ORDER ON DEFENDANTS'
AMENDED MOTION TO
DISMISS PURSUANT TO F.R.C.P. 12(b)(6)
Doc. # 9
This is a civil rights action by plaintiff Jeffery Bradley ("Plaintiff") against individual defendants Patricia Flannery, Corey Smith and Janet Swearington ("Defendants") based on the alleged violation of Plaintiff's rights under the Fifth Amendment. In the instant motion Defendants seek to dismiss Plaintiff's complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Federal subject matter jurisdiction exists pursuant to 28 U.S.C. § 1331. Venue is proper in this court.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On April 28, 2011, Plaintiff filed a pre-printed form complaint in Tulare County Superior Court. The action was removed to this court on June 9, 2011. Attached to the form complaint is a one-page attachment ("Attachment A") giving a brief description of the events giving rise to this action. Although the complaint does not appear to identify the entity for whom Plaintiff worked, later pleadings by the parties establish that Plaintiff was employed by the Department of Developmental Services ("DDS"). The complaint alleges that Defendant Flannery was Deputy Director of the DDS at the time of the events alleged. Defendant Smith was apparently Acting Chief of the Office of Protective Services of the DDS and Defendant Swearingen was an Investigator, although it is not clear what agency, if any, Swearingen worked for.
Plaintiff's Attachment A alleges that in March 2009 Defendant Flannery
commenced an investigation of Plaintiff's work activities.*fn1
Plaintiff alleges that he was required under penalty of work
discipline to turn over "work product of specific investigations"
(hereinafter "Work Product") to Defendant Flannery. Plaintiff alleges
he complied with the demand for Work Product on or about May or June
2009. Attachment A alleges that Defendants Flannery and Smith
authorized Defendant Swearingen to turn over the Work Product to the
Porterville Police Department for their use in the investigation of
Plaintiff and a person named Scott Gardner, who apparently worked for
Plaintiff. Plaintiff alleges that the Tulare County District Attorney
reviewed the Work Product and relied upon the Work Product in deciding
to seek an indictment against Plaintiff. The complaint also alleges
the Work Product was presented to the grand jury in February 2010 and
an indictment against Plaintiff was ultimately handed down.
Plaintiff alleges that he was arrested in February 2010, and incurred bond costs of $4,000. On February 14, 2011, the Tulare County Superior Court held that the use of the Work Product constituted an infringement of Plaintiff's right against coerced self-incrimination and dismissed the indictment. There is no indication what, if any, legal proceedings transpired between the indictment in February 2010 and the dismissal of the indictment on February 14, 2011. Attachment A to the complaint seeks punitive damages alleging as follows:
As further evidence of malice, [Defendant Flannery] testified before the grand jury in February 2010 concerning Porterville procedures for conducting investigations by stating that such investigations would have to be approved by her. This contradicts Porterville Facility Bulletin #6, which she later acknowledged she was familiar with as of 2009. [Defendant Flannery] authorized the transmittal of the [Work Product] and identifying information intentionally and in reckless disregard of claimant's above rights, as well as Penal Code §§ 832.7 and 832,8, and agreed to testify before the grand jury concerning the [Work Product], again in violation of those rights . [Defendant Flannery] also falsely testified before the grand jury to the identity of the person who initially complained of [P]laintiff in order to protect him from any assertion of bias. She claimed he was an antonymous source.
Acting Chief [Defendant Smith] knew of the above constitutional and statutory rights afforded peace officers before he intentionally passed on the authorization to release the work product to the Porterville Police from Flannery to Swearington, and so would have acted in conscious disregard for [Plaintiff's] Fifth Amendment rights, justifying punitive damages against him as well.
Defendants' motion to dismiss and request for judicial notice was first filed on June 16, 2011. An amended motion to dismiss was filed on June 16, 2011. Plaintiff filed what appears to be an opposition to Defendants' motion for judicial notice on July 7, 2011. On the same date, Plaintiff filed an opposition to Defendants amended motion to dismiss. Defendants filed a reply on July 15, 2011, and Plaintiff filed a sur-reply on July 18, 2011. Defendants filed an objection to Plaintiff's sur-reply on July 19, 2011. The court vacated the date set for oral argument on Defendants' motion to dismiss and took the matter under submission as of July 21, 2011.
A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure can be based on the failure to allege a cognizable legal theory or the failure to allege sufficient facts under a cognizable legal theory. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 533-34 (9th Cir.1984). To withstand a motion to dismiss pursuant to Rule 12(b)(6), a complaint must set forth factual allegations sufficient "to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) ("Twombly"). While a court considering a motion to dismiss must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740 (1976), and must construe the pleading in the light most favorable to the party opposing the motion, and resolve factual disputes in the pleader's favor, Jenkins v. McKeithen, 395 U.S. 411, 421, reh'g denied, 396 U.S. 869 (1969), the allegations must be factual in nature. See Twombly, 550 U.S. at 555 ("a plaintiff's obligation to provide the 'grounds' of his 'entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do"). The pleading standard set by Rule 8 of the Federal Rules of Civil Procedure "does not require 'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) ("Iqbal").
The Ninth Circuit follows the methodological approach set forth in Iqbal for the assessment of a plaintiff's complaint:
"[A] court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume ...