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Brandon Olivera and Steven v. Brian Vizzusi; Mark Siemens; City of Lincoln; City of Rocklin; Lincoln

March 31, 2011

BRANDON OLIVERA AND STEVEN
ORTMANN, PLAINTIFFS,
v.
BRIAN VIZZUSI; MARK SIEMENS; CITY OF LINCOLN; CITY OF ROCKLIN; LINCOLN POLICE DEPARTMENT; AND ROCKLIN POLICE DEPARTMENT, DEFENDANTS.



MEMORANDUM AND ORDER RE:

MOTION TO DISMISS

This case is before the court on defendants Mark Siemens and the City of Rocklin's motion to dismiss plaintiffs Brandon Olivera and Steven Ortmann's Third Amended Complaint ("TAC") pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted. To avoid repetition, the court will refrain from reciting the general facts underlying plaintiffs' lawsuit, which can be found in the court's decisions granting defendants' prior motions to dismiss, Olivera v. Vizzusi, No. 2:10-1747, 2011 WL 219592 (E.D. Cal. Jan. 19, 2011), and Olivera v. Vizzusi, No. 2:10-1747, 2010 WL 4723712 (E.D. Cal. Nov. 15, 2010).*fn1

In short, when plaintiffs were employed as City of Rocklin police officers, they were intoxicated while off duty and ultimately arrested one evening, resulting in an internal affairs investigation. (TAC ¶¶ 9-10, 17-21.) After completion of the investigation and resulting report about the incident, Siemens, who was the Chief of Police for the Rocklin Police Department,*fn2 allegedly allowed another officer to disclose the internal affairs investigation report to other police officers and "third persons, entities and agencies." (Id. ¶¶ 29-34.)

In their TAC, plaintiffs assert five claims under 42 U.S.C. § 1983 for violations of their informational privacy, Fourth Amendment, substantive due process, procedural due process, and equal protection rights, a claim under 42 U.S.C. § 1985, Monell claims against the City of Rocklin, and numerous state law claims. Defendants now move to dismiss the TAC in its entirety.

I. Legal Standard

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," Ashcroft v. Iqbal, --- U.S. ----, ----, 129 S. Ct. 1937, 1949 (2009), 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 of entitlement to relief.'" Id. (quoting Twombly, 550 U.S. at 557). 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 Los Angeles, 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 mark omitted).

Although the court is generally limited to considering the complaint when deciding a motion to dismiss, a court may consider outside materials if (1) the authenticity of the materials is not disputed and (2) the plaintiff has alleged the existence of the materials in the complaint or the complaint "necessarily relies" on the materials. Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001) (citation omitted). Defendants have again asked the court to consider a document titled "Rocklin Police Department Internal Affairs Investigation 03-09" ("IA Document"), which they submitted under seal. (Siemens Decl. Ex. A (Docket No. 45).)

Although the TAC refers to and even quotes from a report that appears to be the IA Document, the report does not form the exclusive basis of plaintiffs' claims. For example, the TAC also alleges that plaintiffs' rights were violated when "defendants" allegedly made "oral and written statements about the contents of the report and exhibits to third persons who were not entitled to have access to said documents, report and attached exhibits." (TAC ¶ 19.) The IA Document that defendants submitted also appears to be incomplete, as the TAC and the IA Document itself refer to exhibits that include video tapes, recordings, and transcripts, and such exhibits are absent from the IA Document. (See id. ¶ 18; Siemens Decl. Ex. A at 1-3.) Accordingly, the court will not consider the IA Document because evaluating it would result in an incomplete assessment of plaintiffs' allegations.

II. Claims Under 42 U.S.C. § 1983 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. Id.; Graham v. Connor, 490 U.S. 386, 393-94 (1989).

In their First Amended Complaint and Second Amended Complaint, plaintiffs based their § 1983 claims on alleged violations of their informational privacy and Fourth Amendment rights. In their TAC, plaintiffs again allege violations of these rights and also add § 1983 claims based on alleged violations of their substantive due process, procedural due process, and equal protection rights.

A. Informational Privacy

The Ninth Circuit has held that the Constitution protects an "individual interest in avoiding disclosure of personal matters," which courts have generally referred to as the right to informational privacy.*fn3 In re Crawford, 194 F.3d 954, 958 (9th Cir. 1999) (internal quotation marks omitted). "[C]courts have construed this right narrowly, limiting it to those rights which are 'fundamental or implicit in the concept of ordered liberty.'" Carver v. Rathlesberger, No. 04-1918 DFL PAN, 2005 WL 3080856, at *2 (E.D. Cal. Nov. 11, 2005) (quoting St. Michael's Convalescent Hosp. v. California, 643 F.2d 1369, 1375 (9th Cir. 1981)); accord Lee v. City of Columbus, --- F.3d ----, ----, 2011 WL 611904, at *12-13 (6th Cir. 2011). To merit constitutional protection, the information disclosed must be of such a "highly personal or sensitive nature that it falls within the zone of confidentiality." Flanagan v. Munger, 890 F.2d 1557, 1570-71 (10th Cir. 1989).

For example, courts have held that individuals have a protected informational privacy interest in medical information obtained from tests for syphilis, pregnancy, and sickle cell trait, Norman-Bloodsaw v. Lawrence Berkeley Lab., 135 F.3d 1260, 1269-70 (9th Cir. 1998), prior sexual relationships that have no bearing on job performance, Thorne v. City of El Segundo, 726 F.2d 459, 471 (9th Cir. 1983), and HIV status or AIDS diagnosis, Doe v. Att'y Gen. of U.S., 941 F.2d 780, 796 (9th Cir. 1991). On the other hand, courts have held that individuals lack a constitutional right to informational privacy in the disclosure of a police department reprimand and the reasons for the reprimand, Flanagan, 890 F.2d at 1570-71, and the collection and disclosure of Social Security numbers in documents filed with the bankruptcy court. In re Crawford, 194 F.3d at 960.

In its prior two orders, this court granted defendants' motions to dismiss plaintiffs' § 1983 claims based on their rights to informational privacy because plaintiffs' allegations were too conclusory and general. The court explained that, "[i]n order for the court to determine whether the allegedly disclosed information rose to the level required to amount to a violation of the Constitutional right of privacy, the nature and substance of that information must be set forth in the complaint." Olivera, 2011 WL 219592, at *4; see also Olivera, 2010 WL 4723712, at *4. The court further emphasized that plaintiffs' conclusory and general allegations prevented it from characterizing Siemens's alleged conduct in order to determine whether he was entitled to qualified immunity. Olivera, 2011 WL 219592, at *4.

Now, in their fourth complaint in this case, plaintiffs again attempt to allege violations of their informational privacy rights. In addition to maintaining their prior allegations that the court held were too conclusory, such as allegations that the disclosures included "statements about intoxication, sexual view points, sexual orientation, sexual relations, arrest records, and discrimination against third persons," (TAC ¶ 19), plaintiffs have added new allegations about the disclosures in their TAC. The new allegations generally cover five topics: 1) the specific documents and materials disclosed; 2) plaintiffs' potentially sexually-suggestive conduct and one's possible views on sexual orientation; 3) plaintiffs' alleged intoxication and demeanor the night of the incident; 4) the use of ethnic slurs; and 5) information about Olivera's relationship with his cousin.*fn4

First, with respect to the specific documents and materials disclosed, the TAC alleges that the report included: various exhibits, including video surveillance tapes by the Humboldt County Sheriff's Office and a video tape which had been edited by the Blue Lake Indian Cassino [sic], the Humboldt County Sheriff's Office dispatch tape, communications between dispatchers and deputies, interrogatory [sic] records of both OLIVERA and ORTMANN, transcripts of the audio tapes of the internal affairs investigation interviews of OLIVERA and ORTMANN, as well as transcripts of audio tapes of various witnesses. It also contained a copy of the booking from the Blue Lake Police Department, copies of the bookings from the Humboldt County Sheriff's Office, copies of photographs of OLIVERA's pickup truck, and copies of the interrogation records of OLIVERA AND ORTMANN.

(Id. ΒΆ 18.) The mere release of these particular documents and exhibits does not give rise to a violation of the informational right to privacy unless the content of the documents merits protection under the right to informational privacy. See Flanagan, 890 F.2d at 1570-71 (discussing Denver Policemen's Protective Ass'n v. Lichtenstein, 660 F.2d 432 (10th Cir. 1981)). Similarly, the mere disclosure of plaintiffs' names and "the charges against [plaintiffs], the specific General Orders allegedly violated, and a ...


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