United States District Court, N.D. California
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 ...