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September 20, 1996


The opinion of the court was delivered by: EDWARD


 Defendants County of Monterey ("the County") and Natividad Medical Center ("Natividad") move to dismiss plaintiff Corrine Orozco's First Amended Complaint ("the Complaint") pursuant to Rule 12(b)(6), Fed.R.Civ.P., for failure to state a claim upon which relief may be granted, and for more definite statement pursuant to Rule 12(e), Fed.R.Civ.P. For the reasons set for below, the motion to dismiss is DENIED IN PART and GRANTED IN PART with leave to amend; and the motion for more definite statement is DENIED.


 Plaintiffs Complaint, filed April 10, 1996, alleges constitutional violations under 42 U.S.C. § 1983 (first cause of action); constitutional violations directly under the U.S. Constitution (second and third causes of action); employment discrimination based on gender and national origin under 42 U.S.C. § 2000e (fourth cause of action) and Cal. Govt. Code § 12940 et. seq. (fifth cause of action); and violation of public policy (sixth cause of action). Defendants move for dismissal of the first five of plaintiff's causes of action. Defendants, on this motion, do not challenge plaintiff's sixth cause of action for violation of public policy.

 Plaintiff alleges that she was an employee of defendants. Cmplt. P 9. She alleges that her employment was terminated by defendants amidst wrongful criminal allegations made against her by defendants. Cmplt. PP 9-13. Plaintiff alleges that the wrongful allegations were to the effect that she participated with four other female co-workers in a scheme to steal controlled substances from Natividad. Cmplt. PP 9-10. Plaintiff alleges that defendants conducted an investigation of these alleged illicit activities and then terminated her and the other females' employment without any pre- or post-deprivation hearing. Cmplt. PP 13, 17, 21, 36-37. She further alleges that she and the other female suspects were criminally prosecuted at the urging of defendants and that the charges were dismissed by Monterey County Municipal Court Judge Maldonado on the ground that the women were the victims of gender bias and selective prosecution. Cmplt. PP 14, 16-18. Plaintiff alleges that a male employee who was implicated in the scheme -- Jay Kitahara -- was neither investigated, terminated, prosecuted nor otherwise disciplined. Cmplt. PP 11-18.


 Pursuant to Rule 12(b)(6), a complaint may be dismissed for failure to state a claim upon which relief can be granted. For purposes of evaluating a motion to dismiss, the complaint is construed in the light most favorable to plaintiff and its allegations are taken as true. Abramson v. Brownstein, 897 F.2d 389, 391 (9th Cir. 1990). Dismissal can be based on either the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory. Balistreri v. Pacifica Police Dep't 901 F.2d 696, 699 (9th Cir. 1990); Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 533-34 (9th Cir. 1984). However, a complaint should not be dismissed under Rule 12(b)(6) "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief" Conley v. Gibson 355 U.S. 41, 45-46, 78 S. Ct. 99, 102, 2 L. Ed. 2d 80 (1957).

 As to those portions of a complaint which the court finds do not state a claim for relief leave to amend is ordinarily given freely. Fed.R.Civ.P. 15(a). A complaint or any claim in it should be dismissed without leave to amend only if "it is 'absolutely clear that the deficiencies of the complaint could not be cured by amendment.'" Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987).

 A. Plaintiff's Causes of Action for Constitutional Violations Asserted Directly Under the U.S. Constitution.

 Plaintiff asserts her second and third causes of action for constitutional violations directly under the U.S. Constitution; i.e., not under the umbrella of 42 U.S.C. § 1983. *fn1" However, as stated by the Ninth Circuit in Azul-Pacifico, Inc. v. Los Angeles, 973 F.2d 704, 705 (9th Cir. 1992), cert. denied, 506 U.S. 1081, 113 S. Ct. 1049, 122 L. Ed. 2d 357 (1993), a plaintiff has no cause of action directly under the United States Constitution.... [A] litigant complaining of a violation of a constitutional right must utilize 42 U.S.C. § 1983." Thus, the second and third causes of action must be and hereby are deemed to be asserted under § 1983 and subject to the requirements of that statute.

 B. Plaintiff's Allegations of "Custom and Policy."

 Defendants challenge the Complaint on the ground that it fails to adequately allege the existence of any local governmental policy or custom that resulted in the deprivation of any of the federally protected rights plaintiff claims were violated, as required to state a § 1983 claim. See Defendants' Memorandum of Points and Authorities in Support of Motion to Dismiss ("Defs.' Motion") at 2-3. Defendants base this challenge on Monell v. Dep't of Social Services, 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978) and City of Oklahoma City v. Tuttle, 471 U.S. 808, 105 S. Ct. 2427, 85 L. Ed. 2d 791 (1985). However, neither Monell nor City of Oklahoma address the requirements of § 1983 at the pleading stage. Although plaintiff does not point to any case law in her opposition brief, she is correct that she should not be held to overly stringent pleading requirements.

 In Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 167-68, 113 S. Ct. 1160, 1162-63, 122 L. Ed. 2d 517 (1993), the Supreme Court rejected the argument that, in order to satisfy the pleading requirements of § 1983, a plaintiff must plead more than a single instance of misconduct. The Leatherman Court ruled that such a requirement was inconsistent with the "notice pleading" requirements of the Federal Rules of Civil Procedure. Id. at 168. Indeed, even prior to Leatherman the Ninth Circuit was upholding § 1983 claims "based on nothing more than a bare allegation that the individual officers' conduct conformed to official policy, custom, or practice." See Shah v. Los Angeles 797 F.2d 743, 747 (9th Cir. 1986). See also Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621 (9th Cir. 1988); Evans v. McKay, 869 F.2d 1341 (9th Cir. 1989). Therefore, plaintiff's allegations that the defendants have "long engaged in a continuing course of conduct, policy and custom, whereby women have been treated differently that [sic] similarly situated men in the terms and conditions of employment, including discipline and prosecution for wrongdoing" (see Cmplt. P 22), that "the acts described are a pattern and practice within the operations of said public entities and reflect the policies and customs of said public entities" (see Cmplt. P 30), and that "said discrimination is a policy and practice of defendants and was a substantial factor forming the basis of the conduct of defendants" (see Cmplt. P 50) are sufficient.

 Accordingly, defendants' motion to dismiss the first, second and third causes of action under § 1983 on the ground that plaintiff has not adequately pled the existence of any local government policy or custom is DENIED.

 C. Plaintiff's Claim of Denial of Procedural Due Process in Connection with the Termination of Her Employment.

 To prevail on a claim that termination of employment constituted a denial of property without due process of law, a plaintiff must plead a protected property interest in continued employment. State law defines what is and what is not property. "Property interests... 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...." Board of Regents v. Roth, 408 U.S. 564, 577, 92 S. Ct. 2701, 2709, 33 L. Ed. 2d 548 (1972). Although plaintiff asserts in her opposition that "it is well established that a permanent public employee has a property interest in her continuing employment... ." (citing Board of Regents supra and Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 105 S. Ct. 1487, 84 L. Ed. 2d 494 (1985)), she does not allege in the Complaint that she was a permanent public employee. Nor does she allege any existing rules or requirements affecting the tenure or nature of her employment. The most plaintiff alleges is that "plaintiff enjoyed employment security and employment benefits until plaintiff suffered ethnic based and gender based discrimination as described in this complaint." See Cmplt. P 53. However, plaintiffs prior "enjoyment" of job security does not adequately allege the existence of a federally protected property interest in continuing employment.

 Accordingly, defendants' motion to dismiss the first, second and third causes of action under § 1983 on the ground that plaintiff has not adequately alleged violation of procedural due process in connection with the ...

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