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Olivera v. Vizzusi

November 12, 2010



Plaintiffs Brandon Olivera and Steven Ortmann filed this action against Brian Vizzusi, Mark Siemens, City of Lincoln, City of Rocklin, Lincoln Police Department, and Rocklin Police Department arising from the alleged disclosure of plaintiffs' personnel records. City of Rocklin ("Rocklin"), Rocklin Police Department ("Rocklin PD"), and Mark Siemens (collectively "Rocklin defendants") now move to dismiss the First Amended Complaint ("FAC") pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted.

I. Factual and Procedural Background On or around October 30, 2003, Rocklin PD Sergeant

Vizzusi allegedly conducted an administrative investigation of plaintiffs, who were Rocklin PD police officers,*fn1 and prepared an internal affairs investigation report ("report"). (FAC ¶ 17 (Docket No. 16).) Vizzusi then transmitted the report to Rocklin PD Chief of Police Siemens, but allegedly retained a copy of the report. (Id. ¶¶ 18-19.) The investigation was subsequently closed. (Id. ¶ 17.)

The FAC alleges that the report consisted of over twenty pages (id. ¶ 39) and contained: "confidential personnel information" (id. ¶ 17) and "private personal information" (id. ¶ 27) about plaintiffs, "significantly more detailed information concerning the alleged misconduct than available in any public record" (id. ¶ 39), "both Olivera's and Ortmann['s] names, positions at Rocklin PD, and a detailed description of alleged misconduct" (id. ¶ 42), "summaries of interviews" with plaintiffs (id. ¶ 43), "complaints and investigations of complaints" (id. ¶ 48), and "names of the individuals involved..., the allegations of misconduct against them, witness statements, analysis of the evidence and recommendations on the disposition." (Id. ¶ 49.) The FAC alleges that the report was confidential pursuant to state law regarding peace officers' personnel records. (Id. ¶¶ 40-41, 52, 84, 89.)

In 2004, Vizzusi left Rocklin PD and was hired by City of Lincoln ("Lincoln") as a Lincoln Police Department ("Lincoln PD") lieutenant. (Id. ¶ 20.) Vizzusi allegedly took a copy of the report with him to Lincoln PD, which Siemens allegedly "authorized, permitted, or otherwise allowed." (Id. ¶¶ 23, 28.) Vizzusi was eventually appointed as Lincoln PD Chief of Police in 2006. (Id. ¶¶ 21-22.)

On or around June 15, 2007, Vizzusi met with Lincoln PD Lieutenant Paul Shlegren and Lincoln PD Sergeant Brendan Lebrecht. (Id. ¶ 25.) Vizzusi provided them with a paper copy of the report and emailed them a copy immediately after the meeting. (Id. ¶¶ 25-26.) Vizzusi allegedly told Shlegren and Lebrecht that Siemens had given him permission to distribute the report to members of the Lincoln PD. (Id. ¶ 25.) The FAC alleges that the emailed copy was not redacted and contained plaintiffs' names, positions, a detailed description of plaintiffs' alleged misconduct, and summaries of interviews with plaintiffs. (Id. ¶¶ 42-43.) The FAC does not allege whether the paper copy given to Shlegren and Brendan was redacted or contained this same information.

The disclosure to Shlegren and Lebrecht allegedly "result[ed]" in further disclosures of the report and it "became widely known throughout the Lincoln PD, law enforcement communities in the region, and to other third persons and agencies." (Id. ¶ 30.) In January of 2010, a peace officer for Placer County "revealed the disclosure" to plaintiffs. (Id. ¶ 34.) On or about January 27, 2010, plaintiffs' counsel requested that Siemens "take appropriate steps to investigate the Police Department's apparent breach of its duty to safeguard its employees' personnel files." (Id. ¶ 34.) Plaintiffs' counsel also requested that the Lincoln City Manager account for all copies of plaintiffs' "personnel files," destroy all electronic copies, return all physical copies, and provide a sworn affidavit from Vizzusi*fn2 attesting that all copies had been destroyed or returned to plaintiffs. (Id. ¶ 35.)

On February 12, 2010, Lincoln confirmed that Vizzusi had "disseminated" plaintiffs' "personnel records," indicated the records would be destroyed, and agreed to provide the physical copy of the records to plaintiffs' counsel. (Id. ¶ 36.) On March 18, 2010, Lincoln provided the requested signed declaration from Vizzusi to plaintiffs' counsel. (Id. ¶ 37.) Plaintiffs allege that electronic copies are still maintained on Lincoln PD's computers. (Id. ¶ 38.) Plaintiffs also allege that they have been stigmatized, humiliated, and embarrassed. (Id. ¶ 32.)

On July 7, 2010, plaintiffs filed an initial complaint alleging various federal and state law claims. (Docket No. 1.) On September 9, 2010, plaintiffs filed the FAC, asserting federal claims pursuant to 42 U.S.C. §§ 1983 and 1985. The FAC also asserts state law claims for violations of California Constitution Article I, section 1 (right to privacy), California Penal Code section 832.7 (confidentiality of peace officers' personnel records), California Government Code section 6254 (California Public Records Act's exemptions), common law intrusion into private affairs, California Civil Code section 1798.42 (California Information Practices Act of 1977), common law negligent infliction of emotional distress, common law intentional infliction of emotional distress, and common law negligent hiring, supervision, and retention. The Rocklin defendants now move to dismiss the FAC pursuant to Rule 12(b)(6).

II. Discussion

To survive a motion to dismiss, a plaintiff must plead "only enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). This "plausibility standard," however, "asks for more than a sheer possibility that a defendant has acted unlawfully," and where a complaint pleads facts that are "merely consistent with" a defendant's liability, it "stops short of the line between possibility and plausibility." Ashcroft v. Iqbal, ---U.S. ----, 129 S.Ct. 1937, 1949 (2009) (internal quotation marks omitted) (quoting Twombly, 550 U.S. at 556-57). In deciding whether a plaintiff has stated a claim, the court must assume that the plaintiff's allegations are true and draw all reasonable inferences in the plaintiff's favor. Usher v. City of L.A., 828 F.2d 556, 561 (9th Cir. 1987). However, the court is not required to accept as true "allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008) (internal quotation marks omitted).

A. Section 1983 Claims against the Rocklin Defendants

In relevant part, § 1983 provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State..., subjects, or causes to be subjected, any citizen of the United States... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity or other proper proceeding for redress.... 42 U.S.C. § 1983. Section 1983 itself is not a source of substantive rights; it provides a cause of action against any person who, under color of state law, deprives an individual of federal constitutional rights or limited federal statutory rights. 42 U.S.C. § 1983; Graham v. Connor, 490 U.S. 386, 393-94 (1989). Here, ...

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