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John L. Harris Iii v. Kamala Harris

April 24, 2012


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


Currently pending before the undersigned is defendants' Motion to Dismiss the Second Amended Complaint.*fn1 (Mot. to Dismiss, Dkt. No. 21-1.) Plaintiff John L. Harris III ("plaintiff"), proceeding without counsel in this action, timely filed an opposition brief ("Opposition").*fn2 (Oppo., Dkt. No. 23.) Plaintiff also filed a "Motion for Consideration of Additional Material." (Dkt. No. 22.) Defendants filed a reply brief ("Reply") in support of their motion to dismiss. (Reply, Dkt. No. 26.)

The court heard these matters on its law and motion calendar on February 2, 2012. (Minutes, Dkt. No. 34.) Attorney Christine Mersten appeared telephonically on behalf of defendants. Plaintiff appeared on his own behalf.

The undersigned has considered the briefs, oral arguments, and the appropriate portions of the record in this case and, for the reasons stated below, grants defendants' motion to dismiss pursuant to Federal Rule of Civil Procedure 8(a) and 8(d). Plaintiff's pleading is not a short and plain statement of claims and does not provide defendants sufficient notice of the claims against them. The undersigned orders plaintiff to file an amended pleading that more clearly alleges plaintiff's claims and otherwise conforms to this order, the requirements of the Federal Rules of Civil Procedure, and the court's Local Rules.*fn3 Further, plaintiff's "Motion for Consideration of Additional Material" is construed as a request for judicial notice and is denied.


A. The Pleading Addressed In This Order

Plaintiff filed his original complaint on August 17, 2011. (Dkt. No. 1.) The next day, on August 18, 2011, plaintiff filed a First Amended Complaint. (Dkt. No. 5.) On August 22, 2011, without seeking leave of court, plaintiff filed a "Second Amended Complaint." (Dkt. No. 7.) The undersigned struck that pleading as improperly filed. (Dkt. No. 9.) Thereafter, plaintiff filed a motion to amend his pleading, which the undersigned granted. (Dkt. No. 20.) The undersigned clarified that the "Second Amended Complaint" filed on August 30, 2011, and located at Docket Number 12 on the court's electronic docket, would serve as the operative pleading in this case. (Id. at 5.) Defendants' motion to dismiss targets the "Second Amended Complaint" filed on August 30, 2011, and this order addresses the same.*fn4 (Second Am. Compl., Dkt. No. 12.)

B. The Allegations In The Second Amended Complaint

Although plaintiff's second amended complaint is rather difficult to understand, what follows is the undersigned's attempt to distill factual allegations and claims from it.

Plaintiff's Second Amended Complaint (hereinafter the "SAC" or "complaint") describes six claims for relief: (1) "Violation of the Free Speech Clause;" (2) "Conspiracy in Violation of Sections 1983 and 1985;" (3) "Violation of Due Process;" (4) "Violation of California Labor Code § 1102.5;" (5) "Violation of California Government Code § 8547;" and (6) "Negligent Supervision." Plaintiff seeks damages, injunctive relief, and declaratory relief.*fn5

(Second Am. Compl. at 3.)

Plaintiff alleges that he has been an employee of the California Department of Justice ("California DOJ") since June 2001. (Id. at 4.) Plaintiff is an Associate Governmental Program Analyst in the California Department of Justice's Risk Management Unit. (Id. ¶¶ 11, 27.)

1. Plaintiff's "Speech" Of February 10, 2010 ("Property Damage Email") Plaintiff alleges that he made certain "off-duty" comments to co-workers on February 10, 2010, as well as on May 18, 2010. (Id. ¶ 30.) The February 10, 2010 "speech" took the form of an email to plaintiff's supervisor, defendant Artie Cooper, regarding another employee believed to have damaged some property, and plaintiff's own belief that the employee may not have damaged the property. (Id. ¶ 34.)

Plaintiff alleges that another supervisor, defendant John Swift, gave plaintiff a "written reprimand" for sending the email to Artie Cooper, because the email was outside the scope of plaintiff's assigned job task and because it inappropriately challenged management's position in the property damage investigation. (Id. ¶ 41.) Plaintiff alleges that John Swift's written reprimand was included in plaintiff's November 2010 performance review. (Id. ¶ 44.) Plaintiff also alleges that John Swift wrote in plaintiff's November 2010 performance review that plaintiff had "abandoned" his assigned job tasks. (Id. ¶ 45.) Finally, plaintiff alleges that John Swift "authorized the service of" his performance review to Worker's Compensation examiners in connection with plaintiff's alleged April 20, 2010 "industrial injury." (Id. ¶ 47.)

2. Plaintiff's "Speech" Of May 6, 2010 ("Lobby Incident")

On May 6, 2010, plaintiff allegedly had a conversation in the elevator lobby with defendant Kimberly Bell, witnessed by defendant Brea Noorani. (Id. ¶ 86.) Plaintiff alleges that, according to Noorani's account, plaintiff made a "call me" hand sign to Bell and wanted Bell to call him for "personal reasons." (Id. ¶ 87.)

The Lobby Incident allegedly continued when plaintiff and Bell both observed security officers using security wands to scan visitors entering the building. (Id. ¶ 90.) Bell questioned the need for such a detailed search, and in response, plaintiff allegedly stated that there was not a "rock in his pocket." (Id. ¶ 93.) Bell later allegedly complained that the comment made her "uncomfortable." (Id. ¶ 95.)

3. Plaintiff's "Speech" Of May 18, 2010 ("Smoking Conversation")

Plaintiff alleges that on or about May 18, 2010, while on his lunch break and standing on a street corner, plaintiff had a conversation with fellow California Department of Justice employees, including defendant Kimberly Bell. (Id. ¶ 49.) The conversation began about cigarettes. (Id.) Plaintiff alleges that he "shared" with his co-workers his knowledge about smoking's relation to Sigmund Freud's "theory of psychosexual development" and the "oral stage," where "the libido is focused on the mouth." (Id. ¶ 51.) As described below, plaintiff alleges he was disciplined for this off-duty "speech."

4. Plaintiff's May 25, 2010 Meeting With Swift And Jang (the "Warning Meeting")

On May 25, 2010, plaintiff was allegedly summoned to a meeting with his supervisors, defendants John Jang and John Swift. (Id. ¶ 63.) Plaintiff alleges Swift and Jang kept the meeting's topic secret in hopes that plaintiff could not prepare for it and in hopes that plaintiff would react "angrily and inappropriately." (Id. ¶ 103.)

The Warning Meeting was allegedly to confront plaintiff about defendant Carrie Saulsberry's complaint regarding the May 18, 2010 "smoking" conversation about Freud, the oral stage, oral fixation, and the duration of breast-feeding.*fn6 (Id. ¶¶ 66, 97.) The meeting was also allegedly to confront plaintiff regarding plaintiff's so-called "advances" upon co-worker defendant Kimberly Bell. (Id. ¶¶ 67-68.) During the meeting, John Swift told plaintiff that Kimberly Bell had made complaints about plaintiff's "stalking" her around the workplace and around a Sacramento 24-hour fitness. (Id. ¶ 70.) Plaintiff denies Bell's allegations of stalking. (Id. ¶¶ 72-74, 79.)*fn7

Also during the Warning Meeting, defendant John Swift allegedly told plaintiff that he had violated the California DOJ's "Zero Tolerance" policy by conversing with defendant Kimberly Bell in the elevator lobby on May 6, 2010. (Id. ¶ 86.) Swift allegedly told plaintiff that his use of the "call me" sign had made Bell "uncomfortable." (Id. ¶ 88.) Swift allegedly told plaintiff that his "rock in my pocket" comment also made Bell "uncomfortable." (Id. ¶ 95.)

During the May 25, 2010 meeting, plaintiff allegedly requested names of witnesses and copies of their written statements, but Swift and Jang allegedly told him that he was not entitled to these materials because he was not being subjected to any "adverse action." (Id. ¶ 98.) Swift allegedly told plaintiff that the meeting was "to provide a formal notice . . . that the Department disapproves of your behavior, and to let you know what we expect, regarding future conduct and future communication with Kim Bell." (Id. ¶ 99.)

5. Plaintiff Receives A Memorandum of Instruction Dated May 28, 2010 Plaintiff alleges he received a "Memorandum of Instruction" dated May 28, 2010, which informed him of the "zero tolerance" policy and confirmed that plaintiff has been warned about using discretion before making comments. (Id. ¶ 108.) The Memorandum of Instruction allegedly informed plaintiff that "similar conduct in the future" will result in "adverse action against" plaintiff. (Id. ¶ 109.)

Plaintiff alleges that he "refused to accept" the Memorandum of Instruction from Jang. (Id. ¶ 150.) Plaintiff alleges that Hayashida told Jang to "place it on" plaintiff's desk instead. (Id. ¶ 150.) Plaintiff alleges that the Memorandum of Instruction constitutes a "violation of free speech, which is likely to chill the expression of the protected speech of public employees on matters of public concern." (Id. ¶ 109.)

Plaintiff alleges that his employer's "zero tolerance" policy lacks safeguards to ensure protection of plaintiff's First and Fourteenth Amendment rights. (Id. ¶ 102.) Plaintiff alleges that his employer's "classification scheme" for defining "adverse employment actions" does not "adequately protect employees' property interest[s] in their employment" because it is insufficient to grant "full procedural due process rights" only upon "adverse employment actions which contemplate[] a suspensive of five days or more." (Id. ¶ 113.) Plaintiff alleges that his employer purposefully gave him a "warning" rather than a suspension so as to avoid having to comply with "due process" requirements. (Id. ¶ 114.)

6. Complaints From Female Co-Workers After May 2010 Plaintiff repeatedly alleges that he works with a number of female employees. (Id. ¶¶ 112, 115-16.) Plaintiff also alleges that many employees have "access" to his personnel file and could thus could possibly read the Memorandum of Instruction therein. (Id. ¶¶ 117-18.)

Plaintiff alleges that, "[d]uring the three months" following his receipt of the Memorandum of Instruction and his meeting with Swift and Jang, female co-workers made "numerous" complaints about plaintiff's "inappropriate behavior." (Id. ¶ 119.) Plaintiff alleges that he was never informed about these complaints. (Id. ¶ 120.) Plaintiff has since seen the complaints, and believes they reflect a "general anxiety that plaintiff was found guilty of sexual harassment." (Id. ¶ 122.)

7. Telephonic Performance Appraisal Of November 19, 2010 Plaintiff alleges that, on November 19, 2010, and "with approval of Defendant Don Hayashida," defendant Swift gave plaintiff an "unplanned, over-the-phone performance appraisal," which included a reassertion of the allegations contained in the Memorandum of Instruction. (Id. ¶ 157.) Plaintiff alleges that this interaction was improper because Swift was not plaintiff's "direct supervisor." (Id.)

C. The "Claims For Relief" As Framed In The Second Amended Complaint

1. "Violation Of The Free Speech Clause" (Second Am. Compl. ¶¶ 124-136) Plaintiff alleges that his employer's "zero tolerance" and other human resources policies are "vague and overbroad" because they permit "retaliation" against plaintiff for his "protected speech." (Id. ¶¶ 126-28.) Plaintiff alleges it is a "continuing harm" to keep warnings in plaintiff's permanent personnel file. (Id. ¶ 128.)

Plaintiff alleges that the "zero tolerance" policy allowed Swift and Jang to hold a "special tribunal" (id.¶ 132) and "dispense with plaintiff's due process rights." (Id. ¶ 132.) Plaintiff alleges that the "zero tolerance" policy was used to "punish" plaintiff's use of free speech, demonstrating "how easily the policy can be used for unlawful and discriminatory purposes." (Id. ¶ 133.) Plaintiff alleges that the "zero tolerance" policy permits "punishment of speech" based on a "vague, inconsistently defined, 'inappropriate behavior/conduct' test." (Id. ¶ 135.)

2. "Conspiracy" In Violation Of 42 U.S.C. §§ 1983, 1985(3), and 18 U.S.C. § 242 (Second Am. Compl. ¶¶ 137-53)

Plaintiff alleges that all defendants were "acting under color of state law" at "all times." (Id. ¶ 138.) Plaintiff alleges that on May 21, 2010 (i.e., after the Smoking Conversation of May 18, 2010), defendants Kimberly Bell, Brea Noorani, Carrie Saulsberry, and Steve Wiley "agreed and were of one mind in alleging that the plaintiff engaged in conduct which violated the California DOJ's zero tolerance and non-discrimination policies and the California Penal Code (stalking)." (Id. ¶ 139.)

Plaintiff also alleges that on May 25, 2010 (the date of the Warning Meeting) defendants Don Hayashida, John Jang, and John Swift, all "plan[ned]" to keep the purpose of the Warning Meeting secret from plaintiff in order to "surprise" plaintiff and to "create an atmosphere of hostility with the objective of provoking the plaintiff to react" negatively and "ambush" plaintiff. (Id. ¶¶ 140, 143-44.)Plaintiff alleges that Swift and Jang had an "agreement" to "change" the account of plaintiff's conduct during the Smoking Conversation, as evidenced by their "failure to act, or provide a meaningful response to plaintiff's concerns." (Id. ¶ 147.)

Plaintiff also alleges that Jang and Swift "agreed to depart from" their employer's policy of completing an "Investigation Report form" so their conduct would not be detected by any subsequent "incident investigator." (Id. ¶ 144.) Plaintiff alleges that further "evidence of a conspiracy agreement" is the fact that defendant consistently failed to "address the issue of plaintiff's rights under the First and Fourteenth Amendment to the Constitution." (Id. ¶ 146.)

3. "Due Process Clause"/ "Violation Of The Fourteenth Amendment"(Second Am. Compl. ¶¶ 154-60)

Plaintiff alleges that defendants improperly refused to "investigate plaintiff's complaint of a violation of his Constitutional Rights in 2010." (Id. ¶ 155.)Plaintiff alleges he filed a "formal complaint" with his employer's "Equal Employment Equal Rights Office" (the "EER&R") but that the EER&R "refused to take protective action."*fn8 (Id. ¶ 156.) Plaintiff also alleges that Swift's November 19, 2010 "over-the-phone performance appraisal" amounted to a deprivation of Due Process rights.*fn9 (Id. ¶¶ 157-58.)

Plaintiff alleges he did not have an adequate "opportunity to be heard" prior to "the implementation of an adverse employment action," because plaintiff's statements were "made outside the administrative process and were made in defiance of . . . Swift's threat of additional adverse employment action if the plaintiff chose to respond." (Id. ¶¶ 158-59.)*fn10

4. "California Labor Code § 1102.5"(Second Am. Compl. ¶¶ 161-68) Plaintiff alleges that he engaged in protected activity by "reporting the unlawful and bad faith conduct of Defendants John Swift and John Jang" to various agencies.*fn11 (Id. ¶ 163.) Plaintiff alleges that certain agencies are part of the alleged "conspiracy" and that this motivated them not to respond to plaintiffs' report. (Id. ¶ 164.)

5. "California Whistleblower Protection Act"/ Cal. Gov. Code § 8547 (Second Am. Compl. ¶¶ 169-74)

Plaintiff alleges that, on or about February 10, 2010, plaintiff "reported to his California DOJ supervisor" that he had "material evidence which contradicted a property damage claim . . . allegedly caused by a California DOJ employee." (Id. ¶ 170.)Plaintiff alleges that defendant Swift "retaliated" against him after learning of the Property Damage Email. (Id. ¶ 172.) Swift's alleged retaliation took the form of a "personally vindictive and humiliating written reprimand in which he described the Plaintiff's message to his supervisor in terms which allege that Plaintiff failed to follow instructions [and] was insubordinate." (Id. ¶ 172.) Swift's alleged retaliation also took the form of a similar "reprimand" in plaintiff's November 2010 performance appraisal, and in "supporting documentation for a June 24, 2011 adverse employment action recommending a twenty-day suspension without pay." (Id. ¶ 173.)*fn12

6. "Negligent Supervision" (Second Am. Compl. ¶¶ 175-91)

Plaintiff alleges that defendant Don Hayashida is the direct supervisor for defendant John Swift. (Id. ¶ 177.) Plaintiff alleges that Hayashida did not properly supervise Swift. (Id.) Plaintiff alleges that Swift is "considered Don Hayashida's 'Boy'." (Id. ¶ 180.) Plaintiff alleges that Swift is "the only African-American male in a supervisory position, and the Plaintiff is the only African-American male appointment to an Associate Governmental Programmer Analyst position in over ten years." (Id. ¶ 180.) Plaintiff alleges that in the "ten years" plaintiff has been employed under Hayashida, "African-American males are rarely hired, and never promoted."*fn13 (Id. ¶ 181.)

Plaintiff alleges that Hayashida "used his authority" to "waive" plaintiff's annual performance review and instead to allow Swift to infrequently complete plaintiff's performance appraisal and "rarely" include any positive information about plaintiff, focusing instead on "corrective action" required of plaintiff. (Id. ¶ 182.) Plaintiff alleges that Hayashida allowed Swift to complete plaintiff's performance review even though Swift "did not have a firsthand understanding of plaintiff's job performance" and is not plaintiff's direct supervisor. (Id. ¶ 186.)

Plaintiff also alleges that his personnel file demonstrates "increased scrutiny" and "a dramatic increase in negative reporting" about plaintiff following "plaintiff's August 1, 2007 and April 30, 2010 workplace injuries, which required several requests for reasonable accommodations."*fn14 (Id. ¶ 191.)

II. LEGAL STANDARD A. Federal Rule of Civil Procedure 8

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); Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009); Paulsen v. CNF, Inc., 559 F.3d 1061, 1071 (9th Cir. 2009), cert. denied, 130 S. Ct. 1053 (2010). Under notice pleading in federal court, the complaint must "give the defendant fair notice of what the claim is and the grounds upon which it rests." Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007) (internal quotations omitted). In order to survive dismissal for failure to state a claim, a complaint must contain more than "a formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient "to raise a right to relief above the speculative level." Id. While Rule 8(a) does not require detailed factual allegations, "it demands more ...

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