Stegmaier v. City of Reno et al

Filing 31

ORDER granting in part and denying in part 7 Motion to Dismiss. Plaintiff may file amended complaint within 15 days. Signed by Judge Miranda M. Du on 9/18/14. (Copies have been distributed pursuant to the NEF - JC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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JAMES J. STEGMAIER,

Case No. 3:13-cv-00461-MMD-VPC
Plaintiff,

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ORDER
v.

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(Def’s Motion to Dismiss – dkt. no. 7)

CITY OF RENO, ex rel., its RENO POLICE
DEPARTMENT, a government entity, et
al.,
Defendants.

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I.

SUMMARY

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Before the Court is Defendant City of Reno’s Motion to Dismiss (“Motion”). (Dkt.

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no. 7.) For the reasons stated below, the Motion to Dismiss is granted in part and denied

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in part.

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II.

BACKGROUND

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The Complaint is full of factual allegations that are often vague and confusing

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such that the chronology and purpose of the facts are often difficult to discern. As best

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as the Court can piece it together, the following are the Complaint’s key allegations.

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Plaintiff was at all relevant times an officer with the Reno Police Department (“RPD”). On

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or about July 2011, Lt. Amy Newman invited Plaintiff on a lunch date while he was in

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uniform and in a patrol unit. (Dkt. no. 1 ¶ 9.) On that date, Lt. Newman brought Plaintiff to

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a home she was considering buying to show Plaintiff a hidden “sex room” in the attic.

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(Id.) Lt. Newman wanted Plaintiff to enter the room, which contained a padlocked door

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and a single chair in the center, but Plaintiff refused. (Id.) On or about August 2011, Lt.

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Newman asked Plaintiff to accompany her to the Washoe County Coroner’s office so

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that he could take photos with female employees who wanted to see a “cop in motor

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(knee-high) boots.” (Id. ¶ 10.) On or about October 2011, Lt. Newman gave Plaintiff a

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“sock monkey” as a gift and “stated that every ‘boy’ needs a sock monkey.”1 (Id. ¶ 13.)

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On or about August 2011, Lt. Newman and her partner announced they were

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“coming out” to Plaintiff and a subordinate. (Id. ¶ 11.) Lt. Newman and her partner had a

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penthouse suite where they engaged in sexual activity and Lt. Newman encouraged

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Plaintiff to use the suite. (Id.) Lt. Newman attempted to have Plaintiff and a subordinate

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go into the suite, saying that whatever happened in the room would stay in her “circle of

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trust.” (Id.) This was shocking to the subordinate and Plaintiff assured the subordinate

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that it was not his idea and would not happen. (Id.) “Plaintiff informed RPD of the incident

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but RPD took no action to rectify the situation.”2 (Id.)

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During an interview Plaintiff gave in an IA investigation on or about October 2011,

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Sgt. Myers drew a caricature of Plaintiff “orally copulating another male” and showed it to

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Plaintiff at the end of his interview. (Id. ¶ 14.) On or about November 2011, Sgt. Myers,

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an officer in IA, made a photo depicting Plaintiff and fellow employee Sgt. Adamson

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wrestling and sent Sgt. Adamson an email “advising him that IA was aware of his and

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Plaintiff’s wrestling activities . . . .” (Id. ¶ 15.) The wrestling photo hung for months in the

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office above Sgt. Adamson’s desk and near Lt. Newman’s office. (Id.) On or about

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December 2011, Plaintiff snuck up behind Sgt. Adamson during an interview at a DUI

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checkpoint and “jovially struck him with a plastic water bottle.” (Id. ¶ 16.) Lt. Newman

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forwarded a video of this incident to Deputy Chief Mike Whan and stated “you have to

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love working with these boys!” (Id.) Lt. Newman also forwarded the videos to other City

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of Reno employees and the video was played during RPD briefings. (Id.)

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The Complaint also makes vague allegations that Lt. Newman “circulated a
photo of a man’s penis” and “spread rumors regarding the sexual activities of Plaintiff to
City [of Reno] employees.” (Id. ¶ 17.)
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The Complaint does not identify when and how Plaintiff informed RPD of the
incident.
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On or about January 2012, Plaintiff found a file regarding Sgt. Adamson while

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cleaning out his new desk and gave the file to Lt. Newman.3 (Id. ¶ 18.) The file belonged

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to DC Whan. (Id.) Despite Plaintiff’s requests, Lt. Newman never spoke to Plaintiff about

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the origin of the file and instead turned it over to Sgt. Adamson, creating a conflict. (Id.)

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Plaintiff tried to resolve the incident with Lt. Newman’s help but Lt. Newman told Plaintiff

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that he should have destroyed the file after finding it. (Id. ¶ 19.) Lt. Newman and DC

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Whan met with Sgt. Adamson and led him to believe that the file belonged to Plaintiff.

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(Id. ¶ 20.) In the months following the incident with the file, Lt. Newman generated five

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(5) different complaints against Plaintiff, each coinciding with dates of potential

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promotions for Plaintiff. (Id. ¶ 21.) Plaintiff had not received negative remarks in past

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evaluations. (Id.)

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Plaintiff filed a sexual harassment complaint against Lt. Newman on or about April

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2012. (Id. ¶ 22.) On April 24, 2012, Plaintiff was put on administrative leave while IA

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investigated him regarding an incident “in the office where guns were drawn in a jovial

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manner, a ‘quick draw’ replication.” (Id. ¶ 23.) Sgt. Myers was involved in the

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investigation. (Id.) Plaintiff asked Deputy Chief Evans for advice in handling the

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investigation and expressed concern over Sgt. Myers’ involvement. (Id. ¶ 24.) DC Evans

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told Plaintiff to “fall on the sword” as per Chief Pitts’ recommendation in order for Plaintiff

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to return to work. (Id.) DC Evans also advised Plaintiff to pin responsibility for the

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incident on Lt. Newman as Chief Pitts did not like her. (Id. ¶ 27.) Plaintiff requested one-

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on-one meetings with Chief Pitts “numerous times” but was told that the investigation

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was going well and to focus on his interview for a promotion. (Id. ¶ 29.) In early May

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2012, Plaintiff spoke with Chief Pitts and asked to return to work but was told to enjoy his

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time off and “not to worry” about the incident. (Id. ¶ 28.) Plaintiff expressed his concerns

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to DC Evans about IA, Sgt. Meyers being involved in the investigation, being asked to

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The Complaint does not describe the contents of the file but states that it was an
“illegal file” compiled by DC Whan regarding private matters involving Sgt. Adamson.
(Dkt. no. 1 ¶ 20.)
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frame testimony about Lt. Newman and Plaintiff’s long time on administrative leave. (Id.

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¶ 30.) However, DC Evans told Chief Pitts that he had not been talking to Plaintiff and

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when Plaintiff raised some of these issues to Chief Pitts he was told to file a complaint

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against IA. (Id. ¶ 32.)

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On June 8, 2012, Plaintiff requested an IA interview transcript and received an

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email from Sgt. Meyers with a pornographic video that said, “yep, you’re still gay.” (Id. ¶

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35.) Shortly thereafter, Sgt. Myers sent the requested transcripts to Plaintiff. (Id.) Plaintiff

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reported the video to DC Evans who responded, “[i]f you’d just come out of the closet . . .

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you would have a better lawsuit.” (Id. ¶ 36.) Plaintiff asked DC Evans to show Chief Pitts

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the video in order to demonstrate how the IA investigation was compromised but DC

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Evans only informed Chief Pitts about the video. (Id. ¶ 37.) Chief Pitts “sent a message

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thru DC Evans that he felt he was being extorted by Plaintiff and that he was not going to

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take any action towards Sgt. Myers for the video incident.” (Id.) In his message to DC

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Evans, Chief Pitts also expressed that he thought the video was a joke and that he

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would “fire Plaintiff if he filed a complaint regarding the video.”4 (Id.)

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On June 14, 2012, the Discipline Review Board (“DRB”) made a recommendation
of “termination” as to Plaintiff. (Id. ¶¶ 34, 37.)

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Plaintiff reported the video to Jack Campbell, Reno City Attorney, and was told to

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“keep the cat in the bag” and not report it to anyone. (Id. ¶ 38.) During a meeting about

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the video on June 21, 2012, Campbell stated, “[t]his was all in fun, joking, was it not?”

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(Id. ¶ 42.) Around this time, “[s]upervisory union officials contacted Plaintiff and warned

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him that Chief Pitts and Jack Campbell were ‘circling the wagons’ around DC Evans and

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Sgt. Myers” and that “Plaintiff would be made out to be the ‘bad guy.’” (Id. ¶ 43.)

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On July 5, 2012, Plaintiff had a scheduled IA hearing. (Id. ¶ 44.) At this hearing,

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Plaintiff was also to be interviewed about the video incident regarding Sgt. Myers. (Id.)

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It’s not clear from the Complaint when Plaintiff filed an official complaint
regarding the video.
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Chief Pitts was supposed to attend but did not. (Id.) Instead, he called one of the

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attendees, Lt. Larson, and asked if Plaintiff had shown up to the meeting. (Id.) After

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being told that Plaintiff was in attendance, Chief Pitts told Lt. Larson to tell Plaintiff that

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he decided to support the decision of termination. (Id.)
Plaintiff was “forced to resign to protect more than 20 years of employment

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benefits.” (Id.)

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The Complaint asserts the following claims against the City of Reno:5 (1) hostile

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and/or offensive workplace; (2) sexual harassment; (3) retaliation; (4) forced resignation;

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(5) equal protection pursuant to 42 U.S.C. § 1983; (6) conspiracy pursuant to 42 U.S.C.

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§ 1985; (7) negligent infliction of emotional distress; (8) intentional infliction of emotional

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distress; (9) failure to follow statutory procedure; and (10) failure to follow departmental

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procedure. (See id. at 15-27.)

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Defendant moves to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). (Dkt. no. 7.)

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Plaintiff filed an opposition (dkt. no. 11) and Defendant filed a reply in further support of

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their motion (dkt. no. 15).

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III.

DISCUSSION

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A.

Legal Standard

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A court may dismiss a plaintiff’s complaint for “failure to state a claim upon which

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relief can be granted.” Fed. R. Civ. P. 12(b)(6). A properly pleaded complaint must

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provide “a short and plain statement of the claim showing that the pleader is entitled to

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relief.” Fed. R. Civ. P. 8(a)(2); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).

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The Rule 8 notice pleading standard requires Plaintiff to “give the defendant fair notice of

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what the . . . claim is and the grounds upon which it rests.” Id. (internal quotation marks

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and citation omitted). While Rule 8 does not require detailed factual allegations, it

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demands more than “labels and conclusions” or a “formulaic recitation of the elements of

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The Complaint also names “DOES 1 through 6” in its caption but these doe
defendants are not referred to in the body of the Complaint.
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a cause of action.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550

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U.S. at 555). “Factual allegations must be enough to rise above the speculative level.”

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Twombly, 550 U.S. at 555. Thus, to survive a motion to dismiss, a complaint must

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contain sufficient factual matter to “state a claim to relief that is plausible on its face.”

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Iqbal, 556 U.S. at 678 (internal quotation marks omitted).

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In Iqbal, the Supreme Court clarified the two-step approach district courts are to

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apply when considering motions to dismiss. First, a district court must accept as true all

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well-pleaded factual allegations in the complaint; however, legal conclusions are not

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entitled to the assumption of truth. Id. at 679. Mere recitals of the elements of a cause of

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action, supported only by conclusory statements, do not suffice. Id. at 678. Second, a

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district court must consider whether the factual allegations in the complaint allege a

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plausible claim for relief. Id. at 679. A claim is facially plausible when the plaintiff’s

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complaint alleges facts that allow a court to draw a reasonable inference that the

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defendant is liable for the alleged misconduct. Id. at 678. Where the complaint does not

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permit the court to infer more than the mere possibility of misconduct, the complaint has

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“alleged–but not shown–that the pleader is entitled to relief.” Id. at 679 (internal quotation

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marks omitted). When the claims in a complaint have not crossed the line from

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conceivable to plausible, the complaint must be dismissed. Twombly, 550 U.S. at 570. A

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complaint must contain either direct or inferential allegations concerning “all the material

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elements necessary to sustain recovery under some viable legal theory.” Id. at 562

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(quoting Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1106 (7th Cir. 1989)).

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B.

Analysis

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Though styled as a motion to dismiss pursuant to Rule 12(b)(6), Defendant’s

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Motion includes summary judgment style evidence, including declarations and

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documentary evidence. Whenever a district court looks beyond the pleadings in

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evaluating a Rule 12(b)(6) motion to dismiss, the motion must be treated as one for

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summary judgment under Fed. R. Civ. P. 56. Portland Retail Druggists Ass’n v. Kaiser

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Found. Health Plan, 662 F.2d 641, 645 (9th Cir. 1981). Defendant has separately filed a
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Motion for Summary Judgment (dkt. no. 26) that incorporates the exhibits submitted with

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the instant Motion. Defendant’s Motion for Summary Judgment has not yet been fully

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briefed. The Court determines it is therefore appropriate to treat the instant Motion as a

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Rule 12(b)(6) motion to dismiss and not look outside the pleadings in making its

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determination. This approach allows the parties to fully brief the pending Motion for

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Summary Judgment and the Court to address Defendant’s summary judgment

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arguments in due course.
1.

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Sexual Harassment

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The Complaint’s first cause of action is for “Hostile and/or Offensive Work

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Environment” in which Plaintiff alleges that he was “routinely subjected to sexual

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harassment in a hostile and/or offensive work environment” and Defendant “knew, or

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should have known, that Plaintiff was subjected to such an environment but failed to

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implement any timely or remedial action.” (Dkt. no. 1 ¶¶ 48, 51.) The Complaint’s second

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cause of action is for “Sexual Harassment” in which Plaintiff alleges that Plaintiff “was

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repeatedly and routinely subjected to sexual harassment which a reasonable person,

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similarly situated would have found to be hostile and/or offensive” and Defendant “knew,

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or should have known, that Plaintiff was subjected to such an environment but failed to

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implement any timely or remedial action.” (Id. ¶¶ 54, 57.) Plaintiff’s first and second

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claims thus appear to be duplicative as both are premised on hostile environment

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harassment.

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“Hostile environment” harassment refers to situations where employees work in

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offensive or abusive environments. Ellison v. Brady, 924 F.2d 872, 875 (9th Cir. 1991).

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“Title VII affords employees the right to work in an environment free from discriminatory

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intimidation, ridicule, and insult.” Meritor Sav. Bank, SFV v. Vinson, 477 U.S. 57, 65

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(1986) (citation omitted). A hostile environment sexual harassment claim has three

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elements: (1) the plaintiff must show “he or she was subjected to sexual advances,

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requests for sexual favors or other verbal or physical conduct of a sexual nature, (2) that

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this conduct was unwelcome, and (3) that the conduct was sufficiently severe or
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pervasive to alter the conditions of the victim's employment and create an abusive

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working environment.” Ellison, 924 F.2d at 875–76 (citation omitted). Whether an

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environment is “hostile” or “abusive” is a matter that “can be determined only by looking

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at all the circumstances.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993). “These may

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include the frequency of the discriminatory conduct; its severity; whether it is physically

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threatening or humiliating, or a mere offensive utterance; and whether it unreasonably

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interferes with an employee's work performance.” Id.

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“An employer is liable for a hostile environment created by a plaintiff's co-worker if

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it knew or should have known about the misconduct and failed to take “prompt and

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effective remedial action.” Westendorf v. W. Coast Contractors of Nev., Inc., 712 F.3d

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417, 421 (9th Cir. 2013) (citation omitted). However, where harassment by a supervisor

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is alleged, an employer is subject to vicarious liability for the “actionable hostile

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environment created by the supervisor with immediate (or successively higher) authority

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over the employee.” Faragher v. City of Boca Raton, 524 U.S. 775, 807 (1998). A plaintiff

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may assert same-sex sexual harassment claims. Oncale v. Sundowner Offshore

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Services, Inc., 523 U.S. 75, 79 (1998); see also Tanner v. Prima Donna Resorts, Inc.,

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919 F. Supp. 351, 354 (D. Nev. 1996). A plaintiff must be able to show that “the conduct

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at issue was not merely tinged with offensive sexual connotations, but actually

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constituted ‘discrimina[tion] . . . because of . . . sex.’” Oncale, 523 U.S. at 81. For

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example, harassment of a male employee by co-workers or supervisors for failure to

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conform to gender-based stereotypes could create a hostile work environment. See

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Nichols v. Azteca Rest. Enter., Inc., 256 F.3d 864, 874–875 (9th Cir. 2001).

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Plaintiff’s sexual harassment claims fail. The Complaint does not allege that the
unwanted sexual conduct was made because of Plaintiff’s gender. See id.

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The facts alleged in the Complaint, while offensive, do not allow the Court to draw

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a reasonable inference that the unwanted sexual conduct was because Plaintiff is male.

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For example, the Complaint does not allege that Lt. Newman or Sgt. Myers attempted to

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solicit sex or sexualize Plaintiff because he is male, or that Plaintiff’s work environment
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was different for female employees, or that the unwanted sexual conduct was a result of

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Plaintiff’s failure, perceived or actual, to conform to male stereotypes. Plaintiff does not

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allege any facts to suggest the conduct described in the Complaint, such as the

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pornographic video emailed by Sgt. Myers or Lt. Newman’s attempt to have Plaintiff and

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a subordinate use her penthouse room, was directed at Plaintiff because of his gender.

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Plaintiff’s sexual harassment claims premised on hostile work environment (first
and second causes of action) are dismissed.
2.

Retaliation

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To establish a prima facie case of retaliation, Plaintiff must show that “(1) [he]

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engaged in a protected activity, (2) [he] suffered an adverse employment action, and (3)

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there was a causal link between [his] activity and the employment decision.” Raad v.

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Fairbanks N. Star Borough Sch. Dist., 323 F.3d 1185, 1196-97 (9th Cir. 2003) (citation

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omitted). “That an employer's actions were caused by an employee's engagement in

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protected activities may be inferred from ‘proximity in time between the protected action

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and the allegedly retaliatory employment decision.’” Ray v. Henderson, 217 F.3d 1234,

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1244 (9th Cir. 2000) (quoting Yartzoff v. Thomas, 809 F.2d 1371, 1376 (9th Cir.1987)).

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The Complaint alleges that “[b]eginning after Plaintiff complained of the

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harassment and hostile work environment to his superiors, management and eventually,

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the City of Reno, the acts Plaintiff complained of escalated in both degree and

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frequency.” (Dkt. no. 1 ¶ 60.) The mere fact that the Complaint alleges that Plaintiff

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complained of sexual harassment by Lt. Newman and Sgt. Myers while also navigating

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an IA investigation that resulted in Plaintiff’s resignation is not enough to state a

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retaliation claim. The Complaint frequently fails to identify the conduct that Plaintiff

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believes to be “adversary” and draw a connection to Plaintiff’s hostile work environment

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complaints. Plaintiff further fails to specify the date of his complaints in relation to the

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dates of potential adverse employment actions.

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For example, the Complaint alleges that Plaintiff filed a sexual harassment claim

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against Lt. Newman in April 2012. (Id. ¶ 22.) The Complaint then alleges that an
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investigation into the “quick draw’ incident by IA commenced and Plaintiff was put on

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administrative leave on April 24, 2012. (Id. ¶ 23.) To the extent that Plaintiff wishes the

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Court to view Plaintiff’s placement on administrative leave as an adverse employment

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action caused by his sexual harassment complaint against Lt. Newman, Plaintiff fails

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because the Complaint does not allege facts that would allow such an inference to be

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drawn. Specifically, the Complaint does not allege that Plaintiff’s sexual harassment

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claim was made before the commencement of the IA investigation or Plaintiff’s

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administrative leave.

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However, the Complaint’s allegations as to the pornographic video emailed to

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Plaintiff by Sgt. Myers on June 8, 2010, are more successful. The Complaint alleges that

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Plaintiff reported the video to DC Evans and asked him to show the video to Chief Pitts.

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It alleges that DC Evans told Plaintiff that Chief Pitts did not want to see the video, would

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not take action against Sgt. Myers for the video and would fire Plaintiff if it was reported.

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Plaintiff also reported the video to Campbell and met with Campbell to discuss the video

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on June 21, 2012, and was instructed to keep the video incident under wraps. Plaintiff

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alleges that he was contacted by a union official and told that Chief Pitts and Campbell

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were protecting Sgt. Myers and would make Plaintiff out to be the “bad guy.” At a hearing

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on July 5, 2012, Chief Pitts revealed, through Lt. Larson, that he would support

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termination of Plaintiff.

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Defendant correctly points out that, as established by the Supreme Court in

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University of Texas Southwestern Medical Center v. Nassar, 133 S.Ct. 2517, 2528

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(2013), “Title VII retaliation claims require proof that the desire to retaliate was the but-for

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cause of the challenged employment action.” (See dkt. no. 7 at 18-19.) However, the

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Plaintiff has alleged sufficient facts that allow the Court to draw a reasonable inference

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that but for Plaintiff’s decision to report the video, Chief Pitts would not have supported

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termination. The Complaint alleges that Plaintiff spoke to Chief Pitts in May 2012, the

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month before the video incident, and Chief Pitts told him “not to worry” about the

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investigation and to enjoy his time off. Taking this fact as true and construing it in the
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light most favorable to Plaintiff, the Complaint has sufficiently alleged that Chief Pitts

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changed his view of the “quick draw” incident after Plaintiff reported the video.

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The Court determines that Plaintiff has stated a claim for retaliation (second claim
for relief).
3.

Remaining Claims

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As to Plaintiff’s fourth and tenth claims for relief, the Court is not aware of any

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causes of action for “forced resignation” or “failure to follow departmental procedure.”

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Plaintiff does not provide any state or federal statutory bases for these claims. Defendant

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guesses that Plaintiff intends to state a “constructive discharge” claim and not a “forced

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resignation” claim. (Dkt. no. 7 at 20.) While Plaintiff’s opposition appears to support this

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reading of the Complaint, the Rule 8 notice pleading standard requires Plaintiff to “give

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the defendant fair notice of what the . . . claim is and the grounds upon which it rests.”

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Twombly, 550 U.S. at 555. As the Court cannot determine the legal basis for Plaintiff’s

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“forced resignation” and “failure to follow departmental procedure” claims from the face

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of the Complaint, they are dismissed pursuant to Rule 8.

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As his fifth and sixth claims for relief, Plaintiff fails to assert claims under 42

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U.S.C. §§ 1983 and 1985, respectively. With regard to Plaintiff’s § 1983 claim,

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“Congress did not intend municipalities to be held liable unless action pursuant to official

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municipal policy of some nature caused a constitutional tort.” Monell v. N.Y.C. Dept. of

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Social Servs., 436 U.S. 658, 691 (1978). Monell instructs that in order to impose liability

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on a municipality or a subdivision of the municipality under § 1983, a plaintiff must

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“identify a municipal ‘policy’ or ‘custom’ that caused the plaintiff's injury.” Bd. of Cnty.

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Com'rs of Bryan County, Okl. v. Brown, 520 U.S. 397, 403 (1997). The Complaint does

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not identify a municipal policy or custom that caused Plaintiff’s injury. Plaintiff’s

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conspiracy claim under § 1985 fails because Plaintiff has not sufficiently stated a claim

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under § 1983. See Cassettari v. Nev. Cnty., Cal., 824 F.2d 735, 739 (9th Cir.1987)

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(dismissing a § 1985 claim where the claim was based on the same insufficient

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allegations as plaintiff's § 1983 claim). The Court also notes that Plaintiff does not
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identify the constitutional violation at issue in his § 1983 claim and does not identify any

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conspirators in his § 1985 claim.

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Plaintiff’s emotional distress claims (seventh and eighth claims for relief) are

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insufficiently pled. To recover for negligent infliction of emotional distress under Nevada

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law, Plaintiff must establish that he either suffered a physical impact or “serious

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emotional distress.” See Olivero v. Lowe, 995 P.2d 1023, 1026-27 (Nev. 2000). To

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recover for intentional infliction of emotional distress, Plaintiff must show that he suffered

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“extreme or severe” emotional distress. See Miller v. Jones, 970 P.2d 571, 577 (Nev.

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1998) (citation omitted). Plaintiff only alleges that he is “unable to sleep” and states

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without factual support that he “has suffered emotional and physical distress.” (Dkt. no. 1

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¶ 107.) This amounts to no more than a recitation of the elements without factual

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support.

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Lastly, Plaintiff’s ninth claim for relief for “failure to follow departmental procedure”

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asserts that Defendant violated two statutory provisions, NRS 289.020(2) and NRS

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289.057(3)(a). However, NRS 289.120 states that “[a]ny peace officer aggrieved by an

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action of the employer of the peace officer in violation of this chapter may, after

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exhausting any applicable internal grievance procedures, grievance procedures

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negotiated pursuant to chapter 288 of NRS and other administrative remedies, apply to

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the district court for judicial relief.” The Complaint does not allege that Plaintiff exhausted

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his internal grievance procedures.
4.

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Leave to Amend

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Plaintiff asks for leave to amend. (Dkt. no. 11 at 15.) After the period

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for leave to amend as a right has expired (as it has here), a party must either obtain the

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other party's consent or seek leave of court to amend a pleading. Fed. R. Civ. P.

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15(a)(2). The court should give leave to amend freely when justice requires, though

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leave need not be granted where amendment: “(1) prejudices the opposing party; (2) is

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sought in bad faith; (3) produces an undue delay in litigation; or (4) is futile.”

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Amerisource Bergen Corp. v. Dialysist W., Inc., 465 F.3d 946, 951 (9th Cir.

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2006) (citation omitted).

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In this case the opposing party is not prejudiced because Plaintiff has not yet filed

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an amended complaint and, to the extent Plaintiff is unable to cure the deficiencies in the

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Complaint, the Court will dismiss those claims with prejudice. Further, there is no

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indication that Plaintiff seeks to amend in bad faith or that granting leave to amend will

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produce an undue delay. The Court determines that amendment would not be futile as

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the Complaint alleges facts that can form the basis of valid claims if properly pled. Good

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cause appearing, leave to amend is granted.

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IV.

CONCLUSION

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The Court notes that the parties made several arguments and cited to several

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cases not discussed above. The Court has reviewed these arguments and cases and

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determines that they do not warrant discussion as they do not affect the outcome of

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Defendant’s Motion.

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It is hereby ordered that Defendant’s Motion to Dismiss (dkt. no. 7) is granted in

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part and denied in part. Plaintiff’s first, second, fourth, fifth, sixth, seventh, eighth, ninth

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and tenth claims for relief are dismissed. Plaintiff’s third claim for relief, retaliation, may

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proceed on the theory that Chief Pitts’ decision to support termination of Plaintiff was

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caused by Plaintiff’s reporting of the pornographic video emailed to Plaintiff by Sgt.

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Myers.

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It is further ordered that Plaintiff may file an amended complaint within fifteen (15)

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days. Failure to file an amended complaint will result in dismissal of Plaintiff’s first,

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second, fourth, fifth, sixth, seventh, eighth, ninth and tenth claims for relief with prejudice.

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ENTERED THIS 18th day of September 2014.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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