Davis v. Prison Health Services, Inc. et al

Filing 173

ORDER (Illston, Susan) (Filed on 12/12/2011)

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1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE NORTHERN DISTRICT OF CALIFORNIA 7 8 FREDDIE M. DAVIS, 9 United States District Court For the Northern District of California 10 11 12 No. C 09-2629 SI Plaintiff, ORDER v. PRISON HEALTH SERVICES, et al, Defendants. / 13 14 The Court has reviewed the parties’ briefs regarding plaintiff’s First Amendment activity, and 15 whether plaintiff should be considered a public employee for purposes of the First Amendment. Citing 16 Board of County Com’rs, Wabaunsee County, Kan. v. Umbehr, 518 U.S. 668 (1996), defendants contend 17 that plaintiff was a public employee because she worked for a government contractor. In Umbehr, the 18 Supreme Court held that independent contractors are protected under the First Amendment from 19 retaliatory governmental action under the same framework applicable to public employees, and that the 20 extent of the protection is to be determined by weighing the government’s interest as contractor against 21 the free speech interests at stake. Id. at 686. 22 Plaintiff correctly notes that Umbehr did not address the situation presented here, namely 23 whether the employees of a private company that contracts with the government should be considered 24 as public employees. Plaintiff cites Clairmont v. Sound Mental Health, 632 F.3d 1091 (9th Cir. 2011), 25 in which the Ninth Circuit evaluated a First Amendment retaliation claim brought by a domestic 26 violence counselor against his employer, SMH, which was an independent contractor for a municipal 27 court, and against that court’s manager of probation services. The Ninth Circuit noted, “Clairmont was 28 not employed by Municipal Court; he worked for SMH, a private company. Therefore it is not 1 immediately obvious whether he should be treated as a public employee, an independent contractor, or 2 as a private citizen.” Id. at 1101. The Ninth Circuit rejected the employee’s argument that SMH was 3 simply a licensee that was regulated by the state, and instead found that the court and SMH had a 4 “unique relationship.” Id. at 1102. The Ninth Circuit noted that SMH had a contract with the court 5 which provided, inter alia, that SMH’s work “shall, at all times, be subject to the City’s [through the 6 municipal court] general review and approval,” and that all SMH staff had to submit monthly reports 7 to document the services provided. Id. Based upon this close, intertwined relationship, and the 8 plaintiff’s role in providing services under that contract, the Ninth Circuit held that the plaintiff should 9 be considered a public employee for purposes of his First Amendment retaliation claim. United States District Court For the Northern District of California 10 The Court finds that none of the cases cited by the parties clearly answers how to analyze 11 plaintiff’s relationship with Alameda County. Although there are certain similarities between this case 12 and Clairmont, there are some significant differences that weigh in favor of finding that plaintiff should 13 be considered a citizen rather an a public employee. Most importantly, plaintiff’s employment was not 14 governed by a contract between PHS and Alameda County, but rather by a collective bargaining 15 agreement with PHS to which Alameda County is not a signatory, whereas in Clairmont the plaintiff 16 was “at all times” subject to the municipal court’s review and approval. The evidence in this case also 17 shows that PHS was responsible for hiring, disciplining and/or terminating Ms. Davis, and PHS 18 maintained its own supervisors on site within the jail, and those supervisors set plaintiff’s work schedule 19 and solely assigned and supervised her work. The Court finds it is not appropriate to extend the public 20 employee First Amendment framework on these facts. Cf. Worrell v. Henry, 219 F.3d 1197, 1210 (10th 21 Cir. 2000) (“Although courts have occasionally applied the Pickering approach outside the employment 22 setting, those decisions have typically involved some kind of contractual relationship between the 23 plaintiff and the defendant.”). 24 IT IS SO ORDERED. 25 26 Dated: December 12, 2011 SUSAN ILLSTON United States District Judge 27 28 2

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