The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
ORDER and FINDINGS AND RECOMMENDATION
Plaintiff, proceeding without counsel, has sued a Sacramento County Superior Court judge who presided over his divorce proceedings. He alleges that the judge used his position for the extra-judicial purpose of disclosing defamatory information about plaintiff in secret communications with plaintiff's employer, resulting in plaintiff's termination. Plaintiff's primary causes of action are for violation of substantive and procedural due process under 42 U.S.C. § 1983 and for libel under state law. Defendant has filed a motion to dismiss.
I. Plaintiff's Allegations
According to the amended complaint, plaintiff was an employee with the California Department of General Services ("DGS") when his wife filed for divorce in 2004. During divorce proceedings, plaintiff testified about a loan he had received as part of a personal business transaction. First Am. Compl. ¶ 13 (Docket No. 29). Judge McBrien then ordered plaintiff, over counsel's objections, to produce all of the conflict of interest disclosure forms plaintiff had filed with DGS. Id. The amended complaint states that McBrien "admitt[ed], on the record, that the Conflict of Interest forms were not relevant to the divorce litigation before him[.]" Id.
The amended complaint alleges that McBrien contacted general counsel for DGS and communicated to her and others "that Plaintiff had failed to properly disclose a business transaction in the Conflict of Interest Forms, and this omission could constitute a criminal offense." Id. at ¶ 16. Plaintiff alleges that to the extent McBrien told DGS' counsel that plaintiff's failure to disclose his personal business interest was improper, illegal or criminal, "McBrien's representations were knowingly false." Id. Shortly after McBrien spoke with DGS' counsel,
DGS took disciplinary action against Plaintiff resulting in the termination of Plaintiff's employment with DGS, where Plaintiff's annual salary had been approximately $78,000. Plaintiff had enjoyed a constitutionally protected property interest in his continuing employment with DGS... Plaintiff had intended, and had reasonably expected, to continue his employment with DGS, due to DGS' laudatory evaluation of Plaintiff... contributing to a mutually explicit understanding... that Plaintiff would remain a state employee with DGS. Instead, DGS took this action against Plaintiff due to his failure to disclose the business relationship described above in the Conflict of Interest Forms. The fact that defamatory information regarding Plaintiff on this issue had been communicated to DGS was not disclosed to Plaintiff.... Plaintiff's termination was accomplished without due process of law; in particular, Plaintiff could not in any way address the defamation carried out by McBrien, since the facts of same were never disclosed to plaintiff.
Plaintiff states he first discovered McBrien's communication with DGS on January 5, 2010, when the California Commission on Judicial Performance issued its "severe public censure" of McBrien's conduct in the divorce case. See id. at ¶ 26. Plaintiff filed this action on April 1, 2010.
II. Procedural Background
The magistrate judge initially assigned to this case heard defendant's motion to dismiss the original complaint on December 8, 2010. Defendant presented numerous grounds for dismissal: (1) Eleventh Amendment immunity against claims for official liability; (2) judicial immunity against the federal claims; (3) the federal claims were barred by the statute of limitations; (4) no federal claim for mere damage to reputation is cognizable; (5) no justiciable controversy for a declaratory judgment; (6) no independent claim for post-judgment attorneys' fees under 42 U.S.C. § 1988; (7) the state law cause of action was barred by judicial immunity and because the statements were not false; and (8) the court should decline to exercise supplemental jurisdiction over the state law claim.
The magistrate's findings and recommendations found that, under the allegations of the original complaint, defendant was not due judicial immunity under § 1983 and the claims were not time-barred. Instead, the magistrate recommended that the claims based on official liability and for declaratory relief should be dismissed with prejudice and the claim of individual liability under § 1983 be dismissed with leave to amend. The district judge adopted the findings and recommendations in full. See Dkt. No. 21.
In granting leave to amend the complaint, the court rejected defendant's argument that plaintiff could not under any circumstances plead a federal cause of action against McBrien because defendant was not the one who terminated plaintiff's employment. The magistrate explained the reason for recommending dismissal of the federal "stigma-plus" claim with leave to amend:
In Gini v. Las Vegas Metropolitan Police Dep't, 40 F.3d 1041 (9th Cir. 1994), the Ninth Circuit stated that "[d]ischarge [from employment] assumes constitutional dimension when the employee has a property interest in continued employment, or a liberty interest in not being defamed, as a result of which she may not be terminated without due process." Id. at 1044. Gini and other cases on defamation in the employment context clearly require pleading a "plus" factor to state a civil rights claim: that is, the loss of the job itself, not the allegedly defamatory act, must have effected a violation of a right guaranteed by the Constitution. Here, the pro se complaint does not say which federally protected interest DGS violated when it fired plaintiff. Instead the complaint rests on the erroneous assumption that being defamed by a judge and as a result losing one's job (along with the concomitant financial hardship) is enough to state a federal civil rights claim. Without more, defendant is correct that the complaint does not sufficiently aver any constitutional violation.
Defendant is not correct, however, that McBrien's status as a third party to the employment relationship between DGS and plaintiff puts him out of reach of any theory of liability under § 1983. In Gini, the plaintiff was an employee of the federal district court who lost her job after a local police investigator communicated allegedly defamatory statements to her employer. The Ninth Circuit recognized that the police officer could still be liable "by setting in motion a series of acts by others which the actor knows or reasonably should know would cause others to inflict the constitutional injury." Id. at 1044. Here, it is reasonable to infer from the complaint the allegation that when McBrien called DGS he knew or should have known that he was putting plaintiff's employment at serious peril, especially considering that he, a state judge, allegedly told DGS' general counsel that plaintiff might have committed a crime. "Such a third party can only be liable to the employee if the employee can show that the third party could reasonably ...