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.
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 termination of her employment is GRATED with leave to amend.
D. Plaintiff's Claim of Denial of Procedural Due Process in Connection with Her Liberty Interest in Freedom from Stigma.
"'When the government dismisses an individual for reasons that might seriously damage his standing in the community, he is entitled to notice and a hearing to clear his name. To implicate constitutional liberty interests, however, 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. Moreover, to infringe upon a constitutionally protected liberty interest, the charges must be published.'" Portman v. Santa Clara, 995 F.2d 898, 907 (9th Cir. 1993) (citations omitted). Plaintiff has adequately alleged all the elements of a "liberty interest" claim except for the element of publication.
In order for plaintiff to satisfy the "publication" requirement, plaintiff must plead that the defendants published the allegedly false and stigmatizing information to the public. Plaintiff has not so alleged. Plaintiff has alleged only that the information was disseminated within her department and to law enforcement departments in the course of the investigation of plaintiff's activities.
This is not sufficient. See e.g. Learned v. Bellevue, 860 F.2d 928, 933 (9th Cir. 1988) (defamatory remarks that do not go beyond others employed by department do not satisfy "publication" requirement), cert. denied 489 U.S. 1079, 109 S. Ct. 1530, 103 L. Ed. 2d 835 (1989); Hogue v. Clinton 791 F.2d 1318, 1322-23 n.7 (8th Cir.) (referral of charges to prosecutor does not constitute "publication"), cert. denied. 479 U.S. 1008, 107 S. Ct. 648, 93 L. Ed. 2d 704 (1986); Willbanks v. Smith County Texas, 661 F. Supp. 212, 217 (E.D. Tex. 1987) (liberty interest not implicated if allegedly false charges were not published outside the government agency or were divulged in the course of legal proceedings); Harrison v. Bd. of Cty. Com'rs. 775 F. Supp. 365, 367 (D. Colo. 1991) (intragovernment dissemination of information related to a public employee's discharge does not satisfy "publication" requirement).
Moreover, plaintiff's allegation that she was "[forced]...to republish the false information to explain her circumstances" is also insufficient. See Derstein v. Kansas, 915 F.2d 1410, 1414 (10th Cir. 1990) (no liberty interest impinged when plaintiff himself reveals reasons for discharge in response to questions by prospective employers), cert. denied, 499 U.S. 937, 111 S. Ct. 1391, 113 L. Ed. 2d 447 (1991); see also Campos v. Guillot, 743 F.2d 1123, 1126 (5th Cir. 1984) (where plaintiff demanded that charges be made public, "it was his own hand that was on the dagger").
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 her liberty interest in freedom from stigma is GRANTED with leave to amend.
E. Plaintiff's Claim of Violation of the Equal Protection Clause.
"The Equal Protection clause of the Fourteenth Amendment confers a 'federal constitutional right to be free from gender discrimination' at the hands of governmental actors." Lindsey v. Shalmy, 29 F.3d 1382, 1385 (9th Cir. 1994) (citing Davis v. Passman, 442 U.S. 228, 234-35, 99 S. Ct. 2264, 2271, 60 L. Ed. 2d 846 (1979)). See also Bator v. Hawaii, 39 F.3d 1021, 1028 (9th Cir. 1994) (Equal Protection clause confers federal constitutional right to be free from gender discrimination in the workplace at the hands of government actors). Plaintiff's allegations that she and other female employees were disparately treated from similarly situated male employees in the course of being investigated, disciplined and prosecuted for alleged wrong-doing (see generally Cmplt. & at P 28), and that 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 prosection for wrong-doing"(see Cmplt. P 22) are sufficient to state a claim under the Equal Protection clause.
Accordingly, defendant's motion to dismiss the first, second and third causes of action under § 1983 on the ground that plaintiff has not adequately alleged violation of the Equal Protection clause is DENIED.
F. Plaintiff's Claim of Violation of Her Freedom of Association.
Plaintiff alleges that her First Amendment right to freedom of association was violated "by [defendants] spreading untrue adverse comments about plaintiff to co-workers and others [alienating] others from plaintiff so that plaintiff was not free to chose [sic] her own associates [and] further, by branding plaintiff as a criminal because she associated with certain employees who were believed to have engaged in wrongful conduct." See Cmplt. P 40(a).
Plaintiff's allegations regarding her associations with "co-workers and others" are not sufficient to implicate First Amendment guarantees. In City of Dallas v. Stanglin, 490 U.S. 19, 24, 109 S. Ct. 1591, 1594, 104 L. Ed. 2d 18 (1989), the Supreme Court observed that protected First Amendment "associational" activity can take the form of both "expressive association" and "intimate association" (citing Roberts v. U.S. Jaycees, 468 U.S. 609, 104 S. Ct. 3244, 82 L. Ed. 2d 462 (1984)). The Stanglin Court further noted that "it is possible to find some kernel of expression in almost every activity a person undertakes - for example, walking down the street or meeting one's friends at a shopping mall -- but such a kernel is not sufficient to bring the activity within the protection of the First Amendment." Stanglin 490 U.S. at 25, 109 S. Ct. at 1595. Thus, in Vieira v. Presley, 988 F.2d 850, 852-53 (8th Cir. 1993), the Eighth Circuit stated that (1) where a plaintiff does not allege any "protected political, social, economic, educational, religious or cultural purpose" to associations with friends and acquaintances, no cognizable claim of any protected right of association for "expressive" purposes is stated; and (2) where a complaint "does not allege a close, intimate relationship of the type recognized as protected in [the Supreme Court's decision in Roberts], " but "merely characterizes [plaintiff's] associates as friends and acquaintances" the complaint fails to state a claim of any protected right of "intimate" association. See also Swank v. Smart, 898 F.2d 1247, 1250-51 (7th Cir.) ("the purpose of the free-speech clause and of its judge-made corollary the right of association is to protect the market in ideas.... Casual chit-chat between two persons or otherwise confined to a small social group is unrelated, or largely so, to that marketplace, and is not protected." (citations omitted)), cert. denied, 498 U.S. 853, 111 S. Ct. 147, 112 L. Ed. 2d 113 (1990); Holley v. Schreibeck 758 F. Supp. 283, 285 (E.D. Pa.) (plaintiff's allegation that defamatory statements by police "'alienated, prohibited and inhibited'" her from visiting friends did not rise to level of First Amendment violation) (analyzing Stanglin and Swank), aff'd, 944 F.2d 897 (3d Cir. 1991). Plaintiff's allegations here are insufficient either to allege a violation of "expressive" association or "intimate" association.
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 the First Amendment freedom of association is GRANTED with leave to amend.
G. Plaintiff's Claim of Interference with Access to the Courts.
Plaintiff alleges that the District Attorney's office, by filing a notice of intent to appeal the dismissal of the criminal charges against plaintiff and by failing to "process the appeal as required by state statute," has denied plaintiff her constitutional right under the First Amendment to access the court system to pursue her grievances. See Cmplt. P 20. Plaintiff fails to cite any authority for this proposition in her opposition brief and the court finds none.
Accordingly, defendant's motion to dismiss the first, second and third causes of action under § 1983 on the ground that plaintiff has not adequately alleged interference with her access to the courts is GRANTED with leave to amend.
H. Plaintiff's Claim of Retaliation for Pursuing Litigation.
Plaintiff alleges that her First Amendment right to freedom of speech was abridged by defendants "engaging in retaliation against plaintiff because of her pursuit of the litigation process." See Cmplt. P 40(b). However, plaintiff here has set forth no allegations regarding in what manner defendants retaliated against her for exercising her constitutional right to access the courts.
Accordingly, defendants' motion to dismiss the first, second and third causes of action under § 1983 on the ground that plaintiff has not adequately alleged retaliation in violation of plaintiffs First Amendment rights is GRANTED with leave to amend.
I. Plaintiff's Claim of Invasion of Her Right to Privacy.
Plaintiff alleges that defendants invaded her right to privacy under the Fourth Amendment by improperly disclosing confidential administrative and personnel information, See Cmplt. P 40(c). "Information falls within the ambit of constitutional protection when an individual has a 'legitimate expectation... that it will remain confidential while in the state's possession'" and that expectation outweighs the public need for disclosure. Sheets v. Salt Lake County, 45 F.3d 1383, 1387 (10th Cir.), cert. denied, 133 L. Ed. 2d 34, 116 S. Ct. 74 (1995). See also Cantu v. Rocha, 77 F.3d 795, 806 (5th Cir. 1996); Eagle v. Morgan, 88 F.3d 620, 625 (8th Cir. 1996). At this stage, it cannot be said that plaintiff can prove no set of facts that she had a legitimate expectation that information in possession of defendants would remain confidential.
Accordingly, defendants' motion to dismiss the first, second and third causes of action under § 1983 on the ground that plaintiff has not adequately alleged a violation of her right to privacy based on an expectation of confidentiality with respect to administrative and personnel information is DENIED.
Plaintiff's additional claim that her constitutional right to privacy was invaded by the publication of false information about her (see Cmplt. P 40(c)) does not state a cause of action. See Baker v. Howard, 419 F.2d 376 (9th Cir. 1969) (constitutional right to privacy not implicated even when police officers circulate false rumors that person has committed a crime).
Accordingly, defendants' motion to dismiss the first, second and third causes of action under § 1983 on the ground that plaintiff has not adequately alleged a violation of her right to privacy based on the alleged publication of false information is GRATED.
J. Plaintiff's Claim of Violation of the Right Against Self-incrimination.
Plaintiff alleges that defendants violated her right against self-incrimination by:
fail[ing] and refusing to provide the suspects with proper administrative admonishments regarding their Fifth Amendment rights, Sixth Amendment rights, and other rights afforded to public employees under administrative investigation for matters that could result in criminal charges.