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Brandon Olivera and Steven v. Brian Vizzusi; Mark Siemens

June 9, 2011



This case is before the court on defendants*fn1 Mark Siemens and City of Rocklin's motion to dismiss plaintiffs Brandon Olivera and Steven Ortmann's Fourth 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. Defendants have also filed a motion for costs and attorney's fees pursuant to 42 U.S.C. § 1988 and 28 U.S.C. § 1927.

I. Factual and Procedural Background

The parties are familiar with the general facts and the court will refrain from reciting them in full. A recitation of the facts can be found in the court's prior decisions. See Olivera v. Vizzusi, No. CIV. 2:10--1747, 2011 WL 1253887 (E.D. Cal. Mar. 31, 2011); Olivera v. Vizzusi, No. 2:10-1747, 2011 WL 219592 (E.D. Cal. Jan. 19, 2011); Olivera v. Vizzusi, No. 2:10-1747, 2010 WL 4723712 (E.D. Cal. Nov. 15, 2010).

In short, when plaintiffs were employed as police officers for Rocklin Police Department in 2003, they were intoxicated while off duty and ultimately arrested one evening, resulting in an internal affairs investigation and report ("IA report") authored by Brian Vizzusi. In 2007, long after completion of the investigation and IA report about the incident, Vizzusi, as Chief of Police for Lincoln Police Department, disclosed the IA report and made oral and written statements about the IA report to members of that police department, allegedly for no apparent reason.

The FAC alleges that defendant Siemens "authorized, permitted, or otherwise allowed VIZZUSI to obtain and maintain a copy of Plaintiffs' personnel records and personal information" after ending his employment with City of Rocklin and Rocklin Police Department. (FAC ¶ 32 (Docket No. 55).) Vizzusi allegedly stated that he had "received permission" from Siemens "to distribute Plaintiffs' personnel records to members of the LINCOLN PD." (Id. ¶28.)

In their FAC, plaintiffs assert four claims under 42 U.S.C. § 1983 for violations of procedural due process, substantive due process, equal protection rights, and the Fourth Amendment,*fn2 as well as numerous state law claims.*fn3

II. Discussion

A. Motion to Dismiss

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 "[w]here 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 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).

1. Section 1983 Claim for Violation of Procedural Due Process 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).

"A threshold requirement to a substantive or procedural due process claim is the plaintiff's showing of a liberty or property interest protected by the Constitution." Wedges/Ledges of Cal., Inc. v. City of Phoenix, 24 F.3d 56, 62 (9th Cir. 1994). A protected property interest giving rise to a procedural due process claim generally requires that the "individual has a reasonable expectation of entitlement deriving from existing rules or understandings that stem from an independent source such as state law." Id. "A reasonable expectation of entitlement is determined largely by the language of the statute and the extent to which the entitlement is couched in mandatory terms."*fn4 Id. (quoting Assoc. of Orange Cnty. Deputy Sheriffs v. Gates, 716 F.2d 733, 734 (9th Cir. 1983)) (internal quotation marks omitted). "Although the underlying substantive interest is created by 'an independent source such as state law,' federal constitutional law determines whether that interest rises to the level of a 'legitimate claim of entitlement' protected by the Due Process Clause." Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 9 (1978) (quoting Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 577)).

Here, the FAC is not clear on the alleged property interest. Plaintiffs may be attempting to allege a property interest in records and information, the continued confidentiality of records and information, or the expungement of records after five years. At the hearing, plaintiffs' counsel stated that the alleged property interest is the continued confidentiality of records and information. Plaintiffs base their property interest on California's Public Safety Officers Procedural Bill of Rights (permitting officers to inspect their personnel files), California Penal Code sections 832.7(a) and 832.8 (providing that peace officers' personnel records are confidential, subject to limited exceptions), California Government Code section 6254(k) (exempting disclosure of certain records from requests for public records), and a City of Rocklin and Rocklin Police Department policy of expunging certain records after five years. See Cal. Gov't Code §§ 3300-3313; id. § 6254(k); Cal. Penal Code §§ 832.7(a), 832.8.

While plaintiffs have cited numerous cases and statutes relating to the confidentiality of California peace officers' records and information and expungement of records,*fn5 plaintiffs have cited no state or federal cases, and the court has found none, holding that California peace officers have a property interest in records and information, the continued confidentiality of records and information, or the expungement of records protected by procedural due process.

When asked at oral argument whether any courts have held that the statutes at issue or similar statutes create a property interest protected by federal due process, plaintiffs' counsel cited McDade v. West, 223 F.3d 1135 (9th Cir. 2000), but that case does not assist plaintiffs. The state law at issue in McDade criminalized malicious disclosures of the locations of domestic violence shelters. Id. at 1139. The plaintiff alleged a constitutional privacy violation, but the court expressly did not reach that issue. See id. at 1141 n.2 ("Since the issue is not before this court, we need not reach the question of whether Ms. West's disclosure resulted in a deprivation of a constitutional right or a federal statutory right for § 1983 purposes."); id. at 1141 ("Even assuming for the moment that the precise disclosure violated McDade's constitutional right to privacy . . . .").

Plaintiffs' other cases are also inapposite. See, e.g., Hudson v. Palmer, 468 U.S. 517, 533 (1984) (holding that intentional destruction of property by state employee does not violate due process if the state provides a meaningful post-deprivation remedy); Bd. of Regents of State Colleges v.Roth, 408 U.S. 564, 575, 578 (1972) (holding that university employee did not have property or liberty interest in re-employment); Goldberg v. Kelly, 397 U.S. 254, 264 (1970) (holding that property interest existed in welfare benefits and "only a pre-termination evidentiary hearing provides the recipient with procedural due process"); Zimmerman v. City of Oakland, 255 F.3d 734 (9th Cir. 2001) (addressing post-deprivation remedies ...

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