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 Third Amended Complaint.*fn1 (Mot. to Dismiss, Dkt. No. 43.) Plaintiff John L. Harris III ("plaintiff"), proceeding without counsel in this action, timely filed an opposition brief ("Opposition").*fn2 (Opp'n, Dkt. No. 45.) Defendants filed a reply brief ("Reply") in support of their motion to dismiss. (Reply, Dkt. No. 47.)
The court took this matter under submission on the briefs and without oral argument. The undersigned has considered the briefs and the appropriate portions of the record in this case and, for the reasons stated below, partially grants and partially denies defendants' motion to dismiss pursuant to Federal Rules of Civil Procedure 8(a) and 12(b)(6). Plaintiff's third amended pleading fails to state claims for deprivation of due process rights, conspiracy to violate plaintiff's rights, and breach of fiduciary duty. Those claims are dismissed with prejudice for the reasons stated below. Plaintiff also fails to plausibly allege a First Amendment retaliation claim, but the undersigned dismisses that claim without prejudice and gives plaintiff a final opportunity to amend a portion of that one claim.
Plaintiff filed his original complaint on August 17, 2011. (Dkt. No. 1.) Thereafter, plaintiff filed various iterations of his pleading. (Dkt. Nos. 5 (First Am. Compl.); 7 (Second Am. Compl.); 12 (a different "Second" Am. Compl.).)
Defendants previously moved to dismiss plaintiff's Second Amended Complaint. (Second Am. Compl., Dkt. No. 12.) On April 25, 2012, the undersigned granted defendants' motion (Dkt. No. 21) pursuant to Federal Rule of Civil Procedure 8(a) and gave plaintiff leave to amend his pleading. (Order issued April 25, 2012, Dkt. No. 35.) The undersigned's order informed the plaintiff that his amended pleading should clearly link specific defendants with specific allegations and claims for relief, include only non-conclusory allegations that are relevant to his claims, and include facts sufficient to support each element of his claims. (Id. at 44-47.)
Plaintiff timely filed a Third Amended Complaint. (Third Am. Compl., Dkt. No. 40.) On June 22, 2012, defendants moved to dismiss plaintiff's Third Amended Complaint. (Mot. to Dismiss, Dkt. No. 43.) This order resolves the motion.
B. The Allegations In The Third Amended Complaint The undersigned has previously spent a significant amount of time attempting to distill factual allegations and claims from plaintiff's muddled pleadings (See Order dated April 25, 2012, Dkt. No. 35 at 3-11), and given the meandering style of plaintiff's most recent pleading, declines to engage in that time-consuming process yet again.*fn3 Suffice it to say that plaintiff's Third Amended Complaint (the "TAC") only partially clarifies the factual bases for plaintiff's claims and partially clarifies the legal claims plaintiff intends to assert. The TAC now frames four claims for relief: (1) "Violation of Right to Free Speech;" (2) "42 U.S.C. § 1983 (Conspiracy);" (3) "Violation of  Fourteenth Amendment Due Process;" (4) "Breach of Fiduciary Duty." (See generally Third Am. Compl.) The TAC seeks damages, injunctive relief, and declaratory relief. (Id. at 19-21.) These claims arise from a dispute between plaintiff, a public employee in the position of an "Associate Governmental Program Analyst in the Personnel Programs Risk Management Unit," and his employer, the California Department of Justice. (Id. ¶¶ 2, 4, 12.)
In summary, plaintiff alleges that his supervisors placed a "Memorandum of Instruction" (hereinafter the "Warning Letter") in his personnel file after they received complaints that plaintiff made inappropriate sexual statements to a co-worker on several occasions, including an "off-duty street corner conversation" about smoking and nicotine addiction. (Id. ¶¶ 36-42, 47-60.) Plaintiff alleges that the Warning Letter - as well as a meeting held to discuss it and a performance appraisal mentioning it - constitute adverse employment actions that impinged upon plaintiff's property interest in his continued employment. (Id. ¶¶ 33 (alleging a property interest in plaintiff's employment), 43-67 (alleging the warning meeting and the Warning Letter), 79-80 and 91 (alleging a performance appraisal that included the contents of the Warning Letter).)
Plaintiff alleges that he was subject to retaliation for speech in the form of an email to his supervisor, wherein plaintiff expressed disagreement with his supervisor's approach regarding an investigation of another employee who was believed to have damaged employer property. (Id. ¶¶ 81-90.) Plaintiff had allegedly been participating in the investigation. (Id.) The alleged retaliation took the form of a supervisor's verbal "reprimand" of plaintiff and the inclusion of the reprimand in plaintiff's performance evaluation. (Id. ¶ 87-88, 91.)
Plaintiff also alleges that his procedural due process rights were violated because, before the Warning Letter was placed in his file, plaintiff was not given an opportunity for a hearing and/or opportunity to review the witness statements that prompted the warning. (Id. ¶¶ 22, 61.) Plaintiff alleges that his supervisors chose to frame the personnel matter as subject to his employer's "zero tolerance" policy in order to avoid having to provide plaintiff with witness statements and/or an opportunity to be heard before issuing the Warning Letter. (Id. ¶¶ 2-4.)
A. Federal Rule of Civil Procedure 8
Under the "notice pleading" standard of the Federal Rules of Civil Procedure, a complaint must provide, in part, a "short and plain statement" of claims showing entitlement to relief. Fed. R. Civ. P. 8(a)(2); Ashcroft v. Iqbal, 556 U.S. 662, 677-81(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 than an unadorned, the defendant-unlawfully-harmed-me accusation." Iqbal, 556 U.S. at 678-79. Similarly, Rule 8(d) requires a pleading to be "concise and direct," and made up of "simple, concise and direct" allegations. Fed. R. Civ. P. 8(d).
B. Federal Rule of Civil Procedure 12(b)(6)
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). Federal pleading standards require the presentation of factual allegations sufficient to state a plausible claim for relief as to each defendant. Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) ("[a] plaintiff must allege facts, not simply conclusions, that show that an individual was personally involved in the deprivation of civil rights"). A pleading is insufficient if it offers mere "labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Twombly, 550 U.S. at 555;
Iqbal, 556 U.S. at 678-79 ("Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice."). The mere possibility of misconduct falls short of meeting this plausibility standard. Twombly, 550 U.S. at 545. However, "[s]pecific facts are not necessary; the statement [of facts] need only 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.'" Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Twombly, 550 U.S. at 555) (citations and internal quotations omitted).
A complaint should be dismissed for failure to state a claim if, taking all well-pleaded factual allegations as true, it does not contain "'enough facts to state a claim to relief that is plausible on its face.'" See Coto Settlement v. Eisenberg, 593 F.3d 1031, 1034 (9th Cir. 2010) (quoting Iqbal, 556 U.S. at 678-79.) "'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, 556 U.S. at 678-79). 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).
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 Grp., 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 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) (citing Orion Tire Corp. v. Goodyear Tire & Rubber Co., 268 F.3d 1133, 1137-38 (9th Cir. 2001)).
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 provide an opportunity to cure those deficiencies if it appears at all possible that the plaintiff can do so. 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).
A. Defendants Have Not Shown That Kamala Harris Is Presently Subject To Dismissal
As in their previous motion to dismiss, defendants again argue that defendant Kamala Harris should be dismissed because she is not alleged to have personally participated in any alleged wrongdoing. (Mot. to Dismiss at 2.) While defendants are correct that the law does not recognize a theory of supervisory liability for civil rights violations, defendants have not shown grounds for Kamala Harris' dismissal for the same reasons described in the undersigned's prior order addressing this issue. (Order, Dkt. No. 35 at 27-29.) Plaintiff's pleading seeks both declaratory and injunctive relief. (Third Am. Compl. at 20.) Defendants' pending motion does not address the authorities cited in the undersigned's prior order with respect to this issue. (Order, Dkt. No. 35 at 27-29.) Accordingly, defendants' argument is not well-taken, and the undersigned will not dismiss defendant Kamala Harris at this time.
B. Defendants Have Not Shown That The Third Amended Complaint Is Generally Subject To Dismissal Pursuant To Federal Rule 8
Defendants argue that the TAC is confusing, ambiguous, conclusory and rife with irrelevant allegations. (Mot. to Dismiss at 2-6.) While defendants correctly note that the TAC contains some new and vague allegations (i.e., ¶¶ 26-31), these allegations alone do not warrant dismissal. While Rule 8(a) requires a "short and plain" statement of the claims showing entitlement to relief, it does not require that all arguably extraneous allegations be removed for a pleading to be deemed sufficient. Here, while plaintiff's inclusion of certain "irrelevant" allegations within his pleading is not itself sufficient to warrant dismissal of the pleading, the undersigned cautions plaintiff that the inclusion of paragraphs 26 through 31 and similarly tangential allegations does not facilitate a "short and plain" statement of plaintiff's claims.
Defendants also argue that the allegations supporting plaintiff's First Amendment claim are prohibitively conclusory and run afoul of Rule 8. (Mot. to Dismiss at 4-5 ("no defendant is alleged to have authored" the Warning Letter).) While defendants take issue with plaintiff's alleging that defendants passively "allowed" the Warning Letter to be placed in his file, the TAC at least tacitly alleges that supervisors Swift and Jang actively participated in crafting the Warning Letter. (E.g., Third Am. Compl. at 17). Defendants also argue that the First Amendment claim lacks supporting factual allegations, but this is an argument better framed as under Federal Rule 12(b)(6) (id. ("[p]laintiff describes no facts suggesting an actual connection between his free speech and the alleged adverse action")) and the argument is thus further addressed elsewhere within this order.
Defendants also argue that the TAC fails to give defendants notice of the alleged factual basis of plaintiff's due process claim. (Mot. to Dismiss. at 5-6.) However, defendants' moving papers list six alleged denials of due process: (1) giving plaintiff the Warning Letter; (2) not providing plaintiff witness statements in connection with sexual harassment complaints following his statements regarding smoking/addiction; (3) failing to investigate those complaints; (4) invoking a "zero tolerance" policy instead of a disciplinary mechanism that would have afforded plaintiff more process; (5) including the Warning Letter in plaintiff's performance review; and (6) including a supervisor's criticism of plaintiff's email in his performance evaluation. (Id.) While plaintiffs' pleading could be clearer, reference to these six events does not itself render the ...