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Howard v. Contra Costa County

United States District Court, N.D. California, San Francisco Division

August 26, 2014



NATHANAEL M. COUSINS, Magistrate Judge.

Before the Court is defendants' motion to dismiss some of the claims in plaintiff's first amended complaint. Because the amended complaint does not cure the deficiencies as to the due process and negligent hiring claims identified in the Court's prior order of dismissal, the motion is GRANTED as to those claims which are DISMISSED WITH PREJUDICE. The Court finds that the amended complaint states a claim for relief under 42 U.S.C. § 1983 against defendants Livingston and Fawell in their individual capacities, and, therefore, DENIES the motion to dismiss as to that claim.


Plaintiff William Howard alleges that he was terminated by the Contra Costa County Sheriff's Office from his job as a reserve deputy sheriff in retaliation for having reported misconduct of a fellow deputy. Dkt. No. 37. The report resulted in the arrest of the deputy who was criminally prosecuted for his involvement in setting up "Dirty DUI's." Id. Howard brings this lawsuit against Contra Costa County, the Town of Danville, and their employees, alleging violations of his rights to free speech and due process, retaliation in violation of California Labor Code § 1102.5(b), and a state law claim for negligent hiring, retention, supervision, and training. Id. The facts alleged in the complaint were summarized in the Court's order of February 28, 2014, Dkt. No. 35, and will not be repeated here. In the February 28 order, the Court denied defendants' motion to dismiss Howard's claims for retaliation in violation of the First Amendment and California Labor Code § 1102.5(b), and granted the motion to dismiss with leave to amend as to the remaining claims. Dkt. No. 35.

On March 26, 2014, Howard filed his first amended complaint. Dkt. No. 37. Defendants now move under Federal Rule of Civil Procedure 12(b)(6) to dismiss the following claims: (1) Howard's § 1983 claim for violation of due process as to all defendants (first claim for relief); (2) the § 1983 claim against defendants Livingston and Fawell (third claim for relief); (3) the claim for the negligent hiring, retention, supervision and training of Deputy Tanabe as to all defendants (fifth claim for relief); and (4) the claim for the negligent hiring, retention, supervision and training of the unnamed deputies who allegedly retaliated against Howard as to defendants Simpkins and Danville (fifth claim for relief).


To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully.... Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief." Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 556-57) (internal quotation marks omitted). On a motion to dismiss, all allegations of material fact are taken as true and construed in the light most favorable to the non-movant. Coal. For ICANN Transparency, Inc. v. VeriSign, Inc., 611 F.3d 495, 501 (9th Cir. 2010). However, a court is not required to accept as true conclusory allegations, unreasonable inferences, or unwarranted deductions of fact. See Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). Additionally, a pleading that offers "labels and conclusions" or "a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555. Where a court dismisses for failure to state a claim under Rule 12(b)(6), it should normally grant leave to amend unless it determines that the pleading could not possibly be cured by the allegation of other facts. Cook, Perkiss & Liehe v. N. Cal. Collection Serv., 911 F.2d 242, 247 (9th Cir. 1990).


A. The First Amended Complaint Fails to State a Claim for Violation of Due Process (First Claim for Relief).

Howard's first claim for relief under 42 U.S.C. § 1983 alleges that County sheriff Livingston and assistant sheriff Fawell violated his right to due process when they "terminated Plaintiff and refused to provide him with a name-clearing' hearing." Dkt. No. 37 ¶ 51b. The Court previously dismissed this claim with leave to amend, finding that the complaint did not contain sufficient allegations to trigger the requirement to provide a name-clearing hearing. Dkt. No. 35.

The procedural protections of due process are triggered if (1) "the accuracy of the charge is contested"; (2) "there is some public disclosure of the charge"; and (3) "the charge is made in connection with termination of employment." Matthews v. Harney Cnty., Or., Sch. Dist. No. 4, 819 F.2d 889, 891-92 (9th Cir. 1987) (citations omitted). "[A] terminated employee has a constitutionally based liberty interest in clearing his name when stigmatizing information regarding the reasons for the termination is publicly disclosed." Cox v. Roskelley, 359 F.3d 1105, 1110 (9th Cir. 2004) (citing Bd. of Regents v. Roth, 408 U.S. 564, 573 (1972)). "The Supreme Court has stated that a hearing for a nontenured employee based on stigmatization is required [o]nly if the employer creates and disseminates a false and defamatory impression about the employee in connection with his termination.'" Fleisher v. City of Signal Hill, 829 F.2d 1491, 1495 (9th Cir. 1987) (quoting Codd v. Velger, 429 U.S. 624, 628 (1977) (per curiam)); see also Debose v. U.S. Dep't of Agric., 700 F.2d 1262, 1266 (9th Cir. 1983) ("A liberty interest in future employment is only abridged when an employee's termination creates a stigma foreclosing freedom to take advantage of other employment opportunities.... There can be no such stigma when there is no public disclosure of the reasons for discharge." (citations omitted)).

As the Court observed in its February 28 order, the initial complaint did not allege that defendants publicly disseminated a stigmatizing charge against Howard in connection with his termination. Dkt. No. 35. While Howard argued that he was stigmatized throughout the community by media reports and that his termination created the impression that he had engaged in improper conduct, the complaint merely alleged that "[i]n the media reports, [Howard] was identified as the person who reported Deputy Tanabe to the County regarding the Katz arrest." Dkt. No. 1 ¶ 28. The Court held that Howard had not alleged sufficient facts to trigger the procedural due process protections because he failed to allege that defendants publicized a stigmatizing charge. Dkt. No. 35.

In his first amended complaint, Howard alleges that "[o]n March 9, 2011, Plaintiff was named in a news article on page one in a newspaper published by the San Francisco Chronicle regarding Deputy Tanabe and the dirty DUI's'." Dkt. No. 37 ¶ 28. Howard further alleges that, "[i]n the media reports, Plaintiff was identified as the second Deputy Sheriff involved in the Katz arrest and the person who reported Deputy Tanabe to Defendant CCC regarding the Katz arrest." Id. "Numerous other news articles and television news broadcasts regarding the dirty DUI's and identifying Plaintiff by name followed over the next several weeks." Id. Howard further alleges that, "[o]n March 9, 2011, Defendant Danville sent a letter to its residents regarding the dirty DUI's[, ]" stating, in part:

Today, the San Francisco Chronicle reported that a second deputy assigned to Danville was also involved in one of the DUI traffic stops. This report was based upon information that was contained in a search warrant affidavit that was filed in connection with the ongoing BNE/DA investigation.... It is essential that, as public employees, we conduct ourselves at all times in a way that adheres to the law and upholds the highest ethical and professional standards.... Though significantly different in terms of their alleged involvement in any impropriety, both of the officers I've cited were immediately reassigned out of Danville, and both will be subject to further investigation.... the Office of the Sheriff has initiated their own separate Internal Affairs ...

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