Muse v. City of Del Ray Oaks et al

Filing 42

ORDER ON MOTION TO DISMISS SECOND AMENDED COMPLAINT. Re: Dkt. No. 37 . Muse may file a third amended complaint, but must do so by 5/10/2018, or the Court will terminate the case without further notice. Signed by Judge Nathanael Cousins. (lmh, COURT STAFF) (Filed on 4/26/2018)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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HENRY MUSE,
Plaintiff,

United States District Court
Northern District of California

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ORDER ON MOTION TO DISMISS
SECOND AMENDED COMPLAINT

v.

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Case No. 17-cv-05323 NC

CITY OF DEL RAY OAKS, et al.,

Re: Dkt. No. 37

Defendants.

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In this civil rights case, plaintiff Henry Muse alleges that defendants the City of Del

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Rey Oaks and police chief Ronald Langford blacklisted him from further employment as a

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law enforcement professional after Muse left the Del Rey Oaks Police Department. This

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alleged blacklisting occurred through negative employer evaluations regarding Muse that

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Chief Langford provided to inquiring law enforcement agencies. Muse also alleges that

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Del Rey Oaks had a policy and practice of discriminating against African American staff.

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Langford and Del Rey Oaks move to dismiss Muse’s second amended complaint (SAC)

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under Federal Rule of Civil Procedure 12(b)(6).
The motion to dismiss is GRANTED WITH PREJUDICE as to the stigma-plus claim

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against Del Rey Oaks. The motion is GRANTED WITH LEAVE TO AMEND as to the

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stigma-plus claim against Chief Langford and the Monell claim against Del Rey Oaks.

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I.

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BACKGROUND
The Court generally reiterates the factual background provided in the Court’s

Case No. 17-cv-05323 NC

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previous Rule 12(b)(6) order. Dkt. No. 25.
Muse was a Del Rey Oaks police officer from 2005 to 2013, when he alleges he was

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“forced to leave the Department after being the subject of an intolerable pattern of racial

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discrimination.” Dkt. No. 36 at 2, 4. Muse claims he left Del Rey Oaks because Sergeant

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Robert Ingersoll, one of Chief Langford’s subordinates, “routinely” hurled racial epithets

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at him. Id. at 4. Muse contends that Sgt. Ingersoll was terminated from a neighboring

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police department for civil rights violations against African Americans, but that Chief

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Langford hired him anyway. Id. This is not a wrongful termination lawsuit. Id. at 3.

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Subsequent to leaving Del Rey Oaks, Muse sought employment in law enforcement
in the San Diego Police Department, Fresno County Sheriff’s Department, Santa Cruz

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United States District Court
Northern District of California

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Police Department, Hayward Police Department, Monterey County Sheriff’s Department,

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Walnut Creek Police Department, Sacramento County Sheriff’s Department, and Oakland

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Unified School District. Id. at 4. Muse was unable to gain employment at these agencies.

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Muse claims defendants are “haunting” him in his attempts to gain comparable

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employment through giving him negative reviews to prospective employers. Id. at 4-5.

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He claims Chief Langford and Del Rey Oaks are “blacklisting” him. Id. at 5. To support

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this contention, he cites to two incidents.

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Officer Matthew Young, who appears to have been Muse’s colleague at the

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department, received materials from Orange and Fresno Counties’ background

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investigators regarding Muse. Id. at 4. Officer Young reportedly approached Chief

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Langford who told him: “I wouldn’t even send it back. From what I’m going to tell them,

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they’re never going to hire him.” Id. (italics omitted). Chief Langford reportedly

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described Muse as “lazy” and that he “never did anything.” Id. (italics omitted). Muse

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does not disclose language Chief Langford actually used in any of the reviews he

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submitted to Muse’s prospective employers. The other instance Muse cites to is a question

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posed to him by a police department’s background investigator. Id. at 5. According to

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Muse, the investigator asked him whether the people at the Del Rey Oaks Police

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Department were racist, given that they were the only ones who gave Muse a negative
Case No. 17-cv-05323 NC

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evaluation. Id. Muse also refers to another incident with an investigator for another

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county in which the investigator said “I would not touch your file.” Id.
Muse filed this lawsuit on September 13, 2017, and the Second Amended Complaint

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claims violations of 42 U.S.C. § 1983 under a “stigma-plus” theory and for Monell

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liability. See id. Defendants move to dismiss the SAC. Dkt. No. 37.
All parties consented to the jurisdiction of a magistrate judge under 28 U.S.C. §

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636(c). Dkt. Nos. 7, 8.

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II.

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LEGAL STANDARD
A motion to dismiss for failure to state a claim under Rule 12(b)(6) tests the legal

sufficiency of a complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). On a

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United States District Court
Northern District of California

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motion to dismiss, all allegations of material fact are taken as true and construed in the

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light most favorable to the non-movant. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-

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38 (9th Cir. 1996). The Court, however, need not accept as true “allegations that are

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merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” In re

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Gilead Scis. Secs. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008). Although a complaint need

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not allege detailed factual allegations, it must contain sufficient factual matter, accepted as

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true, to “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,

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550 U.S. 544, 570 (2007). A claim is facially plausible when it “allows the court to draw

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the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft

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

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If a court grants a motion to dismiss, leave to amend should be granted unless the

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pleading could not possibly be cured by the allegation of other facts. Lopez v. Smith, 203

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F.3d 1122, 1127 (9th Cir. 2000).

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III. DISCUSSION

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Muse’s § 1983 claim has two theories: (1) “stigma-plus,” and (2) a claim under

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Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658 (1978). Defendants move

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to dismiss Muse’s § 1983 claim because (1) Muse cannot state a claim for defamation, (2)

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Muse suffered no injury to a constitutional right, and (3) Muse does not present facts
Case No. 17-cv-05323 NC

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sufficient to support a Monell claim, even under Rule 12(b)(6). Dkt. No. 14 at 17-20.

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Muse disagrees on each point.

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To prove a violation under § 1983, a plaintiff must show that (1) the defendant’s

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conduct deprived plaintiff of a right, privilege or immunity secured by the Constitution or

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laws of the United States, and (2) that the defendant committed the act under color of state

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law. West v. Atkins, 487 U.S. 42, 48 (1988). To state a claim under 42 U.S.C. § 1983

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based on defamation, a plaintiff must do more than allege simple defamation by a state

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official. Paul v. Davis, 424 U.S. 693, 712 (1976). “Under that standard, to establish a

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deprivation of liberty, a plaintiff must show the public disclosure of a stigmatizing
statement by the government, plus the denial of ‘some more tangible interest such as

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United States District Court
Northern District of California

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employment,’ or the alteration of a right or status recognized by state law.” Peter Turner

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v. City & Cty. of San Francisco, No. 11-cv-01427 EMC, 2012 WL 6631490, at *6 (N.D.

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Cal. Dec. 19, 2012), aff’d sub nom. Turner v. City & Cty. of San Francisco, 788 F.3d 1206

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(9th Cir. 2015), and aff’d sub nom. Turner v. City & Cty. of San Francisco, 617 F. App’x

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674 (9th Cir. 2015) (brackets omitted) (quoting Paul, 424 U.S. at 701, 711).

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“[A] plaintiff can meet the stigma-plus test for Section 1983 purposes by alleging

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either that (1) the injury to reputation caused the denial of a federally protected right (e.g.,

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accusations made in the press by a prosecutor to deny a defendant an impartial jury under

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the Sixth Amendment); or (2) the injury to reputation was inflicted in connection with a

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federally protected right (e.g., defamation in the course of termination of public

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employment by the state).” Eberhard v. California Highway Patrol, 73 F. Supp. 3d 1122,

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1130 (N.D. Cal. 2014) (citing Cooper v. Dupnik, 924 F.2d 1520, 1532 (9th Cir. 1991)).

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A.

Defamation

“The elements of a defamation claim are (1) a publication that is (2) false, (3)

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defamatory, (4) unprivileged, and (5) has a natural tendency to injure or causes special

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damage.” Wong v. Tai Jing, 189 Cal. App. 4th 1354, 1369 (2010) (citation omitted). In

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order to be defamatory, a statement must be a statement of fact, rather than a statement of

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opinion. Morrow v. Los Angeles Unified Sch. Dist., 149 Cal. App. 4th 1424, 1443 (2007).
Case No. 17-cv-05323 NC

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Yet an opinion “may still be actionable if it implies the allegation of undisclosed

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defamatory facts as the basis for the opinion.” Id. (citations omitted). “The issue whether

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a communication was a statement of fact or opinion is a question of law to be decided by

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the court.” Id.
Muse claims on information and belief that “defendants” made defamatory

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statements to his prospective employers that Muse was lazy and never did anything. Dkt.

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No. 36 at 4. Muse alleges these statements are false. Id. For purposes of this motion,

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Muse sufficiently alleges Chief Langford defamed him based on the allegedly false and

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damaging review Chief Langford stated he intended to give Muse. Assuming for purposes

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of this motion that Chief Langford followed through with his intentions, only the statement

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United States District Court
Northern District of California

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that Muse never did anything would qualify as a factual statement. It is a close call, but

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stating that a police officer “never did anything” when the officer is attempting to find a

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new position could be defamatory. But as a matter of common sense, calling someone

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lazy is an opinion, and is not actionable. See e.g., Botos v. Los Angeles Cty. Bar Assn., 151

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Cal. App. 3d 1083, 1088-89 (1984) (finding that a statement that an attorney is not

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qualified to sit as a judge is an un-actionable opinion).

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Like the First Amended Complaint, the Second Amended Complaint does not state

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a defamation claim against Del Rey Oaks. There are no allegations that Del Rey Oaks, as

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an entity, defamed him. As noted in the Court’s previous order, the only way Muse could

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state such a claim would be through a Monell claim, which he attempts to do. He may not

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vicariously hold Del Rey Oaks liable for the alleged malfeasance of a bad actor, and so any

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stigma-plus § 1983 action against Del Rey Oaks is DISMISSED WITH PREJUDICE.

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B.

Protected Liberty Interest

The Court next considers whether Muse alleged sufficient facts to conclude that

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Chief Langford violated a protected liberty interest. As stated above, “a plaintiff can meet

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the stigma-plus test for Section 1983 purposes by alleging . . . the injury to reputation was

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inflicted in connection with a federally protected right[.]” Eberhard, 73 F. Supp. 3d at

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1130. Here, the “stigma,” or reputational injury is the allegedly defamatory statements
Case No. 17-cv-05323 NC

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made about Muse, and the “plus” is Chief Langford’s alleged campaign that has prevented

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Muse from obtaining a position in law enforcement.

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Courts have dismissed cases where the alleged defamation was not uttered in

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connection to a termination. See Siegert v. Gilley, 500 U.S. 226, 234 (1991); see also

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Ulrich v. City & Cty. of San Francisco, 308 F.3d 968, 982 (9th Cir. 2002) (noting that the

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remedy for a stigma-plus claim is a fairness hearing); Murphy v. Goss, 103 F. Supp. 3d

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1234, 1241 (D. Or. 2015), aff’d, 693 F. App’x 636 (9th Cir. 2017). In its previous order,

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the Court informed Muse that he had not sufficiently alleged a violation of a protected

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liberty interest. Dkt. No. 25 at 10; see also Harrington v. City of Portland, 677 F. Supp.
1491, 1500-01 (D. Or. 1987) (“to state a claim for deprivation of a liberty interest of

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United States District Court
Northern District of California

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constitutional magnitude, the charges made against Harrington by Clark must have

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surpassed subjects relating to incompetence or the inability to get along with others or lack

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of judgment and trust. The charges must constitute accusations of moral turpitude such as

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dishonesty or immorality.”). Muse has not stated a stigma-plus claim, and his opposition

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to defendants’ motion is bare-bones, lacking in legal argument, and does not address the

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Court’s previously stated concerns.

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This is the third iteration of the complaint in this case. In an abundance of caution,

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the Court will give Muse one final chance to cure his stigma-plus claim against Chief

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Langford. Should Muse fail to cure this claim, the Court will dismiss this claim with

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prejudice. The Court GRANTS defendants’ motion to dismiss WITH PREJUDICE as to

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Del Rey Oaks, and WITH LEAVE TO AMEND as to Chief Langford.

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C.

Del Rey Oaks’ Monell Liability

Muse alleges that he “is informed and believes that Defendant Del Rey Oaks has a

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long-standing and pervasive custom, policy, pattern, and well settled practice of

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discriminating against current and former African American employees based on race.”

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Dkt. No. 36 at 6.

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A municipality may be held liable under Monell “when execution of a
[municipality’s] policy or custom, whether made by its lawmakers or by those whose
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edicts or acts may fairly be said to represent official policy, inflicts the injury that the

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government as an entity is responsible under § 1983.” Monell, 436 U.S. at 694; id. at 691

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(“Congress did not intend municipalities to be held liable [under § 1983] unless action

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pursuant to official municipal policy of some nature caused a constitutional tort.”). A

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plaintiff may show a policy or custom of a municipality in three ways:

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(1) by showing “a longstanding practice or custom which
constitutes the ‘standard operating procedure’ of the local
government entity;” (2) “by showing that the decision-making
official was, as a matter of state law, a final policymaking
authority whose edicts or acts may fairly be said to represent
official policy in the area of decision;” or (3) “by showing that
an official with final policymaking authority either delegated
that authority to, or ratified the decision of, a subordinate.”

United States District Court
Northern District of California

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Menotti v. City of Seattle, 409 F.3d 1113, 1147 (9th Cir. 2005) (quoting Ulrich, 308 F.3d at

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984-85). “Liability for improper custom may not be predicated on isolated or sporadic

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incidents; it must be founded upon practices of sufficient duration, frequency and

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consistency that the conduct has become a traditional method of carrying out policy.”

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Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996). The Ninth Circuit has previously held

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that two incidents are insufficient to prove a custom under Monell. Meehan v. Cty. of Los

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Angeles, 856 F.2d 102, 107 (9th Cir. 1988). “A longstanding practice or custom is one that

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is so ‘persistent and widespread’ that it constitutes a ‘permanent and well settled’

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governmental policy.” Bagley v. City of Sunnyvale, No. 16-cv-02250 JSC, 2017 WL

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5068567, at *4 (N.D. Cal. Nov. 3, 2017) (quoting Trevino, 99 F.3d at 918).

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Other than his own experience, Muse points to the experience of Milton Carter,

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“who also suffered under [Del Rey Oaks’] racially charged and discriminatory

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environment.” Dkt. No. 36 at 6. Muse points to one incident involving Mr. Carter:

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Plaintiff is informed and believes that Del Rey Oaks’ former city
manager, Daniel Dawson, threw a $20 bill on Mr. Carter’s desk
and asked him to cut weeds in his yard. Mr. Carter felt this work
was a misuse of city funds, returned the bill, and refused to
appear at Mr. Dawson’s house. According to Mr. Carter’s
government tort claim, “Dawson became enraged by his refusal
to perform the maintenance work on his private property.” Mr.
Carter approached Defendant Langford, his supervisor and
Chief of Police at the time, about Mr. Dawson’s demand.
Case No. 17-cv-05323 NC

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Defendant Langford ordered Mr. Carter to return to Dawson’s
property and perform the work. Mr. Carter complied because he
feared losing his job. Plaintiff is informed and believes that
several months later, Defendant Langford terminated Mr. Carter
without providing a reason. Mr. Carter alleged discrimination
and wrongful termination in his government tort claim against
Defendants Del Rey Oaks and Ronald Langford. The parties
reached a settlement in or about September 2017.

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Id. at 6-7.
Muse seeks to hold Del Rey Oaks liable under the first theory: that the racial

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discrimination is longstanding custom or procedure. The problem with this claim that

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proves fatal is that there is no apparent relation between what allegedly happened to Muse

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and what allegedly happened to Mr. Carter except for Chief Langford. But what is the
longstanding practice or custom that gives rise to the Monell claim? Muse claims he was

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United States District Court
Northern District of California

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the victim of blacklisting and the receiver of racial epithets, while Mr. Carter was allegedly

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ordered in a degrading manner to cut weeds and was later fired. If their experiences were

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alleged to be more similar, Muse might be able to squeeze by a 12(b)(6) motion, but they

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are not. As far as the Court knows, the incident with Mr. Carter was an isolated one. And

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that is insufficient to state a Monell claim. Trevino, 99 F.3d at 918. Without support, bare

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legal assertions that Del Rey Oaks has a practice of discriminating against current and

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former African American employees are insufficient.

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The other problem with the Monell claim is that the conduct Mr. Carter allegedly

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suffered does not in itself raise an inference of discrimination. If true, the incident with the

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$20 bill surely demonstrates disrespect and is reprehensible. But it does not raise the

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inference of racial discrimination against African Americans, which is what Muse alleges.

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Dkt. No. 39 at 6 (“Twelve straight years of discriminatory conduct against 100% of the

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African Americans employed at Del Rey Oaks during that timeframe”). As far as the

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Court’s knows, Mr. Carter has not alleged that Del Rey Oaks staff also hurled racial

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epithets at him. The Monell claim is dismissed WITH LEAVE TO AMEND.

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IV. CONCLUSION

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For the reasons stated above, the Court GRANTS defendant’s motion to dismiss.
The motion is GRANTED WITH PREJUDICE as to the stigma-plus claim against Del
Case No. 17-cv-05323 NC

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Rey Oaks. The motion is GRANTED WITH LEAVE TO AMEND as to the stigma-plus

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claim against Chief Langford and the Monell claim against Del Rey Oaks.

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Muse may file a third amended complaint, but must do so by May 10, 2018, or the

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Court will terminate the case without further notice. Muse may not add further claims or

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defendants without advance leave of Court.

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IT IS SO ORDERED.

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Dated: April 26, 2018

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_____________________________________
NATHANAEL M. COUSINS
United States Magistrate Judge

United States District Court
Northern District of California

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Case No. 17-cv-05323 NC

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