AND ORDER GRANTING
DEFENDANTS' MOTION TO
DISMISS PLAINTIFF'S FIRST
AMENDED COMPLAINT SMITH and JANET
SWEARINGEN, ) PURSUANT TO
Doc. # 25
This is a civil rights action pursuant to 28 U.S.C. § 1983 by plaintiff Jeffery Bradley ("Plaintiff") against individual defendants Patricia Flannery, Corey Smith and Janet Swearingen ("Defendants") based on the alleged violation of Plaintiff's rights against compelled self-incrimination under the Fifth Amendment. Following dismissal of Plaintiff's original complaint with leave to amend, Doc. # 19, Plaintiff filed an amended complaint on October 19, 2011. In the instant motion Defendants seek to dismiss Plaintiff's First Amended Complaint ("FAC") 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
Defendants Flannery, Smith and Swearingen are each employees of the California Department of Developmental Services ("DDS"). Defendant Flannery was, at all times relevant to this action, the Deputy Director of DDS "in overall charge of supervising, investigating, and disciplining peace officer employees of the Office of Protective Services, a part of the [DDS]." FAC, Doc. # 20 at ¶ 4. Defendant Smith was, at all time relevant to this action, employed by DDS as the Acting Chief of the Office of Protective Services. The FAC alleges that in that capacity, Smith "was the top law enforcement officer in charge of directing and supervising the day to day operation and management of the Office of Protective Services." Doc. # 20 at ¶ 5. Defendant Swearingen was, at all times pertinent to this action, employed by DDS as an "Internal Affairs Supervising Special Investigator II, responsible for supervising other [Internal Affairs] investigators." Doc. # 20 at ¶ 6. Plaintiff Bradley was employed by DDS as a peace officer commander of the Office of Protective Services.
Plaintiff's FAC alleges that in March of 2009, Flannery opened an Internal Affairs ("IA") investigation concerning the authorization of overtime by Plaintiff for an officer Scott Gardner. The FAC alleges Flannery assigned Defendant Swearingen to lead the investigation, and Smith was responsible to represent the Office of Protective Services during the IA investigation. As part of the investigation, Plaintiff alleges he was required, upon threat of adverse employment action, to produce the "work product of investigations which had generated the overtime." Plaintiff complied with the production demand and made verbal representations to Flannery "concerning authenticity and extent of the production." Doc. # 20 at ¶ 9. The FAC alleges "[e]ach [D]efendant knowingly and intentionally authorized Defendant Swearingen to turn over to the Porterville Police Department all documents produced under compulsion by [P]laintiff and Gardner that as described above, together with the documentary foundation provided by Plaintiff and Gardner that was protected by the Fifth and Fourteenth Amendments as set forth above." Doc. # 20 at ¶ 10. Plaintiff alleges that the evidence was produced to a Lt. Lewis of the Office of Protective Services at the Porterville Police Station and constituted compelled self-incriminatory evidence produced in violation of Plaintiff's rights under the Fifth Amendment. Plaintiff also alleges that Defendants Flannery and Swearingen "decided to testify and identify before a grand jury the documents produced under compulsion by [P]laintiff." Doc. # 20 at ¶ 12. The FAC also alleges Defendants Flannery and Smith allowed Lt. Lewis to "opine before the grand jury against Plaintff as to the sufficiency of the production to justify the overtime authorized by [P]laintiff." Doc. # 20 at ¶ 13.
The grand jury returned an indictment against Plaintiff leading to his arrest in February 2010 and requiring Plaintiff to Post bond. The cost of the bond Plaintiff was $4,000 for a one-year term. On or about February 14, 2011, the superior court found the evidence relied upon in the indictment was produced in violation of Plaintiff's Fifth Amendment rights and dismissed the indictment against Plaintiff. The gist of Plaintiff's complaint is that Defendants knew the evidence they provided to the Porterville Police Department and to the grand jury was compelled and therefore "immunized" under the Fifth Amendment. Plaintiff contends that the acts by Defendants were in violation of Plaintiff's rights against compelled self-incrimination under the Fifth Amendment.
Plaintiff's original complaint was filed on June 9, 2011. A motion by Defendant to dismiss was granted by the court on October 5, 2011, with leave to amend. Plaintiff's FAC was filed on October 19, 2011. The instant motion to dismiss was filed by Defendants on November 2, 2011. Plaintiff's opposition was filed on November 11, 2011, and Defendants' reply was filed on December 2, 2011. Oral argument on Defendants' motion to dismiss was vacated and the matter was taken under submission as of December 12, 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 their veracity and then determine whether they plausibly give rise to an entitlement to relief."
Moss v. U.S. Secret Service, 572 F.3d 962, 970 (9th Cir. 2009) (quoting Iqbal, 129 S.Ct. at 1950).
It its Memorandum Opinion and Order granting Defendants' motion to dismiss Plaintiff's original complaint (hereinafter the "October 5 Order") the court briefly set forth the elements of a claim under the Fifth Amendment as follows:
"[T]he Fifth Amendment privilege against compelled self-incrimination protects grand jury witnesses from being forced to give testimony which may later be used to convict them in a criminal proceeding." Lefkowitz v. Cunningham, 431 U.S. 801, 804-805 (1977). A claim for violation of the Fifth Amendment has two elements. First the state must compel "testimony by threatening to inflict potent sanctions unless the constitutional privilege [against self-incrimination] is surrendered." Id. at 805. Second, the compelled, un-immunized testimony must be used against the declarant in a criminal case. See Crowe v. County of San Diego, 608 F.3d 406, 427 (9th Cir. 2010). "A coerced statement has been 'used' in a criminal case when it has been relied upon to file ...