Smith v. Lopez et al

Filing 31

ORDER granting 25 Motion to Dismiss. IT IS FURTHER ORDERED that Counts I and III of the Amended Complaint are DISMISSED WITH PREJUDICE. IT IS FURTHER ORDERED that Counts II, IV, and V of the Amended Complaint are DISMISSED WITHOUT PREJUDICE. IT IS FURTHER ORDERED that Plaintiff shall have until January 26, 2015, to file a second amended complaint. Failure to do so by this deadline will result in dismissal of this action with prejudice. Signed by Chief Judge Gloria M. Navarro on 12/29/2014. (Copies have been distributed pursuant to the NEF - DKJ)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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Bradley Smith,
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Plaintiff,

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vs.
Nestor Lopez; Reginald Winbush; George J.
Opfer; Steve Stern; and Gwen Shockley,

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Defendants.

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Case No.: 2:13-cv-0892-GMN-PAL
ORDER

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Pending before the Court is the Motion to Dismiss, (ECF No. 25), filed by Defendants

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Nestor Lopez, Reginald Winbush, George J. Opfer, Steve Stern, and Gwen Shockley. Pro se

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Plaintiff Bradley Smith filed a Response in opposition, (ECF No. 27), to which Defendants

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filed a Reply, (ECF No. 30).

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I.

BACKGROUND

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The Amended Complaint centers upon allegations that one of Plaintiff’s former

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supervisors, two United States Department of Veterans Affairs (“VA”) police officers, the VA

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Inspector General, and a VA privacy officer conspired to falsify and unlawfully withhold

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evidence after a workplace altercation that occurred on August 22, 2012. (Am. Compl., ECF

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No. 20). The Court dismissed Plaintiff’s original Complaint on March 28, 2014, for failure to

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state a claim upon which relief could be granted, but gave Plaintiff leave to file an amended

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complaint to correct the deficiencies identified therein. (ECF No. 19). Plaintiff timely filed the

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Amended Complaint on April 18, 2014.

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Plaintiff alleges that he was employed by the VA Southern Nevada Healthcare System

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(“VA SNHS”) from December 2006 until his resignation on April 29, 2013. (Am. Compl. at

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10). On August 22, 2012, Plaintiff and his immediate supervisor were involved in a workplace

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altercation at the VA SNHS North Las Vegas Medical Center campus. (Id.). Though the

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altercation itself is not detailed in the Amended Complaint, Plaintiff alleges that after the

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dispute occurred, Defendant Steve Stern, Plaintiff’s second-level supervisor, ordered Plaintiff

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to remain seated in a chair until the end of the workday. (Id. at 6). Subsequently, several VA

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police officers, including Defendant Nestor Lopez, arrived on the scene and interviewed

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Plaintiff about the dispute. (Id. at 2). Plaintiff alleges that, following this interview, Defendant

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Lopez authored a police report in which he falsely stated that Plaintiff appeared to be under the

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influence of methamphetamines. (Id.).
When Plaintiff requested a copy of Defendant Lopez’s report after the incident,

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Defendant Gwen Shockley, a VA privacy officer, allegedly transmitted a version in which

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Defendant Lopez’s observations about Plaintiff’s possible methamphetamine use were

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redacted. (Id. at 8). Defendant Shockley refused to disclose an unredacted version of the report.

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(Id.).

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Plaintiff alleges that he was subsequently able to obtain an unredacted version of the

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report through other means. (Id.). Upon seeing the allegedly false statements contained in the

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report, Plaintiff approached Defendant Reginald Winbush, Chief of the VA Police, and

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Defendant George J. Opfer, VA Inspector General, requesting that the report be changed and

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that an investigation be initiated into Defendant Lopez’s conduct. (Id. at 3-4). Defendants

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Winbush and Opfer declined to act on either of these requests. (Id.).

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Based on these allegations, the Amended Complaint sets forth five claims of violations

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of Plaintiff’s constitutional rights: (1) “Procedural Due Process/Substantive Due Process, the

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Right to Know Opposing Evidence”; (2) “Equal Protection”; (3) “False Imprisonment/

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Negligent Confinement”; (4) “Loss and Deprivation of Plaintiff’s Free Will”; and (5) “Free

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Speech/Free Association.” (Id. at 10-14). Plaintiff asserts his claims against Defendants in their

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individual capacities pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau

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of Narcotics, 403 U.S. 388 (1971).1 As relief, Plaintiff seeks $2,000,000 in damages for the

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alleged constitutional violations, $1,000,000 in “speculative damages,” treble damages, and a

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permanent injunction. (Am. Compl. at 20).
In the instant Motion, Defendants argue that Plaintiff’s claims should again be dismissed

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pursuant to Federal Rule of Civil Procedure 12(b)(6). (Mot. to Dism., ECF No. 25).

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II.

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LEGAL STANDARD
Dismissal is appropriate under Rule 12(b)(6) where a pleader fails to state a claim upon

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which relief can be granted. Fed. R. Civ. P. 12(b)(6); Bell Atl. Corp. v. Twombly, 550 U.S. 544,

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555 (2007). A pleading must give fair notice of a legally cognizable claim and the grounds on

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which it rests, and although a court must take all factual allegations as true, legal conclusions

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couched as a factual allegation are insufficient. Twombly, 550 U.S. at 555. Accordingly, Rule

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12(b)(6) requires “more than labels and conclusions, and a formulaic recitation of the elements

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of a cause of action will not do.” Id. “To survive a motion to dismiss, a complaint must contain

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sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its

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face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). “A

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claim has facial plausibility when the plaintiff pleads factual content that allows the court to

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draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. This

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standard “asks for more than a sheer possibility that a defendant has acted unlawfully.” Id.

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If the court grants a motion to dismiss for failure to state a claim, leave to amend should

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be granted unless it is clear that the deficiencies of the complaint cannot be cured by

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amendment. DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992). Pursuant

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The Court previously dismissed Plaintiff’s Bivens claims against Defendants in their official capacities with
prejudice, as these claims were invalid as a matter of law. (Dism. Ord. 6:2-6, ECF No. 19); see, e.g., DalyMurphy v. Winston, 837 F.2d 348, 355 (9th Cir. 1987) (“[A] Bivens action can be maintained against a defendant
in his or her individual capacity only, and not in his or her official capacity.”).
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to Rule 15(a), the court should “freely” give leave to amend “when justice so requires,” and in

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the absence of a reason such as “undue delay, bad faith or dilatory motive on the part of the

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movant, repeated failure to cure deficiencies by amendments previously allowed, undue

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prejudice to the opposing party by virtue of allowance of the amendment, futility of the

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amendment, etc.” Foman v. Davis, 371 U.S. 178, 182 (1962).

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III.

DISCUSSION

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A.

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In Bivens, the Supreme Court “established that compensable injury to a constitutionally

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Elements of a Bivens Claim

protected interest could be vindicated by a suit for damages invoking the general federal-

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question jurisdiction of the federal courts.” Butz v. Economou, 438 U.S. 478, 486 (1978). In

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order to sufficiently state a Bivens claim, a plaintiff must allege “a violation of his

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constitutional rights by agents acting under the color of federal law.” See, e.g., Morgan v.

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United States, 323 F.3d 776, 780 (9th Cir. 2003). However, “a Bivens action will not lie when

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Congress has created ‘comprehensive procedural and substantive provisions giving meaningful

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remedies against the United States.’” Janicki Logging Co. v. Mateer, 42 F.3d 561, 564 (9th Cir.

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1994) (quoting Bush v. Lucas, 362 U.S. 367, 368 (1983)).

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B.

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As an initial matter, the Court acknowledges that Plaintiff is pro se, and therefore holds

Analysis

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his pleadings to standards less stringent than it would if he were represented by counsel. See

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Erickson v. Pardus, 551 U.S. 89, 94 (2007). In compliance with the Court’s Order dismissing

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the original Complaint, (ECF No. 19), Plaintiff’s Amended Complaint specifically alleges the

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unlawful actions of each individual Defendant and identifies the rights that those actions

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allegedly violated. The Court will discuss each of pro se Plaintiff’s claims in turn.

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1. Violations of “Procedural Due Process/Substantive Due Process, the Right to Know
Opposing Evidence”
The Amended Complaint alleges that Defendants violated Plaintiff’s constitutional

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rights by failing to disclose the allegedly false police report in contravention of the Freedom of

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Information Act (“FOIA”). (Am. Compl. at 11, ECF No. 20). However, it is well established

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that FOIA violations cannot give rise to a Bivens claim, as FOIA itself contains a

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comprehensive scheme for aggrieved parties to challenge violations. See, e.g., Johnson v.

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Executive Office for U.S. Attorneys, 310 F.3d 771, 777 (D.C. Cir. 2002) (“[T]he

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comprehensiveness of FOIA precludes the creation of a Bivens remedy.”). Therefore,

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Plaintiff’s Bivens claim arising out of the alleged FOIA violations is invalid as a matter of law.

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As the lack of a valid cause of action under the law cannot be remedied through amendment,

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the Court will dismiss this claim with prejudice.

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2. Violations of the Equal Protection Clause

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The Amended Complaint alleges that Plaintiff’s rights under the Equal Protection Clause

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were violated because the VA police, including Defendant Lopez, “falsified a police report

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against the Plaintiff in an attempt to ‘frame’ him.” (Am. Compl. at 12). To sufficiently state an

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equal protection claim, Plaintiff must allege, inter alia, that he “has been intentionally treated

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differently from others similarly situated.” Vill. of Willowbrook v. Olech, 528 U.S. 562, 564

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(2000). In this case, Plaintiff has put forward no allegations indicating that any similarly

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situated individuals were treated differently by the VA police. Accordingly, the Court finds

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that Plaintiff has failed to sufficiently allege an equal protection claim. However, because

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Plaintiff may be able to correct this deficiency by adding more factual allegations, this claim

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will be dismissed without prejudice.

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3. Due Process

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The Amended Complaint states that Defendant Stern violated Plaintiff’s rights under the

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Due Process Clause of the Fourteenth Amendment by telling him to sit in an office chair for the

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remainder of the workday after the altercation occurred. (Am. Compl. at 13). Plaintiff

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specifically notes that this is a “Fourteenth Amendment due process claim rather than a Fourth

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Amendment unreasonable seizure claim.” (Id.). However, claims relating to the seizure of

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one’s person must be asserted under the Fourth Amendment and are not cognizable under the

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legal standards relating to due process. Graham v. Connor, 490 U.S. 386, 388 (1989). Because

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the Amended Complaint states explicitly that Plaintiff is not asserting a claim under the Fourth

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Amendment, this claim is invalid as a matter of law and will be dismissed with prejudice.

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4. “Loss and Deprivation of Plaintiff’s Free Will”
Plaintiff claims that Defendants’ actions violated his “free will,” or his “ability to have a

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choice based on awareness.” (Am. Compl. at 14). There is no constitutional provision which

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specifically guarantees citizens a general right to “have a choice based on awareness” as that

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phrase is used by Plaintiff, and Plaintiff fails to include a legal citation in the Amended

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Complaint supporting his assertion. Accordingly, the Court will dismiss this claim. Because

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Plaintiff may be able to correct this deficiency by citing a specific right within the Constitution,

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the Court will dismiss this claim without prejudice.

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5. “Free Speech/Free Association”

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Plaintiff also asserts that Defendant Stern violated his First Amendment rights to free

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speech and free association by ordering that he not speak to other employees following the

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workplace altercation. (Am. Compl. at 14). “In evaluating the First Amendment rights of a

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public employee, the threshold inquiry is whether the statements at issue substantially address a

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matter of public concern.” Brewster v. Bd. of Educ. of Lynwood Unified Sch. Dist., 149 F.3d

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971, 978 (9th Cir. 1998). The Amended Complaint does not allege that Plaintiff made

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statements regarding a matter of public concern or that he even intended to do so. Therefore,

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Plaintiff has failed to adequately state a claim that his First Amendment rights to free speech or

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free association were violated. Because it is possible that this deficiency could be remedied

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through amendment, the Court will dismiss this claim without prejudice.

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Accordingly, the Court finds that the Amended Complaint fails to state a claim upon

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which relief can be granted, and therefore dismissal is warranted pursuant to Rule 12(b)(6).

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However, the Court will give Plaintiff leave to amend his pleading so as to cure the deficiencies

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in his second, fourth, and fifth claims for relief.

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IV.

CONCLUSION

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IT IS HEREBY ORDERED that the Motion to Dismiss (ECF No. 25) is GRANTED.

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IT IS FURTHER ORDERED that Counts I and III of the Amended Complaint are

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DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that Counts II, IV, and V of the Amended Complaint are
DISMISSED WITHOUT PREJUDICE.
IT IS FURTHER ORDERED that Plaintiff shall have until January 26, 2015, to file a

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second amended complaint. Failure to do so by this deadline will result in dismissal of this

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action with prejudice.

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DATED this 29th day of December, 2014.

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Gloria M. Navarro, Chief Judge
United States District Court

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