Blantz v. California Department of Corrections and Rehabilitation, Division of Correctional Health Care Services et al

Filing 32

ORDER: Granting 19 Motion to Dismiss filed by Defendant Terry Hill; Granting in Part 24 Motion to Dismiss; and Remanding Action to State Court. It is hereby ordered that all claims asserted against Dr. Hill are dismissed with prejudice. The remai ning Defendants' motion to dismiss is granted in part. Plaintiffs ninth cause of action for violation of federal civil rights, and the tenth cause of action for violation of federal civil rights are dismissed with prejudice. All remaining claims are dismissed without prejudice for lack of subject matter jurisdiction and are Remanded to State Court. Signed by Judge M. James Lorenz on 8/4/2011. (Certified Copy Sent to State Court) (All non-registered users served via U.S. Mail Service)(leh)

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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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CHRISTINE BLANTZ,
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Plaintiff,
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v.
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CALIFORNIA DEPARTMENT OF
14 CORRECTIONS AND
REHABILITATION, DIVISION OF
15 CORRECTIONAL HEALTH CARE
SERVICES, et al.
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Defendants.
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Civil No. 09cv2145-L(BLM)
ORDER (1) GRANTING
DEFENDANT TERRY HILL’S
MOTION TO DISMISS; (2)
GRANTING IN PART THE
REMAINING DEFENDANTS’
MOTION TO DISMISS; AND (3)
REMANDING ACTION TO STATE
COURT

In this wrongful termination action by a nurse practitioner against California Department

19 of Corrections and Rehabilitation, Division of Correctional Health Care Services (“CDCR”) and
20 its various employees and officials, Defendants filed motions to dismiss Plaintiff’s second
21 amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). Plaintiff opposed the
22 motions. Because Plaintiff failed to remedy the deficiencies which led to the dismissal of her
23 first amended complaint (see Order (1) Granting with Leave to Amend Defendant Terry Hill’s
24 Motion to Dismiss; and (2) Granting with Leave to Amend the Remaining Defendants’ Motion
25 to Dismiss, filed Aug. 24, 2010), and for the reasons which follow, the motions are GRANTED
26 IN PART and the remainder of this action is REMANDED to State court.
27

Plaintiff Christine Blantz entered into a contract with Newport Oncology and Healthcare

28 Medical Corporation, Inc. (“NOAH”) to provide medical services as an independent contractor
09cv2145

1 to the CDCR medical facilities. (Second Am. Compl. (“Compl.”) Exh. A.) From July 2006 to
2 December 2007, she worked as a nurse practitioner at Calipatria State Prison (“Calipatria”). In
3 November 2007 the CDCR medical auditor conducted an audit and provided a negative
4 assessment of Plaintiff’s performance. On December 13, 2007 Plaintiff was terminated without
5 notice or reason for termination. Plaintiff’s requests for a written notification of her termination
6 and reasons for termination were unanswered. In February 2008 she applied for work elsewhere
7 within the CDCR and was informed by a third party that she had a poor recommendation from
8 her previous work at CDCR and no longer met their requirements.
9

Plaintiff filed a complaint in State court alleging intentional interference with contractual

10 relations, intentional interference with prospective economic relations, negligent interference
11 with prospective economic relations, breach of implied employment contract – wrongful
12 termination, breach of contract, defamation/label, violation of right to privacy – false light,
13 violation of due process – California constitution, violation of federal civil rights (due process) –
14 42 U.S.C. § 1983, violation of federal civil rights (liberty/injury to reputation) – 42 U.S.C.
15 § 1983, and breach of mandatory duty – Cal. Gov. Code §815.6.
16

Defendants removed Plaintiff’s first amended complaint to this court. Defendant Terry

17 Hill, M.D. is a member of the Governing Body of the California Department of Corrections and
18 Rehabilitation, Division of Correctional Health Services (“Governing Body”). The Governing
19 Body was established by the receiver appointed by the Hon. Thelton E. Henderson in Plata et al.
20 v. Schwarzenegger et al., United States District Court for the Northern District of California,
21 case no. C01-1391 THE. (Notice of Removal at 2-3.) Dr. Hill removed the action pursuant to
22 28 U.S.C. Section 1442(a)(1) and (3) as an officer of the United States and, alternatively,
23 pursuant to Section 1441(a) based on federal question jurisdiction, because Plaintiff had alleged
24 two causes of action under federal law.
25

After removal Defendants filed motions to dismiss pursuant to Federal Rule of Civil

26 Procedure 12(b)(6). The motions were granted with leave to amend. Subsequently, Plaintiff
27 filed a second amended complaint, which Defendants again moved to dismiss under Rule
28 12(b)(6).
2

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1

A Rule 12(b)(6) motion tests the sufficiency of the complaint. Navarro v. Block, 250

2 F.3d 729, 732 (9th Cir. 2001). Dismissal is warranted under Rule 12(b)(6) where the complaint
3 lacks a cognizable legal theory. Shroyer v. New Cingular Wireless Serv., Inc., 622 F.3d 1035,
4 1041 (9th Cir. 2010) (internal quotation marks and citation omitted); see Neitzke v. Williams, 490
5 U.S. 319, 326 (1989) ("Rule 12(b)(6) authorizes a court to dismiss a claim on the basis of a
6 dispositive issue of law"). Alternatively, a complaint may be dismissed where it presents a
7 cognizable legal theory yet fails to plead essential facts under that theory. Robertson v. Dean
8 Witter Reynolds, Inc.,749 F.2d 530, 534 (9th Cir. 1984); see also Shroyer, 622 F.3d at 1041. “In
9 addition, to survive a motion to dismiss, a complaint must contain sufficient factual matter to
10 state a facially plausible claim to relief.” Shroyer, 622 F.3d at 1041, citing Ashcroft v. Iqbal, __
11 U.S. __, 129 S. Ct. 1937, 1949 (2009). In reviewing a motion to dismiss under Rule 12(b)(6),
12 the court must assume the truth of all factual allegations and must construe them in the light
13 most favorable to the nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38
14 (9th Cir. 1996). Legal conclusions need not be taken as true merely because they are couched as
15 factual allegations. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Similarly,
16 “conclusory allegations of law and unwarranted inferences are not sufficient to defeat a motion
17 to dismiss.” Pareto v. Fed. Deposit Ins. Corp., 139 F.3d 696, 699 (9th Cir. 1998).
18

Defendants maintain, among other things, that Plaintiff cannot state a claim under 42

19 U.S.C. Section 1983 for a constitutional violation. In her ninth cause of action, Plaintiff claims
20 that her procedural due process rights under the Fourteenth Amendment were violated because
21 she was terminated without notice or an opportunity to be heard, and has never been provided
22 with a reason for her termination. (Compl. at 18-19.) She seeks reinstatement and other relief.
23 (Id.)
24

“To establish a § 1983 claim, a plaintiff must show that an individual acting under the

25 color of state law deprived him of a right, privilege, or immunity protected by the United States
26 Constitution or federal law.” Levine v. City of Alameda, 525 F.3d 903, 905 (9th Cir. 2008).
27 Plaintiff claims that her federal constitutional rights were violated by CDCR and its officials.
28 Plaintiff must further allege that her termination violated the due process clause of the
3

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1 Fourteenth Amendment.
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The requirements of procedural due process apply only to the deprivation of
interests encompassed by the Fourteenth Amendment's protection of liberty and
property. When protected interests are implicated, the right to some kind of prior
hearing is paramount. But the range of interests protected by procedural due
process is not infinite.

5 Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 569-70 (1972) (footnote omitted). In the
6 ninth cause of action, Plaintiff contends she had a property interest in her continued employment
7 and was therefore entitled to due process before termination.
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To have a property interest in a benefit, a person clearly must have more than an
abstract need or desire for it. He must have more than a unilateral expectation of
it. He must, instead, have a legitimate claim of entitlement to it. . . . [¶] Property
interests, of course, are not created by the Constitution. Rather they are created
and their dimensions are defined by existing rules or understandings that stem
from an independent source such as state law rules or understandings that secure
certain benefits and that support claims of entitlement to those benefits.

12 Bd. of Regents, 408 U.S. at 577. Accordingly, “a mere expectation that employment will
13 continue does not create a property interest. If under state law, employment is at-will, then the
14 claimant has no property interest in the job.” Portman v. County of Santa Clara, 995 F.2d 898,
15 904 (9th Cir. 1993) (internal citations omitted); see also Bishop v. Wood, 426 U.S. 341, 345 n.8
16 (1976). “There is no right [solely] under the substantive due process clause to be terminable
17 only for cause.” Id. at 902 n.1. However, where the employee has a legitimate claim of
18 entitlement to termination only for cause, he or she has “a property interest which [is] entitled to
19 constitutional protection.” Bishop, 426 U.S. at 345 n.8.
20

Defendants argue that Plaintiff did not have a property interest in her job because she was

21 not a public employee at all, but worked for NOAH, a private sector government contractor.
22 This argument is supported by the terms of Plaintiff’s contract with NOAH. (See Compl. Ex. A
23 at 1 & ¶¶ 3.2, 3.2.4.) Plaintiff agreed to “provide medical services as an independent contractor
24 on a locum tenens basis [1] to [CDCR] medical facilities served by [NOAH].” (Id. at 1.) Under
25 the contract, NOAH, not CDCR, paid Plaintiff for her work at CDCR’s facilities, and Plaintiff
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1

“Locum tenens” in the medical employment context refers to a medical
practitioner “who acts as a temporary substitute for another.” Khajavi v. Feather River
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Anesthesia Med. Group, 84 Cal. App. 4th 32, 39 (2000).
4

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1 was required to report her work hours to NOAH. (Id. ¶1.1.) Among other things, the contract
2 provides for procedures when the client, i.e., CDCR, has complaints about Plaintiff’s work,
3 grievance procedures, and termination procedures. (Id. ¶ 1.3, 2.7 & 4.) Specifically, the
4 contract allows NOAH, upon CDCR’s request, to immediately remove Plaintiff from her
5 placement with CDCR and terminate the contract. (Id. ¶ 4.2.7.)
6

Plaintiff apparently relies on Paragraph 2.3 of her contract with NOAH to argue that she

7 had a property interest in her job based on the policies and procedures applicable to CDCR’s
8 employees. Paragraph 2.3 provides in its entirety: “NURSE shall follow the policies,
9 procedures, rules, regulations and medical staff bylaws of the CLIENT facilities at which
10 NURSE performs services pursuant to the agreement.”
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First, this provision obligates Plaintiff to follow CDCR’s policies and procedures and

12 does not obligate CDCR to do the same.2 Second, Plaintiff uses this provision as a stepping
13 stone to argue that the Health Care Orientation Manual she received at her orientation and a
14 document entitled “Licensed Independent Practitioners – Due Process” became the terms of an
15 employment agreement she argues she had with CDCR. (See Compl. at 14-15.)
16

“A property interest in employment can, of course, be created by ordinance, or by an

17 implied contract. In either case, however, the sufficiency of the claim of entitlement must be
18 decided by reference to state law.” Bishop, 426 U.S. at 344 (footnotes omitted).
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20

Under California law, the terms of public employment are governed entirely by
statute, not by contract, and hence as a matter of law, there can be no express or
implied-in-fact contract between [a] plaintiff and [a public employer] which
restricts the manner or reasons for termination of his employment.

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22 Portman, 995 F.2d at 905 (brackets, internal quotation marks and citation omitted). Plaintiff
23 therefore cannot base her property interest on an alleged contract she had with CDCR.
24

Alternatively, Plaintiff argues that she had a property interest even if she was not a

25 California civil service employee, as long as there was a CDCR personnel rule which promised
26 her due process rights. See Int’l Bhd. of Elec. Workers v. City of Gridley, 34 Cal.3d 191, 207
27
28

2

CDCR is not a party to the contract between Plaintiff and NOAH. (See Compl.

Ex. A.)
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1 (1983). For example, when, in the absence of a civil service status, applicable local ordinance or
2 resolution, city workers would be considered employed at-will, they were held to have a
3 property interest in their jobs based on the city’s personnel rules which provided that after
4 completion of the probationary period, they could only be discharged for cause. Id. Relying on
5 this authority, Plaintiff again points to the Health Care Orientation Manual and the document
6 entitled “Licensed Independent Practitioners – Due Process.”
7

Plaintiff received the Health Care Orientation Manual at the CDCR orientation session.

8 (Compl. at 4.) None of the provisions of the manual quoted in the complaint (Compl. at 4-5) or
9 referenced in Plaintiff’s opposition briefs (Pl.’s Opp’n (doc. no 27) at 14; see also Pl.’s Opp’n to
10 Def. Hill’s Mot. to Dismiss (doc. no. 22) at 10) address permissible reasons for or procedures
11 governing termination. Plaintiff argues that the referenced provisions from the manual provided
12 her with “some expectation of continued employment with the CDCR, with notice of any
13 problems with her services and an opportunity to correct them.” (Pl.’s Opp’n (doc. no. 27) at
14 14). This argument is rejected as unsupported by the referenced portions of the manual.
15

Plaintiff also relies on the “Licensed Independent Practitioners – Due Process” document.

16 The excerpts from the manual referenced in the complaint and Plaintiff’s opposition do not
17 expressly incorporate it by reference. (See Compl. at 4-5; (Pl.’s Opp’n (doc. no 27) at 14).)
18 Furthermore, the document does not address reasons for or procedures governing termination.
19 (See Compl. Exh. L.) Instead, it provides for a peer review process to improve medical services
20 to inmates and comply with professional standards on a routine basis and when specific issues
21 arise. (See, e.g., id. ¶¶ II & VI.D.) None the options listed for the time frame before or after the
22 peer review process address termination. (See id. ¶¶ VI.G. & I., IX, XI.L.) Instead, “adverse
23 action,” which includes termination, is referenced as a process which may be concurrent with the
24 peer review process, and is therefore independent of the peer review process. (Id. ¶XV.)
25 Moreover, the document does not require termination to take place in conjunction with the peer
26 review process. Plaintiff’s argument that the “Licensed Independent Practitioners – Due
27 Process” document provided her with an expectation of continued employment (Pl.’s Opp’n
28 (doc. no 27) at 14-15; see also Pl.’s Opp’n to Def. Hill’s Mot. to Dismiss (doc. no. 22) at 10-11)
6

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1 is therefore rejected.
2

In her second amended complaint Plaintiff also referenced Chapter 1, Division 3 of Title

3 15 of the California Code of Regulations (Rules and Regulations of the Director of Corrections).
4 (Compl. at 7.) However, Plaintiff did not base her opposition to Defendants’ motions on Title
5 15. (See Pl.’s Opp’n (doc. no 27) at 14-15; see also Pl.’s Opp’n to Def. Hill’s Mot. to Dismiss
6 (doc. no. 22) at 8-11.) Any argument that Title 15 provided her with a legitimate expectation of
7 continued employment is therefore waived for purposes of the instant motions to dismiss. See
8 Civ. Loc. Rule 7.1(f)(3).
9

Accordingly, aside from the fact that Plaintiff was employed by a government contractor

10 and not by CDCR, neither of the documents she relies on provides a basis for a property interest
11 in her job under the Fourteenth Amendment. Plaintiff’s ninth cause of action is therefore
12 DISMISSED.
13

In the alternative, even if Plaintiff had stated a due process claim in her ninth cause of

14 action, Defendants are shielded by qualified immunity.
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The qualified immunity analysis involves two separate steps. First, the court
determines whether the facts show the officer’s conduct violated a constitutional
right. If the alleged conduct did not violate a constitutional right, then the
defendants are entitled to immunity and the claim must be dismissed. However, if
the alleged conduct did violate such a right, then the court must determine whether
the right was clearly established at the time of the alleged unlawful action. A right
is clearly established if a reasonable official would understand that what he is
doing violates that right. If the right is not clearly established, then the officer is
entitled to qualified immunity.

20 Hopkins v. Bonvicino, 573 F.3d 752, 762 (9th Cir. 2009) (internal quotation marks and citations
21 omitted). The order in which these questions are addressed is left to the court’s discretion.
22 Pearson v. Callahan, 555 U.S. 223, 236 (2009). The inquiry whether the right was clearly
23 established “must be undertaken in light of the specific context of the case, not as a broad
24 general proposition. . . . The relevant, dispositive inquiry . . . is whether it would be clear to a
25 reasonable officer that his conduct was unlawful in the situation he confronted.” Saucier v. Katz,
26 533 U.S. 194, 202 (2001), overruled on other grounds by Pearson, 555 U.S. 223. Under the
27 circumstances of this case and the state of the law at the time of Plaintiff’s termination in
28 December 2007, a reasonable CDCR officer would have believed that Plaintiff did not have a
7

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1 property interest in her job and that her due process rights were not violated when she was
2 terminated. The ninth cause of action can therefore be dismissed on this alternative ground as
3 well.
4

Defendants also contend that the tenth cause of action, based on 42 U.S.C. Section 1983,

5 for violation of Plaintiff’s liberty interest under the due process clause should be dismissed.
6 Plaintiff alleged her due process rights under the Fourteenth Amendment were violated because
7 her protected interest in professional reputation was harmed by publishing defamatory
8 statements about her without providing her with a name-clearing hearing. (Compl. at 19-20.)
9
10
11
12

A liberty interest is implicated in the employment termination context if the charge
impairs a reputation for honesty or morality. To implicate constitutional liberty
interests, the reasons for dismissal must be sufficiently serious to stigmatize or
otherwise burden the individual so that he is not able to take advantage of other
employment opportunities. . . . [¶] If, in the context of employment termination,
the employer publicizes a charge that impairs a reputation for honesty or morality,
then a liberty interest is implicated and the employee must be allowed to refute the
stigmatizing charge.

13
14 Tibbets v. Kulongoski, 567 F.3d 529, 535-36 (9th Cir. 2009) (internal brackets, ellipsis, quotation
15 marks and citations omitted).
16

Plaintiff alleged that Defendant James Ruddy, a CDCR medical auditor, reviewed her

17 patient charts and provided a negative assessment of her performance at Calipatria. (Compl. at
18 7.) She contends that the assessment was erroneous and inconsistent with her prior evaluations
19 and performance reviews. (Id. at 8) She was terminated on December 13, 2007 and no reasons
20 for termination was given at that time. (Id.) In February 2008 she applied for employment
21 elsewhere within the CDCR. She was told by a third party that “she failed to meet CDCR’s
22 requirements,” had “poor recommendations from her previous work at CDCR” and that she “no
23 longer met their requirements.” (Id. at 9)
24

Plaintiff contends that Defendants made false statements about her when they published

25 negative performance reviews, stated that she failed to meet State requirements for employment
26 with CDCR, provided her with poor recommendations concerning her previous work at CDCR
27 and published unwarranted and false information concerning her reputation. (Compl. at 9, 16.)
28 She claims this harmed her in her occupation and with respect to her professional reputation in
8

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1 the community in which she works, making it impossible for her to obtain work as a nurse
2 practitioner within the CDCR system. (Id. at 16, 19-20.)
3

Assuming, arguendo, that Plaintiff’s sole conclusory allegation that Defendants published

4 “unwarranted and false information concerning her reputation for honesty and/or morality”
5 (Compl. at 9) is sufficient to allege a stigmatizing statement in support a constitutional violation,
6 see Tibbets, 567 F.3d at 535, Plaintiff still failed to allege a viable constitutional claim.3 There is
7 a distinction
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between matters within the scope of the employer-employee relationship that could
lead to reduced economic returns and diminished prestige and those that might
result in permanent exclusion from, or protracted interruption of, gainful
employment within the trade or profession. The latter might warrant procedural
protection under the Constitution, but the former does not.

11 Roth v. Veteran’s Admin. of the Gov’t of he U.S., 856 F.2d 1401, 1411 (9th Cir. 1988) (internal
12 quotation marks and citation omitted), overruled in part on other grounds by Garcetti v.
13 Ceballos, 547 U.S. 410, 417 (2006). This is because “people do not have liberty interests in a
14 specific employer” or even in a civil service career. Llamas v. Butte Cmty. College Dist., 238
15 F.3d 1123, 1128 (9th Cir. 2001); see also Bd. of Regents, 408 U.S. at 573. Plaintiff alleged that
16 she was precluded from further employment with CDCR. (Compl. at 9; see also (Pl.’s Opp’n
17 (doc. no 27) at 16-17.) She did not allege she was precluded from all employment as a
18 registered nurse. Accordingly, she has failed to state a claim for violation of her liberty interest
19 under the Fourteenth Amendment.
20

In the alternative, qualified immunity shields Defendants from further litigation of the

21 tenth cause of action. Based on the facts as alleged by Plaintiff and the law discussed above, a
22 reasonable officer of the state would have believed that his conduct under the circumstances was
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3

Plaintiff’s more articulated allegations of impairment of reputation for professional
competence are not sufficient as a matter of law to state a constitutional claim. The fact that
Plaintiff’s termination might make her “somewhat less attractive to some other employers would
hardly establish the kind of foreclosure of opportunities amounting to a deprivation of ‘liberty.’”
Bd. of Regents, 408 U.S. at 574 n.13. “[A]llegations of incompetence . . . [do] not infringe a
liberty interest, even though they might negatively influence the individual's professional life by
forcing the individual down one or more notches in the professional hierarchy.” Roth v.
Veteran’s Admin. of the Gov’t of he U.S., 856 F.2d 1401, 1411 (9th Cir. 1988) (internal bracket,
quotation marks and citation omitted), overruled in part on other grounds by Garcetti v.
Ceballos, 547 U.S. 410, 417 (2006).
9

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1 lawful. Based on the foregoing, the tenth cause of action is DISMISSED.
2

Dr. Hill, who filed a separate motion to dismiss, argues that all claims asserted against

3 him should be dismissed, among other things, for failure to allege any facts involving him in the
4 alleged wrongdoing. In her second amended complaint Plaintiff asserted the following claims
5 against Dr. Hill: first cause of action for intentional interference with contractual relations,
6 second cause of action for intentional interference with prospective economic relations, third
7 cause of action for negligent interference with prospective economic relations, eighth cause of
8 action for violation of due process under the California constitution, and ninth cause of action for
9 violation of due process under the federal constitution.4
10

Federal Rule of Civil Procedure 8(a)(2) requires every complaint to contain “a short and

11 plain statement of the claim showing that the pleader is entitled to relief.” Accordingly, Rule 8
12
13
14

does not require detailed factual allegations, but it demands more than an
unadorned, the-defendant-unlawfully-harmed-me accusation. A pleading that
offers labels and conclusions or a formulaic recitation of the elements of a cause of
action will not do. Nor does a complaint suffice if it tenders naked assertions
devoid of further factual enhancement.

15 Iqbal, 129 S. Ct. at 1949 (brackets, internal quotation marks and citations omitted). To survive a
16 Rule 12(b)(6) motion,
17
18

a complaint must contain sufficient factual matter, accepted as true, to state a claim
to relief that is plausible on its face. A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.

19
Id. (internal quotation marks and citations omitted).
20
The only allegations in the complaint which are particular to Dr. Hill are that he “was, at
21
all times relevant to this complaint, a resident of the State of California, the Chief Medical
22
Officer for the CDCR and/or for the federally appointed Receiver in charge of the California
23

prison medical care system, and a governing body member of the CDCR” (Compl. at 2),5 and

24
25
4
For the
26 Defendants, includingreasons discussed above, the ninth cause of action is dismissed against all
Dr. Hill.
27
5
Dr. Hill maintains that this allegation is erroneous and contrary to the judicially
noticeable documents filed in support of his motion. The court need not decide this issue at this
28
time.

10

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1 that various wrongdoing alleged in the complaint was done “at the direction of defendant[] . . .
2 Hill” (id. at 8-9). Plaintiff did not allege any facts to buttress the latter conclusory allegation. A
3 complaint against Dr. Hill which tenders no more than “naked assertions devoid of further
4 factual enhancement” is insufficient. Iqbal, 129 S. Ct. at 1949 (internal quotation marks,
5 brackets and citation omitted.) For example, a general and unelaborated statement that the
6 defendant “exercised control over the [plaintiffs’] day-to-day employment . . . is a conclusion,
7 not a factual allegation stated with any specificity,” and need not be accepted on its face as
8 sufficient to support a claim for purposes of a Rule 12(b)(6) motion. Doe I v. Wal-Mart Stores,
9 Inc., 572 F.3d 677, 683 (9th Cir. 2009). Accordingly, Plaintiff’s similarly general and
10 unelaborated statement that the alleged wrongdoing was done at Dr. Hill’s direction is
11 insufficient. The complaint therefore does not contain sufficient factual matter to state a claim
12 against Dr. Hill. Accordingly, his motion to dismiss all claims asserted against him is
13 GRANTED.
14

The court next considers whether Plaintiff should be granted leave to amend. See

15 Schreiber Distrib. Co. v. Serv-Well Furniture Co., Inc., 806 F.2d 1393, 1401 (9th Cir. 2004).
16 Rule 15 advises the court that leave to amend shall be freely given when justice so requires.
17 Fed. R. Civ. P. 15(a). “This policy is to be applied with extreme liberality.” Eminence Capital,
18 LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 2003) (internal quotation marks and citation
19 omitted).
20
21
22

In the absence of any apparent or declared reason -- such as undue delay, bad faith
or dilatory motive on the part of the movant, repeated failure to cure deficiencies
by amendments previously allowed, undue prejudice to the opposing party by
virtue of allowance of the amendment, futility of amendment, etc. -- the leave
sought should, as the rules require, be “freely given.”

23 Foman v. Davis, 371 U.S. 178, 182 (1962). Dismissal with prejudice and without leave to
24 amend is not appropriate unless it is clear that the complaint could not be saved by amendment.
25 Id.
26

Plaintiff has already amended her complaint twice. Before filing her second amended

27 complaint, the court issued an order outlining the pleading deficiencies in her first amended
28 complaint. (Order (1) Granting with Leave to Amend Defendant Terry Hill’s Motion to
11

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1 Dismiss; and (2) Granting with Leave to Amend the Remaining Defendants’ Motion to Dismiss,
2 filed Aug. 24, 2010.) Plaintiff has neither cured those deficiencies, nor attempted to explain her
3 failure to do so. She has not requested leave to amend. Based on the foregoing, it appears that
4 granting another leave to amend would be futile. Leave to amend is therefore DENIED. See
5 William O. Gilley Enters, Inc. v. Atl. Richfield Co., 588 F.3d 659, 669 n.8 (9th Cir. 2009).
6

Accordingly, it is hereby ORDERED as follows:

7

1.

Motion of Defendant Terry Hill, M.D. to Dismiss Second Amended Complaint of

8 Plaintiff Christine Blantz is GRANTED. All claims asserted against Dr. Hill are DISMISSED
9 WITH PREJUDICE.
10

2.

The remaining Defendants’ Motion to Dismiss Second Amended Complaint is

11 GRANTED IN PART. Plaintiff’s ninth cause of action for violation of federal civil rights (due
12 process) – 42 U.S.C. § 1983 and tenth cause of action for violation of federal civil rights
13 (liberty/injury to reputation) – 42 U.S.C. § 1983 are DISMISSED WITH PREJUDICE.
14

3. Because no claims remain in this action over which this court has original jurisdiction,

15 the court declines to exercise supplemental jurisdiction over the remaining state law claims. 28
16 U.S.C. § 1367(c)(3). All remaining claims are DISMISSED WITHOUT PREJUDICE for
17 lack of subject matter jurisdiction and are REMANDED to State court.
18

IT IS SO ORDERED.

19
20 DATED: August 4, 2011
21
22

M. James Lorenz
United States District Court Judge

23
24 COPY TO:
25 HON. BARBARA L. MAJOR
UNITED STATES MAGISTRATE JUDGE
26
ALL PARTIES/COUNSEL
27
28
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