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Rossy v. City of Bishop

United States District Court, E.D. California

April 3, 2018

BRYAN ROSSY, et al., Plaintiffs,
v.
CITY OF BISHOP, et al., Defendants.

          MEMORANDUM DECISION AND ORDER DENYING DEFENDANT'S MOTION TO DISMISS WITHOUT PREJUDICE (ECF NOS. 9, 15, 16)

          LAWRENCE J. O'NEILL UNITED STATES CHIEF DISTRICT JUDGE.

         I. INTRODUCTION

         Plaintiffs, employees of the City of Bishop and the Bishop Police Department[1], Bryan Rossy (“Rossy”), Jared Waasdorp (“Wassdorp”), Mark Gutierrez (“Gutierrez”) and Douglas Mairs (“Mairs”) filed the complaint in this action on September 15, 2017. (ECF No. 1.) Therein, Plaintiffs asserted a claim against Defendants: Police Chief Chris Carter (“Chief Carter”), Police Chief Ted Stec (“Chief Stec”), Bishop City Mayor Pat Gardner (“Gardner”), Bishop City Administrator Jim Tatum (“Tatum”), and Does 1-10 for alleged violations of Plaintiffs' civil rights under 42 U.S.C. § 1983. Plaintiffs also allege a claim against the City of Bishop (“City”) for violations of their civil rights under 42 U.S.C § 1983.

         On December 4, 2017, Defendants filed a motion to dismiss the complaint pursuant to Federal Rules of Civil Procedure 12(b)(1)[2] and 12(b)(6) along with a motion for a more definitive statement pursuant to Federal Rules of Civil Procedure 12(e) and (g). (ECF No. 9.) On February 6, 2018, Plaintiffs filed an opposition to Defendants' motion to dismiss. (ECF No. 15.) On February 13, 2018, Defendants filed a reply to Plaintiffs' opposition to the motion to dismiss. (ECF No. 16.) The matter was taken under submission on the papers pursuant to Local Rule 230(g). For reasons set forth below, Defendants' motion to dismiss is DENIED.

         II. BACKGROUND

         The following facts are drawn from the complaint and the materials submitted with the complaint. United States v. Corinthian Colleges, 655 F.3d 984, 998-99 (9th Cir. 2011). (“As a general rule, [a court] may not consider any material beyond the pleadings in ruling on a Rule 12(b)(6) motion . . . [a court] may, however, consider materials that are submitted with and attached to the complaint.”) (internal citations omitted).

         In September 2015, Plaintiff Rossy was the President of the Bishop Police Officers Association (“Association” or “POA”), and the other Plaintiffs, Waasdorp, Guiterrez, and Mairs were members of the POA. On September 16, 2015, the Plaintiffs published a letter titled “LETTER OF NO CONFIDENCE IN BISHOP POLICE CHIEF CHRIS CARTER, ” (hereinafter, “the No Confidence Letter”), which explains the reasons why at least seven officers in the Bishop Police Department have “lost all trust, faith and confidence in Chief Chris Carter's ability to lead. . . .” (ECF No. 2.)

         On October 3, 2015 Defendants Chief Carter and Tatum issued Plaintiffs a written notice advising them they were being placed on administrative leave “due to the letter of no confidence.” (ECF No. 1 at ¶ 17.) An internal investigation into the allegations the officers made in the No Confidence Letter was opened and on October 9, 2015, Plaintiffs were given written notices by Gardner advising them that they were “witnesses” to the investigation. (Id. at ¶ 18.) On October 21, 2015, Plaintiffs gave involuntary statements to an investigator regarding the No Confidence Letter and their allegations of “corruption within the [Bishop Police] Department as well as [] within the City.” (Id. at ¶ 19.)

         Almost a year later, on October 19, 2016, the new Police Chief, Chief Stec “held a formal pre-disciplinary hearing with the Plaintiffs.” (Id. at ¶ 23.) At the hearing, Plaintiffs argued that their activity was “protected First Amendment free speech and … [that] they were protected as whistleblowers.” (Id.) On November 22, 2016, Plaintiffs “each received a letter of intent to discipline based on their letter of no confidence.” (Id. at ¶ 20.) Plaintiffs state that the intent to discipline letter made it clear that because of their “participation in creating and publishing the letter of no confidence, the Plaintiffs were each being suspended for 24 hours with Mairs being advised he would be demoted from Sergeant. . . .” (Id.) Plaintiffs also claim that the discipline was recommended by Chief Stec in order to dissuade officers in the Bishop Police Department “from engaging in whistle blowing activities in the future.” (Id. at ¶ 22.)

         On September 15, 2017, Plaintiffs filed a complaint alleging two causes of action for violations of their civil rights under 42 U.S.C § 1983. The first cause of action alleges that Defendants Chief Carter, Chief Stec, Gardner, and Tatum violated Plaintiff's constitutional rights to free expression and to petition the government under the First and Fourteenth Amendment by retaliating against them for publishing the No Confidence Letter. (Id. at ¶ 26.) The second cause of action alleges a claim for Monell[3] Liability against the City of Bishop for violating Plaintiff's constitutional rights pursuant to the decisions of the City's final policymakers. (Id. at ¶¶ 38, 39.)

         III. LEGAL STANDARD

         A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) challenges the legal sufficiency of the opposing party's pleadings. Dismissal of an action under Rule 12(b)(6) is proper where there is either a “lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990). When considering a motion to dismiss for failure to state a claim under Rule 12(b)(6), all allegations of material fact must be accepted as true and construed in the light most favorable to the pleading party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). The inquiry is generally limited to the allegations made in the complaint. Lazy Y Ranch LTD v. Behrens, 546 F.3d 580, 588 (9th Cir. 2008).

         Federal Rule of Civil Procedure 8(a)(2) “requires only ‘a short and plain statement of the claim showing that the pleader is entitled to relief' in order to ‘give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.' ” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). To overcome a Rule 12(b)(6) challenge, the complaint must allege “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. A claim is plausible on its face 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). A plausible claim is one which provides more than “a sheer possibility that a defendant has acted unlawfully.” Id. A claim which is possible, but which is not supported by enough facts to “nudge [it] across the line from conceivable to plausible . . . must be dismissed.” Twombly, 550 U.S. at 570.

         A complaint facing a Rule 12(b)(6) challenge “does not need detailed factual allegations, [but] 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 element of a cause of action will not do.” Id. at 555 (internal citations omitted). In essence, “a complaint . . . must contain either direct or inferential allegations respecting all the material elements necessary to sustain recovery under some viable legal theory.” Id. at 562. To the extent that any defect in the pleadings can be cured by the allegation of additional facts, the plaintiff should be afforded leave to amend, unless the pleading “could not possibly be cured by the allegation of other facts.” Cook, Perkiss and Liehe, Inc. v. N. Cal. Collection Serv. Inc., 911 F.2d 242, 247 (9th Cir. 1990).

         IV. ANALYSIS

         A. 42 U.S.C § 1983: First Cause of Action Against Defendants Carter, Stec, Gardner, and Tatum

         Plaintiffs allege that the Defendants Chief Carter, Chief Stec, Gardner, and Tatum retaliated against them for participating in protected speech, specifically, for the act of publishing a letter of no confidence in the leadership of the Bishop Chief of Police, Chief Carter. Defendants argue that Plaintiffs failed to plead sufficient facts to support their § 1983 claim for a First Amendment violation claim.

         To state a claim under § 1983, a plaintiff must allege that the conduct complained of was committed by a person acting under color of state law, and the conduct deprived plaintiff of rights, privileges or immunities secured by the Constitution or laws of the United States. Jensen v. City of Oxnard, 145 F.3d 1078, 1082 (9th Cir. 1998). Where a public employee is claiming that his first amendment rights have been violated, the Court applies a five-step test to balance the government's rights as an employer and the plaintiff's rights as a citizen. The plaintiffs bear the burden of showing that: (1) the speech addressed a matter of public concern; (2) the speech was spoken in the capacity of a private citizen and not a public employee; and (3) the state took adverse employment action and the speech was a substantial or motivating factor in the adverse action. If the plaintiff has alleged the first three steps, the burden shifts to the government to show (4) whether the state had an adequate justification for treating the employee differently from other members of the general public; and (5) whether the state would have taken the adverse employment action even absent the protected speech. Eng v. Cooley, 552 F.3d 1062, 1070-72 (9th Cir. 2009). Because plaintiff's failure to satisfy one of the first three steps “necessarily concludes [the] inquiry, ” Huppert v. City of Pittsburgh, 574 F.3d 696, 703 (9th Cir. 2009) (overruled on other grounds by Dahlia v. Rodriguez, 735 F.3d 1060, 1066 (9th Cir. 2013)), the court addresses the first three steps only.

         1. Pu ...


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