Davis v. Prison Health Services, Inc. et al
Filing
173
ORDER (Illston, Susan) (Filed on 12/12/2011)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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FREDDIE M. DAVIS,
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United States District Court
For the Northern District of California
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No. C 09-2629 SI
Plaintiff,
ORDER
v.
PRISON HEALTH SERVICES, et al,
Defendants.
/
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The Court has reviewed the parties’ briefs regarding plaintiff’s First Amendment activity, and
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whether plaintiff should be considered a public employee for purposes of the First Amendment. Citing
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Board of County Com’rs, Wabaunsee County, Kan. v. Umbehr, 518 U.S. 668 (1996), defendants contend
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that plaintiff was a public employee because she worked for a government contractor. In Umbehr, the
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Supreme Court held that independent contractors are protected under the First Amendment from
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retaliatory governmental action under the same framework applicable to public employees, and that the
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extent of the protection is to be determined by weighing the government’s interest as contractor against
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the free speech interests at stake. Id. at 686.
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Plaintiff correctly notes that Umbehr did not address the situation presented here, namely
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whether the employees of a private company that contracts with the government should be considered
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as public employees. Plaintiff cites Clairmont v. Sound Mental Health, 632 F.3d 1091 (9th Cir. 2011),
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in which the Ninth Circuit evaluated a First Amendment retaliation claim brought by a domestic
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violence counselor against his employer, SMH, which was an independent contractor for a municipal
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court, and against that court’s manager of probation services. The Ninth Circuit noted, “Clairmont was
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not employed by Municipal Court; he worked for SMH, a private company. Therefore it is not
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immediately obvious whether he should be treated as a public employee, an independent contractor, or
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as a private citizen.” Id. at 1101. The Ninth Circuit rejected the employee’s argument that SMH was
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simply a licensee that was regulated by the state, and instead found that the court and SMH had a
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“unique relationship.” Id. at 1102. The Ninth Circuit noted that SMH had a contract with the court
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which provided, inter alia, that SMH’s work “shall, at all times, be subject to the City’s [through the
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municipal court] general review and approval,” and that all SMH staff had to submit monthly reports
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to document the services provided. Id. Based upon this close, intertwined relationship, and the
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plaintiff’s role in providing services under that contract, the Ninth Circuit held that the plaintiff should
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be considered a public employee for purposes of his First Amendment retaliation claim.
United States District Court
For the Northern District of California
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The Court finds that none of the cases cited by the parties clearly answers how to analyze
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plaintiff’s relationship with Alameda County. Although there are certain similarities between this case
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and Clairmont, there are some significant differences that weigh in favor of finding that plaintiff should
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be considered a citizen rather an a public employee. Most importantly, plaintiff’s employment was not
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governed by a contract between PHS and Alameda County, but rather by a collective bargaining
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agreement with PHS to which Alameda County is not a signatory, whereas in Clairmont the plaintiff
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was “at all times” subject to the municipal court’s review and approval. The evidence in this case also
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shows that PHS was responsible for hiring, disciplining and/or terminating Ms. Davis, and PHS
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maintained its own supervisors on site within the jail, and those supervisors set plaintiff’s work schedule
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and solely assigned and supervised her work. The Court finds it is not appropriate to extend the public
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employee First Amendment framework on these facts. Cf. Worrell v. Henry, 219 F.3d 1197, 1210 (10th
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Cir. 2000) (“Although courts have occasionally applied the Pickering approach outside the employment
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setting, those decisions have typically involved some kind of contractual relationship between the
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plaintiff and the defendant.”).
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IT IS SO ORDERED.
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Dated: December 12, 2011
SUSAN ILLSTON
United States District Judge
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