ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO ) DISMISS [Doc. #26]
On September 6, 2011, Plaintiff Shandra Solis filed a First Amended Complaint ("FAC") against Defendants City of Fresno, Officer David Fries ("Officer Fries") and Detective John Gomez ("Detective Gomez"). Plaintiff brings claims for (1) violation of right to equal protection; (2) retaliation in violation of California's Fair Employment and Housing Act ("FEHA"); and (3) conspiracy. On September 26, 2011, Defendants filed a motion to dismiss and motion to strike pursuant to Rules 12(b)(6) and 12(f) of the Federal Rules of Civil Procedure. While Defendants assert that they are bringing a motion to strike under Rule 12(f), the Court concludes that Defendants' arguments within their motion to strike challenge the sufficiency of Plaintiff's claims.*fn1 Therefore, the Court will address the substance of Defendants' motion to strike as if it were pled pursuant to Rule 12(b)(6). See Kelley v. Corrs. Corp. of Am., 750 F. Supp. 2d 1132, 1146 (E.D. Cal. 2010). For the reasons that follow, Defendants' motion to dismiss will be granted in part and denied in part.
Under Federal Rule of Civil Procedure 12(b)(6),a claim may be dismissed because of the plaintiff's "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). A dismissal under Rule 12(b)(6) may be based on the lack of a cognizable legal theory or on the absence of sufficient facts alleged under a cognizable legal theory. Johnson v. Riverside Healthcare Sys., 534 F.3d 1116, 1121 (9th Cir. 2008); Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). In reviewing a complaint under Rule 12(b)(6), all allegations of material fact are taken as true and construed in the light most favorable to the non-moving party. Marceau v. Blackfeet Hous. Auth., 540 F.3d 916, 919 (9th Cir. 2008); Vignolo v. Miller, 120 F.3d 1075, 1077 (9th Cir. 1999). 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, 1056-57 (9th Cir. 2008); Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). As the Supreme Court has explained:
While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, 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. Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).
To avoid a Rule 12(b)(6) dismissal, "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face[.]" Telesaurus VPC, LLC v. Power, 623 F.3d 998, 1003 (9th Cir. 2010) (citations omitted). "In sum, for a complaint to survive a motion to dismiss, the non-conclusory 'factual content,' and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief." Moss v. United States Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009).
If a Rule 12(b)(6) motion to dismiss is granted, "[the] district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts." Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995). In other words, leave to amend need not be granted when amendment would be futile. Gompper v. VISX, Inc., 298 F.3d 893, 898 (9th Cir. 2002).
In June 2002, Plaintiff began working in the Identification Bureau of the Fresno Police Department ("FPD"). FAC at ¶ 13. While employed by the FPD, Plaintiff met Officer Kennan Rodems ("Officer Rodems"). Id. Plaintiff and Officer Rodems were married in June 2005. Id.
In 2006, during her employment with the FPD, Plaintiff and three other female employees submitted complaints of discrimination and sexual harassment against three male supervisors.
Id. at ¶ 14. The complaints of discrimination and sexual harassment by Plaintiff were well known within the FPD, City of Fresno and District Attorney's Office ("DA's Office"). Id. at ¶ 15. The male supervisors against whom the complaints were made were well liked and friends of Fresno Police Chief Jerry Dyer ("Dyer") and other members of the FPD. Id.
Because of Plaintiffs' complaint of discrimination and harassment, others in the FPD, including but not limited to Dyer, were angry with Plaintiff for making her complaint. Id. at ¶ 16. Following the submission of her complaint, Plaintiff was subjected to retaliation by some members of the FPD in that she was ostracized and treated differently than she had been treated prior to the submission of the complaint. Id. Because of the retaliation the FPD subjected Plaintiff to, Plaintiff transferred to the Fresno Fire Department in August 2006. Id. at ¶ 17. Although Plaintiff's new position paid significantly less than her position with the FPD, Plaintiff took the new job to get away from the harassment, discrimination and retaliation she experienced at the FPD. Id.
Marital differences developed between Plaintiff and Officer Rodems that resulted in her moving out of the family home in February 2009. Id. at ¶ 18. Divorce proceedings eventually followed. Id. After their separation, Officer Rodems repeatedly contacted Plaintiff by phone and text message in attempts to reconcile. Id. at ¶ 19. Plaintiff informed Officer Rodems on several occasions that she did not want to discuss reconciliation, but he persisted with his communications. Id.
In late April/early May 2009, Plaintiff and Officer Rodems met to discuss a financial matter at a Fresno bank. Id. at ¶ 20. In the parking lot of the bank, an argument developed between Plaintiff and Officer Rodems. Id. at ¶ 21. In a moment of frustration during the argument, Plaintiff "keyed" a door on the passenger side of the truck being driven by Officer Rodems. Id. The truck was jointly owned by Plaintiff and Officer Rodems. Id. The "keying" by Plaintiff consisted of a single vertical scratch. Id. After Plaintiff entered her vehicle to leave, Officer Rodems approached her vehicle and pounded on the vehicle window and yelled at her in anger. Id.
Thereafter, Officer Rodems drove home and called the FPD to report the incident. Id. at ¶ 22. Despite there being no active crime in progress, Officer Fries was promptly dispatched by FPD to investigate the matter and take a report. Id. After his dispatch, Officer Fries immediately called Officer Rodems and spoke with him about the incident. Id. After speaking with Officer Rodems, Officer Fries went to the bank to investigate the scene, locate witnesses, and determine whether any video recordings were available. Id.
The FPD's normal and customary practice for handling reports of vandalism similar to that alleged by Officer Rodems is to have the complaining party make a report over the internet or to take a "counter report" by a "community service officer."*fn2 Id. at ¶ 23. It is not the normal and customary practice of the FPD to dispatch a patrol officer to investigate or to take a report when responding to complaints that are similar to that alleged by Officer Rodems. Id.
While interviewing a witness at the bank, the witness told Officer Fries that Officer Rodems raised his fist towards Plaintiff during their argument. Id. at ¶ 24. Other than the mention of this fact in his report, neither Officer Fries nor anyone else from the FPD followed up on this report of criminal assault. Id.
After concluding his investigation at the bank, Officer Fries drove to Officer Rodems' home in Clovis to personally interview him and view the damage to the truck. Id. at ¶ 25. While en route to Officer Rodems' home and before inspecting the damage to the truck, Officer Fries reported to his superior officer that this case appeared to be a felony. Id. During the interview, Officer Rodems told Officer Fries that he did not want to pursue any charges, rather he just wanted the incident to be documented. Id. at ¶ 26.
After interviewing Officer Rodems and seeing the truck, Officer Fries summoned the Identification Bureau to photograph the vehicle.Id. at ¶ 27. On the passenger side of the vehicle, there was a single vertical scratch from the "keying" and several smaller horizontal scratches that were clearly not related to or caused by Plaintiff. Id. According to the report prepared by Officer Fries, Officer Rodems stated during his interview that he saw Plaintiff take "her key and run it vertically down the back passenger door." Id. Officer Rodems did not report that Plaintiff had caused any other damage to his truck and Officer Fries did not ask Officer Rodems if any of the horizontal scratches had been caused by Plaintiff. Id.
After meeting with Officer Rodems, Officer Fries contacted Plaintiff by telephone. Id. at ¶ 28. Plaintiff told Officer Fries that Officer Rodems was constantly harassing her with unwanted phone calls and text messages. Id. Plaintiff cooperated fully and acknowledged "keying" the door of the truck. Id. At no time did Officer Fries or any other FPD officer ever ask Plaintiff to describe or explain what damage she caused. Id. Officer Fries also failed to ask Plaintiff about the assault against her by Officer Rodems that was described by the witness at the bank. Id. Despite the lack of evidence indicating that Plaintiff had caused the horizontal scratches on the side of the truck, Officer Fries wrote in his report that after Plaintiff had vertically scratched the door, "she walked towards her passenger door of her car scratching the front passenger door of [Officer Rodems'] pickup with the key." Id. at ¶ 29.
Once Officer Fries completed his investigation, FPD assigned Detective Gomez to conduct further investigation. Id. at ¶ 30. It is not the normal and customary practice of FPD to assign a detective to investigate when the suspect has been identified, has accepted responsibility, the damage has been fully documented, and the victim ...