Espinoza v. City of Tracy et al

Filing 32

MEMORANDUM and ORDER signed by Senior Judge William B. Shubb on 11/15/2016 re 22 Defendants' Motion to Dismiss: IT IS ORDERED that defendants' Motion to dismiss plaintiff's Complaint be, and the same hereby is, GRANTED. Plaintiff's Complaint is DISMISSED WITHOUT PREJUDICE. Plaintiff has twenty days from the date this Order is signed to file an amended complaint, if he can do so consistent with this Order. (Kirksey Smith, K)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JUAN ESPINOZA,
Plaintiff,

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CIV. NO. 2:15-751 WBS KJN
MEMORANDUM AND ORDER RE: MOTION
TO DISMISS

v.
CITY OF TRACY, R. LEON
CHURCHILL, and DOES 1 through
40 inclusive,

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Defendants.

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Plaintiff Juan Espinoza filed this action against the

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City of Tracy (“the City”), City Chief of Police Gary Hampton,

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and City Manager R. Leon Churchill, alleging unconstitutional

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discharge and retaliation under 42 U.S.C. § 1983.

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(Docket No. 1).)

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action.

(Compl.

Plaintiff has dismissed Hampton from this

(Docket No. 24.)

The City and Churchill (collectively

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“defendants”) are the only remaining defendants.

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move to dismiss plaintiff’s Complaint pursuant to Federal Rule of

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Civil Procedure 12(b)(6).

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I.

Defendants now

(Defs.’ Mot. (Docket No. 22).)

Factual and Procedural History

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Plaintiff worked for the City’s police department from

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1995 to July 29, 2013.

(Compl. ¶ 1.)

In 2009, the City

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initiated two investigations against plaintiff--one for alleged

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discrimination, and another for alleged failure to report an in-

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custody death to the City’s Chief of Police.

(Id. ¶¶ 18, 20.)

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Plaintiff “complained formally and informally about the

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investigation[s],” alleging that the City: (1) “brought false

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accusations” against him; (2) “refused to surrender

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investigation, notes, tapes, and other requested materials so

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[that he] could defend himself”; (3) “destroyed evidence”; (4)

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“failed to promote [him] to acting Chief” during the

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investigations despite his becoming the “most senior of all sworn

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command officers” at that time; and (5) kept his investigations

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open for more than one year despite “clear [statutory] mandates”

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that they “be officially closed” after one year.

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27.)

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misconduct” on his part from the investigations.

(Id. ¶¶ 18-19,

Plaintiff alleges that the City “failed to prove any
(Id. ¶ 27.)

In March 2011, Plaintiff sued the City, Churchill,1 and

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other City executives in the California Superior Court, alleging

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that they violated various provisions of the California Public

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Churchill was allegedly “one of the primary policy
makers for the City” during the time plaintiff was being
investigated and responsible for the decision to place plaintiff
on leave. (Compl. ¶ 5, 21, 37.) Plaintiff sues Churchill in his
“individual and official capacities.” (Id. ¶ 5.)
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Safety Officers Procedural Bill of Rights Act (“PBRA”) by

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investigating him, keeping his investigations open for more than

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one year, and subjecting him to adverse employment action during

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that time.

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(“RJN”) Ex. 1, State Ct. Compl. (Docket No. 23).2)

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(See id. ¶¶ 2-3; Defs.’ Request for Judicial Notice

While the state litigation was ongoing, plaintiff

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became aware “that a conflict of interest likely existed” as to

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the City’s counsel--Liebert Cassidy Whitmore (“Liebert”)--because

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Liebert was representing the City in the state action while

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separately engaging in “ex parte communications with [him] about”

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an unrelated matter that he was working for the City on.

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¶ 34; RJN Ex. 3, Order Denying Pl.’s Mot. to Disqualify Counsel.)

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Plaintiff filed a motion to disqualify Liebert from the state

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case on April 3, 2013.

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the motion, the City placed him on indefinite administrative

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leave.

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(Compl. ¶ 35.)

(Compl.

The day after he filed

(Id. ¶¶ 36, 39.)
After remaining on leave for nearly four months,

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plaintiff resigned from the Tracy Police Department.

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Plaintiff dismissed his state action without prejudice on

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September 3, 2014.

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(Id. ¶ 54.)

(RJN Ex. 6, Request for Dismissal at 1.)

On April 6, 2015, plaintiff filed the present action.
(Compl.)

In contrast to his state action, plaintiff’s federal

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The court takes judicial notice of Exhibits 1 through 9
attached to defendants’ Request for Judicial Notice, as such
documents are on file with the California Superior Court. See
U.S. ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc.,
971 F.2d 244, 248 (9th Cir. 1992) (federal courts “may take
notice of proceedings in other courts, both within and without
the federal judicial system, if those proceedings have a direct
relation to matters at issue”).
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action does not raise any PBRA claims.

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U.S.C. § 1983 claim, alleging that the City and Churchill

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violated plaintiff’s “First, Fourth, and/or Fourteenth

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Amendment[]” rights by “discriminati[ng]” against him,

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“retaliati[ng]” against him, denying him “due process,” and

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denying him “Equal Protection of the Law” during his

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investigations and the state litigation.

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Plaintiff does not allege that he is a member of any protected

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class, but claims that he was a victim of “nepotism and

Instead, it brings a 42

(Id. ¶¶ 49-50.)

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favoritism permeating the City . . . while Churchill was City

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Manager.”

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plaintiff’s Complaint under Rule 12(b)(6).

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II.

(Id. ¶ 29.)

Defendants now move to dismiss
(Defs.’ Mot.)

Legal Standard

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On a motion to dismiss for failure to state a claim

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under Rule 12(b)(6), the court must accept the allegations in the

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pleadings as true and draw all reasonable inferences in favor of

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the plaintiff.

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overruled on other grounds by Davis v. Scherer, 468 U.S. 183

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(1984); Cruz v. Beto, 405 U.S. 319, 322 (1972).

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motion to dismiss, a plaintiff must plead “only enough facts to

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state a claim to relief that is plausible on its face.”

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Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

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See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974),

To survive a

Bell

“While a complaint attacked by a Rule 12(b)(6) motion

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to dismiss does not need detailed factual allegations, a

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plaintiff’s obligation to provide the ‘grounds’ of his

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‘entitle[ment] to relief’ requires more than labels and

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conclusions . . . .”

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omitted).

Twombly, 550 U.S. at 555 (citation

“Threadbare recitals of the elements of a cause of
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action, supported by mere conclusory statements, do not suffice,”

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and “the tenet that a court must accept as true all of the

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allegations contained in a complaint is inapplicable to legal

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conclusions.”

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Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

The “plausibility” standard, “asks for more than a

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sheer possibility that a defendant has acted unlawfully,” and

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where a plaintiff pleads facts that are “merely consistent with a

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defendant’s liability,” the facts “stop[] short of the line

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between possibility and plausibility.”

Id. (quoting Twombly, 550

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U.S. at 557).

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plausible claim is context-specific, requiring the reviewing

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court to draw on its experience and common sense.”

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(citing Twombly, 550 U.S. at 556).

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III. Discussion

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“[D]etermining whether a complaint states a

Id. at 663–64

Section 1983 “provides a cause of action against any

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person who, under color of state law, deprives an individual of

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federal constitutional rights.”

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2:16-00807 WBS AC, 2016 WL 4192437, at *2 (E.D. Cal. Aug. 8,

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2016).

Suit v. City of Folsom, No.

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With respect to plaintiff’s Fourth Amendment claim, the

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Complaint makes no mention of any search, seizure, or invasion of

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privacy that took place at any time during plaintiff’s

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investigations or at any other time.

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City brought false accusations against him and kept his

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investigations open for longer than it should have, but such

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allegations do not in themselves suggest that there was a search,

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seizure, or invasion of plaintiff’s privacy.

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plaintiff has not stated a Fourth Amendment claim.
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Plaintiff alleges that the

Accordingly,

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Plaintiff’s First Amendment claim is also deficient.

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To state a First Amendment claim in the public employment

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context, a public employee must allege that he “spoke on a matter

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of public concern.”

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1062, 1068 (9th Cir. 2012).

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concern, the content of the . . . speech must involve ‘issues

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about which information is needed or appropriate to enable the

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members of society to make informed decisions about the operation

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of their government.’”

Karl v. City of Mountlake Terrace, 678 F.3d
“To address a matter of public

Desrochers v. City of San Bernardino, 572

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F.3d 703, 710 (9th Cir. 2009) (internal citation omitted).

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“[S]peech that deals with ‘individual personnel disputes and

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grievances’ and that would be of ‘no relevance to the public’s

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evaluation of the performance of governmental agencies’ is

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generally not of ‘public concern.’”

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omitted).

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Id. (internal citation

The “public concern” requirement applies in both

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employment speech cases and in cases where the employee seeks

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First Amendment protection for bringing litigation against his

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employer.

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Cir. 1997) (“[A] public employee’s litigation must involve a

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matter of public concern in order to be protected by either the

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Petition Clause or the Speech Clause of the First Amendment.”).

Rendish v. City of Tacoma, 123 F.3d 1216, 1220 (9th

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Plaintiff alleges that defendants violated his First

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Amendment rights by denying him a promotion and placing him on

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administrative leave after he brought state court litigation

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against the City for its handling of his investigations.

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¶ 25-26, 40, 47.)

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litigation, however, does not concern any “issues about which

(Compl.

The subject matter of plaintiff’s state court

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information is needed or appropriate to enable the members of

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[the public] to make informed decisions about the operation of

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their government.”

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personal disagreement with how the City and Churchill handled his

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investigations and treated him while the investigations were

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ongoing.

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personnel disputes and grievances,” they do not constitute

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protected speech under the First Amendment.

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have valid retaliation claims under other provisions of state or

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Instead, it concerns only plaintiff’s

Because these issues amount only to “individual

Plaintiff may well

federal law, but he has not raised those provisions here.

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Plaintiff also alleges that defendants violated his

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First Amendment rights by placing him on leave after he brought a

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motion to disqualify Liebert from the state court litigation.

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(Id. ¶ 47.)

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because it “address[ed] the integrity of the legal profession, a

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matter of public concern.”

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It is evident from plaintiff’s Complaint, however, that the

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motion was brought as part of a litigation strategy to hamper the

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City’s defense in the state court case.

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nothing about the public’s interest in connection with the

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motion.

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of Professional Conduct, which makes a reference to “protect[ing]

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the public,” see CA ST RPC Rule 1-100(A), is unavailing.

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Desrochers, 572 F.3d at 711 (“[T]he fact that speech contains

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passing references to public safety[,] incidental to the message

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conveyed weighs against a finding of public concern.” (internal

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citation omitted)).

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allegations fail to amount to a First Amendment claim as well.

He argues that the motion was protected speech

(Pl.’s Opp’n at 9 (Docket No. 26).)

The Complaint mentions

That the motion was brought under the California Rules

See

Accordingly, plaintiff’s ‘motion’

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Plaintiff’s Fourteenth Amendment claim is vague and

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difficult to decipher.

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adverse employment actions that plaintiff bases his First

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Amendment claim on: denial of a promotion during his

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investigations, and placement on administrative leave after he

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brought state court litigation against defendants.

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alleges two violations of the Fourteenth Amendment: an equal

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protection violation and a substantive due process violation.

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(Compl. ¶¶ 49, 50.)

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It appears to be based on the same

Plaintiff

“To state a claim under 42 U.S.C. § 1983 for a

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violation of the Equal Protection Clause of the Fourteenth

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Amendment a plaintiff must show that the defendants acted with an

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intent or purpose to discriminate against the plaintiff based

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upon membership in a protected class.”

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F.3d 1193, 1194 (9th Cir. 1998).

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membership in any protected class.

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that he “was subjected to selective enforcement of the

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disciplinary process” due to “nepotism and favoritism permeating

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the City.”

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is not aware of any case, holding that “nepotism and favoritism”

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give rise to an equal protection claim.

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Unified Sch. Dist., No. 1:09-CV-1779 AWI SKO, 2014 WL 346561, at

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*6 (E.D. Cal. Jan. 30, 2014) (“42 U.S.C. § 2000d . . . protects

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only against those forms of bias that are prohibited by the

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Fourteenth Amendment.

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2000d for bias arising from nepotism, personal preference,

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familiarity or friendship.”).

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stated an equal protection claim.

Barren v. Harrington, 152

Plaintiff has not alleged

(Compl. ¶¶ 27, 29.)

His Complaint merely states

He cites no case, and the court

See Lanier v. Fresno

Thus there is no protection under section

Accordingly, plaintiff has not

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“To establish a substantive due process claim, a

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plaintiff must, as a threshold matter, show a government

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deprivation of life, liberty, or property.”

Nunez v. City of Los

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Angeles, 147 F.3d 867, 871 (9th Cir. 1998).

“[T]he absence of

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any claim by the plaintiff that an interest in liberty or

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property has been impaired is a fatal defect in [his] substantive

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due process argument.”

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Consol. Sch. Dist., 492 F.2d 1, 4 (7th Cir. 1974)).

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Circuit has held that “expectancy in a promotion [is not] a

Id. (quoting Jeffries v. Turkey Run
The Ninth

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property interest” unless it is guaranteed “from an independent

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source such as state law.”

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receives a promotion, or at least a binding assurance of a

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forthcoming promotion, he cannot claim a property interest in the

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promotion.”

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Id. at 872.

“Until someone actually

Id. at 873.

Plaintiff alleges that the City “failed to promote

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[him] to acting Chief” during his investigations despite the fact

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that he had become the “most senior of all sworn command

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officers” during that time.

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according to plaintiff, was “in violation of past practice.”

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(Id. ¶ 19.)

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establish a property interest under Ninth Circuit precedent.

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Nunez, 147 F.3d at 873.

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or contractual term entitling him to a promotion once he became

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the most senior officer.

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statute, regulation, or term.

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the terms and conditions of public employment are generally fixed

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by the statute, rules or regulations creating it, not by contract

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(even if one is involved).

(Compl. ¶¶ 19, 30.)

This failure,

“Past practice,” however, is not sufficient to
See

Plaintiff cites no statute, regulation,

The court is not aware of any such
See id. at 872 (“In California,

No such law creates a property
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interest in a promotion.” (internal citations and quotation marks

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omitted)).

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the City violated his Fourteenth Amendment rights by failing to

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promote him during his investigations.

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Accordingly, plaintiff has not stated a claim that

Plaintiff may have a property interest in his job as a

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police officer, however.

See id. at 871 (“[O]ne’s actual job as

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a tenured civil servant is property.”); see also Dorr v. Butte

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Cty., 795 F.2d 875, 876 (9th Cir. 1986) (“Under California law, a

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‘permanent employee,’ dismissible only for cause, has ‘a property

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interest in his continued employment which is protected by due

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process.’” (quoting Skelly v. State Pers. Bd., 15 Cal. 3d 194,

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207-08 (1975))).

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interest when it placed him on indefinite administrative leave,

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thus constructively terminating him.

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He alleges that the City deprived him of that

(Compl. ¶ 40.)

Even assuming that defendants deprived plaintiff of a

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property interest by constructively terminating him, plaintiff

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has not alleged that the deprivation occurred without due

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process.

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deprivation of life, liberty, or property ‘be preceded by notice

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and opportunity for hearing appropriate to the nature of the

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case.’”

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(1985) (quoting Mullane v. Central Hanover Bank & Trust Co., 339

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U.S. 306, 313 (1950)).

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interest in his continued employment must be provided with ‘oral

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or written notice of the charges against him, an explanation of

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the employer’s evidence, and an opportunity to present his side

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of the story.”

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F.3d 963, 968 (9th Cir. 2011) (quoting Cleveland Bd. Of Educ.,

The “essential principle of due process is that a

Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542

“[A] public employee with a property

Walls v. Cent. Contra Costa Transit Auth., 653

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470 U.S. at 546).

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employment “need not be elaborate.”

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“individual [has] the opportunity to be heard before he is

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deprived” of his job, the employer has satisfied the “root”

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requirement of due process.

The hearing for termination of public
Id.

So long as the

Id.

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Plaintiff does not allege that he was denied notice or

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opportunity to be heard before he resigned from the Tracy Police

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Department.

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notified him that he was being placed on leave because he

To the contrary, his Complaint alleges that the City

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disclosed, in his motion to disqualify, “confidential material

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pertaining to two, other peace officers.”3

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Complaint also alleges that while “[o]n indefinite suspension,

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Plaintiff proceeded through the [City’s] administrative process,”

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indicating that he availed himself of the City’s grievance

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procedure before resigning.

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plaintiff on leave before providing him a hearing is not itself a

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violation of due process.

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App’x 313, 315 (9th Cir. 2009) (declining to find “due process

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right to a hearing before [police officers] are put on leave”);

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Dias v. Elique, 436 F.3d 1125, 1132 (9th Cir. 2006) (holding the

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same).

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City violated his Fourteenth Amendment rights by placing him on

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(Compl. ¶ 39.)

(Compl. ¶ 37.)

The

That the City placed

See Abel v. City of Algona, 348 F.

Accordingly, plaintiff has not stated a claim that the

Plaintiff states that the reason given for his
suspension was “pre-textual.” (Compl. ¶ 58.) That the reason
may have been pre-textual, however, does not change the fact that
the City gave him notice. And, as explained supra, the other
reasons plaintiff cites for the City’s hostility towards him-favoritism, nepotism, and retaliation for his suing the City over
personal concerns--do not trigger constitutional protections.
They may trigger protections under other provisions of state or
federal law, but plaintiff has not raised such provisions here.
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administrative leave.

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For the reasons discussed above, the court will dismiss
plaintiff’s Complaint without prejudice.

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IT IS THEREFORE ORDERED that defendants’ Motion to

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dismiss plaintiff’s Complaint be, and the same hereby is,

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GRANTED.

Plaintiff’s Complaint is DISMISSED WITHOUT PREJUDICE.

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Plaintiff has twenty days from the date this Order is

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signed to file an amended complaint, if he can do so consistent

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with this Order.

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Dated:

November 15, 2016

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