Stampfli v. Susanville Sanitary District ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 DEBORAH STAMPFLI, an individual, No. 2:20-cv-01566-WBS-DMC 13 Plaintiff, 14 MEMORANDUM AND ORDER RE: v. SUSANVILLE SANITARY DISTRICT, 15 STEVEN J. STUMP, JOHN MURRAY, SUSANVILLE SANITARY DISTRICT, a ERNIE PETERS, DAVID FRENCH, 16 political subdivision of the KIM ERB, AND MARTY HEATH’S State of California, STEVE J. MOTION TO DISMISS 17 STUMP, in his individual and official capacities, ERNIE 18 PETERS, in his individual and official capacities, DAVID 19 FRENCH, in his individual and official capacities, KIM ERB, in 20 his individual and official capacities, MARTY HEATH, in his 21 individual and official capacities, DOES I-V, inclusive, 22 BLACK & WHITE CORPORATIONS I-V, and ABLE & BAKER COMPANIES, 23 inclusive,, 24 Defendant. 25 26 ----oo0oo---- 27 Plaintiff Deborah Stampfli (“plaintiff”) brought this 28 action against the Susanville Sanitary District (“District”), 1 Steve J. Stump, John Murray, Ernie Peters, David French, Kim Erb, 2 Marty Heath, Black & White Corporations I-V, Able and Baker 3 Companies, and Does 1-5 inclusive, for breach of express 4 contract, breach of implied-in-fact contract, promissory 5 estoppel, violation of district laws, policies, and procedure, 6 deprivation of federal and state procedural due process rights, 7 conspiracy to deprive plaintiff of procedural due process rights, 8 and failure to produce public records. 9 Defendants now move to dismiss the Second Amended 10 Complaint pursuant to Federal Rule of Civil Procedure 12 (b)(6) 11 for failure to state a claim upon which relief can be granted. 12 (“Mot. to Dismiss” (Docket No. 42).) 13 I. Factual and Procedural Background 14 Plaintiff was hired as treasurer by the District in 15 2005. (See 2d. Am. Compl. (“SAC”) at ¶ 90 (Docket No. 38.)) At 16 the time of her hiring, plaintiff was informed that she would be 17 a member of Operating Engineers Local Union No. 3 and that she 18 would be entitled to the benefits and protections of the 19 agreements between the union and the District, including the 20 right to continued employment and termination only for good cause 21 and after the satisfaction of procedural requirements. (See id.) 22 From 2005 to 2013, plaintiff performed her assigned duties and a 23 host of additional duties typically performed by supervisory 24 personnel, and consistently received high performance 25 evaluations. (See id. at ¶ 91.) 26 By October 2013, plaintiff was performing many 27 management and administrative functions but, because she was a 28 union member, she could not participate in confidential meetings 1 of the District’s Board of Directors (“the board”). (See id. at 2 ¶ 94.) Her inability to participate in these meetings was 3 inconvenient because the board frequently had to stop meetings or 4 delay them to obtain information possessed only by plaintiff. 5 (See id.) Because of these difficulties, the board proposed the 6 creation of a new management level position with the District 7 entitled “Office Administrator” which would allow plaintiff to 8 participate in confidential board meetings but would require her 9 to relinquish her union membership. (See id.) 10 When plaintiff was offered this new position, she 11 declined it because she did not wish to lose the job security 12 offered by her union affiliation. (See id. at ¶ 96.) In 13 response to her concerns, plaintiff was advised by the General 14 Manager and the District’s general counsel that although she 15 could not remain a union member, she would not become an at-will 16 employee and would be afforded all the job security rights and 17 benefits available to union members. (See id. at ¶ 98.) 18 Plaintiff was promised that her employment with the District 19 would only be terminated for cause and in accordance with 20 established Skelly procedures.1 (See id.) Because of these 21 representations, plaintiff relinquished her position as treasurer 22 and accepted the new position of Office Administrator. (See id. 23 at ¶ 99.) 24 1 The term Skelly procedures refers to the California 25 Supreme Court case Skelly v. State Personnel Board, 15 Cal.3d 194 (1975). In Skelly, the California Supreme Court held that a 26 permanent public employee’s property rights (i.e. their vested 27 right to continued employment) cannot be taken away by an employer without first being afforded certain procedural 28 safeguards. See id. at 215. 1 During 2016, plaintiff performed many duties typically 2 performed by the General Manager. (See id. at ¶ 104.) By 3 October 2017, the General Manager recommended to the board that 4 plaintiff be provided a 20% salary increase to account for the 5 additional duties she performed and that she receive the 6 additional title of Assistant General Manager. (See id. at ¶ 7 109.) During an October 2017 board meeting, the board stated 8 that plaintiff’s additional duties would likely be temporary 9 until such time as a new general manager had obtained sufficient 10 experience. (See id. at ¶ 112.) Plaintiff was fully aware that 11 there might come a time when the new General Manager no longer 12 needed her assistance in performing the duties and functions of 13 General Manager, and was led to believe that if this change 14 occurred, she would be relieved of any additional Assistant 15 General Manager duties, but would continue to perform all the 16 functions she previously performed as Office Administrator. (See 17 id. at ¶ 114.) Plaintiff was never told that her position as 18 Office Administrator had somehow been converted to a position 19 terminable at will or that she could summarily be deprived of her 20 permanent position of Office Administrator. (See id.) However, 21 the board approved the recommended change and prepared a new job 22 description which stated that the plaintiff would work in 23 conjunction with the District’s General Manager. (See id. at ¶ 24 113.) 25 While the aforementioned events were unfolding, a 26 nearby local utility district discovered that its General Manager 27 had embezzled money from the district. (See id. at ¶ 116.) The 28 members of the District’s board wished to ensure that the 1 District not be victimized in the same fashion. (See id.) 2 Plaintiff was specifically instructed to keep the board apprised 3 of any changes which might impair the security of the District’s 4 financial accounting services. (See id.) 5 In March 2018, the District hired defendant Steve Stump 6 to the position of probationary General Manager, and he relied 7 heavily on plaintiff for matters pertaining to administrative 8 operations. (See id. at ¶ 118.) Following the completion of 9 General Manager Stump’s probationary period, he became 10 increasingly hesitant to work in conjunction with the plaintiff. 11 (See id. at ¶ 122.) As part of his efforts to strip plaintiff of 12 any perceived co-equal authority she may have had with him, he 13 unilaterally amended plaintiff’s job description to eliminate the 14 requirements that she work “in conjunction with” the General 15 Manager. (See id. at ¶ 123.) 16 In April 2019, General Manager Stump wanted plaintiff 17 to shift funds from various accounts to allow for the purchase of 18 a portable generator. (See id. at ¶¶ 125–26.) Given plaintiff’s 19 instructions from several board members regarding the financial 20 affairs of the District, she requested that General Manager Stump 21 delay this purchase until after a new budget for 2020 was created 22 or seek approval from the board for the purchase. (See id.) 23 This infuriated him because he believed plaintiff was refusing to 24 acknowledge his authority over her. (See id.) 25 General Manager Stump realized that plaintiff was in 26 control of the District’s finances because certain computer 27 programs which controlled the District’s finances were only on 28 the accounting department’s computers. (See id. at ¶ 130.) On 1 or about January 8, 2020, General Manager Stump directed 2 plaintiff to have these computer programs placed on his personal 3 office computer. (See id.) By placing these programs on his 4 computer, he would be able to transfer funds between accounts, 5 make payments out of accounts, adjust customer accounts, or 6 manipulate billings. (See id. at ¶ 131.) Because of the 7 instructions she had received from board members, plaintiff told 8 General Manager Stump that she wished to meet with certain board 9 members to determine whether it was necessary for such highly 10 sensitive programs to be placed on his computer. (See id. at ¶ 11 132.) 12 General Manager Stump responded to this by telling 13 plaintiff to “get out” and informing her that she was on unpaid 14 administrative leave. (See id. at ¶ 133.) Prior to this action, 15 General Manager Stump had never informed plaintiff that her 16 refusal to comply with his request would result in disciplinary 17 action. (See id.) On January 14, 2020, plaintiff was informed 18 by General Manager Stump that her administrative leave would be 19 paid, but not why she was placed on leave in the first place. 20 (See id. at ¶ 135.) On March 6, 2020, General Manager Stump 21 informed plaintiff that her “at-will” employment as Office 22 Administrator/Assistant General Manager was no longer needed and 23 would end as of March 6, 2020. (See id. at ¶ 136.) At the time 24 of her termination, plaintiff had accrued 128 hours of earned 25 sick leave and 8 hours of personal leave. (See id. at ¶ 137.) 26 Prior to her termination, the plaintiff had never received notice 27 of the reason for her administrative leave nor was she ever 28 1 afforded an opportunity to be heard. (See id. at ¶ 138.)2 2 II. Discussion 3 The relevant inquiry under Rule 12(b)(6) is whether, 4 accepting the allegations in the complaint as true and drawing 5 all reasonable inferences in the plaintiff’s favor, the complaint 6 has stated “a claim to relief that is plausible on its face.” 7 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “The 8 plausibility standard is not akin to a ‘probability requirement,’ 9 but it asks for more than a sheer possibility that a defendant 10 has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 11 (2009). “Threadbare recitals of the elements of a cause of 12 action, supported by mere conclusory statements, do not suffice.” 13 Id. Although legal conclusions “can provide the framework of a 14 complaint, they must be supported by factual allegations.” Id. 15 at 679. 16 III. Federal Claims 17 A. Procedural Due Process 18 Plaintiff’s fifth cause of action alleges that she was 19 deprived of procedural due process rights under the United States 20 Constitution. She contends that she had a constitutionally 21 protected property interest in continued employment which was 22 violated by General Manager Stump, the individual members of the 23 board, and the District itself when she was terminated without 24 good cause and denied the pre- and post- termination procedures 25 duly enacted and adopted by the District. (See SAC at ¶¶ 240– 26 2 Although both plaintiff and defendants submitted 27 extrinsic evidence to the court, after conferring with the court at the hearing on June 14, 2021, the parties agreed that the 28 extrinsic evidence should not be taken into consideration. 1 61.) 2 1. Claims Against General Manager Stump 3 Plaintiff asserts that General Manager Stump violated 4 her procedural due process rights under the United States 5 Constitution when he terminated her without cause and without 6 following policies duly enacted and adopted by the District. 7 (See SAC at ¶ 240–260.) To state a claim for a violation of § 8 1983, a plaintiff must allege: (1) a violation of rights 9 protected by the Constitution or created by federal statute; (2) 10 proximately caused by a “person”; (3) who was acting under color 11 of state law. See Crumpton v. Gates, 947 F.2d 1418, 1420 (9th 12 Cir. 1991). 13 “The requirements of procedural due process apply only 14 to the deprivation of interests encompassed by the Fourteenth 15 Amendment’s protection of liberty and property.” Board of 16 Regents v. Roth, 408 U.S. 564, 569 (1972). State law defines 17 what is and what is not property. See Dorr v. Butte Cnty., 795 18 F.2d 875, 876 (9th Cir. 1986). Under California law, a 19 “permanent employee,” dismissible only for cause, has “a property 20 interest in his continued employment which is protected by due 21 process.” Skelly, 15 Cal.3d 194, 207–08 (1975). While “a 22 probationary (or nontenured) civil service employee, at least 23 ordinarily, may be dismissed without a hearing or judicially 24 cognizable good cause, an employee who has completed her 25 probationary period ordinarily has a legitimate claim of 26 entitlement to continued public employment.” See Dorr, 795 F.2d 27 at 876. (internal citations omitted). 28 Plaintiff has alleged that she was a permanent employee 1 and had completed any probationary period associated with her 2 position. (See SAC at ¶ 115.) Plaintiff has identified policies 3 promulgated by the District, such as Resolution 04.06 enacted in 4 July 2004, which states that “individuals shall only be 5 disciplined for just cause.” (See id. at ¶ 77). Plaintiff also 6 points to District Ordinance No. 17, enacted in March 1976, which 7 states that the “District Manager shall have the right, for due 8 cause. . . to dismiss. . . or suspend without pay for thirty 9 calendar days any permanent employee.” (See id. at ¶ 70.) 10 Ordinance No. 17 further provides that “notice of such action 11 must be in writing and served personally on such employee and . . 12 . shall specify the penalty and contain a statement of the reason 13 or reasons therefore.” (See id.) Plaintiff has therefore 14 adequately alleged that she was a permanent employee dismissible 15 only for cause and had a property interest in her continued 16 employment protected by due process. 17 Defendants apparently do not dispute that plaintiff’s 18 termination was proximately caused by General Manager Stump or 19 that he was acting under color of state law. Plaintiff has 20 alleged that it was General Manager Stump who placed her on 21 administrative leave, (see SAC at ¶¶ 133–135), and terminated her 22 on March 6, 2020. (See SAC at ¶ 136.) This suffices to allege 23 that General Manager Stump’s action was the proximate cause of 24 her alleged injury at this stage of the proceedings. Plaintiff 25 has also identified Ordinance No. 17, which states that the 26 District Manager (here, General Manager Stump) “shall have the 27 right, for due cause, . . . to dismiss. . . any permanent 28 employee.” (See SAC at ¶ 70.) The Supreme Court has held that 1 “generally, a public employee acts under color of state law while 2 acting in his official capacity or while exercising his 3 responsibilities pursuant to state law.” West v. Atkins, 487 4 U.S. 42, 50 (1988). Plaintiff has accordingly also adequately 5 alleged that General Manager Stump was acting under color of 6 state law when he terminated her without pre- or post-termination 7 proceedings. 8 Defendants alternatively argue that General Manager 9 Stump is entitled to qualified immunity in his individual 10 capacity because a reasonable officer in his position would have 11 believed that it was acceptable to terminate an at-will employee 12 employed by the District. (See Mot. to Dismiss at 8-12.) The 13 doctrine of qualified immunity “protects government officials 14 ‘from liability for civil damages insofar as their conduct does 15 not violate clearly established statutory or constitutional 16 rights of which a reasonable person would have known.’” Pearson 17 v. Callahan, 555 U.S. 223, 231 (2009)(citing Harlow v. 18 Fitzgerald, 457 U.S. 800, 818 (1982)). However, “[d]etermining 19 claims of qualified immunity at the motion to dismiss stage 20 raises special problems for legal decision making.” See Keates 21 v. Koile, 883 F.3d 1228, 1234 (9th Cir. 2018). The Ninth Circuit 22 has opined that “[i]f the operative complaint contains even one 23 allegation of a harmful act that would constitute a violation of 24 a clearly established constitutional right, then plaintiffs are 25 entitled to go forward with their claims.” See id. at 1235. 26 As discussed above, plaintiff has adequately alleged 27 that she was a permanent employee, dismissible only for cause, 28 with “a property interest in [her] continued employment which is 1 protected by due process.” Skelly, 15 Cal.3d at 207–08. The 2 right to procedural due process for tenured public employees who 3 are dismissible only for cause is well-established under federal 4 law. See Bd. of Regents of State College v. Roth, 408 U.S. 564 5 (1972); see Dorr, 795 F.2d at 876. Defendants’ argument assumes 6 that plaintiff was an at-will employee, or, at the least, that it 7 would have been reasonable for an officer in General Manager 8 Stump’s position to believe that plaintiff was an at-will 9 employee. Such an assumption runs counter to the allegations in 10 plaintiff’s complaint, however. See Enesco Corp. v. 11 Price/Costco, Inc., 146 F.3d 1083, 1085 (9th Cir. 1998) (stating 12 that all allegations of material fact are taken as true and 13 construed in the light most favorable to the nonmoving party). 14 Therefore, the court concludes that General Manager Stump is not 15 entitled to qualified immunity at this stage. 16 Accordingly, the court will deny defendants’ motion to 17 dismiss plaintiff’s procedural due process claim under 42 U.S.C. 18 § 1983 as against General Manager Stump. 19 2. Claims Against Individual Board Members 20 Plaintiff next asserts that the individual board 21 members violated plaintiff’s procedural due process rights under 22 the United States Constitution when they terminated her without 23 cause and without following pre- and post- termination procedures 24 duly enacted and adopted by the District. (See SAC at ¶¶ 240– 25 260.) She further alleges that if the board members did not 26 actually vote to terminate her without cause, they “authorized, 27 approved, knowingly acquiesced in, and/or ratified” the actions 28 of the other defendants who deprived plaintiff of her 1 constitutional rights and did not intervene to protect her from 2 unconstitutional acts. (See id. at ¶¶ 12-30.) 3 Plaintiff’s Second Amended Complaint is completely 4 devoid of any facts demonstrating that the board, or any 5 individual board member, played any role in her termination, or 6 even ratified her termination after it occurred. Plaintiff 7 candidly states in her opposition that “[s]he does not know what 8 role the board played in the decision [to terminate her].” (See 9 Opp’n to Mot. to Dismiss at 27.) (Docket No. 44.) While she 10 states that she “fully believes that Mr. Stump had gained the 11 approval of the Board before he terminated the plaintiff’s 12 employment,” (see id.), her mere belief, absent any facts to 13 support it, does not suffice. 14 The closed session meetings that plaintiff points the 15 court to in which the board discussed the “significant exposure 16 to litigation” prior to her termination similarly do not provide 17 any facts to support her allegation that the board played a role 18 in terminating her or that the board ratified the decision to 19 terminate her. (See SAC at ¶¶ 49–58.) Nor do these sessions 20 indicate that the individual board members or the Board “refused 21 the plaintiff’s request for pre- and post- termination due 22 process.” (See Opp’n to Mot. to Dismiss at 42.) The only thing 23 that these agendas indicate is that the board was concerned about 24 potential litigation from plaintiff and had closed session 25 meetings to discuss this with counsel. In short, plaintiff has 26 not adequately alleged facts to demonstrate that the board played 27 any role in her termination or the decision to deny her 28 procedural due process rights to a pre- and post- termination 1 hearing. 2 Plaintiff additionally contends that the individual 3 board members may be held liable for their failure to take 4 remedial steps after the alleged deprivation of her procedural 5 due process rights, even if they did not affirmatively vote to 6 terminate her or deny her procedural due process rights. (See 7 Opp’n to Mot. to Dismiss at 41.) Plaintiff argues that the 8 failure to “take any remedial steps after the violations can 9 indicate a deliberate choice and establish an independent basis 10 for liability.” (See id. (citing McKay v. City of Hayward, 949 11 F. Supp. 2d 971, 986 (N.D. Cal. 2013)); see also Gomez v. Vernon, 12 255 F.3d 1118, 1127 (9th Cir. 2001) (holding that a “turn-a-blind 13 eye approach does not insulate the Department”).) 14 However, as the court stated in its previous order, 15 (see Docket No. 34 at 8.), neither plaintiff, defendants, nor 16 this court have identified any binding precedent supporting a 17 duty to intercede outside of the law enforcement context. The 18 cases cited by plaintiff are distinguishable because those cases 19 both dealt with the law enforcement and prison context, 20 respectively, and were concerned with municipal or departmental 21 liability for failing to take remedial steps after violations, 22 not the liability of defendants acting in their individual 23 capacities. Plaintiffs contend that Monteilh v. County of Los 24 Angeles, 820 F. Supp. 2d 1081, 1093 (C.D. Cal. 2011) only stands 25 for the limited proposition that the “Constitution does not 26 require all public employees to intercede, outside their own 27 bureaucratic hierarchies, on behalf of persons whose rights are 28 in jeopardy.” However, plaintiff has not identified any binding 1 case which affirmatively requires public employees, outside of 2 the law enforcement context, to intercede on behalf of persons 3 whose rights are in jeopardy even within their own bureaucratic 4 hierarchies. In the absence of such binding precedent, the court 5 finds that plaintiff has not adequately demonstrated that the 6 individual board members had a duty to intervene to protect 7 plaintiff from a violation of her procedural due process rights. 8 Accordingly, the court will grant defendants’ motion to 9 dismiss this claim as to the individual board members. 10 3. Claims Against the District 11 Plaintiff alleges that the District is liable for the 12 violation of plaintiff’s procedural due process rights. (See SAC 13 at ¶¶ 244–247); (see Pl.’s Opp’n at 32–39.) Because 42 U.S.C. § 14 1983 does not provide for vicarious liability, local governments 15 “may not be sued under § 1983 for an injury inflicted solely by 16 its employees or agents.” Monell v. Department of Social 17 Services of the City of New York, 436 U.S. 658, 694 (1978) 18 “Instead, it is when execution of a government’s policy or 19 custom, whether made by its lawmakers or by those whose edicts or 20 acts may be fairly said to represent official policy, inflicts 21 the injury that the government as an entity is responsible under 22 § 1983.” Id. 23 The Supreme Court has held that “municipal liability 24 may be imposed for a single decision by municipal policymakers 25 under appropriate circumstances.” See Pembaur v. City of 26 Cincinnati, 475 U.S. 469, 481 (1986). However, “[t]he fact that 27 a particular official, even a policymaking official, has 28 discretion in the exercise of particular functions does not, 1 without more, give rise to municipal liability based on an 2 exercise of that discretion.” See id. at 482. “The official 3 must also be responsible for establishing final governmental 4 policy respecting such activity before the municipality can be 5 held liable.” See id. at 482–483. The Supreme Court has made 6 clear that “municipal liability under § 1983 attaches where, and 7 only where, a deliberate choice to follow a course of action is 8 made from among various alternatives by the official or officials 9 responsible for establishing final policy with respect to the 10 subject matter in question.” See id. at 483. Whether a 11 particular official has final policy-making authority is a 12 question of state law. See City of St. Louis v. Praprotnik, 485 13 U.S. 112, 123–24 (1988). 14 Plaintiff alleges in her complaint that General Manager 15 Stump is a policy maker for the District and therefore his 16 actions constitute official policy. (See SAC at ¶¶ 10, 33–34.)3 17 She has also alleged that General Manager Stump terminated her 18 and placed her on administrative leave. (See SAC at ¶¶ 133–36). 19 Therefore, the court must determine whether General Manager Stump 20 has “final policymaking authority” under state law, such that his 21 action in allegedly terminating plaintiff without procedural due 22 process protections constituted official district policy. See 23 Pembaur, 475 U.S. at 480-81. Although plaintiff has not stated 24 3 As the court has articulated above, plaintiff has 25 failed to plead facts regarding the individual board members or the board as a whole which indicate that the board played any 26 role in her termination or the decision to allegedly deprive her 27 of pre - and post- termination procedural due process, or that it ratified the decision to terminate her. 28 1 that General Manager Stump had “final policymaking authority”, 2 she has alleged that he was delegated the authority to act on 3 behalf of the District with regard to the decisions to hire, 4 fire, and discipline employees and with regard to the process by 5 which employees were disciplined or terminated. (See SAC at ¶¶ 6 33–34.) However, plaintiff also cites to California Health & 7 Safety Code § 6497 in her opposition which provides that “the 8 sanitary board may make rules to carry out the purposes of this 9 section, and for examinations, appointments, promotions, and 10 removals, and may from time to time make changes in existing 11 rules.” (See Opp’n to Mot. to Dismiss at 36.); see Cal. Health 12 & Safety Code § 6497. 13 The court concludes that plaintiff has not adequately 14 alleged that General Manager Stump was a final policymaker for 15 the District in the area of employment such that the District can 16 be liable for his decision to terminate her. In Gillette v. 17 Delmore, 979 F. 2d 1342, 1350 (9th Cir. 1992), the Ninth Circuit 18 concluded that a Fire Chief’s discretionary authority to hire and 19 fire employees was insufficient to establish a basis for 20 municipal liability because he was not responsible for 21 establishing the city’s employment policy; rather, the city 22 charter granted such authority to the City Manager and City 23 Council. See id. The Gillette court accordingly held that the 24 Fire Chief was not a final policymaker and his decision could not 25 be attributed to the city. See id. Similarly, while General 26 Manager Stump may have had the discretion to terminate the 27 plaintiff, like the Fire Chief in Gillette, he does not appear to 28 have been responsible for establishing the District’s employment 1 or promotional policies. Rather, the state policy that plaintiff 2 identified indicates that it is the District’s board, rather than 3 General Manager Stump, that is responsible for establishing the 4 District’s employment policies. See Cal. Health & Safety Code § 5 6497. Plaintiff does not allege sufficient facts to indicate 6 that the board took any role in either ratifying Mr. Stump’s 7 decision, affirmatively voting to terminate plaintiff, or denying 8 plaintiff procedural due process rights. Therefore, the court 9 must conclude that, as in Gillette, General Manager Stump was not 10 a final policy maker and his decision to terminate plaintiff 11 cannot be attributed to the District. 12 Accordingly, the court will grant defendants’ motion to 13 dismiss plaintiff’s procedural due process claim under 42 U.S.C. 14 § 1983 as against the Susanville Sanitary District. 15 B. Conspiracy to Deprive Procedural Due Process 16 Plaintiff’s sixth cause of action alleges that the 17 District, individual board members, and General Manager Stump 18 engaged in a conspiracy with the intent of depriving plaintiff of 19 her procedural due process rights protected under the federal 20 constitution. (See SAC at ¶¶ 262–270.) However, “conspiracy is 21 not itself a constitutional tort under § 1983.” See Lacey v. 22 Maricopa Cnty., 693 F.3d 896, 935 (9th Cir. 2012)(internal 23 citations omitted). While conspiracy allegations have sometimes 24 been used by plaintiffs to “draw in private parties who would 25 otherwise not be susceptible to a § 1983 action because of the 26 state action doctrine or to aid in proving claims against 27 otherwise tenuously connected parties in a complex case” (see 28 id.), plaintiff may not bootstrap a § 1983 claim into a separate 1 cause of action for conspiracy simply by alleging that two or 2 more persons combined to commit the action.4 Plaintiff has cited 3 no legal authority whatsoever to support her claim of conspiracy 4 in her opposition. (See Opp’n to Mot. to Dismiss at 51–52.) 5 Accordingly, the court will grant defendants’ motion to dismiss 6 this claim.5 7 V. State Law Claims 8 A. Violation of District Law, Policy, and Procedure 9 Plaintiff has styled her fourth cause of action as 10 “Violation of District Law, Policy, and Procedure.” (See SAC at 11 ¶¶ 207–239.) Plaintiff argues she did so because defendants 12 argued in their previous motion to dismiss that “the only basis 13 14 4 Plaintiff has never given any indication that she seeks to bring a cause of action for conspiracy under 42 U.S.C. § 1985. 15 Despite being asked by the court to identify the statute or common law doctrine that she claims authorizes her cause of 16 action, plaintiff has failed to do so again in her Second Amended Complaint. 17 18 5 The court notes that plaintiff has sued both General Manager Stump and the individual members of the Susanville 19 Sanitary Board of Directors in their official and individual capacities. (See generally SAC.) Individual capacity suits seek 20 to impose personal liability upon a government official for actions he takes under color of state law. See Scheuer v. 21 Rhodes, 416 U.S. 232, 237–38 (1974). Official capacity suits, in 22 contrast, “generally represent only another way of pleading an action against an entity of which an officer is an agent.” See 23 Monell, 436 U.S. at 690 n. 55. As long as the government entity receives notice and an opportunity to respond, an official- 24 capacity suit is, in all respects other than name, to be treated as a suit against the entity. See Kentucky v. Graham, 473 U.S. 25 159, 166 (1985)(internal citations omitted). Because the court has concluded that the District is not liable for either of 26 plaintiff’s federal claims, the court will also dismiss the 27 federal claims against all defendants in their official capacities. 28 1 on which a public employee can complain about termination is that 2 the employer violated its own laws in carrying out the 3 termination.” (See Opp’n to Mot. to Dismiss at 52.) Leaving 4 aside the obvious point that it is unwise to base a cause of 5 action in a complaint solely on an argument made by defendants in 6 their motion to dismiss, plaintiff has not pointed to any common 7 law doctrine or statute which provides a cause of action for an 8 alleged violation of the District’s law, policy, and procedure. 9 It appears to the court that plaintiff is already arguing that 10 the District violated is laws, policies, and procedures through 11 her procedural due process claims. Although the court might 12 conceivably be able to identify a cause of action or common law 13 doctrine that would permit plaintiff to proceed on this theory 14 apart from her procedural due process claim, the court should not 15 be required to expend hours of time performing the legal research 16 to do so. Instead, the court will dismiss this cause of action 17 for failure to adequately state a claim under Federal Rule of 18 Civil Procedure 12(b)(6) and grant plaintiff leave to amend. 19 B. Government Claims Act 20 The District is alleged to be a “public utility 21 district” and the named defendants are alleged to be either 22 District Board Members or its public employees. (See SAC at ¶¶ 23 4–5, 9–37.) Under the Government Claims Act, a “public entity” 24 includes districts, public agencies, and any other political 25 subdivision or political corporation in the state. See Cal. 26 Gov’t. Code § 811.2. The District was formed pursuant to the 27 Sanitary District Act of 1923, found at California Health and 28 Safety Code § 6400, et. seq. (See SAC at ¶¶ 4–5.) The 1 Government Claims Act applies to sanitary districts and therefore 2 applies to the Susanville Sanitary District. See Ambrosini v. 3 Alisal Sanitary Dist., 154 Cal. App. 2d 720, 723 (1st Dist. 1957) 4 (holding that tort liability rules applicable to municipal 5 corporations are applicable to sanitary districts). 6 The Government Claims Act establishes certain 7 conditions precedent to the filing of a lawsuit against a public 8 entity for money or damages. See Cal. Gov’t. Code § 900 et seq. 9 In order to comply with the Government Claims Act, a plaintiff 10 who files an administrative claim with a public entity must 11 either receive a notice of the claim’s rejection or give the 12 entity 45 days to respond to the claim prior to the filing of any 13 lawsuit, after which the entity’s inaction is deemed a rejection. 14 See Cal. Gov’t. Code §§ 912.4, 945.4. The failure to timely 15 present a claim to the public entity bars the claimant from 16 filing a lawsuit against that public entity. See J.J. v. City of 17 San Diego, 223 Cal. App. 4th 1214, 1219 (4th Dist. 2014).6 A 18 plaintiff’s complaint must plead facts demonstrating or excusing 19 compliance with the claims presentation requirements of the 20 California Government Claims Act to survive a motion to dismiss. 21 See State of California v. Superior Court, 32 Cal. 4th 1234, 1239 22 (2004). Absent some exception or legal excuse, plaintiff’s 23 6 The failure to timely present a claim to the public 24 entity also bars the claimant from filing a lawsuit against that entity’s public employee for an act or omission that occurred in 25 the scope of employment. See Cal. Gov’t. Code § 950.2. The failure to present a claim under the Government Claims Act also 26 bars allegations of “ultra vires” employment termination. See 27 Colodney v. Cnty. of Riverside, Case No. EDCV 12-00427-VAP (SPx), 2013 WL 12200649, at *6–7, (C.D. Cal. Aug. 16, 2013), aff’d, 651 28 F.App’x 609 (9th Cir. 2016). 1 failure to present a public entity claim under the Government 2 Claims Act to the District prior to filing suit accordingly 3 constitutes a defect to each of plaintiff’s state law causes of 4 action seeking damages. 5 1. Injunctive and Declaratory Relief 6 Plaintiff first argues that she need not comply with 7 the presentation requirements for claims for money or damages 8 because her claim is primarily one for declaratory and/or 9 injunctive relief. (See SAC at ¶ 2.); (see Pl.’s Opp’n to Mot. 10 to Dismiss at 57.) In Eureka Teachers Ass’n v. Board of 11 Education, 202 Cal. App. 3d 469, 475 (1st Dist. 1998), the court 12 held that the claims presentation requirement under the 13 Government Claims Act is inapplicable in “actions which seek 14 injunctive or declaratory relief and certain actions in mandamus. 15 . . and where money is an incident thereto.” Id. at 475. 16 However, the rule exempting compliance with claims presentation 17 requirements for injunctive or declaratory relief is inapplicable 18 where a petition for extraordinary relief is merely incidental or 19 ancillary to a prayer for damages. See Loehr v. Ventura Cmty. 20 Coll. Dist., 147 Cal. App.3d 1071, 1081 (2nd Dist. 1983). 21 Plaintiff states that “the primary purpose of this 22 action is to obtain declaratory and injunctive relief in the form 23 of an injunction returning the plaintiff to her former position, 24 and an order compelling the defendants to comply with the laws, 25 policies and contracts of the District . . .” (See SAC at ¶ 2.) 26 Plaintiff states that her prayer for monetary damages, such as 27 back pay, and employment benefits are merely incidental to her 28 claims for equitable relief. (See id.) However, a fair reading 1 of the Second Amended Complaint does not support such an 2 interpretation. 3 Having reviewed plaintiff’s Second Amended Complaint, 4 the court cannot conclude that plaintiff’s prayer for damages is 5 “clearly incidental to her claim for injunctive and declaratory 6 relief.” See Eureka Teachers, 202 Cal. App.3d at 475. Instead, 7 it appears that plaintiff is simply trying to bypass the 8 Government Claims Act through creative pleading. Plaintiff 9 pleads in the alternative in each of her first six causes of 10 action that if she “is not reinstated to her employment with the 11 District, she will be entitled to an award of her lost future 12 earnings and benefits.” (See SAC at ¶¶ 175, 192, 205, 238, 260, 13 269.) In plaintiff’s fifth and sixth cause of action for 14 procedural due process violations and conspiracy to violate 15 procedural due process, which are brought under both the federal 16 and state constitutions, she claims that she is entitled to 17 damages in excess of $100,000 for “emotional distress, anxiety, 18 humiliation, and embarrassment.” (See SAC at ¶ 253.) She also 19 seeks exemplary damages in excess of $100,000.000. (See id. at ¶ 20 254.)7 Plaintiff additionally seeks “general and compensatory 21 damages in sums to be proved at trial”, “special damages in sums 22 to be proved at trial”, and “exemplary damages in sums to be 23 proved at trial.” (See SAC at ¶ 285.) Accordingly, plaintiff 24 has not alleged sufficient facts to show that she is exempt from 25 26 7 Plaintiff has never specified whether these damages are pursuant to her federal causes of action, which are not subject 27 to the Government Claims Act, or her state causes of action. Instead, plaintiff has simply lumped her federal and state law 28 claims together in one cause of action. 1 compliance from the Government Claims Act on the grounds that the 2 monetary damages sought are merely incidental to declaratory or 3 injunctive relief. Having concluded that plaintiff was compelled 4 to file a timely demand with the District as a pre-requisite to 5 initiating her lawsuit, the court must next determine whether 6 there was satisfactory compliance with the Government Claims Act. 7 2. Actual Compliance with Government Claims Act 8 Plaintiff argues that she has actually complied with 9 the Government Claims Act “by way of various written 10 communications to the District through its General Managers, as 11 well as written and oral communications to the defendants’ 12 retained legal counsel, Kevin A. Flautt.” (See SAC at ¶ 38.) 13 Plaintiff contends that these communications include: (1) a 14 letter dated January 16, 2020 from plaintiff’s counsel Thomas 15 Beko to General Manager Stump; (2) a letter dated February 5, 16 2020, from Thomas Beko to defendants’ counsel Mr. Flautt, (3) a 17 letter dated March 30, 2020 from Thomas Beko to the defendants’ 18 counsel; (4) a series of voicemail messages between Thomas Beko 19 and defendants’ counsel, including three calls in February 2020; 20 (5) a series of telephone conversations between Thomas Beko and 21 defendants’ counsel, including two calls in February 2020; (6) a 22 series of email communications between Thomas Beko and 23 defendants’ counsel, including four between February 14, 2020 and 24 March 5, 2020; and (6) a series of correspondence between Thomas 25 Beko and defendants’ counsel, including those sent by defendants’ 26 counsel on January 30, 2020 and April 6, 2020. (See id.) 8 27 8 The Government Claims Act requires that a written claim 28 be presented to the public entity. See Cal. Gov’t. Code § 945.4. 1 As a preliminary matter, the court doubts that a series 2 of letters, most of which were sent to defendants’ counsel, can 3 constitute a claim under the Government Claims Act. Defendants’ 4 counsel is not the proper recipient of a claim under the 5 Government Claims Act. Rather, the Government Claims Act 6 instructs that “a claim. . . shall be presented to a local public 7 entity by either . . . delivering it to the clerk, secretary, or 8 auditor thereof” or “mailing it to the clerk, secretary, auditor, 9 or to the governing body at its principal office.” See Cal. 10 Gov’t. Code § 915(a)(1–2.) 11 It is also questionable whether a series of letters can 12 ever constitute a claim within the meaning of the Government 13 Claims Act. This is because “[i]t would be difficult for the 14 public entity to identify whether a particular letter were a 15 claim and which letter triggered its obligation to accept or deny 16 a claim if a series of correspondence could be considered 17 collectively to constitute a claim.” Dilts v. Cantua Elementary 18 School Dist., 189 Cal. App. 3d 27, 35 (5th Dist. 1987). “If an 19 agency was unable to determine whether a claim had been filed or 20 when the claim had been filed, it would be equally difficult for 21 the court to determine which statute of limitation applied or 22 when the statute of limitation began to run.” See id. The 23 procedures prescribed by the Government Claims Act “envisioned 24 the filing of a single claim with the public entity so that the 25 public entity may investigate the claim, consider settlement and 26 27 It goes without saying that oral communications are not a written claim. See Wilhite v. City of Bakersfield, No. 1:11-CV-1692 AWI 28 JLT, 2012 WL 273088, at * 7 (E.D. Cal. Jan. 30, 2012). 1 formally approve or reject a claim.” See id. 2 Nevertheless, without the ability to view the letters 3 that plaintiff contends constituted actual compliance with the 4 Government Claims Act, the court cannot determine whether those 5 letters comply with the required elements of a claim under the 6 Government Claims Act. 7 Plaintiff alternatively argues that she has actually 8 complied with the Government Claims Act through “supplemental 9 claims” presented to the District on September 2, 2020 and March 10 31, 2021. (See SAC at ¶¶ 41–42.) These claims were filed after 11 plaintiff initially filed this suit in August 2020 and after 12 defendants filed their first motion to dismiss their first motion 13 to dismiss on September 1, 2020. (See Docket No. 12.) Plaintiff 14 emphasizes that the time limits within which to submit a claim to 15 the District were tolled by way of a State of Emergency declared 16 by the Governor of California on March 4, 2020 and supplemental 17 orders thereto and that the time within which to submit a claim 18 has not expired. (See id. at ¶¶ 43–44.) 19 Despite plaintiff’s arguments, the court must conclude 20 that these “supplemental” government claims, delivered after the 21 filing of plaintiff’s complaint, do not establish compliance with 22 the Government Claims Act even though the statute of limitations 23 for plaintiff to file a claim with the District had not yet run. 24 Timely claims presentation is not merely a procedural 25 requirement, but a condition precedent to the claimant’s ability 26 to maintain an action against the public entity. See Le Mere v. 27 Los Angeles Unified Sch. Dist., 35 Cal. App. 5th 237, 246 (2nd 28 Dist. 2019). Plaintiff has not cited, nor is the court aware of 1 any cases permitting a plaintiff to “cure” her failure to file a 2 pre-lawsuit claim by filing a post-lawsuit claim. See Le Mere., 3 35 Cal. App. 5th at 244 (2nd Dist. 2019). A judge in this 4 district has even held that a plaintiff’s failure to present a 5 government claim prior to filing the lawsuit was fatal to his 6 state law claims, despite the fact that the plaintiff filed a 7 claim with the government entity only one day after filing the 8 lawsuit and even though plaintiff in that case had a meritorious 9 argument that the submission deadline for his claim had not 10 expired. See McDaniel v. Diaz, Case No. 1:20-cv-00856-NONE-SAB, 11 2020 WL 7425348, *28 (E.D. Cal. Dec. 18, 2020). This is because 12 the purpose of the Government Claims Act is not to “prevent 13 surprise [but rather] is to provide the public entity sufficient 14 information to enable it to adequately investigate claims and to 15 settle them, if appropriate, without the expense of litigation. . 16 .” See J. J., 233 Cal. App. 4th at 1219. As the court noted 17 in Le Mere, “[f]iling a government claim while simultaneously 18 attempting to prosecute a cause of action based on that claim. . 19 . does not satisfy the purpose of the Government Claims Act. . .” 20 See Le Mere, 35 Cal. App. 5th at 248.9 21 Accordingly, the court concludes that plaintiff has not 22 adequately alleged facts demonstrating compliance with the 23 24 9 Plaintiff’s argument that the District was “fully aware of plaintiff’s claims and allegations” is inapposite. (See Pl.’s 25 Opp’n to Mot. to Dismiss at 55–56.) “[I]t is well-settled that claims statutes must be satisfied even in the face of the public 26 entity’s actual knowledge of the circumstances surrounding the 27 claims. Such knowledge, standing alone, constitutes neither substantial compliance nor a basis for estoppel.” See J.J., 223 28 Cal. App. 4th at 1219 (internal citations omitted). 1 Government Claims Act. 2 3. Notice Provisions of Government Claims Act 3 Plaintiff next contends that the defendants “never 4 provided notice to the plaintiff or her retained representatives 5 that her claims were defective or deficient in any way” and 6 argues that their failure to provide such notice waives the 7 defendants’ right to assert any defense based upon the Government 8 Claims Act. (See Compl. at ¶ 59.) However, California 9 Government Code § 911 states that no notice regarding the 10 insufficiency of a claim “need be given and no waiver shall 11 result when the claim as presented fails to state either an 12 address to which the person presenting the claim desires notices 13 to be sent or an address of the claimant.” See Cal. Gov’t. Code 14 § 911. Because plaintiff has not attached the letters that she 15 contends constitute her compliance with the Government Claims Act 16 to her complaint, the court cannot determine whether the 17 Susanville Sanitary District was obligated to provide plaintiff 18 with notice that her claim was defective or deficient in any way. 19 Accordingly, plaintiff has not adequately alleged that the 20 Susanville Sanitary District was obligated to provide her notice 21 as to the deficiency of her claims and that the District has 22 waived any defense as to the sufficiency of plaintiff’s claim 23 under the Government Claims Act. 24 4. Estoppel 25 Plaintiff next argues that defendants should be 26 estopped from asserting the defense that plaintiff did not comply 27 with the Government Claims Act because they “failed to produce 28 records in compliance with the California Public Records Act as a 1 means by which to prevent the plaintiff from asserting claims.” 2 (See SAC at ¶ 60.) “A public agency is subject to estoppel from 3 the assertion of either the time limits for filing tort claims, 4 or the statute of limitations on a cause of action.” See Jordan 5 v. City of Sacramento, 148 Cal. App. 4th 1487, 1496 (3d Dist. 6 2007). “The doctrine of equitable estoppel is based on the 7 theory that a party who by his declarations or conduct misleads 8 another to his prejudice should be estopped from obtaining the 9 benefits of his misconduct.” See Kleinecke v. Montecito Water 10 Dist., 147 Cal. App. 3d 240, 245 (2nd Dist. 1983) (internal 11 citations omitted). “To establish estoppel as an element of a 12 suit, the elements of estoppel must be especially pleaded in the 13 complaint with sufficient accuracy to disclose facts relied 14 upon.” See Chalmers v. County of Los Angeles, 175 Cal. App. 3d 15 461, 467 (2nd Dist. 1985). In order to assert equitable 16 estoppel, the following four elements must be present: 17 (1) the party to be estopped must be apprised of the facts; (2) he must intend that his conduct be 18 acted on, or must so act that the party asserting had a right to believe it was so intended; (3) 19 the party asserting estoppel must be ignorant of the true state of facts; and (4) he must rely 20 upon the conduct to his injury. 21 See Sofranek v. Cnty. of Merced, 146 Cal. App. 4th 1238, 1247 22 (5th Dist. 2007). California courts have previously found that 23 there is no estoppel where the complaint “contains no facts about 24 being misled or detrimental reliance.” See Chalmers, 175 Cal. 25 App. 4th at 467. 26 Plaintiff’s Second Amended Complaint contains no facts 27 about being misled or detrimental reliance, as is required to 28 1 establish estoppel as an element of a suit. See Chalmers, 175 2 Cal. App. 3d at 467. Moreover, despite plaintiff’s contention 3 that she was unable to file a government claim because of 4 defendants’ alleged failure to produce certain public documents, 5 she also notes that “a presented claim need only include the 6 claimant’s name and address, names of public employees involved, 7 and a description of the incident, including the date, place, and 8 proclaimed damages.” See Wormuth v. Lammersville Union Sch. 9 Dist., 305 F. Supp. 3d 1108, 1128 (E.D. Cal. 2018) (Mueller, J.). 10 It is inconceivable that plaintiff lacked this very basic factual 11 information or that she could only have gotten this information 12 from the public records allegedly not produced by the District. 13 Accordingly, plaintiff has failed to adequately plead that 14 estoppel applies here. 10 15 For the foregoing reasons, plaintiff’s failure to 16 allege facts demonstrating or excusing compliance with the claims 17 presentation requirement of the Government Claims Act bars all 18 10 Plaintiff also contends that she need not submit her 19 contract-based claims to the District under the Government Claims Act because (1) the district’s personnel policies and its 20 memorandum of understanding include a claim procedure which govern this matter exclusively; (2) her claims for wages, salary, 21 and fees are exempted from the presentation requirements of the 22 Government Claims Act; and (3) she substantially complied with the Government Claims Act’s presentation requirements. (See Pl’s 23 Opp’n to Mot. to Dismiss at 60-78.) Plaintiff did not assert these excuses from compliance with the Government Claims Act in 24 her Second Amended Complaint, and the California Supreme Court has held that plaintiff must “allege facts demonstrating or 25 excusing compliance with the claim presentation requirement” within the complaint itself. See State of Cal., 32 Cal. 4th at 26 1239. Accordingly, the court will not consider these arguments 27 at present but will give plaintiff leave to amend to allege the facts to support these arguments in the next iteration of her 28 complaint. 1 her state law causes of action apart from her claim under the 2 California Public Records Act. 3 C. California Public Records Act 4 Plaintiff also contends that defendants have violated 5 the California Public Records Act (“CPRA”), Cal. Gov’t. Code § 6 6250, et seq. (See SAC at ¶¶ 271–285.) The CPRA states that 7 “except with respect to public records exempt from disclosure by 8 express provisions of law, each state or local agency, upon a 9 request for a copy of records that reasonably describes an 10 identifiable record or records, shall make the records promptly 11 available to any person. . .” See Cal. Gov’t. Code § 6253(b). 12 The term “public records” includes “any writing containing 13 information relating to the conduct of the public’s business 14 prepared, owned, used, or retained by any state or local agency.” 15 Cal. Gov’t. Code § 6252(e). Section 6253(c) provides that the 16 “agency, upon request for a copy of records, shall, within 10 17 days from receipt of the request, determine whether the request, 18 in whole or in part, seeks copies of disclosable public records 19 in the possession of the agency and shall promptly notify the 20 person making the request of the determination and the reasons 21 therefor.” See Cal. Gov’t. Code § 6253(c). 22 Section 6258 of the CPRA provides that “[a]ny person 23 may institute proceedings for injunctive or declarative relief or 24 writ of mandate in any court of competent jurisdiction to enforce 25 his or her right to inspect or to receive a copy of any public 26 record or class of public records under this chapter.” See id. 27 In order to prevail on such a petition under the CPRA, the 28 plaintiff must establish that the files requested (1) qualify as 1 “public records” and (2) were in the possession of the District. 2 See Consolidated Irrigation Dist. v. Superior Court, 205 Cal. 3 App. 4th 697, 709 (5th Dist. 2012.) “The CPRA generally presumes 4 that all documents maintained by a public entity are subject to 5 disclosure to any member of the public, unless a statutory 6 exemption applies, or the catchall exemption, 6255, is satisfied 7 (when public interest served by nondisclosure of records clearly 8 outweighs the public interest in disclosure).” See Sander v. 9 Superior Court, 26 Cal. App. 5th 651, (1st Dist. 2018). If it 10 appears from the plaintiff’s verified petition that “certain 11 public records are being improperly withheld from a member of the 12 public,” the court shall order the officer or person charged with 13 withholding the records to disclose the public record or show 14 cause why he or she should not do so. See Galbiso v. Public 15 Utility Dist., 167 Cal.App.4th 1063, 1084 (5th Dist. 2008). 16 Defendants argue that plaintiff has not reasonably 17 identified what records were requested and which records have 18 still not been produced in her Second Amended Complaint. (See 19 Mot. to Dismiss at 47.) The court agrees. Plaintiff attached to 20 her complaint a letter from her counsel on May 20, 2020 to 21 defendants’ counsel, Kevin Flautt, requesting certain categories 22 of public records. (See SAC at Ex. 2.) Plaintiff also attached 23 Mr. Flautt’s response on May 29, 2020, which provided anticipated 24 deadlines for when plaintiff could expect the production of 25 certain documents, ranging from June 29, 2020 to September 29, 26 2020. (See id.) The letter also stated that certain documents 27 might be exempt from disclosure pursuant to the CPRA and would 28 not be produced. (See id.) However, it is unclear to the court, eee en eee ee nnn EE OE EE ISIE I EN 1 based on the letters attached to the Second Amended Complaint, 2 what documents defendants have already produced pursuant to 3 | plaintiff’s CPRA request and what documents have not. 4 Accordingly, plaintiff has not adequately stated a claim for 5 violation of the California Public Rights Act, and this cause of 6 | action will be dismissed with leave to amend.!! 7 IT IS THEREFORE ORDERED that the defendants’ motion to 8 dismiss (Docket No. 42) be, and the same hereby is, DENIED as to 9 | plaintiff’s fifth cause of action under 42 U.S.C. § 1983 for 10 deprivation of procedural due process as against defendant Steve 11 J. Stump. 12 IT IS FURTHER ORDERED that defendants’ motion to 13 dismiss be, and the same hereby is GRANTED as against all 14 defendants other than defendant Stump on plaintiff’s fifth cause 15 of action and as against all defendants on plaintiff’s first, 16 second, third, fourth, sixth, and seventh causes of action. 17 Plaintiff has twenty days from the date this Order is 18 signed to file an amended complaint, if she can do so consistent 19 | with this Order. . 20 Dated: June 16, 2021 athe VS (hh be WILLIAM B. SHUBB 21 UNITED STATES DISTRICT JUDGE 22 11 In addition to complying with the requirements to state 24 a claim under the CPRA, plaintiff is instructed to explicitly detail the categories of public records and particular public 29 documents sought that have not yet been produced by defendants. 26 Defendants will then have an opportunity to either produce the requested public documents, or explain why they believe that the 27 documents which have been identified as responsive to the plaintiff’s CPRA request fall within one of the exemptions from 28 | disclosure within the CPRA. 32