believed it would be biased against her. 6 grievance process existed satisfies due process, even though 7 Plaintiff chose not to avail herself of it. 8 Meyers, 964 F.2d 948, 951 (9th Cir. 1992), the Ninth Circuit held 9 that a plaintiff was not denied due process even though the The fact that a In Armstrong v. 10 plaintiff’s union decided not to pursue the arbitration process and 11 plaintiff would have had to pay the costs of arbitration. 12 Plaintiff did not even engage the grievance procedure. 13 Here, Because Plaintiff does not properly allege any of the elements 14 for a due process violation or allege how she was denied due 15 process even though she chose not to avail herself of the grievance 16 procedures, Defendants’ Motion to Dismiss Plaintiff’s fourth cause 17 of action alleging due process violations is GRANTED WITH LEAVE TO 18 AMEND. 19 process cause of action only if she can plead the elements of the 20 violation and allege how she was denied due process despite 21 voluntarily foregoing the grievance process. 22 23 24 25 26 27 28 In the amended complaint, Plaintiff can maintain this due 5. Slander Defendants move to dismiss Plaintiff’s fifth cause of action for slander. A slander that falls within the first four subdivisions of Civil Code section 46 is slander per se and require[s] no proof of actual damages. A slander that does not fit into those four subdivisions is slander per quod, and special damages are required for there to be any recovery for that slander. 8 1 Regalia v. The Nethercutt Collection, 172 Cal.App.4th 361, 367 2 (Cal. Ct.App.2d 2009) (internal citations omitted). 3 to slander per se, the trial court decides if the alleged statement 4 falls within Civil Code section 46, subdivisions (1) through (4). 5 It is then for the trier of fact to determine if the statement is 6 defamatory.” 7 se generally involve “statements that reflect on the integrity and 8 competence of the plaintiff, the clearest being allegations of 9 unethical activity or incompetence.” Id. at 368-69. “With respect Statements that are not slander per Id. at 369. “[T]he 10 disparagement must be more than general defamation of the victim's 11 character, it must go to a characteristic particularly relevant to 12 the victim's occupation.” 13 Id. Plaintiff’s FAC includes general allegations that some 14 Defendants stated that she was incompetent. 15 however, do not support a claim for slander per se. 16 Plaintiff does not allege a slander per quod claim because she does 17 not plead the requisite special damages required to maintain such a 18 claim. 19 Court will, however, grant plaintiff one final opportunity to try 20 to properly plead this claim. In the amended complaint, Plaintiff 21 must allege with more specificity the statements that she contends 22 are defamatory and identify how she has been damaged by those 23 statements. 24 Those allegations, Furthermore, Therefore, this cause of action must be dismissed. The While the Court is granting Plaintiff leave to amend this 25 claim, it GRANTS WITH PREJUDICE Defendants’ Motion to Dismiss 26 Roberts, Allen and Maddox from the slander cause of action. 27 discussed supra, all claims have been dismissed against Allen and 28 Maddox. There is also no basis for liability against Roberts 9 As 1 pursuant to Government Code § 820.8 (“a public employee is not 2 liable for an injury caused by the act or omission or another 3 person.”). 4 5 6. Intentional Infliction of Emotional Distress California courts have generally held that where an employee 6 is injured within the scope of employment, and where that harm does 7 not constitute a violation of public policy, worker's compensation 8 provides the exclusive means of tort recovery. 9 Moorpark v. Superior Court of Ventura Cnty., 18 Cal.4th 1143, 1161 See City of 10 (Cal. 1998). From the allegations in the sixth cause of action of 11 Plaintiff’s FAC, it is clear Plaintiff’s emotional distress claim 12 arises out of her employment with Sierra County. 13 the facts alleged, “the alleged wrongful conduct . . . occurred at 14 the worksite, in the normal course of the employer-employee 15 relationship, and therefore workers' compensation is plaintiffs' 16 exclusive remedy for any injury that may have resulted.” 17 v. Regents of University of Cal., 44 Cal.4th 876, 902 (Cal. 2008). 18 Plaintiff’s cause of action would be viable if she could plead that 19 the intentional infliction of emotional distress is a violation of 20 public policy. 21 conduct that “contravenes public policy [or] that exceeds the risks 22 inherent in the employment relationship.” 23 kinds of conduct at issue (e.g., discipline or criticism) are a 24 normal part of the employment relationship. 25 may be characterized as intentional, unfair or outrageous, it is 26 nevertheless covered by the workers' compensation exclusivity 27 provisions.” 28 held that even in employee whistleblower cases, intentional Thus, based on Miklosy To plead that, Plaintiff would have had to allege Id. Id. However, “[t]he Even if such conduct Furthermore, the California Supreme Court has 10 1 infliction of emotional distress claims are barred by the 2 exclusivity provisions. 3 (Cal. 1990). 4 infliction of emotional distress claim is barred by the exclusivity 5 provisions, the Court GRANTS WITH PREJUDICE Defendants’ Motion to 6 Dismiss the sixth cause of action alleging intentional infliction 7 of emotional distress. 8 7. 9 Shoemaker v. Myers, 52 Cal. 3d. 1, 25 Accordingly, because Plaintiff’s intentional Harassment under FEHA Plaintiff alleges in her seventh cause of action that 10 Defendants sexually harassed her because she reported an 11 unwarranted intrusion of the department in a case and a reasonable 12 woman in Plaintiff’s circumstances would have considered the work 13 environment to be hostile and abusive, in violation of the 14 California Fair Employment and Housing Act (“FEHA”), Gov. Code 15 § 12940. 16 California's FEHA, an employee must show that “the harassing 17 conduct was severe enough or sufficiently pervasive to alter the 18 conditions of employment and create a work environment that 19 qualifies as hostile or abusive to employees because of their sex. 20 There is no recovery for harassment that is occasional, isolated, 21 sporadic, or trivial.” 22 2009). 23 harassed because of her sex; from the FAC it is clear that no facts 24 exist to support a claim for harassment under FEHA. 25 action as pled in the FAC is based on the allegations that 26 plaintiff was harassed because of what she reported, not because 27 she was a member of a protected class. 28 to amend this claim would be futile, the Court GRANTS Defendants’ To prevail on a hostile work environment claim under Hughes v. Pair, 46 Cal.4th 1035, 1043 (Cal. Plaintiff does not provide any allegations that she was 11 This cause of Since any further attempt 1 2 3 Motion to Dismiss the seventh cause of action WITH PREJUDICE. 8. Defamation To state a claim for defamation (either libel or slander), 4 Plaintiff must establish “the intentional publication of a 5 statement of fact that is false, unprivileged, and has a natural 6 tendency to injure or which causes special damage.” 7 Maldonado, 72 Cal.App.4th 637, 645 (Cal.Ct.App.1d 1999); Cal. Civ. 8 Code §§ 45-46. Publication means “communication to a third person 9 who understands the defamatory meaning of the statement and its 10 11 application to the person to whom reference is made.” Smith v. Id. Under California law, the defamatory statement must be 12 specifically identified, and the plaintiff must plead the substance 13 of the statement. 14 1216 (C. D. Cal.2004). 15 standards, “general allegations of the defamatory statements” that 16 do not identify the substance of what was said are insufficient. 17 See Silicon Knights, Inc. v. Crystal Dynamics, Inc., 983 F.Supp. 18 1303, 1314 (N.D. Cal. 1997) (holding that “the words constituting a 19 libel or slander must be specifically identified, if not pleaded 20 verbatim”). Jacobson v. Schwarzenegger, 357 F.Supp.2d 1198, Even under the liberal federal pleading 21 In her eighth cause of action, Plaintiff alleges that 22 Defendants published the fact that Plaintiff was subjected to an 23 alcohol test by releasing that information to local newspapers and 24 co-workers. 25 clients, but she does not allege what Defendants told the clients. 26 Plaintiff’s claim includes an admission that she took the blood 27 alcohol test so any reference to such a test is true and therefore 28 cannot form the basis of her claim for slander. Plaintiff alleges that Defendants contacted current 12 See Cal. Civ. Code 1 § 46 (requiring that a “false and unprivileged” communications be 2 made to support a cause of action). 3 claim centers on a true statement, this claim fails as a matter of 4 law and any further amendment would be futile. 5 GRANTS Defendants’ Motion to Dismiss the eighth cause of action for 6 defamation WITH PREJUDICE. 7 8 9 9. Because Plaintiff’s defamation Thus, the Court False Light Plaintiff pleads her ninth cause of action for false light under California Civil Code sections 45 and 48a. Civil Code 10 section 45 provides: “Libel is a false and unprivileged publication 11 by writing, printing, . . . which has a tendency to injure [the 12 plaintiff] in [her] occupation.” 13 her claim on the alcohol test, which, as discussed supra, is a true 14 fact. 15 under Civil Code § 45. Civ. Code § 45. Plaintiff bases Accordingly, Plaintiff fails to state a cognizable claim 16 Civil Code § 48a concerns damages against publishers of 17 newspapers or radio broadcasts that contain libelous or slanderous 18 statements. 19 Code § 48 is inapplicable. 20 Defendants’ Motion to Dismiss Plaintiff’s ninth cause of action for 21 false light. 22 23 24 10. Since none of the Defendants are publishers, Civil Thus, the Court GRANTS WITH PREJUDICE Invasion of Privacy - Publicly Placing Person in False Light in Public Eye Plaintiff baes her tenth cause of action for invasion of 25 privacy and placing a person in a false light in a public eye on 26 California Civil Code section 3422 and California Code of Civil 27 Procedure section 526. 28 forms of injunctive relief – a form of relief Plaintiff does not Both of the cited codes pertain to various 13 1 seek in this case. 2 National Collegiate Athletic Assn., 7 Cal. 4th 1, 36-37 (Cal. 1994) 3 and essentially argues that Defendants violated her California 4 constitutional right to privacy. This claim, however, does not 5 include sufficient factual allegations demonstrating such a 6 violation. Moreover, since the facts pled in the FAC do not support 7 plaintiff’s third claim for invasion of privacy or ninth claim for 8 false light, this tenth claim must fail as well. The Court, will, 9 however, grant plaintiff one final opportunity to try to properly 10 In the Opposition, Plaintiff cites to Hill v. plead this cause of action. 11 III. ORDER 12 For the reasons set forth above, 13 The Court GRANTS WITH PREJUDICE Defendants’ Motion to Dismiss: 14 (1) all causes of action against Allen and Maddox; 15 (2) all causes of action against the County of Sierra; 16 (3) Defendant Carol Roberts, from the fifth cause of action 17 18 19 alleging slander; (4) the sixth cause of action alleging intentional infliction of emotional distress; 20 (5) the seventh cause of action alleging harassment; 21 (6) the eighth cause of action for defamation; and 22 (7) the ninth cause of action for false light 23 The Court GRANTS WITH LEAVE TO AMEND Defendants’ Motion to 24 Dismiss: 25 (1) the third cause of action for invasion of privacy; 26 (2) the fourth cause of action for due process violations; 27 (3) the fifth cause of action for slander; and 28 14 1 2 3 (4) the tenth cause of action for invasion of privacy – publicly placing person in false light in public eye. If Plaintiff wishes to file a Second Amended Complaint that is 4 in accordance with this order, she must do so within 20 days. 5 Defendants must file a responsive pleading within 20 days after a 6 Second Amended Complaint is filed by Plaintiff, or within 40 days 7 of this order if no amended complaint is filed. 8 9 IT IS SO ORDERED. Dated: February 29, 2012 ____________________________ JOHN A. MENDEZ, UNITED STATES DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15

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