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October 13, 2005.

MARTHA BERNDT, et al., Plaintiffs,

The opinion of the court was delivered by: THELTON HENDERSON, Senior District Judge

This matter comes before the Court on Defendants' motion to dismiss claims from Plaintiffs' fourth amended complaint ("FAC"). After carefully reviewing the parties' written arguments, the allegations in the FAC, and relevant law, the Court found this motion suitable for decision without oral argument and therefore cancelled the motion hearing scheduled for Monday, September 26, 2005. For the reasons discussed below, the Court now GRANTS IN PART and DENIES IN PART Defendants' motion.


  Plaintiffs filed their initial complaint on July 9, 2003. On October 29, 2003, Plaintiffs filed their first amended complaint as of right under Federal Rule of Civil Procedure 15(a), which allows one amendment "at any time before a responsive pleading is served." Defendants moved to dismiss the first amended complaint, and the Court granted in part and denied in part Defendants' motion on February 25, 2004. Plaintiffs timely filed their second amended complaint on March 24, 2004. Defendants moved to dismiss the conspiracy cause of action from the second amended complaint, and the Court granted that motion, which Plaintiffs did not oppose, on June 15, 2004. Defendants answered the second amended complaint on July 16, 2004. Ordinarily, Defendants' filing of an answer would have moved this case beyond the pleadings stage. However, Plaintiffs subsequently moved for leave to file a third amended complaint. The Court granted in part and denied in part Plaintiffs' motion on January 4, 2005, and Plaintiffs timely filed their third amended complaint on January 16, 2005. Defendants moved to dismiss the third amended complaint, and Plaintiffs moved for leave to file a fourth amended complaint. On May 6, 2005, the Court ruled on both motions by dismissing portions of the third amended complaint and granting Plaintiffs leave to file a fourth amended complaint.

  The Court ordered the parties to meet and confer prior to the filing of Plaintiffs' fourth amended complaint to encourage the parties to discuss all of Defendants' objections to the proposed amendments. The Court hoped to avoid the need for yet another motion to dismiss, but the parties were unable to reach agreement. Instead, Plaintiffs filed their fourth amended complaint on July 5, 2005, after having failed to obtain Defendants' agreement that the latest version of the complaint would survive scrutiny under Federal Rule of Civil Procedure 12(b)(6). Defendants now move to dismiss all but Plaintiffs' first cause of action, which is for gender discrimination under Title VII raised by the proposed class against Defendant California Department of Corrections (now the Department of Corrections and Rehabilitation). In particular, Defendants now seek dismissal of the individual equal protection claims brought by Plaintiffs Berndt, Hastings, Longo, Scott, and Moreira; the First Amendment retaliation claims brought by Plaintiffs Longo and Scott; and a mixed race-gender discrimination claim brought by Plaintiff Curry. The Court addresses each set of claims in turn below.


  Dismissal is appropriate under Federal Rule of Civil Procedure 12(b)(6) when a plaintiff's allegations fail "to state a claim upon which relief can be granted." Fed.R.Civ.P. 12(b)(6). A court should not grant dismissal "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 (1957). Moreover, dismissal should be with leave to amend unless it is clear that amendment could not possibly cure the complaint's deficiencies. Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1296 (9th Cir. 1998).

  In deciding whether a case should be dismissed, a court may generally only consider the complaint and any attached exhibits that have been incorporated therein. Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001). However, the court may consider a document external to the complaint if the complaint "necessarily relies" on the document and no party contests the document's authenticity. Parrino v. FHP, Inc., 146 F.3d 699, 706 (9th Cir. 1998). The court may also consider facts for which judicial notice is appropriate. Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir. 1994). Thus, while the court must generally accept as true the factual allegations of the complaint and construe those allegations in the light most favorable to the plaintiff, the court need not "accept as true allegations that contradict matters properly subject to judicial notice or by exhibit." Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001), amended by 275 F.3d 1187 (9th Cir. 2001). "Nor is the court required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." Id.


  I. Equal Protection Claims

  As Plaintiffs acknowledge, to prevail on their equal protection claims, they must show that discriminatory intent was a "motivating factor" in Defendants' actions. E.g., Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265-66 (1977). Failure to allege discriminatory animus subjects an equal protection claim to dismissal. Lee, 250 F.3d at 687 (dismissing plaintiffs' equal protection claim because "[p]laintiffs failed to allege that defendants' acts or omissions were motivated by discriminatory animus toward the mentally disabled as a protected class"). This Court granted Defendants' motion to dismiss the third amended complaint because Plaintiffs failed to meet that standard. The FAC, however, now contains allegations that each defendant was motivated in part by "Plaintiffs' status as women." E.g., FAC ¶ 65. Although conclusory, such allegations are sufficient to satisfy federal notice-pleading standards.*fn1 Taken as a whole, the FAC alleges that Defendants knew that inmates targeted female employees, such as Plaintiffs, for sexual harassment; that Defendants had the power to do something about it; but that Defendants failed to do anything, in part because of their discriminatory animus towards women. Thus, the Court does not find persuasive Defendants' argument that the equal protection claims must be dismissed for failure to allege discriminatory animus.

  The Court also rejects Defendants' argument that there can be no equal protection claim in this case because Plaintiffs fail to allege that there are similarly situated male employees who were treated any differently than Plaintiffs. Defendants essentially contend that there could only be an equal protection violation if Plaintiffs were able to show that complaints of sexual harassment by male employees were treated differently than complaints by female employees. However, even if no males complained of sexual harassment, and only females complained about sexually harassing comments directed towards women, that does not mean there can be no equal protection violation. The point is that the harassing behavior was based on gender, and Defendants' failure to address the behavior was also motivated in part by discriminatory animus based on gender. Given these allegations, the Court simply cannot say, at this stage of the proceedings, that Plaintiffs will be unable to prove any facts that may give rise to an equal protection claim.*fn2

  Next, the Court has already rejected in part Defendants' argument that the complaint fails to allege a sufficient connection between Defendants Schwartz and McGrath and the plaintiffs who assert equal protection claims against them. See May 6, 2005 Order at 7 ("As a matter of guidance to Plaintiffs, the Court would find the allegations in the proposed FAC sufficient for Plaintiff Moreira to state a claim against Defendant Schwartz, assuming that discriminatory intent were sufficiently alleged. The Court would also find the allegations sufficient for Plaintiffs Berndt, Hastings, Longo, and Scott to state a claim against Defendant McGrath. . . ."). In addition, Plaintiffs allege in the FAC that McGrath and Schwartz held high-level managerial positions at the facilities at which Plaintiffs worked and that, by nature of those positions, McGrath and Schwartz had the authority and responsibility to address the problem of exhibitionist masturbation at those facilities.*fn3 This is sufficient to survive a motion to dismiss, and Defendants cite no authority for their proposition that Defendants must have had direct contact with or direct supervisory responsibility over Plaintiffs before they can be held liable for an equal protection violation.

  Finally, Defendants argue that, even if Plaintiffs have stated equal protection claims, those claims should be dismissed on qualified immunity grounds. Under the doctrine of qualified immunity, government officials performing discretionary functions "are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The Supreme Court has held that "the requisites of a qualified immunity defense must be considered in the proper sequence." Saucier v. Katz, 533 U.S. 194, 200 (2001). A court considering assertions of qualified immunity must first determine whether, "[t]aken in the light most favorable to the party asserting the injury, . . . the facts alleged show the [defendants'] conduct violated a constitutional right." Id. at 201. If a plaintiff cannot show that he or she suffered a constitutional violation, there is no need to continue the qualified immunity analysis. However, if the allegations are sufficient to demonstrate a violation of a federally protected right, then the court must ascertain "whether the right was clearly established." Id. This evaluation requires the court to determine "whether it would be so clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Id. at 202. A defendant is therefore entitled to qualified immunity if he or she makes a reasonable "mistake as to what the law requires." Id. at 205.

  In their moving papers, Defendants based their qualified immunity argument on their assertion that Plaintiffs failed to allege discriminatory intent or motive. As discussed above, the Court finds that the FAC sufficiently alleges that Defendants' actions were motivated in part by discriminatory animus, ...

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