MEMORANDUM AND ORDER RE: MOTIONS TO DISMISS AND TO STRIKE
Plaintiff Shireen Wrigley brought this action against defendants Norma Aquaviva, Dorothy Swingle, Stan Armaskus, Michael D. McDonald, John Nepomeceno, Anthony R. Thompson, and the California Department of Corrections and Rehabilitation ("CDCR") arising out of plaintiff's employment with CDCR. Presently before the court are defendants' motions to dismiss the First Amended Complaint ("FAC") pursuant to Federal Rule of Civil Procedure Rule 12(b)(6) for failure to state a claim upon which relief can be granted and to strike plaintiff's state law claim pursuant to California's anti-Strategic Lawsuits Against Public Participation ("anti-SLAPP") statute, California Civil Procedure Code § 425.16.
I. Factual and Procedural Background
Plaintiff worked at High Desert State Prison ("HDSP") as a licensed independent nurse practitioner from November of 2007 to May 11, 2009. (FAC ¶¶ 14, 26.) Due to her position, plaintiff became part of the CDCR Division of Correctional Health Care Services ("DCHCS"). (Id. ¶ 14.) Plaintiff provided acute medical care to prison inmates at HDSP. (Id. ¶ 15.) In June of 2008, plaintiff was assigned to the C-yard clinic, where she worked with Correctional Officer Vicki Berg. (Id. ¶ 16.) Berg would escort patients from and to their cells and provide security while the patients were seen by medical staff. (Id.) Plaintiff and Berg became roommates in October of 2008 and in early November of 2008 they became domestic partners. (Id.)
On November 24, 2008, Berg was allegedly reassigned to a temporary position as a Correctional Counselor; Correctional Officer McConnell was temporarily assigned to the medical escort position previously occupied by Berg. (Id. ¶ 17.) Berg bid on several permanent positions on February 24, 2009, including the permanent medical escort officer position at the C-yard clinic. (Id. ¶ 18.) Berg's bid for the C-yard clinic position was allegedly successful and she was to report on March 3, 2009. (Id.) Because of the temporary swap with McConnell, Berg could not report until March 23, 2009. (Id.) On March 18, 2009, Berg was allegedly informed that she could not take the C-yard position and on April 3, 2009, she was informed that the decision was made because it would violate the prison's "no fraternization" rule that prevents those in a relationship from working in "close proximity" to each other. (Id. ¶ 19.) Associate Warden Armaskus allegedly reviewed Berg's file and discovered she was a registered Domestic Partner with plaintiff, and believed that the medical escort position at the C-yard would put Berg in close proximity with plaintiff. (Id.) Plaintiff alleges that she and Berg would not have worked in "close proximity" to each other at the C-yard. (Id.)
Berg filed a union grievance on April 10, 2009, alleging, inter alia, that the HDSP "no fraternization" policy was not enforced against heterosexuals. (Id. ¶ 21.) Plaintiff alleges that Armaskus then asked Thompson to write a false and defamatory memorandum to the Health Care Manager, defendant Aquaviva, regarding plaintiff. (Id. ¶ 22.) Plaintiff alleges Thompson wrote the memorandum based on information provided by McConnell, who is a friend of Thompson's. (Id.) Plaintiff alleges that Thompson published the memorandum to Armaskus, who in turn published it to Aquaviva, who in turn published it to plaintiff's supervisor, Dr. Swingle, who published it to Dr. Nepomeceno. (Id.) Dr. Swingle allegedly told plaintiff about the memorandum on May 6, 2009, and plaintiff requested and was given a copy of the memorandum so that she could rebut the statements made therein. (Id. ¶ 23.)
Plaintiff alleges that on May 7, 2009, Swingle told her that Aquaviva was upset that plaintiff had a copy of the memorandum and that Aquaviva wanted to meet with plaintiff. (Id. ¶ 24.) On May 8, 2009, plaintiff alleges she was summoned to Swingle's office, where Aquaviva asked her why she distributed the memorandum to others. (Id. ¶ 25.) Plaintiff denies distributing the memorandum. (Id.) After leaving the meeting, plaintiff allegedly retrieved two voicemail messages: one indicating that plaintiff was terminated from her position at HDSP and another sent half an hour after the first stating she was not terminated. (Id.) On May 11, 2009, plaintiff was allegedly informed by Nepomeceno that she had been permanently reassigned to B-yard clinic. (Id. ¶ 26.) Plaintiff alleges that later that day she was informed by Swingle that she was being terminated because she "was too abrasive." (Id.) The next day Berg was allegedly informed she could have the medical escort position at C-yard. (Id. ¶ 27.)
Plaintiff filed this suit on March 24, 2010. (Docket No. 1.) CDCR's motion to dismiss the defamation claim against it was denied on May 28, 2010. (Docket No. 12.) Before the court ruled on defendants' original motions to dismiss and to strike the Complaint, the court gave plaintiff leave to file an amended complaint. (Docket No. 28.) Plaintiff filed the FAC (Docket No. 30) on August 30, 2010, alleging claims for (1) violations of the Civil Rights Act, 42 U.S.C. § 1983, based on alleged procedural due process violations by defendants Aquaviva, Swingle, Armaskus, McDonald, and Nepomeceno; (2) violations of § 1983 based on alleged equal protection violations by defendants Aquaviva and Armaskus; and (3) defamation by CDCR, Aquaviva, Thompson, and Armaskus. Defendants now move to dismiss the FAC pursuant to Federal Rule of Civil Procedure 12(b)(6) and to strike the defamation claim under California Civil Procedure Code § 425.16.
On a motion to dismiss, the court must accept the allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by Davis v. Scherer, 468 U.S. 183 (1984); Cruz v. Beto, 405 U.S. 319, 322 (1972). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, --- U.S. ----, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The Supreme Court has explained that the pleading standard rests on two principles. First, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Id. While showing an entitlement to relief "does not require 'detailed factual allegations,'... it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Id. (quoting Twombly, 550 U.S. at 555). Second, "only a complaint that states a plausible claim for relief survives a motion to dismiss." Id. at 1950. If the pleadings "do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged--but it has not 'show[n]'--'that the pleader is entitled to relief.'" Id. (quoting Fed. R. Civ. P. 8(a)(2)).*fn1
A. Section 1983 Procedural Due Process Claim against Aquaviva, Swingle, Armaskus, McDonald, and Nepomeceno
Section 1983 is not itself a source of substantive rights, but merely provides a method for vindicating federal rights that are conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393-94 (1989). Plaintiff brings a § 1983 claim based on the deprivation of her procedural due process rights under the Fourteenth Amendment.
"The doctrine of qualified immunity protects government officials 'from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person should have known.'" Pearson v. Callahan, --- U.S. ----, 129 S.Ct. 808, 815 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). To determine whether an official is entitled to qualified immunity, a court may begin with the question of whether, "[t]aken in the light most favorable to the party asserting the injury,  the facts alleged show the officer's conduct violated a constitutional right." Saucier v. Katz, 533 U.S. 194, 201 (2001) (citing Siegert v. Gilley, 500 U.S. 226, 232 (1991)), rev'd by Pearson, 129 S.Ct. at 818 (holding that the Saucier two-step procedure for determining qualified immunity in which the court must first determine whether there is a constitutional violation is not mandatory).
Assuming there is a constitutional violation, the second question the court should ask is whether the officer's conduct violated a clearly established right. Id. Finally, if the right is clearly established, the court should determine whether a reasonable officer would know that his conduct violated the clearly established right. See Anderson v. Creighton, 483 U.S. 635, 640 (1987). If the court finds the constitutional right was clearly established such that a reasonable officer would be aware that his or her conduct was unconstitutional, then the officer is not entitled to qualified immunity. Pearson, 129 S.Ct. at 816.
Here, the court need not decide the question of whether there was a constitutional violation. See Pearson, 129 S.Ct. at 819 (noting that courts may want to bypass the first Saucier step when the constitutional decision would rest on an "uncertain interpretation of state law"); id. at 821 ("Adherence to Saucier's two-step protocol departs from the general rule of constitutional avoidance...."). Thus, the court now considers whether defendants' actions violated a clearly established right.
"To establish a violation of procedural due process a plaintiff must demonstrate: (1) a deprivation of a constitutionally protected liberty or property interest, and (2) a denial of adequate procedural protections." Tutor-Saliba Corp. v. City of Hailey, 452 F.3d 1055, 1061 (9th Cir. 2006) (citing Brewster v. Bd. of Educ. of Lynwood Unified Sch. Dist., 149 F.3d 971, 982 (9th Cir. 1998)). A government employee has a constitutionally protected property interest in continued employment when the employee has a "legitimate claim of entitlement" to the job. Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577 (1972); see Perry v. Sindermann, 408 U.S. 593, 602 (1972). Laws, rules or understandings derived from independent sources such as state law create such claims of entitlement. Roth, 408 U.S. at 577. However, a "unilateral expectation" that employment will continue does not create a property interest. Id.
If under state law, employment is at-will, then the claimant has no property interest in the job. See Portman v. Cnty. of Santa Clara, 995 F.2d 898, 904 (9th Cir. 1993); see also Bishop v. Wood, 426 U.S. 341, 345 n.8 (1976). "There is no right [solely] under the substantive due process clause to be terminable only for cause." Portman, 995 F.2d at 902 n.1. However, where the employee has a legitimate claim of entitlement to termination only for cause, ...