United States District Court, E.D. California
ORDER GRANTING DEFENDANT RODRIGUEZ'S MOTION TO
DISMISS WITH LEAVE TO AMEND (Doc. No. 33)
matter is before the court on a motion to dismiss brought on
behalf of defendant Chris Rodriguez. (Doc. No. 33.) A hearing
on the motion was held on December 5, 2017. Attorney Michael
Kellar appeared on behalf of defendant. Attorney Randy Rumph
appeared on behalf of plaintiff. Having considered the
parties briefs and oral arguments, and for the reasons set
forth below, the court will grant defendant Rodriguez's
motion to dismiss and also grant plaintiff leave to file an
Kernel Mility, is African American and was employed as a
maintenance worker by defendant, the County of Kern
(“Kern County”), from August 2015 to August 2016.
In his complaint, plaintiff alleges as follows. Plaintiff was a
“nine-month” employee: working for nine months
and given time off for two months before beginning a new-nine
month shift. (Doc. No. 1 at ¶ 8.) Defendants Phil Taylor
(“Taylor”), Chris Rodriguez
(“Rodriguez”), Richard Carillo
(“Carillo”), and Dave Langella
(“Langella”) were at all times employed by Kern
County as maintenance workers and were acting under color of
state law. (Id. at ¶¶ 4, 5, 6.) While
serving as a maintenance worker for Kern County, plaintiff
claims that he was subject to harassment on the basis of his
race. Specifically, with respect to defendant Rodriguez,
plaintiff alleges that on December 21, 2015, Rodriguez
referred to plaintiff and asked, “who hired this
nigger, ” and stated, “this nigger won't
last.” (Doc. No. 1 at ¶ 9(A).) Later that day,
plaintiff was told by another co-worker that Rodriguez again
called plaintiff a “nigger” in Spanish and
referred to one of plaintiff's friends as a “nigger
lover.” (Id.) Defendant Rodriguez also
allegedly called plaintiff a “nigger” at least
weekly in his presence. (Id. at ¶ 9(B).)
has exhausted all administrative remedies pursuant to Title
VII and the Fair Employment and Housing Act
(“FEHA”), and obtained a right to sue notice.
(Id. at ¶ 18.) On March 28, 2017, plaintiff
filed suit in this federal court alleging violations of 42
U.S.C. § 1983. Specifically, plaintiff brings a claim
for racial discrimination and harassment against defendant
Rodriguez as a violation of the Equal Protection Clause of
the United States Constitution. On October 31, 2017,
defendant Rodriguez filed a motion to dismiss plaintiff's
second claim for relief. (Doc. No. 33.) On November 20, 2017,
plaintiff filed an opposition. (Doc. No. 36.) Defendant
Rodriguez did not file a reply.
the court will address the parties' arguments.
purpose of a motion to dismiss pursuant to Rule 12(b)(6) is
to test the legal sufficiency of the complaint. N. Star
Int'l v. Ariz. Corp. Comm'n, 720 F.2d 578, 581
(9th Cir. 1983). “Dismissal can be based on the lack of
a cognizable legal theory or the absence of sufficient facts
alleged under a cognizable legal theory.”
Balistreri v. Pacifica Police Dep't, 901 F.2d
696, 699 (9th Cir. 1990). A plaintiff is required to allege
“enough facts to state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). “A claim has
facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
determining whether a complaint states a claim on which
relief may be granted, the court accepts as true the
allegations in the complaint and construes the allegations in
the light most favorable to the plaintiff. Hishon v. King
& Spalding, 467 U.S. 69, 73 (1984); Love v.
United States, 915 F.2d 1242, 1245 (9th Cir. 1989).
However, the court need not assume the truth of legal
conclusions cast in the form of factual allegations.
United States ex rel. Chunie v. Ringrose, 788 F.2d
638, 643 n.2 (9th Cir. 1986). While Rule 8(a) does not
require detailed factual allegations, “it demands more
than an unadorned, the defendant-unlawfully-harmed-me
accusation.” Iqbal, 556 U.S. at 678. A
pleading is insufficient if it offers mere “labels and
conclusions” or “a formulaic recitation of the
elements of a cause of action.” Twombly, 550
U.S. at 555. See also Iqbal, 556 U.S. at 676
(“Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice.”). Moreover, it is inappropriate to assume
that the plaintiff “can prove facts which it has not
alleged or that the defendants have violated the . . . laws
in ways that have not been alleged.” Associated
Gen. Contractors of Cal., Inc. v. Cal. State Council of
Carpenters, 459 U.S. 519, 526 (1983).
complaint, plaintiff alleges that defendant Rodriguez's
alleged conduct amounts to discrimination and harassment on
the basis of race in violation of the Equal Protection Clause
of the United States Constitution. Defendant Rodriguez moves
to dismiss plaintiff's second claim for relief for racial
discrimination and harassment, on the grounds that the
complaint fails to state a claim for relief and because the
allegations are conclusory. (Doc. No. 33 at 1-2.) Defendant
Rodriguez also argues that even if the facts alleged in the
complaint are accepted as true, his conduct should be
construed as mere private acts and he thus cannot be said to
have been undertaken under color of law so as to violate
plaintiff's equal protection rights. (Doc. No. 33-1 at
second claim for relief is brought pursuant to 42 U.S.C.
§ 1983, which provides:
Every person who, under color of [state law] . . . subjects,
or causes to be subjected, any citizen of the United States .
. . to the deprivation of any rights, privileges, or
immunities secured by the Constitution . . . shall be liable
to the party injured in an action at law, suit in equity, or
other proper proceedings for redress.
statute requires that there be an actual connection or link
between the actions of the defendants and the deprivation
alleged to have been suffered by plaintiff. See Monell v.
Department of Social Servs., 436 U.S. 658 (1978);
Rizzo v. Goode, 423 U.S. 362 (1976). Generally,
“[t]o make out a cause of action under section 1983,
plaintiff [ ] must plead that (1) the defendant[ ] acting
under color of state law (2) deprived plaintiff [ ] of rights
secured by the Constitution or federal statutes.”
Gibson v. United States, 781 F.2d 1334, 1338 (9th
Supreme Court has interpreted the phrase ‘under
“color” of law' to mean ‘under
“pretense” of law.'” Huffman v.
Cty. of Los Angeles, 147 F.3d 1054, 1058 (9th Cir. 1998)
(quoting Screws v. United States, 325 U.S. 91, 111
(1945)). “The pretense is lacking if the wrongful act
is ‘not in any way related to the performance of the
duties of the state employee.'” Dang Vang v.
Vang Xiong X. Toyed, 944 F.2d 476, 479 (9th Cir. 1991)
(quoting Murphy v. Chicago Transit Auth., 638
F.Supp. 464, 467 (N.D. Ill. 1986) (citing Johnson v.
Hackett, 284 F.Supp. 993, 937 (E.D. Pa. 1968))).
Although both employment by the state and whether the alleged
misconduct occurred at the workplace are relevant to this
inquiry, these factors are not conclusive of the question of
whether the alleged act has been taken under color of state
law. See Polk County v. Dodson, 454 U.S. 312, 321
(1981); see also Anthony v. Cty. of Sacramento,
Sheriff's Dep't, 845 F.Supp. 1396, 1400 (E.D.
Cal. 1994); Murphy, 638 F.Supp. at 468; Savin v.
City & Cty. of San Francisco, No. 16-CV-05627-JST,
2017 WL 2686546, at *4 (N.D. Cal. June 22, 2017). Rather, a
plaintiff must allege and ultimately show a nexus or unique
relationship between the misconduct described and the
specific duties of the state employee. See, e.g.,
Washington Pope v. City of Philadelphia, 979
F.Supp.2d 544, 561 (E.D. Pa. 2013) ...