United States District Court, E.D. California
JEROME J. MACK, Plaintiff,
CALIFORNIA DEPT. OF CORRECTIONS AND REHABILITATION, et al., Defendants.
ORDER GRANTING IN PART THE MOTION TO
DISMISS; ORDER DENYING AS MOOT THE SPECIAL MOTION TO
STRIKE (DOCS. 48,
Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE.
September 1986, the plaintiff has been employed by the
California Department of Rehabilitation and Corrections.
(Doc. 40 at2) During his tenure, he has worked at several of
the CDCR’s prison facilities and steadily improved his
position in terms of salary and job duties. Id. at
3. In 1999, Mack transferred to CCI. Id. at 3. Mack
claims he was subject to unlawful personnel actions at CCI
due to his race.
2013, Mr. Mack alleges he documented an incident of staff
misconduct involving his immediate supervisors, David Mason
and Brad Sanders. (Doc. 40 at 4) In December 2013, Mack
sought to transfer to the California Men’s Colony.
Id. CCI’s Warden, Holland, approved the
transfer. Id. However, the transfer did not occur
because Mason and Sharon McKay-a subordinates of
Holland’s-told the sergeant with whom he had to
interview at CMC, that Mack was the subject of a pending
personnel investigation. Id. Mack had not been
notified of a pending personnel investigation and did not
learn of it until April 2014. Id.
applied for a Lieutenant position at CCI in February 2014.
(Doc. 40 at 4) He was denied the promotion and told that it
was due to a mistake by Holland and he would be reconsidered
for the position later in the month. Id. However, he
was not. Id.
2014, Mack filed a complaint with the EEOC/DEFH and raised
claims of discrimination and retaliation. (Doc. 40 at 4) The
next month, Mack attended a mandatory EEO training.
Id. at 4-5. At the training, Brad Sanders asked the
trainer a question that involved a hypothetical situation in
which a person making an EEOC complaint was, at that time,
the subject of a personnel investigation. Id. Mack
felt the question was meant to “target and
ridicule” him. Id. at 5. Also, during the
training, the attendees were asked to participate in a
role-playing exercise involving a claim of retaliation.
Id. Mack felt uncomfortable. Id. Mack
complained about the incident, and other incidents, soon
after. Id. The CDCR, through Associate Warden
Garcia, responded and ordered Mack and others listed in his
complaint to refrain from interaction other than that
required by their job duties. Id. In early June and
again in July 2014, Mack amended his EEOC/DFEH complaint but
the conditions worsened. (Doc. 40 at 5)
2014, Mack had a promotional interview at Ironwood State
Prison. (Doc. 40 at 5) Though Mack was selected initially for
the promotion, it fell through after a coworker told staff at
Ironwood that Mack was the subject of a personnel
investigation. Id. at 6. This occurred also in
connection with a promotional opportunity at Wasco State
Prison in the same month. Id. Mack alleges he did
not learn of this personnel investigation until December
2014. Id. Notably, at an administrative hearing
related to Mack’s whistleblower complaint on August 12,
2014, Garcia testified that he was not aware of any personnel
investigations related to Mack. Id. However, Garcia
testified he had sought an internal affairs investigation of
Mack. Id. On August 19, 2014, Mack was temporarily
reassigned due to a personnel investigation. Id.
September 2014, Holland denied Mack’s request for an
“out of class assignment.” (Doc. 40 at 7) Later
in the month, Mack was interviewed for a promotion at CCI.
Mack contends that the panelists assigned to conduct the
interview had conflicts of interest because they were aware
of the pending personnel investigations and the
“ultimate adverse action” resulting therefrom.
Id. Mack was not selected and though a person of the
same race as Mack was selected, this person was
“stripped” of his promotion by Holland.
Id. at 7-8. Once again, in September 2014, Mack
again filed a complaint with the EEOC/DFEH. Id.
December 2014, the Office of Internal Affairs notified Mack
that he was under investigation for his action related to his
conduct when attending a medical procedure performed on an
inmate. (Doc. 40 at 8) Internal Affairs sustained one of the
allegations though Mack contends it was as a result of
several witnesses providing “false and inconsistent
testimony.” Id In June 2015, Mack was denied a
promotion at Corcoran State Prison and a Caucasian person
with less experience received the job. (Doc. 40 at 8) Mack
alleges that Sharon McKay notified all facilities with
promotional opportunities available of Mack’s pending
personnel investigation. Id.
February 2015, Mack was given an “Adverse Personnel
Action” related to misconduct occurring in January
2014. (Doc. 40 at 9) Mack contends the APA was sustained due
to false statements made by Garcia and Mason. Id. It
resulted in his pay being lowered by five percent for six
August 2015, Mack was given another Adverse Personnel Action
by Holland. (Doc. 40 at 9) In it, Mack was accused of leaving
his post without notifying his supervisor, Mason.
Id. This resulted in Mack losing pay for ten months.
Motion to Dismiss/Special Motion to Strike
motion to dismiss, the defendants argue that they are immune
from liability based upon the Noerr-Pennington doctrine
and/or that the complaint should be stricken as a violation
of the Anti-SLAPP statute. Likewise, the motion to dismiss
argues that the complaint violates the
Rooker-Feldman doctrine, the Younger
doctrine abstention, res judiciata and the Eleventh amendment
immunity, among other arguments.
Requests for Judicial Notice
defendants request the Court take judicial notice of
decisions of the SPB in case numbers 15-0147, 15-512,
15-1498, 14-01780W. (Doc. 51) The plaintiff also asks the
Court to take judicial notice of the outcome of SPB decision
15-1498 (Doc. 62 at 2). Despite this, however, the plaintiff
objects to the Court taking judicial notice of the documents
proposed by the defendants despite that one of the
documents is the same as the one for which he seeks judicial
Court may take judicial notice of facts that are
“capable of accurate and ready determination by resort
to sources whose accuracy cannot reasonably be
questioned.” Fed.R.Evid. 201(b)(2). The Court must take
judicial notice for a judicially noticeable fact “if
requested by a party and supplied with the necessary
information.” Fed.R.Evid. 201(c)(2). Here, the parties
agree the Court may take judicial notice of the SPB decisions
and, indeed, for this proposition cite to the same
authorities. Thus, the Court GRANTS the requests and the
Court will take judicial notice of the fact that the SPB has
determined these actions and the dates on which it did so.
The Court will also take notice of the fact that the
plaintiff has not sought writ relief after any of the SPB
decisions at issue. It DENIES the defendants’ request
that the Court to take judicial notice of the declaration of
Sharon McKay because this is not a proper document for
judicial notice. Likewise, as to the motion to dismiss, the
Court will not consider the declarations submitted by the
plaintiff (Docs. 59, 63-65) as doing so is improper on a
motion brought under Fed.R.Civ.P. 12(b).
Statute of Limitations for the Whistleblower Claim
defendants argue that the whistleblower claim is not timely
because it was filed more than one year after the events
giving rise to the claim or more than one year after the SPB
issued its decision. (Doc. 49 at 25-27) Notably, California
Government Code § 8547.8 (West) provides, “[A]ny
action for damages [in a “whistleblower”
complaint] shall not be available to the injured party unless
the injured party has first filed a complaint with the State
Personnel Board pursuant to subdivision (a), and the board
has issued, or failed to issue, findings pursuant to Section
parties agree that the SPB issued its findings on September
18, 2014. (Doc. 49 at 27; Doc. 60 at 11) However,
they disagree as to whether the statute of limitation is
tolled during the 30-day period (plus, the plaintiff
contends, an additional five days if the decision is mailed)
before the decision becomes final. Notably, in State
Board of Chiropractic Examiners v. Superior Court, 45
Cal.4th at 971, the California Supreme Court considered the
language of § 8547.8 as follows:
Section 8547.8(c) imposes liability “in an action for
damages” on “any person who intentionally engages
in acts of reprisal, retaliation, threats, coercion, or
similar acts against a state employee” for disclosing
improper governmental activities or unsafe conditions. But
this provision includes an important caveat: “However,
any action for damages shall not be available ...
unless the injured party has first filed a complaint with the
State Personnel Board ..., and the board has issued, or
failed to issue, findings pursuant to Section
19683.” (§ 8547.8(c), italics added.) Section
8547.8(c) refers only to the issuance of “findings,
” nothing more. On its face, it does not require the
complaining employee to petition the State Personnel Board
for a hearing before an ALJ, nor does it require the employee
to seek writ review of the board's findings. Section
8547.8(c) also makes express reference to section 19683,
thereby clarifying the precise type of findings that satisfy
Section 19683, subdivision (a), provides: “The State
Personnel Board shall initiate a hearing or investigation of
a written complaint of reprisal or retaliation ... within 10
working days of its submission. The executive officer shall
complete findings of the hearing or investigation
within 60 working days thereafter....” (Italics added.)
This provision clearly uses the term “findings”
to refer to the initial decision of the board’s
executive officer (issued within 70 days of the filing of the
complaint), and therefore section 8547.8(c)’s express
cross-reference to section 19683 indicates that this initial
decision constitutes the “findings” that satisfy
in the Supreme Court’s analysis indicates that the
statute of limitations is tolled during the period between
which the Executive Officer issues the findings and the
30-day period within which the parties may file for a
petition for writ of administrative mandamus. Cal. Code Civ.
Proc § 1094.5; Cal. Gov. Code § 11523 [The petition
for writ of administrative mandamus must be filed within 30
days “after the last day on which reconsideration can
be ordered.”] In short, the statute of limitations
appears to run from the issuance of the findings and not from
when the findings become “final.” Thus, because
the complaint initiating this action (assuming the claim
relates back) was filed on October 20, 2015, it was not filed
other hand, the plaintiff contends-though without citation to
any authority-that because the findings of the Executive
Director were mailed, the finality of the determination was
tolled for five days. The Court disagrees. California Code of
Civil Procedure § 1013 does not extend jurisdictional
statutes of limitations. Fritts v. County of Kern,
135 Cal.App.3d 303, 307-308 (1982) [Section 1013 does not
extend the 30-day period to file a complaint against a public
entity after the trial court waived the claim filing
requirement]; Smith v. City and County of San
Francisco, 68 Cal.App.3d 227, 231-232 (1977) [Section
1013 does not extend the period for filing an action against
a public entity after the tort claim is denied]. In Mario
Saikhon, Inc. v. Agricultural Labor Relations Board, 140
Cal.App.3d 581, 582 (1983), the Agricultural Labor Relations
Board issued findings that Saikhon committed unfair labor
practices and mailed notice of the findings the same day.
Saikhon filed his petition for writ of mandate 33 days later.
Id. The court dismissed the petition as untimely
because it was required to be filed 30 days after the
issuance of the findings. Id. On appeal, Saikhon
argued that he was entitled to the extra five days provided
by § 1013 because the findings were mailed to him.
Id. at 583. In rejecting this argument, the Court of
Section 1013, subdivision (a) by its terms deals only with
the “case of service by mail, ” and with acts or
responses which must be performed within a prescribed period
“after the service” of a document. Labor Code
section 1160.8 does not say the petition for review must be
filed within 30 days after service of the Board's order;
it requires the petition be filed within 30 days of the
“issuance” of the Board's decision. Only if
“issuance” is synonymous with
“service” would section 1013, subdivision (a)
apply in this case.
court held similarly in San Mateo Fed'n of Teachers
v. Pub. Employment Relations Bd., 28 Cal.App.4th 150,
153 (1994), where the court determined that, “[t]he
statutory time does not start with ‘service’ as
required by section 1013, subdivision (a), but with
issuance.’” Thus, the motion is GRANTED without
leave to amend as to the Tenth cause of action.
Noerr-Pennington doctrine immunizes from liability those who
petition any branch of government for redress. Manistee
Town Ctr. v. City of Glendale, 227 F.3d 1090, 1092 (9th
Cir. 2000). The doctrine applies to actions brought under 42
USC § 1983 that are founded upon petitions to public
agencies. Id. The doctrine applies to public
agencies petitioning other public agencies. Id.
Noerr-Pennington protects conduct that incidental to the
government petition as well as that which is incidental to
it. Freeman v. Lasky, Haas & Cohler, 410 F.3d
1180, 1185 (9th Cir.2005).
does not protect sham actions. Sham conduct may involve
filing a single lawsuit (Kottle v. Northwesr Kidney
Centers, 146 F.3d 1056, 1060 (9th Cir. 1998)) that is
“objectively baseless in the sense that no reasonable
litigant could realistically expect success on the
merits” and “an attempt to interfere directly
with the business relationship of a competitor through the
use of the governmental process-as opposed to the outcome of
that process.” Hard 2 Find Accessories, Inc. v.
Amazon.com, Inc., 2014 WL 6452173, at *3 (W.D. Wash.
Nov. 17, 2014) citing Rock River Communs., Inc. v.
Universal Music Group, Inc., 745 F.3d 343, 351 (9th
Cir.2014). It may also include filing multiple
lawsuits-whether some have merit-if ...