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Christopher Lindsay v. Yolanda Fryson

December 30, 2011


The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge


Presently before the court are defendant County of Yuba's ("County")*fn1 motions to dismiss plaintiff's Second Amended Complaint and for a more definite statement, filed pursuant to Federal Rules of Civil Procedure 12(b)(6) and 12(e), respectively (Dkt. No. 31).*fn2 Because oral argument would not materially aid the resolution of the pending motions, this matter is submitted on the briefs and record without a hearing (Dkt. No. 34). See Fed. R. Civ. P. 78(b); E. Dist. Local Rule 230(g). The undersigned has considered the briefs and appropriate portions of the record in this case and, for the reasons stated below, recommends that the County's motion to dismiss be granted in part and denied in part. The undersigned summarily denies the County's motion for a more definite statement because the County did not materially brief the substantive merits of that motion.


Plaintiff's Second Amended Complaint alleges claims against: (1) Yolanda Fryson,*fn3 who is alleged to be have been a social worker employed by the County in the office of Yuba County Child Protective Services ("Yuba CPS") at all times material to plaintiff's claims; and (2) Yuba CPS, on whose behalf the County has appeared. (See Second Am. Compl. ¶¶ 4-5, 12-13.) Plaintiff's claims arise from an alleged failed blackmail scheme perpetrated by Fryson against plaintiff in September and October of 2008. (See id. ¶¶ 16-20.)

Plaintiff alleges that Fryson contacted him and told him that she "had information that a claim was filed and that Plaintiff was being accused of sexual molestation of a minor, sexual relations with a 17 year old girl and physical abuse of Plaintiff's girlfriend." (Second Am. Compl. ¶ 17.) Plaintiff further alleges that Fryson told him that she could "make the charges 'go away'" in exchange for a monetary payment to Fryson in the amount of $10,000. (Id. ¶ 18.) Fryson allegedly "showed her Yuba County badge" to plaintiff during Fryson's initial meeting with plaintiff. (Id.)

Plaintiff alleges that he was forced to retain legal counsel to defend against the purported charges of molestation and abuse and any criminal matters that might arise therefrom. (See Second Am. Compl. ¶ 19.) Plaintiff alleges that after speaking with his attorney, he contacted the Placer County Sheriff's Department, and that the Placer County Sheriff's Department "assisted the Plaintiff in watching the bribe being taken and bugged the phone calls made from [Fryson]." (Id. ¶ 23.) Plaintiff appears to allege, in essence, that law enforcement personnel assisted him in setting up a "sting operation" to catch Fryson accepting a bribe.*fn4

Plaintiff claims that he was damaged by these events in several respects. He alleges that he was forced to "put up a $5,000 retainer for an attorney for the quick advise [sic] and direction for the ordeal that [he] was going through." (Second Am. Compl. ¶ 21.) He further alleges that he feared arrest and "could not go home or to his office until he was able to prove that the allegations and claims made of him sexually molesting a minor was [sic] fraudulent." (Id.) He also alleges that he suffered mental effects as a result of the alleged blackmail ordeal including emotional distress, high anxiety, depression, sleep loss, heavy drinking, mood swings toward loved ones, loss of interest in everything he was doing, and suicidal thoughts. (See id. ¶¶ 20, 22-25.)

Plaintiff alleges that Fryson "was on administrative leave for misconduct" at the time that Fryson allegedly attempted to blackmail him, but that Yuba CPS supervisors had allowed Fryson to retain a law enforcement badge. (See Second Am. Compl. ¶¶ 27, 32.) He further alleges that prior to Fryson's leave, Fryson's supervisor, Eric Runge, "stated that he believed Fryson to be dishonest" and "found [Fryson] to be intimidating." (Id. ¶ 27.) In addition to alleging that Fryson's "truthfulness was in question around the office," plaintiff alleges that Yuba CPS hired Fryson knowing that Fryson had a prior criminal conviction; specifically, plaintiff alleges that Fryson had been convicted of grand theft in 1990. (Id.) He further alleges that Fryson had been arrested in 2003 for check fraud in Florida and "was disciplined in 2008 for preparing false time sheets and mileage as a Child Protective Services worker." (Id.)

Plaintiff's Second Amended Complaint alleges the following six claims for relief against Yuba CPS: (1) violation of plaintiff's due process rights under the Fourth, Fifth and Fourteenth Amendments to the United States Constitution (Second Am. Compl. ¶¶ 28-35); (2) violation of plaintiff's rights of equal protection provided by the Fourteenth Amendment (id. ¶¶ 36-44); (3) negligent supervision, hiring, and retention (id. ¶¶ 45-57); (4) fraud (id. ¶¶ 58-63); (5) negligent infliction of emotional distress (id. ¶¶ 75-79); and (6) violation of the Tom Bane Civil Rights Act ("Bane Act"), Cal. Civ. Code § 52.1 (id. ¶¶ 80-88).*fn5 In regards to his constitutional claims, plaintiff alleges that Yuba CPS delegated its policy-making authority to Fryson, that Fryson was an official policy maker, that the County failed to supervise Fryson, and that Yuba CPS adopted and ratified Fryson's decisions as its own policies, customs, and practices. (See, e.g., id. ¶¶ 12-13, 27, 32.) Plaintiff further alleges that, as to his claims premised on California law, Yuba CPS is responsible or liable for the acts of its employees committed during the course and scope of their employment pursuant to Government Code Section 815.2. (See id. ¶¶ 5-6.) Plaintiff seeks compensatory damages, punitive damages, attorney's fees and costs, and civil penalties. (See id. at p. 14.)


A motion to dismiss brought pursuant to Federal Rule of Civil Procedure 12(b)(6) challenges the sufficiency of the pleadings set forth in the complaint. Vega v. JPMorgan Chase Bank, N.A., 654 F. Supp. 2d 1104, 1109 (E.D. Cal. 2009). Under the "notice pleading" standard of the Federal Rules of Civil Procedure, a plaintiff's complaint must provide, in part, a "short and plain statement" of plaintiff's claims showing entitlement to relief. Fed. R. Civ. P. 8(a)(2); see also Paulsen v. CNF, Inc., 559 F.3d 1061, 1071 (9th Cir. 2009). "A complaint may survive a motion to dismiss if, taking all well-pleaded factual allegations as true, it contains 'enough facts to state a claim to relief that is plausible on its face.'" Coto Settlement v. Eisenberg, 593 F.3d 1031, 1034 (9th Cir. 2010) (quoting Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)). "'A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'" Caviness v. Horizon Cmty. Learning Ctr., Inc., 590 F.3d 806, 812 (9th Cir. 2010) (quoting Iqbal, 129 S. Ct. at 1949). The court accepts all of the facts alleged in the complaint as true and construes them in the light most favorable to the plaintiff. Corrie v. Caterpillar, 503 F.3d 974, 977 (9th Cir. 2007). The court is "not, however, required to accept as true conclusory allegations that are contradicted by documents referred to in the complaint, and [the court does] not necessarily assume the truth of legal conclusions merely because they are cast in the form of factual allegations." Paulsen, 559 F.3d at 1071 (citations and quotation marks omitted).

The court must construe a pro se pleading liberally to determine if it states a claim and, prior to dismissal, tell a plaintiff of deficiencies in his complaint and give plaintiff an opportunity to cure them if it appears at all possible that the plaintiff can correct the defect. See Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000) (en banc); accord Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990) (stating that "pro se pleadings are liberally construed, particularly where civil rights claims are involved"); see also Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir. 2010) (stating that courts continue to construe pro se filings liberally even when evaluating them under Iqbal.).

In ruling on a motion to dismiss pursuant to Rule 12(b)(6), the court "may generally consider only allegations contained in the pleadings, exhibits attached to the complaint, and matters properly subject to judicial notice." Outdoor Media Group, Inc. v. City of Beaumont, 506 F.3d 895, 899 (9th Cir. 2007) (citation and quotation marks omitted). Although the court may not consider a memorandum in opposition to a defendant's motion to dismiss to determine the propriety of a Rule 12(b)(6) motion, see, e.g., Schneider v. Cal. Dep't of Corr., 151 F.3d 1194, 1197 n.1 (9th Cir. 1998), it may consider allegations raised in opposition papers in deciding whether to grant leave to amend, see, e.g., Broam v. Bogan, 320 F.3d 1023, 1026 n.2 (9th Cir. 2003) ("Facts raised for the first time in plaintiff's opposition papers should be considered by the court in determining whether to grant leave to amend or to dismiss the complaint with or without prejudice.").


A. Plaintiff's Section 1983 Claims

Plaintiff's complaint pleads two claims pursuant to 42 U.S.C. § 1983, both of which allege violations of plaintiff's constitutional rights. Plaintiff's first claim for relief alleges violations of plaintiff's due process rights. His second claim for relief alleges a violation of his equal protection rights. The County moves to dismiss both claims, and each claim is addressed in turn below after a general recitation of the applicable law.

Plaintiff's claims of violations of his constitutional rights are permissibly brought pursuant to 42 U.S.C. § 1983, which provides in relevant part:

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 or other person within the jurisdiction thereof 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 . . . .

Generally, with respect to individualdefendants, "Section 1983 imposes civil liability upon an individual who under color of state law subjects or causes, any citizen of the United States to the deprivation of any rights, privileges or immunities secured by the Constitution and laws." Franklin v. Fox, 312 F.3d 423, 444 (9th Cir. 2002) (citing 42 U.S.C. § 1983). "To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of State law." Long v. County of L.A., 442 F.3d 1178, 1185 (9th Cir. 2006) (citing West v. Atkins, 487 U.S. 42, 48 (1988)); accord Karim-Panahi v. L.A. Police Dep't, 839 F.2d 621, 624 (9th Cir. 1988) ("To make out a ...

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