McDowell v. Lassen County ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 TIMOTHY MCDOWELL, No. 2:23-cv-01007-DJC-DMC 12 Plaintiff, v. 13 ORDER COUNTY OF LASSEN, 14 Defendant. 15 16 17 Pending before the Court is Defendant’s Motion to Dismiss the first cause of 18 action in Plaintiff’s First Amended Complaint (“FAC”). (ECF No. 5.) A hearing was held 19 on September 14, 2023, and the matter was submitted. Having considered the 20 Parties’ briefings and arguments, the Court hereby GRANTS Defendant’s Motion. 21 Plaintiff is granted leave to amend the FAC within 30 days. 22 BACKGROUND 23 Plaintiff Timothy McDowell was hired as a correctional officer for the Lassen 24 County Sheriff’s Office in July 2016. (FAC (ECF No. 4) ¶ 9.) Plaintiff, who is of African 25 American descent, alleges he was frequently subjected to derogatory slurs and 26 offensive use of the “N” word by his supervisor and co-workers, was unfairly targeted 27 for discipline at a higher rate than his Caucasian counterparts, and was repeatedly 28 denied promotion to a patrol position despite his positive employment reviews, 1 experience, and excellent performance at the police academy. (Id. ¶¶ 12–21.) Plaintiff 2 alleges this treatment led to a complaint being filed on his behalf against his 3 supervisor, Sergeant Morberg, which led to an investigation and determination that 4 Sergeant Morberg was treating Plaintiff differently because of his race. (Id. ¶ 20.) 5 After this investigation, Plaintiff was promoted to a patrol position on or about January 6 16, 2022. (Id. ¶ 22.) 7 Two days later, on January 18, Plaintiff was placed on administrative leave for 8 conduct that allegedly occurred while he was a correctional officer. (Id. ¶¶ 22–23.) 9 Following an investigation and Skelly hearing, Plaintiff received a notice of intent to 10 uphold his termination on June 8, 2022. (Id. ¶¶ 23–24.) In accordance with the Lassen 11 County Personnel Rules and Regulations, specifically Rule 328 (referred to simply as 12 Rule 328 in this Order), Plaintiff submitted a written request for a post-termination 13 evidentiary hearing within 10 days of the notice of termination to the County 14 Personnel Director. (Id. ¶¶ 25–26.) Plaintiff alleges the Personnel Director ignored his 15 request and he never received a post-termination hearing. (Id. ¶¶ 26–27.) 16 Plaintiff filed suit on May 26, 2023, alleging (1) deprivation of his rights and due 17 process under 42 U.S.C. § 1983; and (2) unlawful discrimination under the California 18 Fair Employment and Housing Act, codified at California Government Code § 12940 19 et seq. As to the first cause of action, Plaintiff seeks to impose liability against 20 Defendant, Lassen County, for allegedly denying Plaintiff a post-termination hearing 21 and a discrimination-free workplace. (FAC ¶ 29.) Plaintiff alleges that his rights were 22 denied as a result of a “custom, practice and policy of the County of Lassen,” and that 23 the discriminatory conduct was “condoned, ratified, and sanctioned” by the County 24 Personnel Director “who was the official with the final policy-making authority as it 25 related to granting or denying minorities the right to post-termination evidentiary 26 hearings” and “the official with final policy-making authority who ratified the racial 27 discrimination of the Lassen County Sheriff’s office.” (Id. ¶¶ 30–33.) 28 //// 1 Defendant moves to dismiss the first cause of action, arguing (1) the County 2 Personnel Director is not a final policymaker for purposes of section 1983, and (2) 3 Plaintiff does not adequately state a claim for an unconstitutional policy, practice, or 4 custom under Monell v. Department of Social Services, 436 U.S. 658 (1978). (Mot. 5 Dismiss (ECF No. 5) at 5–8.) Defendant also requests the Court take judicial notice of 6 (1) the Lassen County Code of Ordinances, and (2) the Lassen County Personnel Rules 7 and Regulations. (Req. for Jud. Notice (“RJN”) (ECF No. 5-2) at 2.) 8 LEGAL STANDARD 9 A party may move to dismiss for “failure to state a claim upon which relief can 10 be granted.” Fed. R. Civ. P. 12(b)(6). The motion may be granted only if the complaint 11 lacks a “cognizable legal theory or sufficient facts to support a cognizable legal 12 theory.” Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). 13 While the court assumes all factual allegations are true and construes “them in the 14 light most favorable to the nonmoving party,” Steinle v. City & Cnty. of S.F., 919 F.3d 15 1154, 1160 (9th Cir. 2019), if the complaint's allegations do not “plausibly give rise to 16 an entitlement to relief” the motion must be granted, Ashcroft v. Iqbal, 556 U.S. 662, 17 679 (2009). 18 A complaint need contain only a “short and plain statement of the claim 19 showing that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2), not “detailed 20 factual allegations,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). However, 21 this rule demands more than unadorned accusations; “sufficient factual matter” must 22 make the claim at least plausible. Iqbal, 556 U.S. at 678. In the same vein, conclusory 23 or formulaic recitations of elements do not alone suffice. Id. “A claim has facial 24 plausibility when the plaintiff pleads factual content that allows the court to draw the 25 reasonable inference that the defendant is liable for the misconduct alleged.” Id. This 26 evaluation of plausibility is a context-specific task drawing on “judicial experience and 27 common sense.” Id. at 679. 28 //// 1 These same standards apply to claims against municipal governments under 2 section 1983. AE v. Cnty. of Tulare, 666 F.3d 631, 637 (9th Cir. 2012). A plaintiff's 3 allegations “may not simply recite the elements” of a claim under Monell. Id. (quoting 4 Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011)). Rather, the complaint must 5 “contain sufficient allegations of underlying facts to give fair notice” of the claims and 6 allow the municipal government “to defend itself effectively.” Id. (quoting Starr, 652 7 F.3d at 1216). The plaintiff's allegations “must plausibly suggest an entitlement to 8 relief, such that it is not unfair to require the opposing party to be subjected to the 9 expense of discovery and continued litigation.” Id. (quoting Starr, 652 F.3d at 1216). 10 DISCUSSION 11 To establish a municipality's liability under section 1983 based on Monell, “a 12 plaintiff must prove ‘(1) that [the plaintiff] possessed a constitutional right of which he 13 was deprived; (2) that the municipality had a policy; (3) that this policy amounts to 14 deliberate indifference to the plaintiff's constitutional right; and (4) that the policy is 15 the moving force behind the constitutional violation.’” Dougherty v. City of Covina, 16 654 F.3d 892, 900 (9th Cir. 2011) (quoting Plumeau v. Sch. Dist. No. 40 Cnty. of 17 Yamhill, 130 F.3d 432, 438 (9th Cir. 1997)). Liability under Monell may be premised 18 on: (1) conduct pursuant to a formal or expressly adopted official policy; (2) a 19 longstanding practice or custom which constitutes the “standard operating 20 procedure” of the local government entity; (3) a decision of a decision-making official 21 who was, as a matter of state law, a final policymaking authority whose edicts or acts 22 may fairly be said to represent official policy in the area of decision; or (4) an official 23 with final policymaking authority either delegating that authority to, or ratifying the 24 decision of, a subordinate. See Price v. Sery, 513 F.3d 962, 966 (9th Cir. 2008); 25 Thomas v. Cnty. of Riverside, 763 F.3d 1167, 1170 (9th Cir. 2014). 26 I. Request for Judicial Notice 27 Pursuant to Federal Rule of Evidence 201, courts shall take notice, when 28 requested and provided with sufficient information, of facts that are not subject to 1 reasonable dispute because they “can be accurately and readily determined from 2 sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). 3 Matters of public record are generally subject to judicial notice. Lee v. City of L.A., 250 4 F.3d 668, 689 (9th Cir. 2001). 5 Defendant requests this Court take judicial notice of the Lassen County Code of 6 Ordinances and Personnel Rules and Regulations in their entirety, providing links to 7 the online versions of both. (RJN at 2.) Plaintiff challenges this request, arguing 8 Defendant does not identify the specific ordinances or personnel rules it wishes the 9 Court to consider with sufficient particularity under Federal Rule of Evidence 201. 10 (Opp’n (ECF No. 6.) at 7–8.) Defendant responds by supplying copies of the specific 11 ordinance, Lassen County Code of Ordinances § 2.36.020, and Rule 328, cited in its 12 opening brief which were the “same provisions the parties discussed during their 13 required meet and confer conference.” (Reply (ECF No. 7) at 3 n.1). 14 As matters of public record, these are proper subjects for judicial notice. See 15 Tollis Inc. v. Cnty. of San Diego, 505 F.3d 935, 938 n.1 (9th Cir. 2007) (“Municipal 16 ordinances are proper subjects for judicial notice.”); Madani v. Cnty. of Santa Clara, 17 No. 16-CV-07026-LHK, 2017 WL 1092398, at *4 (N.D. Cal. March 23, 2017) (taking 18 judicial notice of the rules and procedures for the county personnel board). 19 Accordingly, the Court will take judicial notice of Lassen County Code of Ordinances 20 § 2.36.020 and Rule 328. 21 Plaintiff also references Lassen County Personnel Rules and Regulations 1.03 22 (referred to as simply Rule 1.03 in this Order) in his Opposition without requesting the 23 Court take judicial notice of this rule. However, as Rule 1.03 is also a matter of public 24 record, and not subject to reasonable dispute, the Court will take judicial notice of 25 Rule 1.03 as well. See Fed. R. Evid. 201(c)(1) (the court may take judicial notice on its 26 own motion). 27 //// 28 //// 1 II. County Personnel Director as a Final Policymaker 2 A municipality may be held liable for the acts of a final policymaker if these acts 3 cause a constitutional violation, even if the violation occurs only once. Pembaur v. City 4 of Cincinnati, 475 U.S. 469, 478, and n.6 (1986). Municipal liability does not attach 5 unless “the decisionmaker possesses final authority to establish municipal policy with 6 respect to the action ordered. The fact that a particular official—even a policy-making 7 official—has discretion in the exercise of particular functions does not, without more, 8 give rise to municipal liability based on an exercise of that discretion.” Id. at 481–82. 9 Thus, “[t]o hold a local government liable for an official’s conduct, a plaintiff must first 10 establish that the official (1) had final policymaking authority ‘concerning the action . . . 11 at issue’ and (2) was the policymaker for the local governing body for the purposes of 12 the particular act.” Weiner v. San Diego Cnty., 210 F.3d 1025, 1028 (9th Cir. 2000) 13 (quoting McMillian v. Monroe Cnty. Ala., 520 U.S. 781, 785 (1997)). “Whether a 14 particular official has final policy-making authority is a question of state law.” Gillette v. 15 Delmore, 979 F.2d 1342, 1346 (9th Cir. 1992). Authority to make municipal policy 16 may be granted directly by a legislative enactment or may be delegated by an official 17 who possesses such authority. City of St. Louis v. Praprotnik, 485 U.S. 112, 124 (1988). 18 Plaintiff contends the County Personnel Director serves as an official 19 policymaker for Defendant, such that Defendant is directly liable under section 1983 20 for: (1) denying Plaintiff’s request for a post-termination hearing, and (2) ratifying racial 21 discrimination in the Sheriff’s Office by denying this request. (FAC ¶ 32.) Defendant 22 argues the Personnel Director is not an official policymaker regarding post- 23 termination hearings because Lassen County Code of Ordinances § 2.36.020 “leaves 24 no ambiguity about the Board of Supervisors’ status as the final policy-makers in the 25 area of employment for the County” as they adopt, establish, and revise the Lassen 26 County Personnel Rules and Regulations. (Mot. Dismiss at 6.) Further, under Rule 27 328, the Personnel Director is the designated recipient of requests for post- 28 1 termination hearings, but “[t]here is no indication in the language of this rule that he 2 has the authority to make a final decision or set policy on disciplinary appeals.” (Id.) 3 Plaintiff counters that the Board of Supervisors delegated final decision-making 4 authority concerning disciplinary appeals to the Personnel Director, relying on Hunter 5 v. Town of Mocksville, 897 F.3d 538, 557 (4th Cir. 2018) (in determining whether an 6 individual is an official with final decision making authority, courts should consider “(1) 7 whether the official is constrained by policies of other officials or legislative bodies; (2) 8 whether the official’s decisions on the issue in question is subject to meaningful 9 review; and (3) whether the policy decision purportedly made by the official is within 10 the realm of the official’s grant of authority.” (quoting Valentino v. Vill. of S. Chi. 11 Heights, 575 F.3d 664, 676 (7th Cir. 2009))). Specifically, Plaintiff argues (1) there is no 12 policy which constrains the Personnel Director in interpreting and acting upon an 13 employee’s request for a post-termination hearing, (2) the Personnel Director was not 14 subject to any meaningful review if he failed to timely act upon a request for a post- 15 termination evidentiary hearing, and (3) Rule 1.03 states that “the Personnel Director 16 shall be responsible for the interpretation of these rules in cases where the proper 17 application of a rule or any portion thereof is not clearly ascertainable” which grants 18 the Personnel Director the authority to not to act upon Plaintiff’s request for a post- 19 termination evidentiary hearing. 20 Rule 328, along with Rule 1.03, clearly delegates discretion to the Personnel 21 Director to receive notices requesting post-termination hearings and arrange these 22 hearings. The Complaint alleges that the Personnel Director failed to comply with the 23 requirements of Rule 328 when he received Plaintiff’s request and did not respond or 24 arrange a hearing. The Court agrees with Defendant, however, that nothing in the 25 plain text of Rule 328 suggests the Personnel Director has the authority to make final 26 determinations or policy concerning post-termination hearings. Rule 328 states an 27 “employee shall have up to ten (10) working days from the effective date of the 28 discipline to notify the Personnel Director that he/she wants the matter heard before a 1 Hearing Officer. The request shall be in writing and shall contain the grounds for the 2 appeal.” Rule 328(d). Further, the rule states “[s]hould the employee choose to have 3 the matter heard before a Hearing Officer, the parties shall jointly request a list of five 4 neutrals from the State Conciliation Service . . . and shall select a name from the list 5 and shall notify the State Conciliation Service of the name of the selected Hearing 6 Officer.” Rule 328(e). Thus, the language of Rule 328 is clear about the steps that 7 “shall,” i.e., must, be followed by both parties “[s]hould the employee choose to have 8 the matter heard before a Hearing Officer.” Rule 328(e). The rule does not imply any 9 decision-making authority on the Personnel Director’s part concerning disciplinary 10 action or post-termination hearing proceedings. Indeed, it appears to be the Hearing 11 Officer, not the Personnel Director, who is tasked with passing final judgment on the 12 disciplinary action, and the Hearing Officer’s judgment is subject to review only by the 13 Board of Supervisors. Rule 328(e). Thus, as argued by Defendants, the Personnel 14 Director’s involvement in post-termination appeals appears to be primarily 15 “administrative and procedural,” not that of a policymaker. (Mot. Dismiss at 6; Reply at 16 4;) see also Schiff v. City & Cnty. of San Francisco, 816 F. Supp. 2d 798, 813 (N.D. Cal. 17 2011), aff’d, 528 F. App'x 743 (9th Cir. 2013) (“[T]he final policymaker for personnel 18 matters . . . is free to delegate broad operational authority . . . without turning [the 19 delegate] into a ‘final policymaker’ for purposes of municipal liability.”). 20 To state a Monell claim through delegation, a plaintiff must plead that an official 21 with policymaking authority delegated “final policymaking authority over the decisions 22 at issue” as opposed to merely delegating discretion to act. Ulrich v. City & Cnty. of 23 S.F., 308 F.3d 968, 985 (9th Cir. 2002); see also Christie v. Iopa, 176 F.3d 1231, 1236 24 (9th Cir. 1999). For example, in Hunter, the court found that defendant, a town 25 manager, was a final policymaker and could be held liable for plaintiffs’ wrongful 26 termination when state law dictated that town managers “shall appoint and suspend 27 or remove all city officers and employees not elected by the people . . . in accordance 28 with such general personnel rules, regulations, policies, or ordinances as the [town] 1 council may adopt.” 897 F.3d at 556–58. The Court concluded that the use of the 2 word “may” indicated that the law contemplated town councils could decline to adopt 3 personnel rules and regulations altogether, and that the town council had indeed 4 declined to adopt a written personnel policy or any formal grievance procedure. Id. at 5 556. Instead, the town council adopted a personnel ordinance stating that all town 6 personnel positions would be “at the will of” the town manager, thereby conferring 7 “unconstrained authority” on the town manager to define nearly all terms of 8 employment for town personnel. Id. at 556–57. Here, by comparison, the Personnel 9 Director was not delegated authority to dictate the terms for disciplinary procedures. 10 Rather, the Board of Supervisors expressly set forth the disciplinary procedures in Rule 11 328, and only delegated authority therein to the Personnel Director to receive notices 12 requesting post-termination hearings and schedule said hearings, nothing more. 13 This conclusion is further supported by the language of Rule 1.03, which states 14 that “the Personnel Director shall be responsible for the interpretation of these rules” 15 but that “[w]hen such interpretation is required, the result shall be in harmony with the 16 objectives set forth [in Rule 1.02].” “When an official's discretionary decisions are 17 constrained by policies not of that official's making, those policies, rather than the 18 subordinate's departures from them, are the act of the municipality.” Praprotnik, 485 19 U.S. at 127. The Personnel Director’s discretion in interpreting the rules is thus 20 constrained by the policy objectives set forth by the Board of Supervisors in Rule 1.02, 21 as well as by the language in Rule 328. 22 Thus, Plaintiff has failed to establish the Personnel Director is a final 23 policymaker concerning post-termination hearings for the purposes of Monell. 24 III. Unconstitutional Policy, Practice, or Custom under Monell 25 Liability under Monell may be based on an express policy, i.e., “a policy 26 statement, ordinance, regulation, or decision officially adopted and promulgated.” 27 Monell, 436 U.S. at 690. The Supreme Court has also held that “a plaintiff may be able 28 to prove the existence of a widespread practice that, although not authorized by 1 written law or express municipal policy, is ‘so permanent and well settled as to 2 constitute a custom or usage with the force of law.’” Praprotnik, 485 U.S. at 127 3 (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 167–68 (1970)). A few “isolated or 4 sporadic incidents” are not enough to prove a municipality has an unconstitutional 5 custom or practice. Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996). Rather, a 6 practice or custom must have “sufficient duration, frequency and consistency” that it 7 has “become a traditional method of carrying out policy.” Id. “Proof of random acts or 8 isolated events are insufficient to establish custom.” Navarro v. Block, 72 F.3d 712, 9 714 (9th Cir. 1995). 10 Here, Plaintiff alleges his rights were violated as a result of “the custom, practice 11 and policy of the County of Lassen of denying [him] a post-termination evidentiary 12 hearing. The custom and practice of the County of Lassen to discriminate against its 13 employees based upon race and deny post-termination evidentiary hearing is a 14 deliberate indifference to the rights of minorities and their constitutional property 15 interest in continued employment.” (FAC ¶ 30). 16 Defendant argues that that this is insufficient to establish a practice or policy as 17 Plaintiff has not alleged other instances of Defendant similarly denying another 18 employee a post-termination hearing due to race. (Mot. Dismiss at 7–8.) Defendant is 19 correct; to allege a longstanding practice or custom which constitutes the standard 20 operating procedure of a local government entity, plaintiffs must typically allege more 21 than a single, isolated incident. See Meehan v. L.A. Cnty., 856 F.2d 102, 107 (9th Cir. 22 1988) (two incidents were insufficient to establish Monell custom); Lunn v. City of L.A., 23 629 F. Supp. 3d 1007, 1013 (C.D. Cal. Sept. 20, 2022) (granting motion to dismiss 24 Monell claim based on policy, practice, or custom because the complaint only 25 described one incident of unconstitutional activity); Segura v. City of La Mesa, No. 26 21cv565-JM-MDD, 2022 WL 17905529, at *5 (S.D. Cal. Dec. 23, 2022) (granting 27 motion to dismiss Monell claim based on single instance of alleged unconstitutional 28 1 conduct). Plaintiff has only alleged one instance in which he was denied a post- 2 termination evidentiary hearing. 3 Plaintiff does not rebut Defendant’s point. Rather, Plaintiff argues he was 4 denied a post-termination evidentiary hearing due to Defendant’s policy as stated in 5 Rule 328 which “fails to provide any directive to the Personnel Director or anyone at 6 the County to act within the specified timeframe upon an employee’s request for a 7 hearing before a third-party neutral.” (Opp’n at 11–12.) Plaintiff argues this failure 8 makes Rule 328 unconstitutional on its face under Barry v. Barchi, 433 U.S. 55 (1979), 9 and that the Personnel Director and Defendant, in applying this policy, 10 unconstitutionally failed to act upon Plaintiff’s request for a hearing. (Opp’n at 12.) 11 Plaintiff mentions Rule 328 in the FAC, (FAC ¶ 25,) but does not argue that it is 12 an unconstitutional policy nor that it was the reason he was denied a post-termination 13 evidentiary hearing. Rather, Plaintiff argues that he was “denied [] a post-termination 14 evidentiary hearing because of his race, and that it is the policy and practice of the 15 County of Lassen to discriminate against minorities, including African Americans, and 16 to continue the discriminatory conduct/practice and custom by denying post- 17 evidentiary hearing to minorities.” (FAC ¶ 27.) “When ruling on a motion to dismiss, 18 the focus of the Court is on the allegations of the Complaint. The Court may not 19 consider new allegations and arguments raised in the opposition brief.” Winn v. 20 Lassen Canyon Nursery, Inc., No. 2:10-CV-1030-JAM-CMK, 2010 WL 4688798, at *2 21 (E.D. Cal. Nov. 10, 2010). Thus, this Court will disregard Plaintiff’s argument 22 concerning Rule 328 for the purposes of this Motion, which Plaintiff may instead raise 23 in an amended complaint. 24 This Court finds that Plaintiff has failed to sufficiently allege an unconstitutional 25 policy, practice, or custom under Monell. 26 //// 27 //// 28 //// 1 CONCLUSION 2 In accordance with the above, IT IS HEREBY ORDERED Defendant's Motion to 3 | Dismiss (ECF No. 5) is GRANTED. Plaintiff is granted leave to file an amended 4 | complaint within 30 days of this order. ' 5 6 4 IT |S SO ORDERED. 3 | Dated: _ October 6, 2023 Bek | Cbabeatin.. Hon. Daniel labretta 9 UNITED STATES DISTRICT JUDGE 10 11 12 13 |) DJC4 - mcdowell23cv1007.MTD 14 15 16 17 18 19 20 21 22 23 24 25 26 ||§$ ———- ' Plaintiff also requests leave to amend in order to add a cause of action under the Public Safety Officers 28 || Procedural Bill of Rights Act (Opp’n at 16 n.2.), which is granted. 12