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Hugh Fleming v. City of Oceanside

December 8, 2010

HUGH FLEMING,
PLAINTIFF,
v.
CITY OF OCEANSIDE, PUBLIC ENTITY, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Honorablelarryalanburns United States District Judge

ORDER ON DEFENDANTS' MOTION TO DISMISS

Fleming alleges that the City of Oceanside and its fire chiefs discriminated against him on the basis of race, and committed various torts against him, in connection with the failure to promote him to the position of battalion chief in the City's fire department. The parties previously settled a 2007 lawsuit in which Fleming alleged age discrimination only. But according to Fleming, in late 2009 he came upon evidence that racial bias (Fleming is white) explained his missed non-promotion. (Compl. ¶ 18.) Now before the Court is the Defendants' motion to dismiss.

I. Legal Standard

Typically when ruling on a motion to dismiss, the Court recites the relevant legal standard out of habit. Parties are generally familiar with it, and to the extent there is a dispute, it has more to do with applying the standard than properly identifying it. This case is different, because Fleming's brief betrays a fundamental misunderstanding of what his complaint must do.

Fleming assumes it's enough for a complaint to provide a defendant with notice of what the claims against that defendant are. (Opp'n Br. at 3--4.) He relies, ultimately, on the rule of Conley v. Gibson, 355 U.S. 41, 45--46 (1957), that "a complaint should not be dismissed for failure to state a claim 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." But Conley is no longer good law.

Complaints have to allege facts. The factual allegations needn't be detailed, but they must be sufficient to "raise a right to relief above the speculative level . . . ." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). "[S]ome threshold of plausibility must be crossed at the outset" before a case can go forward. Id. at 558 (internal quotations omitted). A claim has "facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, - U.S. -, 129 S.Ct. 1937, 1949 (2009). "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id.

While a court must draw all reasonable inferences in the plaintiff's favor, it need not "necessarily assume the truth of legal conclusions merely because they are cast in the form of factual allegations." Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003) (internal quotations omitted). In fact, no legal conclusions need to be accepted as true. Ashcroft, 129 S.Ct. at 1949. A complaint doesn't suffice "if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'" Id. That includes a mere formulaic recitation of the elements of a cause of action; this will not do either. Twombly, 550 U.S. at 555.

II. Racial Discrimination

Fleming's first claim against the Defendants, which he brings under 42 U.S.C. § 1981, alleges that he was qualified for a promotion to battalion chief (Compl. ¶¶ 8--9), that the Defendants' failure to promote him was based on his race (Compl. ¶ 10), and that "Defendant has engaged in disparate treatment race discrimination" and "intentionally preferred non Caucasian workers." (Compl. ¶ 19.) Fleming claims to have evidence "which clearly disclosed that racial bias against the Plaintiff existed in connection with the 2003 missed promotion," but, curiously, he doesn't specify what that evidence is. (See Compl. ¶ 18.)

These are precisely the kinds of conclusory allegations that, under Twombly and Iqbal, cannot survive a motion to dismiss. Fleming argues they "put Defendant on notice of the nature of the claims against them," citing Sparrow v. United Air Lines, 216 F.3d 1111, 1114 (D.C. Cir. 2000), but this just confirms that Fleming doesn't understand the law. Sparrow explicitly invoked the standard from Conley that Twombly retired and Iqbal buried, and a simple KeyCite of Sparrow reveals that a D.C. district court, faced with Twombly, concluded that "Sparrow is no longer binding authority . . . ." Jackson v. Acedo, Case No. 08-1941, 2009 WL 2619446 at *4 (D.D.C. Aug. 26, 2009).

The only facts Whitmore alleges to sustain his racial discrimination claim are that he is white and that he was not promoted to battalion chief. Standing alone, these do not "raise a right to relief above the speculative level . . . ." Twombly, 550 U.S. at 555. For this reason, the claim is DISMISSED, but WITHOUT PREJUDICE to allow Fleming the opportunity to specify the evidence he has that his non-promotion was race-based.

III. Libel, Invasion of Privacy, and False Light

Fleming lumps three torts together under his second cause of action against the Defendants. The torts are based, ostensibly, on an internal memorandum opposing his promotion to battalion chief. That memo, which the Defendants have submitted with their pleadings, was written by training officer Robert Dunham and intended for fire chief Jeff Bowman, and it was dated October 19, 2006. (Mot. to Strike, Ex. 4.)

The Court is a slightly confused because Fleming, in the context of his racial discrimination claim, says the memo revealed racial bias "in connection with the 2003 missed promotion" (Compl. ΒΆ 18), but in the context of his tort claims he says the memo was written "[i]n connection with the 2007 promotion ...


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