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 Fourth Amended Complaint.*fn1 (Mot. to Dismiss, Dkt. No. 50.) Plaintiff John L. Harris III ("plaintiff"), proceeding without counsel in this action, timely filed an opposition brief ("Opposition").*fn2 (Opp'n, Dkt. No. 52.) Defendants filed reply briefing in support of their motion ("Reply"). (Reply, Dkt. No. 54.)
The undersigned took this matter under submission on the briefs and without oral argument. (Dkt. No. 53.) The undersigned has considered the briefs and the appropriate portions of the record in this case and, for the reasons stated below, grants defendants' motion to dismiss. The undersigned dismisses plaintiff's fourth amended pleading, and such dismissal is with prejudice. Plaintiff's pleading fails to plausibly allege a First Amendment retaliation claim, and given that plaintiff has had multiple opportunities to properly allege such a claim, further opportunities to amend would be futile.
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.) That 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. (Dkt. No. 43.) In partially granting defendants' motion, the undersigned dismissed all of plaintiff's claims with prejudice, with the exception of plaintiff's First Amendment retaliation claim, which was dismissed with leave to amend. (Order issued Oct. 18, 2012, Dkt. No. 48.)
Plaintiff timely filed a Fourth Amended Complaint ("FAC"). (Fourth Am. Compl., Dkt. No. 49.) On December 4, 2012, defendants moved to dismiss that pleading. (Mot. to Dismiss, Dkt. No. 50.)
B. Allegations In The Fourth 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 the undersigned has carefully reviewed plaintiff's Fourth Amended Complaint ("FAC") and has determined that the pleading does not materially differ from plaintiff's previous pleading with respect to the factual allegations underlying the claim for First Amendment retaliation.
In a nutshell, as with his prior pleadings, plaintiff again 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 during an "off-duty street corner conversation" about smoking and "nicotine addiction." (Fourth Am. Compl. at 1, 5-7, 12-13.) Plaintiff alleges that the Warning Letter - as well as a meeting held to discuss it and a performance appraisal mentioning it - amount to retaliation for his statements about smoking and nicotine addiction. (Id. at 6-10.) Plaintiff also alleges that these events followed co-worker reports to management that plaintiff made a "call me" hand sign to a female co-worker and made a comment about the lack of a "rock in his pocket" to that same female co-worker. (Id. at 7-8.)
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). 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 ...