Wycinsky v. City of Richmond

          ORDER ADOPTING MAGISTRATE JUDGE’S RECOMMENDATION; GRANTING DEFENDANT CITY OF RICHMOND'S MOTION TO DISMISS; AFFORDING PLAINTIFF LEAVE TO AMEND Re: Dkt. Nos. 5, 10

          MAXINE M. CHESNEY UNITED STATES DISTRICT JUDGE

         Before the Court are the following matters: (1) a Motion to Dismiss, filed June 3, 2016, by defendant City of Richmond, ^[1] pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, and (2) a Report and Recommendation, filed July 12, 2016, by Magistrate Judge Sallie Kim, in which she recommends this Court dismiss the above-titled action for failure to prosecute. Plaintiff Jonathan Wycinsky has not responded to the motion or the Report and Recommendation.^[2] Having read and considered the moving papers, and having reviewed de novo the Report and Recommendation, the Court, for the reasons stated in its order of dismissal, filed July 19, 2016, in Case No. 16 2871, and set forth in all material respects below, hereby GRANTS the City of Richmond’s motion to dismiss and ADOPTS Judge Kim’s recommendation with respect to said defendant.^[3]

         BACKGROUND^[4]

         Plaintiff Jonathan Wycinsky is an individual who was, until June of 2014, employed as a police officer by defendant City of Richmond (“the City”).

         “[O]n or about August 31, 2012, ” plaintiff “suffered a torn elbow, torn rotator cuff, shoulder and upper extremity injury” when, in his capacity as a police officer, he was assaulted while apprehending a suspected criminal in the City of Richmond. (See Compl. ¶ 12.) In June 2013, plaintiff took a “short period” of medical leave from his work as a police officer in order to undergo shoulder surgery for his injuries. (Id. ¶ 13.) While plaintiff was on leave, his supervisor contacted him to inquire when he would return to work. (Id.) Plaintiff replied that he had been prescribed and was taking “narcotics pain medication” that prevented him from “driv[ing], or perform[ing] the essential functions of his job, ” to which plaintiff’s supervisor responded that “[t]he City has drawn a line in the sand on these cases and we’re bringing everyone back to work no matter what the restrictions say.” (Id. ¶¶ 13-14.) Plaintiff told his supervisor that “he did not agree, ” and made an “internal safety complaint.” (Id. ¶ 14.)

         Nonetheless, plaintiff returned to work in November 2013, although he was “in a considerable amount of pain.” (Id. ¶ 15.) At some time later, plaintiff again explained to his supervisor that he could not work safely while taking his medications, but his supervisor “became furious, ” told him to “ignore his doctor’s instructions [to] take his medication, ” and further told plaintiff “that ‘pain narcotics is not a reason to not come to work’ and ‘other employees work with stronger pain medications.’” (Id.) The supervisor also “question[ed]” plaintiff’s injuries and told him to “comply with the City’s sick leave program.” (Id.)^[5]

         “[A]s a direct result of [d]efendants’ interference with [p]laintiff’s medical treatment and care, ” plaintiff’s medical condition “deteriorate[d].” (Id. ¶ 16.) Thereafter in June 2014, as a result of his worsened condition, plaintiff’s “doctor took [him] off work indefinitely, . . . thereby resulting in the constructive termination of [plaintiff’s] employment.” (Id.) The City did not hold “any hearings” or otherwise provide plaintiff with an “opportunity to be heard” prior to the time plaintiff’s employment with the City ended, and, further, “black-ball[ed] [plaintiff] from any future employment as a police officer.” (Id. ¶ 19.)

         Based on the foregoing, plaintiff asserts, as against the City and the other defendant, a cause of action under 42 U.S.C. § 1983 (“First Cause of Action”), alleging that his constitutional rights to “substantive and procedural due process, ” to “privacy, ” and under the “First Amendment” have been violated. (Id. ¶ 18.) As against the City only, plaintiff also asserts two state law claims, specifically, for violation of California Labor Code Section 1102.5 (“Second Cause of Action”), and violation of California Labor Code Section 6310 (“Third Cause of Action”). By the instant motion, the City seeks dismissal of all said claims against it.

         LEGAL STANDARD

         Dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure “can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory.” See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). Rule 8(a)(2), however, “requires only ‘a short and plain statement of the claim showing that the pleader is entitled to relief.’” See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Fed.R.Civ.P. 8(a)(2)). Consequently, “a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations.” See id. Nonetheless, “a plaintiff’s obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” See id. (internal quotation, citation, and alteration omitted).

         In analyzing a motion to dismiss, a district court must accept as true all material allegations in the complaint, and construe them in the light most favorable to the nonmoving party. See NL Industries, Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986). “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 Twombly, 550 U.S. at 570). “Factual allegations must be enough to raise a right to relief above the speculative level[.]” Twombly, 550 U.S. at 555. Courts “are not bound to accept as true a legal conclusion couched as a factual allegation.” See Iqbal, 556 U.S. at 678 (internal quotation and citation omitted).

         DISCUSSION

         A. Section 1983 Claim

         The City first argues that plaintiff’s § 1983 claim, the only federal claim asserted against the City, fails because plaintiff has not alleged a violation of his constitutional rights. The ...