Clark v. California Department of Forestry and Fire Portection et al
Filing
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ORDER by Judge Haywood S. Gilliam, Jr. GRANTING DEFENDANTS 16 MOTION TO DISMISS WITH PARTIAL LEAVE TO AMEND THE COMPLAINT. (ndrS, COURT STAFF) (Filed on 8/19/2016)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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DANIEL CLARK,
Plaintiff,
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v.
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United States District Court
Northern District of California
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Case No. 15-cv-04808-HSG
CALIFORNIA DEPARTMENT OF
FORESTRY AND FIRE PORTECTION, et
al.,
ORDER GRANTING DEFENDANTS’
MOTION TO DISMISS WITH PARTIAL
LEAVE TO AMEND THE COMPLAINT
Re: Dkt. No. 16
Defendants.
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Before the Court is the motion to dismiss filed by Defendant California Department of
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Forestry and Fire Protection (“CAL FIRE”) and several of its employees, Jim Crawford, Shana
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Jones, Derek Witmer, Ken Pimlott, and Mike Mathiesen (collectively “Defendants”). Dkt. No. 16
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(“Mot.”). Defendants move to dismiss the complaint filed by Plaintiff Daniel Clark (“Plaintiff”),
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Dkt. No. 1 (“Compl.”), for failure to state a claim upon which relief can be granted under Federal
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Rule of Civil Procedure 12(b)(6). Plaintiff has filed an opposition, Dkt. No. 17 (“Opp.”), and
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Defendants have replied, Dkt. No. 18 (“Reply”).
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Under Federal Rule of Civil Procedure 78(b) and Civil Local Rule 7-1(b), the Court finds
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that this motion is suitable for disposition without oral argument. For the reasons set forth below,
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the Court GRANTS Defendant’s motion to dismiss. Plaintiff’s claims are DISMISSED WITH
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PREJUDICE except for his claims for breach of contract and defamation against the individual
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Defendants, which are DISMISSED WITH LEAVE TO AMEND.
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I.
BACKGROUND
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A.
Factual Allegations
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This unusual case involves Halloween, a helicopter, and a gorilla mask. CAL FIRE
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employs Plaintiff as a firefighter. Compl. ¶ 10.1 Plaintiff was stationed with the Santa Clara Unit.
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Id. On October 31, 2013, Plaintiff allegedly wore a gorilla mask while piloting a helicopter from
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Los Gatos, California, to San Jose, California, to celebrate Halloween and boost the morale of new
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firefighter recruits that accompanied him on the way to a training exercise. Id. ¶ 11.
On November 13 or 14, 2013, Defendant Darrell Wolf, with the assistance of Defendant
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Mike Mathiesen, began an investigation into whether Plaintiff actually wore a gorilla mask while
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piloting a helicopter. Id. ¶ 12. On April 7, 2014, Plaintiff was informed that disciplinary action
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would be taken against him in the form of a suspension and a loss/reduction of pay for violating
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CAL FIRE safety protocols and Federal Aviation Administration regulations. Id.
Sometime after hearing about this disciplinary action, Plaintiff initiated a proceeding under
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United States District Court
Northern District of California
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California’s Firefighters Procedural Bill of Rights Act, Cal. Gov’t Code §§ 3250, et seq., before
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the State Personnel Board in an attempt to regain his lost earnings. Id. ¶ 13. On November 20 and
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21, 2014, the Personnel Board heard Plaintiff’s administrative complaint. Id. ¶ 14.
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Before the Personnel Board issued a ruling, however, Plaintiff agreed to settle his claim
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and executed a settlement agreement with CAL FIRE. Id. The settlement agreement absolved
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CAL FIRE of any liability for its disciplinary action against Plaintiff in exchange for the removal
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of the disciplinary records from Plaintiff’s personnel file as well as the reinstatement of Plaintiff’s
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lost earnings. Id. But Plaintiff alleges that CAL FIRE “reneged” on the settlement agreement by
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delaying the removal of the disciplinary records from Plaintiff’s personnel file, not removing all
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mentions of discipline, and delaying payment of Plaintiff’s lost earnings. Id. ¶ 15.
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B.
Procedural History
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Plaintiff filed a complaint in this Court on October 19, 2015. Dkt. No. 1. Plaintiff asserts
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that Defendants violated his procedural due process rights (in a manner made actionable under §
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1983) because they “forced [him] to waive his procedural due process rights” to an administrative
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hearing by settling his personnel claim under false pretenses. Id. ¶ 17. Specifically, “[i]n waiving
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It is unclear whether Plaintiff is still Defendant’s employee. Compare Compl. ¶ 10
(“Plaintiff . . . is a firefighter-employee of Defendant[.]”) with id. ¶ 16 (“Plaintiff . . . lost state
employment status after the initial discipline was entered against him by his employer[.]”).
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his rights, Plaintiff was not provided an adequate notice and hearing.” Id.
Plaintiff also asserts that Defendants violated California’s Firefighters Procedural Bill of
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Rights Act by not providing adequate administrative protections during the initial investigation
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into the gorilla mask incident, breached the settlement contract by reneging on its terms, and
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defamed him by issuing notices of adverse action and by using derogatory language during the
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initial investigation into the gorilla mask incident. Id. ¶¶ 18-23.
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II.
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LEGAL STANDARD
Federal Rule of Civil Procedure 8(a) requires that a complaint contain “a short and plain
statement of the claim showing that the pleader is entitled to relief[.]” A defendant may move to
dismiss a complaint for failing to state a claim upon which relief can be granted under Federal
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United States District Court
Northern District of California
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Rule of Civil Procedure 12(b)(6). “Dismissal under Rule 12(b)(6) is appropriate only where the
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complaint lacks a cognizable legal theory or sufficient facts to support a cognizable legal theory.”
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Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). To survive a Rule
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12(b)(6) motion, a plaintiff must plead “enough facts to state a claim to relief that is plausible on
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its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 540, 570 (2007). A claim is facially plausible
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when a plaintiff pleads “factual content that allows the court to draw the reasonable inference that
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the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
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In reviewing the plausibility of a complaint, courts “accept factual allegations in the
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complaint as true and construe the pleadings in the light most favorable to the nonmoving party.”
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Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). Nonetheless,
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courts do not “accept as true allegations that are merely conclusory, unwarranted deductions of
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fact, or unreasonable inferences.” In re Gilead Scis. Secs. Litig., 536 F.3d 1049, 1055 (9th Cir.
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2008). And even where facts are accepted as true, “a plaintiff may plead [him]self out of court” if
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he “plead[s] facts which establish that he cannot prevail on his . . . claim.” Weisbuch v. Cnty. of
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Los Angeles, 119 F.3d 778, 783 n.1 (9th Cir. 1997) (quotation marks and citation omitted).
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If dismissal is appropriate, a court “should grant leave to amend even if no request to
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amend the pleading was made, unless it determines that the pleading could not possibly be cured
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by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (quotation
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marks and citation omitted).
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III.
DISCUSSION
Defendants move to dismiss Plaintiff’s complaint on the following grounds: (1) CAL FIRE
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is not a “person” within the meaning of 42 U.S.C. § 1983 and, therefore, Plaintiff cannot state any
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§ 1983 claim against it; (2) Plaintiff cannot state any procedural due process claim because there is
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adequate process in state court; (3) Plaintiff cannot state a claim against the individual Defendants
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for violation of the Firefighters Procedural Bill of Rights Act because it bars individual liability;
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(4) Plaintiff cannot state a breach of contract claim against the individual Defendants because the
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they were not party to the contract at issue; and (5) all of Plaintiff’s state law claims are barred by
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the Eleventh Amendment. The Court discusses each issue in turn and concludes that Defendants’
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United States District Court
Northern District of California
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motion should be granted as to all of Plaintiff’s claims with partial leave to amend.
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A.
Procedural Due Process Violation Under 42 U.S.C. § 1983
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State Agency Liability Under § 1983
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Defendants first contend that Plaintiff’s procedural due process claim against CAL FIRE
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under 42 U.S.C. § 1983 fails as a matter of law because CAL FIRE is not a “person” subject to §
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1983 liability. Mot. at 4. Plaintiff responds by citing a Ninth Circuit case, Maldonado v. Harris,
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370 F.3d 945, 951 (9th Cir. 2004), for the proposition that § 1983 claims can be brought against
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the director of a state agency in certain contexts. Opp. at 3.
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In relevant part, 42 U.S.C. § 1983 provides that: “Every person who, under color of [state
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law] subjects . . . any citizen of the United States . . . to the deprivation of any rights, privileges, or
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immunities secured by the Constitution . . . shall be liable to the party injured[.]” It is well-settled
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that the word “person,” within the meaning of § 1983, does not include states or state agencies.
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Will v. Michigan Dep’t of State Police, 491 U.S. 58, 64 (1989) (“A State is not a person within the
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meaning of § 1983.”); Maldonado, 370 F.3d at 951 (“State agencies . . . are not ‘persons’ within
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the meaning of § 1983, and are therefore not amenable to suit under that statute.”). CAL FIRE is a
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state agency and is therefore not a person within the meaning of § 1983. See Garcia v. Cal. Dep’t
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of Forestry and Fire Protection, No. CIV S-07-2770, 2009 WL 700517, at *7 (E.D. Cal. Mar. 12,
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2009), aff’d 385 Fed. Appx. 636 (9th Cir. 2010). Furthermore, Plaintiff is incorrect that individual
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state officials are cognizable actors under § 1983 when sued in their official capacities for money
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damages. Will, 491 U.S. at 71 & n.10 (holding that state officials are not cognizable under § 1983
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unless sued for injunctive relief).
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Accordingly, Defendants’ motion to dismiss Plaintiff’s § 1983 claim against CAL FIRE is
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granted. Because this defect is legally incurable, the claim is dismissed with prejudice. The Court
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also sua sponte dismisses Plaintiff’s § 1983 claim against the individual Defendants to the extent
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that it seeks monetary damages from them in their official capacities.
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2.
Adequate Process
Defendants also move to dismiss Plaintiff’s procedural due process claim on the grounds
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that the complaint admits adequate process existed. Mot. at 4-6. Specifically, Defendants argue
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United States District Court
Northern District of California
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that to the extent Plaintiff’s procedural due process claim is based on the allegation that CAL
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FIRE and the individual Defendants breached the terms of the settlement agreement, Plaintiff
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cannot state a claim because he can file a lawsuit in state court for breach of contract. Id. Plaintiff
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responds that Defendants are conflating judicial remedies for a procedural due process violation
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with the process necessary to avoid a procedural due process violation in the first place. Opp. at 4.
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The Due Process Clause of Fourteenth Amendment provides that no state may “deprive
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any person of life, liberty, or property, without due process of law[.]” U.S. Const., amend. XIV.
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“A section 1983 claim based upon procedural due process thus has three elements: (1) a liberty or
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property interest protected by the Constitution; (2) a deprivation of the interest by the government;
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(3) lack of process.” Portman v. Cnty. of Santa Clara, 995 F.2d 898, 904 (9th Cir. 1993).
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To determine whether Plaintiff received adequate process, the Court must first address the
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nature of the property interests of which he was allegedly deprived. See Mathews v. Eldridge, 424
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U.S. 319, 334 (1976) (“[R]esolution of . . . whether the administrative procedures provided . . . are
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constitutionally sufficient requires analysis of the . . . private interests that are affected.”). In this
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regard, Plaintiff’s complaint is confusing. To be sure, Plaintiff alleges that the property interests
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at issue in his claim are “his lost earnings, loss of pay due to unwarranted suspension, and loss of
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health insurance[.]” Compl. ¶ 17. But this allegation begs a further question: is the legal source of
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those property interests Plaintiff’s public employment or is it the settlement agreement that he
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executed? In other words, is Plaintiff alleging that Defendants violated his procedural due process
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rights when they initially took disciplinary action against him or is he alleging that they did so
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when they executed a settlement agreement with him under false pretenses and then breached it?
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Again, this line of inquiry matters because it defines the type of process Plaintiff was due.
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Based on a review of the complaint alone, Plaintiff is alleging Defendants failed to provide
adequate process when they settled his administrative claim and then breached the settlement
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agreement, not when they initially disciplined him. The complaint makes this clear: “Plaintiff
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alleges that Defendants violated 42 U.S.C. Section 1983 in that Plaintiff was forced to waive his
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procedural due process rights when Defendants, under intentional false pretenses or negligently,
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settled the case. In waiving his rights Plaintiff was not provided an adequate notice and hearing.”
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United States District Court
Northern District of California
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Id. Furthermore, Plaintiff alleges that he voluntarily agreed to waive all claims for liability against
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CAL FIRE in exchange for receiving the pay he lost as a result of the initial discipline against him.
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Id. ¶ 14 (“Plaintiff signed a settlement agreement on or about November 21, 2014 . . . absolving
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Defendant CAL FIRE of any liability[.]”). To the extent that Plaintiff could have alleged that he
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had a claim against Defendants for the initial deprivation, he has also pled that he released them
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from that liability. See Weisbuch, 119 F.3d at 783 n.1 (plaintiff can plead himself out of a claim).
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Having established that the nature of Plaintiff’s property interest is merely contractual, the
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Court can now determine what process was due. To that effect, it is well settled that where the
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property interest in a procedural due process claim is a contractual claim for wages from a state
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agency, a post-deprivation breach of contract suit in state court provides adequate process. Lujan
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v. G & G Fire Sprinklers, Inc., 532 U.S. 189, 195 (2001); accord DeBoer v. Pennington, 287 F.3d
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748, 749-50 (9th Cir. 2002). That is because there is generally no “present entitlement” to any
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property interest that is only contractual. Id. at 190 (“[The plaintiff] has not been deprived of any
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present entitlement. It has been deprived of payment that it contends it is owed under a contract,
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based on the State’s determination that it failed to comply with the contract’s terms. That property
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interest can be fully protected by an ordinary breach-of-contract suit.”). The only question then is
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whether Plaintiff can sue Defendants for breach of contract in state court. The answer is yes. See
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Cal. Gov’t Code §§ 905.2(b)(3), 945, 945.4. For that reason, the Court finds that adequate process
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exists as a matter of law and Plaintiff cannot state a procedural due process claim.
Accordingly, Defendants’ motion is granted as to the individual Defendants. Because this
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defect is legally incurable regardless of whether the individual Defendants are sued in their official
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or individual capacity, the claim is dismissed with prejudice.
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B.
Firefighters Procedural Bill of Rights Act
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Defendants next contend that Plaintiff cannot state a claim for violation of the Firefighters
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Procedural Bill of Rights Act, Cal. Gov’t Code §§ 3250 et seq., against the individual Defendants
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because the statute bars individual liability. Mot. at 7. Plaintiff responds that individuals can be
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liable under the statute if they are not operating in their official capacities. Opp. at 5.
Sections (a) and (d) of California Government Code § 3260, read together, provide that: “It
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United States District Court
Northern District of California
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shall be unlawful for any employing department or licensing or certifying agency to deny or refuse
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to any firefighter the rights and protections guaranteed by [the Firefighters Bill of Rights] . . . An
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individual shall not be liable for any act for which a fire department is liable under this section.”
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In this way, § 3260 makes perfectly clear that individuals cannot be held liable for violations of
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the Firefighters Bill of Rights, only an “employing department or licensing or certifying agency.”
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See id. Plaintiff argues that § 3260(d) does not proscribe individual liability for violations of the
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Firefighters Bill of Rights when a fire department could not be held liable, but only when a fire
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department could be held liable. The problem with this argument is that § 3260(a) provides no
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basis for individual liability in the first instance. See Cal. Gov’t Code § 3260(a).
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Accordingly, the Court grants Defendants’ motion to dismiss Plaintiff’s Firefighters Bill of
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Rights claim against the individual Defendants. Because this defect is legally incurable, this claim
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is dismissed with prejudice.
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C.
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Defendants next move to dismiss Plaintiff’s breach of contract claim against the individual
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Breach of Contract
Defendants on the grounds that they were not parties to the contract at issue. Not. of Mot. at 2.
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Under California law, a plaintiff states a claim for breach of contract where he alleges: (1)
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the existence of a contract, (2) his performance or excuse for nonperformance, (3) the defendant’s
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breach, and (4) the resulting damages to the plaintiff. Oasis W. Realty, LLC v. Goldman, 51 Cal.
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4th 811, 821 (2011). Plaintiff’s complaint alleges that the settlement agreement that resolved
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Plaintiff’s administrative complaint against CAL FIRE was between him and the department only.
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Compl. ¶ 14. Furthermore, Plaintiff alleges that it was CAL FIRE that breached the contract. Id. ¶
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15. Nothing about these allegations implicates (or could implicate) the individual Defendants.
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Accordingly, the Court grants Defendants’ motion to dismiss Plaintiff’s breach of contract
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claim as to the individual Defendants. But because the Court cannot definitely say that this claim
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is legally incurable, Plaintiff is granted leave to amend his breach of contract claim to the extent
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that he can plausibly allege it against the individual Defendants, in their individual (as opposed to
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official) capacities. See discussion below. Plaintiff is required to plead specific facts regarding
each individual Defendant’s conduct sufficient to plausibly state a cause of action against that
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United States District Court
Northern District of California
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Defendant individually: it will not suffice to again plead in conclusory fashion that “Defendants
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breached the contract,” Compl. ¶ 21. For the reasons set forth below, however, Plaintiff cannot re-
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allege a breach of contract claim against CAL FIRE.
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D.
Eleventh Amendment Immunity for State Law Claims
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Finally, Defendants contend that the Eleventh Amendment bars Plaintiff’s suit for breach
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of contract, violation of the Firefighters Bill of Rights, and defamation against Defendants as state
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departments and actors. Mot. at 6-7. Plaintiff does not directly address this argument, except to
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say that he is seeking injunctive relief authorized under Ex Parte Young, 209 U.S. 123 (1908).
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The Eleventh Amendment explicitly bars a federal court from entertaining a suit brought
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by a citizen of another state against a state unless the state consents or Congress abrogates its
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immunity under the Fourteenth Amendment. U.S. Const., amend. XI; Pennhurst State School &
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Hosp. v. Halderman, 465 U.S. 89, 98 (1984). This immunity also extends to state agencies and
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departments. Pennhurst, 465 U.S. at 100 (“It is clear, of course, that in the absence of consent a
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suit in which the State or one of its agencies or departments is named as the defendant is
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proscribed by the Eleventh Amendment.”). This immunity therefore extends to CAL FIRE. And
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it applies regardless of whether the plaintiff seeks retroactive relief (damages) or prospective relief
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(injunctive). Id. (“This jurisdictional bar applies regardless of the nature of the relief sought.”).
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Accordingly, Plaintiff’s state law claims against CAL FIRE must be dismissed with prejudice.
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The only remaining issue is whether Plaintiff’s state law claim for defamation against the
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individual Defendants, the last claim left against them, is also barred by the Eleventh Amendment.
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“[T]he eleventh amendment bars suits in federal court, for both retrospective and prospective
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relief, brought against state officials acting in their official capacities alleging a violation of state
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law.” Pena v. Gardner, 976 F.2d 469, 472 (9th Cir. 1992) (citing Pennhurst, 465 U.S. at 106). In
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this sense, whether a state official is sued for retroactive relief is irrelevant when that official is
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sued in his official capacity. Conversely, “the eleventh amendment does not bar a suit seeking
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damages against a state official personally.” Id. at 473-74 (quotation marks and citation omitted).
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For that reason, whether Plaintiff’s defamation claim (and other state law claims, for that matter)
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are barred by the Eleventh Amendment turns on the capacity in which they were sued. Plaintiff’s
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United States District Court
Northern District of California
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complaint itself does not expressly admit an answer either way. But Plaintiff’s opposition brief
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makes clear that the individual Defendants were sued in their official capacity. See Opp. at 5 (“At
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this time Plaintiff believes that all the individual defendants in this case have acted under the color
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of state authority by conducting their activities against Plaintiff as state employees.”).
Accordingly, the Court grants Defendants’ motion to dismiss Plaintiff’s remaining state
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law claim for defamation as barred by the Eleventh Amendment. But because Plaintiff could
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avoid this bar by suing Defendants in their personal capacities (if he can do so consistent with his
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Rule 11 obligations), Plaintiff is granted leave to amend. With regard to this claim as well,
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Plaintiff is required to plead specific facts regarding each individual Defendant’s conduct
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sufficient to plausibly state a cause of action against that Defendant individually: it will not suffice
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to again plead in conclusory fashion that allegedly defamatory statements were “made by
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Defendants,” Compl. ¶ 23.
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IV.
CONCLUSION
For the reasons set forth above, the Court GRANTS Defendants’ motion to dismiss.
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Plaintiff’s claims are DISMISSED WITH PREJUDICE except for his breach of contract and
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defamation claims against the individual Defendants, which are DISMISSED WITH LEAVE
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TO AMEND within 30 days of the date of this Order. Plaintiff’s counsel should carefully
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consider his ongoing obligations under Rule 11 when evaluating the contents of any prospective
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amended complaint.
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IT IS SO ORDERED.
Dated: 8/19/2016
United States District Court
Northern District of California
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HAYWOOD S. GILLIAM, JR.
United States District Judge
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