United States District Court, N.D. California
STEPHEN E. EBERHARD, Plaintiff,
CALIFORNIA HIGHWAY PATROL, et al., Defendants.
ORDER GRANTING MOTIONS TO DISMISS
Re: Dkt. Nos. 60, 67
JAMES DONATO, District Judge.
This lawsuit was brought by Stephen Eberhard, a photojournalist, who alleges that he was harassed and unlawfully arrested by officers of the California Highway Patrol ("CHP"). In addition to suing the CHP and the officers themselves, Eberhard also sued the California Department of Transportation (known as "Caltrans"), California Highway Patrol Chief Bridget Lott, and California Department of Transportation District 1 Director Charlie Fielder. The Court previously dismissed his allegations against the latter three defendants, but gave Eberhard an opportunity to amend his complaint to overcome the deficiencies the Court identified. See Dkt. No. 49. He did so in a second amended complaint, see Dkt. No. 51, and another round of motions to dismiss by the same three defendants followed. See Dkt. Nos. 60, 67. Because the Court finds that the newly-added allegations are not sufficient to save the repleaded claims, the Court again dismisses the allegations against Caltrans, Lott, and Fielder.
The main fact allegations in Eberhard's lawsuit are summarized in the Court's prior motion to dismiss order. See Dkt. No. 49 at 1-3. To recap briefly, Eberhard reported for The Willits News ("TWN") newspaper on a construction project called the Willits Bypass Project. He alleges that after a campaign of harassment against him by CHP officers, he was arrested early in the morning of July 23, 2013, after a protest took place on the project site. After his arrest was condemned by a number of newspapers, CHP Chief Bridget Lott and Caltrans District 1 Director Charlie Fielder wrote a joint letter to the editor stating that Eberhard was arrested because he had "trespassed" and "refused a lawful order to exit." They later published a modified letter stating that Eberhard was directed by an officer to leave and that he was arrested not because of his profession but because he refused to leave a construction site. Lott also wrote to a journalism organization called the Society of Environmental Journalists, defending the CHP's actions in the Eberhard case.
Eberhard's second amended complaint is now the operative complaint in this case, and broadly speaking, it adds two new sets of allegations to patch up the claims the Court found insufficiently pleaded in its previous order. It alleges that Caltrans was responsible for CHP's behavior because of a contractual relationship between Caltrans and CHP known as the "COZEEP" - short for Construction Zone Enhanced Enforcement Program - that provides for CHP security on or near the site of Caltrans projects. See Second Amended Complaint ("SAC") ¶¶ 28-37, Dkt. No. 51. Under the COZEEP contract, Caltrans is financially responsible for CHP's personnel costs, see SAC ¶ 29, specifies tasks for CHP to perform, id. ¶ 30, and is required to prepare daily reports signed by the Caltrans project supervisor and the senior CHP officer assigned to the project site, id. ¶ 31.
The second amended complaint adds that Lott and Fielder were responsible not just for the post-arrest letters, but also for Eberhard's arrest. The most specific allegations on this score are found at paragraphs 32 and 33 of the second amended complaint:
32. Under the COZEEP contractual arrangement, as soon as a month before Eberhard's arrest, CHP Chief Lott specifically notified CALTRANS Director Fielder that CHP would not take action on the site against those individuals entering unauthorized on to the site until and unless the very head of CALTRANS, Director Malcolm Dougherty, provided direction to the very head of CHP, Commissioner Joseph Farrow.
33. In an email, dated June 20, 2013, to CHP Commissioner Warren Stanley, Chief Lott confirmed that CALTRANS had been informed that any direction from CALTRANS with respect to individuals trespassing on the bypass project site was to come directly to her from the Director level at CALTRANS, which is believed and thereon alleged to be a reference to Director Fielder.
The second amended complaint also alleges that Lott told TWN's editor about a week after the arrest that she had been made aware of a May 21, 2013 incident where Eberhard says he was shoved by a CHP officer. See id. ¶¶ 70, 47. Finally, the second amended complaint refers to emails indicating that on one occasion on June 27, 2013, Caltrans directed CHP to remove trespassers from the project right of way, and on another occasion, Lott and Fielder agreed that no action would be taken by CHP against a specific protester without direction from "the highest levels at CALTRANS." See id. ¶¶ 34-35.
The complaint contains other new allegations,  but the Court focuses on the ones summarized above, since they go to the deficiencies identified in the prior order.
"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.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible when there are sufficient factual allegations to draw a reasonable inference that the defendants are liable for the misconduct alleged. Id. While a court "must take all of the factual allegations in the complaint as true, " it is "not bound to accept as true a legal conclusion couched as a factual allegation." Id. (internal quotes omitted). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id.
The moving defendants seek to dismiss counts five (a First Amendment retaliation claim), six (a due process "stigma-plus" claim), eight (a state law false arrest and false imprisonment claim), and twelve (declaratory relief), with respect to Lott, Fielder, and ...