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Keith Pullman v. Arnold Schwarzenegger

July 16, 2012


The opinion of the court was delivered by: Honorable Janis L. Sammartino United States District Judge


Presently before the Court is Defendants' motion to dismiss Plaintiff's First Amended Complaint. (ECF No. 15.) Having considered the parties' arguments and the law, the Court GRANTS Defendants' motion to dismiss for the reasons discussed below.


This Order incorporates the factual and procedural history as set forth in this Court's prior Order granting in part Defendants' motion to dismiss. (Dec. 20, 2011 Order at 1-3, ECF No. 13.)

In that Order, the Court held that Plaintiff had not stated a cognizable federal claim under 42 U.S.C. § 1983 and declined to exercise supplemental jurisdiction over Plaintiff's state law claims. Plaintiff was granted leave to amend, and he filed a First Amended Complaint ("FAC") on January 17, 2012. (ECF No. 14.) The FAC again states six causes of action, six of which are brought under state law, and only one of which-brought under 42 U.S.C. § 1983-asserts a federal claim. And again, Plaintiff's § 1983 claim is based on violations of his rights under the First and Fourteenth Amendments, "of freedom of speech, freedom to petition the Government and to inspect and procure copies of public records." (FAC ¶ 85.)

On February 7, 2012, Defendants again moved to dismiss. (MTD FAC, ECF No. 15.) Plaintiff has opposed (Opp'n, ECF No. 16), and Defendants have replied (Reply ISO MTD FAC, ECF No. 17).


Federal Rule of Civil Procedure 12(b)(6) permits a party to raise by motion the defense that the complaint "fail[s] to state a claim upon which relief can be granted," generally referred to as a motion to dismiss. The Court evaluates whether a complaint states a cognizable legal theory and sufficient facts in light of Federal Rule of Civil Procedure 8(a), which requires a "short and plain statement of the claim showing that the pleader is entitled to relief." Although Rule 8 "does not require 'detailed factual allegations,' . . . it [does] demand[] more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In other words, "a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). "Nor does a complaint suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'" Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 557).

"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570); see also Fed. R. Civ. P. 12(b)(6). A claim is facially plausible when the facts pled "allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly, 550 U.S. at 556). That is not to say that the claim must be probable, but there must be "more than a sheer possibility that a defendant has acted unlawfully." Id. Facts "'merely consistent with' a defendant's liability" fall short of a plausible entitlement to relief. Id. (quoting Twombly, 550 U.S. at 557). Further, the Court need not accept as true "legal conclusions" contained in the complaint. Id. This review requires context-specific analysis involving the Court's "judicial experience and common sense." Id. at 679 (citation omitted). "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not 'show[n]'-'that the pleader is entitled to relief.'" Id. Moreover, "for a complaint to be dismissed because the allegations give rise to an affirmative defense[,] the defense clearly must appear on the face of the pleading." McCalden v. Ca. Library Ass'n, 955 F.2d 1214, 1219 (9th Cir. 1990) (internal quotations omitted).

Where a motion to dismiss is granted, "leave to amend should be granted 'unless the court determines that the allegation of other facts consistent with the challenged pleading could not possibly cure the deficiency.'" DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992) (quoting Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986)). In other words, where leave to amend would be futile, the Court may deny leave to amend. See Desoto, 957 F.2d at 658; Schreiber, 806 F.2d at 1401.


The Court agrees with Defendants that the amended § 1983 claim stated in Plaintiff's FAC is "little more than an expanded rehash of the original complaint." (MTD FAC 4.) Although Plaintiff has, as he says, added many pages and documents to his Complaint, these do not remedy the deficiencies noted in the Court's previous Order. Plaintiff has failed to comply with the Court's direction to include specific, non-conclusory facts sufficient to support a viable retaliation claim in his FAC. Instead, he has merely restated the same assertions the Court has already held do not constitute a cognizable constitutional violation under either the First or Fourteenth Amendments. (Dec. 20, 2011 Order 5-10.) The Court discusses each in turn below.

1. First Amendment

In its previous Order, the Court stated that Plaintiff must ultimately prove Defendants' challenged conduct was such that would chill or silence a person of ordinary firmness from future protected First Amendment activities, and also that Defendants' desire to cause the chilling effect was a "but-for cause" of the action. (Dec. 20, 2011 Order 6) (citing Dietrich v. John Ascuaga's Nugget, 548 F.3d 892, 900-01 (9th Cir. 2008); Skoog v. County of Clackamas, 469 F.3d 1221, 1231-32 (9th Cir. 2006)). The Court also noted that not all acts that are motivated by retaliation are so significant as to amount to a constitutional violation. (Id.) (citing Cole v. Sunnyvale, 2010 WL 532428 (N.D. Cal. Feb. 9, 2010)). And, although the public has a limited, qualified right to inspect and copy public records and documents, this right does not guarantee an absolute ability to receive copies of any public record or document on demand. (See Dec. 20, 2011 Order) (citing cases). The Court ...

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