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Levy v. County of Alpine

United States District Court, E.D. California

April 25, 2017

ROBERT E. LEVY, Plaintiff,
v.
COUNTY OF ALPINE, et al., Defendants.

          ORDER DIRECTING VERDICT

          ROBERT H. WHALEY Senior United States District Judge

         On April 17, 2017, this matter began in a jury trial. Plaintiff Robert E. Levy rested his case-in-chief on April 20, 2017, and at that time, Defendant County of Alpine moved for a directed verdict pursuant to Fed.R.Civ.P. 50. This Order memorializes the Court's oral ruling granting Defendant's Motion for Directed Verdict.

         BACKGROUND

         Plaintiff Levy, former Undersheriff of Alpine County, brought this case against Alpine County, charging it with violations of his First Amendment right to free speech, age discrimination, retaliation, and defamation. ECF No. 1. On March 10, 2016, the Court dismissed all claims except the claim under 42 U.S.C. § 1983 for deprivation of First Amendment rights. ECF No. 44.

         The surviving claims were divided into two separate jury instructions seeking recovery against the County on two theories. The first sought recovery against the County for the retaliatory acts of its County Administrative Officer as a final policymaker. The second sought recovery from the County itself as a final policymaker for ratifying the retaliatory acts of its County Administrative Officer.

         In 2012, at the recommendation of County Administrative Officer Pamela Knorr, the Board of Supervisors authorized an independent investigation into a telecommunications project at Leviathan Peak in Alpine County, in which Mr. Levy was involved. The investigation, conducted by a third-party law firm, resulted in a report of the findings that demonstrated significant financial shortfalls in the project. The report was published on the County's website.

         Mr. Levy alleges the report's publication irreparably damaged his reputation in the community. This, he asserts, forced him to retire earlier than planned and made it impossible for him to be elected Sheriff. Mr. Levy further alleges that the recommendation by Ms. Knorr was made to the Board of Supervisors in retaliation for complaints Mr. Levy claims he made about age discrimination.

         The elements of each theory of liability, as a practical matter, were factually and legally the same. Both required the Court to determine as a matter of law that the actors were final policymakers, that they acted with retaliatory intent, that Mr. Levy's speech was protected, and that an adverse employment action was taken against Mr. Levy. See Eng v. Cooley, 552 F.3d 1062, 1070-74 (9th Cir. 2009) (test for First Amendment retaliation)

         Defendant's Motion for Directed Verdict challenged that Ms. Knorr was, as a matter of law, a final policymaker, and also challenged the evidentiary basis presented to show liability through ratification by the Board of Supervisors.

         DISCUSSION

         A directed verdict is appropriate when a party has been fully heard on an issue in a jury trial and the trial court finds that a reasonable jury would not have a legally sufficient evidentiary basis for finding for the party on that issue. Fed.R.Civ.P. 50(a).

         A. The Board of Supervisors did not approve the recommendation for the investigation with a retaliatory motive.

         In a § 1983 suit, the plaintiff must establish the state of mind required to prove the underlying violation. Bd. of Cnty. Comm'rs of Bryan County, Okla. v. Brown, 520 U.S. 397, 405 (1997); see also TSAO v. Desert Palace, Inc., 698 F.3d 1128, 1144 (9th Cir. 2012). To demonstrate ratification of a subordinate's unconstitutional action, thus holding the municipality liable, the plaintiff must prove that the final policymakers approved a subordinate's decision and the unconstitutional basis for it. City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988) (emphasis added).

         The Alpine County Board of Supervisors is a final policymaker under state law, as it is the governing body of the County. See Cal. Gov. Code ยง 25000. To succeed in his claim, Mr. Levy would have needed to prove that the Board of Supervisors approved an underlying retaliatory motive against Mr. Levy when the Board chose to approve Ms. Knorr's recommendation for the independent investigation into the project. Mr. Levy ...


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