Clark v. California Department of Forestry and Fire Portection et al

Filing 22

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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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 DANIEL CLARK, Plaintiff, 8 v. 9 10 United States District Court Northern District of California 11 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. 12 13 Before the Court is the motion to dismiss filed by Defendant California Department of 14 15 Forestry and Fire Protection (“CAL FIRE”) and several of its employees, Jim Crawford, Shana 16 Jones, Derek Witmer, Ken Pimlott, and Mike Mathiesen (collectively “Defendants”). Dkt. No. 16 17 (“Mot.”). Defendants move to dismiss the complaint filed by Plaintiff Daniel Clark (“Plaintiff”), 18 Dkt. No. 1 (“Compl.”), for failure to state a claim upon which relief can be granted under Federal 19 Rule of Civil Procedure 12(b)(6). Plaintiff has filed an opposition, Dkt. No. 17 (“Opp.”), and 20 Defendants have replied, Dkt. No. 18 (“Reply”). 21 Under Federal Rule of Civil Procedure 78(b) and Civil Local Rule 7-1(b), the Court finds 22 that this motion is suitable for disposition without oral argument. For the reasons set forth below, 23 the Court GRANTS Defendant’s motion to dismiss. Plaintiff’s claims are DISMISSED WITH 24 PREJUDICE except for his claims for breach of contract and defamation against the individual 25 Defendants, which are DISMISSED WITH LEAVE TO AMEND. 26 I. BACKGROUND 27 A. Factual Allegations 28 This unusual case involves Halloween, a helicopter, and a gorilla mask. CAL FIRE 1 employs Plaintiff as a firefighter. Compl. ¶ 10.1 Plaintiff was stationed with the Santa Clara Unit. 2 Id. On October 31, 2013, Plaintiff allegedly wore a gorilla mask while piloting a helicopter from 3 Los Gatos, California, to San Jose, California, to celebrate Halloween and boost the morale of new 4 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 5 6 Mike Mathiesen, began an investigation into whether Plaintiff actually wore a gorilla mask while 7 piloting a helicopter. Id. ¶ 12. On April 7, 2014, Plaintiff was informed that disciplinary action 8 would be taken against him in the form of a suspension and a loss/reduction of pay for violating 9 CAL FIRE safety protocols and Federal Aviation Administration regulations. Id. Sometime after hearing about this disciplinary action, Plaintiff initiated a proceeding under 10 United States District Court Northern District of California 11 California’s Firefighters Procedural Bill of Rights Act, Cal. Gov’t Code §§ 3250, et seq., before 12 the State Personnel Board in an attempt to regain his lost earnings. Id. ¶ 13. On November 20 and 13 21, 2014, the Personnel Board heard Plaintiff’s administrative complaint. Id. ¶ 14. 14 Before the Personnel Board issued a ruling, however, Plaintiff agreed to settle his claim 15 and executed a settlement agreement with CAL FIRE. Id. The settlement agreement absolved 16 CAL FIRE of any liability for its disciplinary action against Plaintiff in exchange for the removal 17 of the disciplinary records from Plaintiff’s personnel file as well as the reinstatement of Plaintiff’s 18 lost earnings. Id. But Plaintiff alleges that CAL FIRE “reneged” on the settlement agreement by 19 delaying the removal of the disciplinary records from Plaintiff’s personnel file, not removing all 20 mentions of discipline, and delaying payment of Plaintiff’s lost earnings. Id. ¶ 15. 21 B. Procedural History 22 Plaintiff filed a complaint in this Court on October 19, 2015. Dkt. No. 1. Plaintiff asserts 23 that Defendants violated his procedural due process rights (in a manner made actionable under § 24 1983) because they “forced [him] to waive his procedural due process rights” to an administrative 25 hearing by settling his personnel claim under false pretenses. Id. ¶ 17. Specifically, “[i]n waiving 26 27 28 1 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[.]”). 2 1 his rights, Plaintiff was not provided an adequate notice and hearing.” Id. Plaintiff also asserts that Defendants violated California’s Firefighters Procedural Bill of 2 3 Rights Act by not providing adequate administrative protections during the initial investigation 4 into the gorilla mask incident, breached the settlement contract by reneging on its terms, and 5 defamed him by issuing notices of adverse action and by using derogatory language during the 6 initial investigation into the gorilla mask incident. Id. ¶¶ 18-23. 7 II. 8 9 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 11 United States District Court Northern District of California 10 Rule of Civil Procedure 12(b)(6). “Dismissal under Rule 12(b)(6) is appropriate only where the 12 complaint lacks a cognizable legal theory or sufficient facts to support a cognizable legal theory.” 13 Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). To survive a Rule 14 12(b)(6) motion, a plaintiff must plead “enough facts to state a claim to relief that is plausible on 15 its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 540, 570 (2007). A claim is facially plausible 16 when a plaintiff pleads “factual content that allows the court to draw the reasonable inference that 17 the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 18 In reviewing the plausibility of a complaint, courts “accept factual allegations in the 19 complaint as true and construe the pleadings in the light most favorable to the nonmoving party.” 20 Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). Nonetheless, 21 courts do not “accept as true allegations that are merely conclusory, unwarranted deductions of 22 fact, or unreasonable inferences.” In re Gilead Scis. Secs. Litig., 536 F.3d 1049, 1055 (9th Cir. 23 2008). And even where facts are accepted as true, “a plaintiff may plead [him]self out of court” if 24 he “plead[s] facts which establish that he cannot prevail on his . . . claim.” Weisbuch v. Cnty. of 25 Los Angeles, 119 F.3d 778, 783 n.1 (9th Cir. 1997) (quotation marks and citation omitted). 26 If dismissal is appropriate, a court “should grant leave to amend even if no request to 27 amend the pleading was made, unless it determines that the pleading could not possibly be cured 28 by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (quotation 3 1 marks and citation omitted). 2 III. DISCUSSION Defendants move to dismiss Plaintiff’s complaint on the following grounds: (1) CAL FIRE 4 is not a “person” within the meaning of 42 U.S.C. § 1983 and, therefore, Plaintiff cannot state any 5 § 1983 claim against it; (2) Plaintiff cannot state any procedural due process claim because there is 6 adequate process in state court; (3) Plaintiff cannot state a claim against the individual Defendants 7 for violation of the Firefighters Procedural Bill of Rights Act because it bars individual liability; 8 (4) Plaintiff cannot state a breach of contract claim against the individual Defendants because the 9 they were not party to the contract at issue; and (5) all of Plaintiff’s state law claims are barred by 10 the Eleventh Amendment. The Court discusses each issue in turn and concludes that Defendants’ 11 United States District Court Northern District of California 3 motion should be granted as to all of Plaintiff’s claims with partial leave to amend. 12 13 A. Procedural Due Process Violation Under 42 U.S.C. § 1983 1. State Agency Liability Under § 1983 14 Defendants first contend that Plaintiff’s procedural due process claim against CAL FIRE 15 under 42 U.S.C. § 1983 fails as a matter of law because CAL FIRE is not a “person” subject to § 16 1983 liability. Mot. at 4. Plaintiff responds by citing a Ninth Circuit case, Maldonado v. Harris, 17 370 F.3d 945, 951 (9th Cir. 2004), for the proposition that § 1983 claims can be brought against 18 the director of a state agency in certain contexts. Opp. at 3. 19 In relevant part, 42 U.S.C. § 1983 provides that: “Every person who, under color of [state 20 law] subjects . . . any citizen of the United States . . . to the deprivation of any rights, privileges, or 21 immunities secured by the Constitution . . . shall be liable to the party injured[.]” It is well-settled 22 that the word “person,” within the meaning of § 1983, does not include states or state agencies. 23 Will v. Michigan Dep’t of State Police, 491 U.S. 58, 64 (1989) (“A State is not a person within the 24 meaning of § 1983.”); Maldonado, 370 F.3d at 951 (“State agencies . . . are not ‘persons’ within 25 the meaning of § 1983, and are therefore not amenable to suit under that statute.”). CAL FIRE is a 26 state agency and is therefore not a person within the meaning of § 1983. See Garcia v. Cal. Dep’t 27 of Forestry and Fire Protection, No. CIV S-07-2770, 2009 WL 700517, at *7 (E.D. Cal. Mar. 12, 28 2009), aff’d 385 Fed. Appx. 636 (9th Cir. 2010). Furthermore, Plaintiff is incorrect that individual 4 1 state officials are cognizable actors under § 1983 when sued in their official capacities for money 2 damages. Will, 491 U.S. at 71 & n.10 (holding that state officials are not cognizable under § 1983 3 unless sued for injunctive relief). 4 Accordingly, Defendants’ motion to dismiss Plaintiff’s § 1983 claim against CAL FIRE is 5 granted. Because this defect is legally incurable, the claim is dismissed with prejudice. The Court 6 also sua sponte dismisses Plaintiff’s § 1983 claim against the individual Defendants to the extent 7 that it seeks monetary damages from them in their official capacities. 8 2. Adequate Process Defendants also move to dismiss Plaintiff’s procedural due process claim on the grounds 10 that the complaint admits adequate process existed. Mot. at 4-6. Specifically, Defendants argue 11 United States District Court Northern District of California 9 that to the extent Plaintiff’s procedural due process claim is based on the allegation that CAL 12 FIRE and the individual Defendants breached the terms of the settlement agreement, Plaintiff 13 cannot state a claim because he can file a lawsuit in state court for breach of contract. Id. Plaintiff 14 responds that Defendants are conflating judicial remedies for a procedural due process violation 15 with the process necessary to avoid a procedural due process violation in the first place. Opp. at 4. 16 The Due Process Clause of Fourteenth Amendment provides that no state may “deprive 17 any person of life, liberty, or property, without due process of law[.]” U.S. Const., amend. XIV. 18 “A section 1983 claim based upon procedural due process thus has three elements: (1) a liberty or 19 property interest protected by the Constitution; (2) a deprivation of the interest by the government; 20 (3) lack of process.” Portman v. Cnty. of Santa Clara, 995 F.2d 898, 904 (9th Cir. 1993). 21 To determine whether Plaintiff received adequate process, the Court must first address the 22 nature of the property interests of which he was allegedly deprived. See Mathews v. Eldridge, 424 23 U.S. 319, 334 (1976) (“[R]esolution of . . . whether the administrative procedures provided . . . are 24 constitutionally sufficient requires analysis of the . . . private interests that are affected.”). In this 25 regard, Plaintiff’s complaint is confusing. To be sure, Plaintiff alleges that the property interests 26 at issue in his claim are “his lost earnings, loss of pay due to unwarranted suspension, and loss of 27 health insurance[.]” Compl. ¶ 17. But this allegation begs a further question: is the legal source of 28 those property interests Plaintiff’s public employment or is it the settlement agreement that he 5 1 executed? In other words, is Plaintiff alleging that Defendants violated his procedural due process 2 rights when they initially took disciplinary action against him or is he alleging that they did so 3 when they executed a settlement agreement with him under false pretenses and then breached it? 4 Again, this line of inquiry matters because it defines the type of process Plaintiff was due. 5 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 7 agreement, not when they initially disciplined him. The complaint makes this clear: “Plaintiff 8 alleges that Defendants violated 42 U.S.C. Section 1983 in that Plaintiff was forced to waive his 9 procedural due process rights when Defendants, under intentional false pretenses or negligently, 10 settled the case. In waiving his rights Plaintiff was not provided an adequate notice and hearing.” 11 United States District Court Northern District of California 6 Id. Furthermore, Plaintiff alleges that he voluntarily agreed to waive all claims for liability against 12 CAL FIRE in exchange for receiving the pay he lost as a result of the initial discipline against him. 13 Id. ¶ 14 (“Plaintiff signed a settlement agreement on or about November 21, 2014 . . . absolving 14 Defendant CAL FIRE of any liability[.]”). To the extent that Plaintiff could have alleged that he 15 had a claim against Defendants for the initial deprivation, he has also pled that he released them 16 from that liability. See Weisbuch, 119 F.3d at 783 n.1 (plaintiff can plead himself out of a claim). 17 Having established that the nature of Plaintiff’s property interest is merely contractual, the 18 Court can now determine what process was due. To that effect, it is well settled that where the 19 property interest in a procedural due process claim is a contractual claim for wages from a state 20 agency, a post-deprivation breach of contract suit in state court provides adequate process. Lujan 21 v. G & G Fire Sprinklers, Inc., 532 U.S. 189, 195 (2001); accord DeBoer v. Pennington, 287 F.3d 22 748, 749-50 (9th Cir. 2002). That is because there is generally no “present entitlement” to any 23 property interest that is only contractual. Id. at 190 (“[The plaintiff] has not been deprived of any 24 present entitlement. It has been deprived of payment that it contends it is owed under a contract, 25 based on the State’s determination that it failed to comply with the contract’s terms. That property 26 interest can be fully protected by an ordinary breach-of-contract suit.”). The only question then is 27 whether Plaintiff can sue Defendants for breach of contract in state court. The answer is yes. See 28 Cal. Gov’t Code §§ 905.2(b)(3), 945, 945.4. For that reason, the Court finds that adequate process 6 1 2 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 3 defect is legally incurable regardless of whether the individual Defendants are sued in their official 4 or individual capacity, the claim is dismissed with prejudice. 5 B. Firefighters Procedural Bill of Rights Act 6 Defendants next contend that Plaintiff cannot state a claim for violation of the Firefighters 7 Procedural Bill of Rights Act, Cal. Gov’t Code §§ 3250 et seq., against the individual Defendants 8 because the statute bars individual liability. Mot. at 7. Plaintiff responds that individuals can be 9 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 11 United States District Court Northern District of California 10 shall be unlawful for any employing department or licensing or certifying agency to deny or refuse 12 to any firefighter the rights and protections guaranteed by [the Firefighters Bill of Rights] . . . An 13 individual shall not be liable for any act for which a fire department is liable under this section.” 14 In this way, § 3260 makes perfectly clear that individuals cannot be held liable for violations of 15 the Firefighters Bill of Rights, only an “employing department or licensing or certifying agency.” 16 See id. Plaintiff argues that § 3260(d) does not proscribe individual liability for violations of the 17 Firefighters Bill of Rights when a fire department could not be held liable, but only when a fire 18 department could be held liable. The problem with this argument is that § 3260(a) provides no 19 basis for individual liability in the first instance. See Cal. Gov’t Code § 3260(a). 20 Accordingly, the Court grants Defendants’ motion to dismiss Plaintiff’s Firefighters Bill of 21 Rights claim against the individual Defendants. Because this defect is legally incurable, this claim 22 is dismissed with prejudice. 23 C. 24 Defendants next move to dismiss Plaintiff’s breach of contract claim against the individual 25 Breach of Contract Defendants on the grounds that they were not parties to the contract at issue. Not. of Mot. at 2. 26 Under California law, a plaintiff states a claim for breach of contract where he alleges: (1) 27 the existence of a contract, (2) his performance or excuse for nonperformance, (3) the defendant’s 28 breach, and (4) the resulting damages to the plaintiff. Oasis W. Realty, LLC v. Goldman, 51 Cal. 7 1 4th 811, 821 (2011). Plaintiff’s complaint alleges that the settlement agreement that resolved 2 Plaintiff’s administrative complaint against CAL FIRE was between him and the department only. 3 Compl. ¶ 14. Furthermore, Plaintiff alleges that it was CAL FIRE that breached the contract. Id. ¶ 4 15. Nothing about these allegations implicates (or could implicate) the individual Defendants. 5 Accordingly, the Court grants Defendants’ motion to dismiss Plaintiff’s breach of contract 6 claim as to the individual Defendants. But because the Court cannot definitely say that this claim 7 is legally incurable, Plaintiff is granted leave to amend his breach of contract claim to the extent 8 that he can plausibly allege it against the individual Defendants, in their individual (as opposed to 9 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 11 United States District Court Northern District of California 10 Defendant individually: it will not suffice to again plead in conclusory fashion that “Defendants 12 breached the contract,” Compl. ¶ 21. For the reasons set forth below, however, Plaintiff cannot re- 13 allege a breach of contract claim against CAL FIRE. 14 D. Eleventh Amendment Immunity for State Law Claims 15 Finally, Defendants contend that the Eleventh Amendment bars Plaintiff’s suit for breach 16 of contract, violation of the Firefighters Bill of Rights, and defamation against Defendants as state 17 departments and actors. Mot. at 6-7. Plaintiff does not directly address this argument, except to 18 say that he is seeking injunctive relief authorized under Ex Parte Young, 209 U.S. 123 (1908). 19 The Eleventh Amendment explicitly bars a federal court from entertaining a suit brought 20 by a citizen of another state against a state unless the state consents or Congress abrogates its 21 immunity under the Fourteenth Amendment. U.S. Const., amend. XI; Pennhurst State School & 22 Hosp. v. Halderman, 465 U.S. 89, 98 (1984). This immunity also extends to state agencies and 23 departments. Pennhurst, 465 U.S. at 100 (“It is clear, of course, that in the absence of consent a 24 suit in which the State or one of its agencies or departments is named as the defendant is 25 proscribed by the Eleventh Amendment.”). This immunity therefore extends to CAL FIRE. And 26 it applies regardless of whether the plaintiff seeks retroactive relief (damages) or prospective relief 27 (injunctive). Id. (“This jurisdictional bar applies regardless of the nature of the relief sought.”). 28 Accordingly, Plaintiff’s state law claims against CAL FIRE must be dismissed with prejudice. 8 The only remaining issue is whether Plaintiff’s state law claim for defamation against the 1 individual Defendants, the last claim left against them, is also barred by the Eleventh Amendment. 3 “[T]he eleventh amendment bars suits in federal court, for both retrospective and prospective 4 relief, brought against state officials acting in their official capacities alleging a violation of state 5 law.” Pena v. Gardner, 976 F.2d 469, 472 (9th Cir. 1992) (citing Pennhurst, 465 U.S. at 106). In 6 this sense, whether a state official is sued for retroactive relief is irrelevant when that official is 7 sued in his official capacity. Conversely, “the eleventh amendment does not bar a suit seeking 8 damages against a state official personally.” Id. at 473-74 (quotation marks and citation omitted). 9 For that reason, whether Plaintiff’s defamation claim (and other state law claims, for that matter) 10 are barred by the Eleventh Amendment turns on the capacity in which they were sued. Plaintiff’s 11 United States District Court Northern District of California 2 complaint itself does not expressly admit an answer either way. But Plaintiff’s opposition brief 12 makes clear that the individual Defendants were sued in their official capacity. See Opp. at 5 (“At 13 this time Plaintiff believes that all the individual defendants in this case have acted under the color 14 of state authority by conducting their activities against Plaintiff as state employees.”). Accordingly, the Court grants Defendants’ motion to dismiss Plaintiff’s remaining state 15 16 law claim for defamation as barred by the Eleventh Amendment. But because Plaintiff could 17 avoid this bar by suing Defendants in their personal capacities (if he can do so consistent with his 18 Rule 11 obligations), Plaintiff is granted leave to amend. With regard to this claim as well, 19 Plaintiff is required to plead specific facts regarding each individual Defendant’s conduct 20 sufficient to plausibly state a cause of action against that Defendant individually: it will not suffice 21 to again plead in conclusory fashion that allegedly defamatory statements were “made by 22 Defendants,” Compl. ¶ 23. 23 // 24 // 25 // 26 27 28 // // 9 1 2 IV. CONCLUSION For the reasons set forth above, the Court GRANTS Defendants’ motion to dismiss. 3 Plaintiff’s claims are DISMISSED WITH PREJUDICE except for his breach of contract and 4 defamation claims against the individual Defendants, which are DISMISSED WITH LEAVE 5 TO AMEND within 30 days of the date of this Order. Plaintiff’s counsel should carefully 6 consider his ongoing obligations under Rule 11 when evaluating the contents of any prospective 7 amended complaint. 8 9 10 IT IS SO ORDERED. Dated: 8/19/2016 United States District Court Northern District of California 11 12 HAYWOOD S. GILLIAM, JR. United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10

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