Weeks v. Curry County, OR et al

Filing 33

ORDER: I adopt the Report and Recommendation 29 . Defendants' Motion to Dismiss 14 is granted in part and denied in part consistent with Magistrate Judge Mark D. Clarke's Report and Recommendation. Signed on 1/10/2017 by Judge Michael J. McShane. (cp)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
TODD WEEKS,
Case No. 1:16-cv-0772-CL
Plaintiff,

ORDER

v.
CURRY COUNTY, an Oregon State Agency;
THOMAS HUXLEY, an individual; SUSAN
BROWN, an individual; DAVID LUCAS, an
individual, TERRI PEREZ, an individual;
and JOHN and JANE DOE, an individual or
individuals,
Defendants.
_____________________________
MCSHANE, Judge:
Magistrate Judge Mark D. Clarke filed a Report and Recommendation (“R&R”) (ECF
No. 29), and the matter is now before this court. See 28 U.S.C. § 636(b)(1)(B), Fed. R. Civ. P.
72(b). Plaintiff filed objections to the R&R on two points. ECF No. 32. Accordingly, I have
reviewed the file of this case de novo. See 28 U.S.C. § 636(b)(1)(c); McDonnell Douglas Corp.
v. Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313 (9th Cir. 1981). I conclude the report is
correct and adopt.
1 –ORDER

DISCUSSION
I. Dismissal with prejudice of IIED and RICO claims
The R&R dismisses two claims with prejudice, Intentional Infliction of Emotional
Distress (IIED) and Civil Racketeering (Federal and State) (RICO) (Am. Compl., ECF No. 11).
Plaintiff requests leave be given to amend and cure the factual deficiencies. Pl.’s Obj. 2, ECF
No. 31.
The legal standard for dismissing a complaint with prejudice is whether the complaint
can be saved by amendment. Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th
Cir.2003). (“Dismissal with prejudice and without leave to amend is not appropriate unless it is
clear, upon de novo review, that the complaint could not be saved by amendment.”). “Though the
policy in favor of permitting amendment is to be applied with “extreme liberality,” a party who
contends his complaint could be saved by amendment must present such amendment to the trial
court either in opposition to the motion to dismiss or in a motion to reopen the judgment under
Rules 59(e) or 60(b).” HT Litig. Trust v. Jess Rae Booth, 303 F. App'x 502, 503 (9th Cir. 2008)
(internal citations omitted).
Here, plaintiff has failed to present any proposed facts sufficient to cure the deficiencies
in his Complaint. Plaintiff must do more than simply assert that they could come up with some
hypothetical language to cure the defects. Rather, Plaintiff must present actual proposed
amended facts in their response or related briefing to a motion to dismiss. Plaintiff has had ample
opportunity to present proposed amended facts to cure the factual deficiencies found in his IIED
claim. No proposed facts have been submitted or offered. Plaintiff’s IIED claim is dismissed
with prejudice.

2 –ORDER

To be clear, Plaintiff does not object to Judge Clarke’s analysis and conclusion that the
IIED claim fails to allege acts that constitute some extraordinary transgression of the bounds of
socially tolerable conduct. Nor would he have a basis for such objection. Allegations that an
employer retaliated against an employee for a sham cause known by them to be false is not
enough to constitute a claim for IIED. Clemente v. State, 227 Or. App. 434 (2009). I agree with
Judge Clarke’s application of Clemente to the IIED claim found here. The acts complained of do
not rise to the level of socially intolerable conduct necessary to allege a claim for IIED.
I take the same approach to Plaintiff’s RICO claim. Plaintiff failed to allege facts
sufficient to constitute a federal or state claim for civil racketeering. Plaintiff has made no offer
of alleged facts to cure the defects to his RICO claims. The RICO claims are dismissed with
prejudice.
II. Property interest to support a section 1983 claim
Plaintiff’s second objection is directed at the Magistrate Judge’s finding that plaintiff
failed to identify a property interest sufficient to support his section 1983 claim. Plaintiff argues
that he was deprived of a property interest; specifically, a disciplinary process set out in the
county’s employment manual requiring the county to investigate and discuss before termination.
Am. Compl. ¶¶ 30, 31, ECF No. 11. “[I]f discipline, including termination, is based on alleged
failure to meet standards, the complaint must be investigated by the County personnel officer and
discussed with legal counsel before any hearing to consider [what] discipline may be held.” Pl.’s
Obj. 3, ECF No. 31.
I agree with Judge Clarke’s analysis. Plaintiff’s claim fails to identify a constitutionally
protected property interest for which he was deprived. Generally established principles require
parties to show that they have been deprived of a “property” interest in continued employment in
3 –ORDER

order to invoke procedural due process protection. Board of Regents v. Roth, 408 U.S. 564
(1972). Before a plaintiff can assert a right to and a deprivation of procedural protections, a
plaintiff must establish their employment status is a property interest. Id. at 577. Here, however,
Plaintiff is an at-will employee. As such, he has no property interest in his continued
employment. He can be terminated at any time without due process. Lawson v. Umatilla County,
139 F.3d 690 (9th Cir. 1998).
As Plaintiff submits, there are circumstances where procedural rules and regulations
enacted by a government employer may create an expectation of continued employment, thus
creating a property interest. See, Gunsolley v. Bushby, 19 Or. App. 884, 890–91 (1974). Such
regulations, however, must govern the substantive standards of discharge in order to create an
expectation of continued employment. Crampton v. Harmon, 20 Or. App. 676, 685–86 (1975).
For example, an employee told that he or she will only be discharged ‘for cause’ is entitled to
expect their employment to be permanent unless and until the employer can adequately show
‘cause’ for termination. Id.
In Gunsolley, the Court found that rules governing the hospital and staff enacted by the
Board of Directors of the hospital district created an expectation of continued employment so
long as the employee performed satisfactorily. 19 Or. App. at 892. The specific language of the
rule stated: “Unless otherwise specified, employment is presumed to be full-time and permanent
during satisfactory service.” Id.
The language in the employment manual relied on by the Plaintiff in this case can be
distinguished from the facts in Gunsolley. The procedure outlined in the employment manual
concerns the particular circumstance of when an employee may be disciplined and not the nature
of the parties’ at-will employment relationship. The employment manual does not place a
4 –ORDER

substantial restriction on the Defendants’ right to terminate plaintiff. The county Board has the
authority to terminate employment without the need for ‘cause.’ Because the plaintiff worked at
the pleasure of the county Board and because the manual did not substantial restrict the Board’s
decision making authority, plaintiff did not a legitimate expectation of continued employment.
CONCLUSION
I adopt the Report and Recommendation (ECF No. 29). Defendants’ Motion to dismiss
(ECF No. 14) is GRANTED in part and DENIED in part consistent with Magistrate Judge Mark
D. Clarke’s Report and Recommendation.
IT IS SO ORDERED.

DATED this 10th day of January, 2017.

_____/s/ Michael J. McShane_____
Michael J. McShane
United States District Judge

5 –ORDER