Adams v. County of Sacramento ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 KATE ADAMS, No. 2:22-cv-01499 WBS KJN 13 Plaintiff, 14 v. ORDER RE: DEFENDANTS’ MOTION TO DISMISS CLAIMS IN FIRST 15 COUNTY OF SACRAMENTO, a AMENDED COMPLAINT political subdivision of the 16 state of California; SHERIFF SCOTT JONES in his individual 17 capacity; and DOES 1-10, 18 Defendants. 19 20 ----oo0oo---- 21 On January 11, 2023, this court granted defendants’ 22 motion to dismiss plaintiff’s complaint in its entirety. (Order 23 (Docket No. 16).) On February 15, 2023, the court denied 24 plaintiff’s motion for partial reconsideration of the dismissal 25 of plaintiff’s First Amendment and First Amendment conspiracy 26 claims (Claims 3 and 4). (Docket No. 28.) 27 Plaintiff subsequently filed her First Amended 28 Complaint which, among other things, re-alleges her First 1 Amendment and First Amendment conspiracy claims with little or no 2 additional allegations in support. Plaintiff again alleges that 3 she sent a text message to a friend which said, “‘Some rude 4 racist just sent this!!” along with the two racist images that 5 she had been sent. (First Am. Compl. ¶ 89.) 6 Presently before the court is defendants’ to dismiss 7 only those claims for violation of the First Amendment and First 8 Amendment conspiracy (Claims 3 and 4). (Mot. (Docket No. 25-1).) 9 In its prior order dismissing the original Complaint, the court 10 found that plaintiff’s text messages were not a matter of public 11 concern and thus plaintiff failed to allege facts sufficient to 12 support her First Amendment claims. (Order at 12-13.) 13 In her opposition to the present motion, plaintiff 14 acknowledges that she does not advance any new allegations 15 regarding her First Amendment claims,1 and instead incorporates 16 her previously made arguments. (See Opp’n at 2 (Docket No. 29).) 17 Plaintiff states that she “files this opposition and the 18 arguments contained herein solely for the purpose of preserving 19 her right to appeal the First Amendment claims.” (Id.) After 20 hearing the parties’ oral arguments with regard to these claims, 21 the court reaffirms its determination that plaintiff has failed 22 to sufficiently allege a claim based upon violation of the First 23 24 1 Plaintiff’s new allegations supporting her other claims include that plaintiff and Sheriff Jones spoke on the phone to 25 discuss the potential media issues if the text messages became public, the lawyer for the county informed plaintiff through her 26 union counsel of Sheriff Jones’s intention to terminate her if 27 she did not resign, and information from the NAACP regarding its source for the published open letter regarding plaintiff. (See 28 First Am. Compl. ¶¶ 106, 107-111, 116-118.) 1 amendment. 2 To determine whether a government employer has violated 3 the First Amendment, the Ninth Circuit applies a five-part test 4 which asks: (1) whether the plaintiff spoke on a matter 5 of public concern; (2) whether the plaintiff spoke as a private citizen or public 6 employee; (3) whether the plaintiff’s protected speech was a substantial or 7 motivating factor in the adverse employment action; (4) whether the state had an adequate 8 justification for treating the employee differently from other members of the general 9 public; and (5) whether the state would have taken the adverse employment action even 10 absent the protected speech. 11 Eng v. Cooley, 552 F.3d 1062, 1070 (9th Cir. 2009). The 12 plaintiff bears the burden on the first three steps and 13 therefore, to support a First Amendment claim, must show that (1) 14 their speech was a matter of public concern; (2) that they were 15 speaking as a private citizen; and (3) that their speech was a 16 substantial or motivating factor in their termination. Id. at 17 1070-71. 18 As argued by the parties, the crux of this motion is 19 whether plaintiff’s texts addressed a matter of public concern. 20 The Ninth Circuit has “not articulated a precise definition of 21 ‘public concern,’ recognizing instead that such inquiry is not an 22 exact science.” Desrochers v. City of San Bernardino, 572 F.3d 23 703, 709 (9th Cir. 2009) (citations and internal quotations 24 omitted). Instead, the court “relie[s] on a generalized analysis 25 of the nature of the speech.” Id. To determine “whether an 26 employee’s speech addresses a matter of public concern,” a court 27 must consider “the content, form, and context of a given 28 statement, as revealed by the whole record.” Eng, 552 F.3d at 1 1070 (citations and quotations omitted). As the Ninth Circuit 2 recognizes, “courts have had some difficulty deciding when speech 3 deals with an issue of ‘public concern.’” Id. (quoting McKinley 4 v. City of Eloy, 705 F.2d 1110, 1113-14 (9th Cir. 1983)). 5 The present case is unlike the typical cases involving 6 a public employee who alleges she was terminated on account of 7 her speech. Such cases usually involve either expressing a 8 workplace grievance, which is not considered a matter of public 9 concern, or bringing attention to a social or political topic, 10 which is considered a matter of public concern. Compare Connick 11 v. Myers, 461 U.S. 138, 148 (1983) (addressing criticism of 12 supervisor’s decision to transfer assistant district attorney); 13 Desrochers, 572 F.3d at 717 (addressing criticism of criticizing 14 supervisor’s decision to transfer one police officer and 15 discipline another); Lamb v. Montrose Cnty. Sheriff’s Off., No. 16 19-1275, 2022 WL 487105, at *7 (10th Cir. 2022) (addressing 17 speech expressing dislike of workplace environment, including 18 racism and the lack of professionalism), with Rankin v. 19 McPherson, 483 U.S. 378 (1987) (addressing speech expressing 20 support for attempted assassination of then President Reagan); 21 Hernandez v. City of Phoenix, 43 F.4th 966, 978-79 (9th Cir. 22 2022) (addressing posting on Facebook articles about religious 23 intolerance, cultural assimilation, government spending, and 24 media coverage); Eng, 552 F.3d at 1072-73 (addressing disclosure 25 of information about public school financing and the performance 26 of the district attorney’s office); Coszalter v. City of Salem, 27 320 F.3d 968, 974 (9th Cir. 2003) (addressing disclosure of 28 issues regarding working conditions, safety, and sewage); 1 McKinley, 705 F.2d at 1113-14 (addressing criticism of city’s 2 decision about compensation for the police force). 3 Here, plaintiff alleges that she sent racist images, 4 along with her disapproval of the images, to a friend during a 5 private conversation about casual and personal topics. (First 6 Am. Compl ¶ 89.) Her speech clearly did not involve an 7 employment grievance. However, plaintiff’s speech was also not 8 motivated by a desire to call attention to an issue nor part of a 9 larger conversation about a topic of public interest. See 10 Johnson v. Multnomah Cnty., 48 F.3d 420, 425 (9th Cir. 1995) 11 (“[T]he employee’s motivation . . . [is] among the many factors 12 to be considered in light of the public’s interest in the subject 13 matter of the speech.”); Roberts v. Ward, 468 F.3d 963, 971 (6th 14 Cir. 2006) (explaining that whether “speech is a matter of public 15 concern may turn on whether the speech is generic in nature, or 16 whether it reflects an in-depth attempt to contribute to public 17 discourse”). 18 Both the form and context of plaintiff’s speech weigh 19 against a finding of public concern in this case. Text messages 20 are inherently private. See Roe v. City & County of S.F., 109 21 F.3d 578, 585 (9th Cir. 1997) (“[A] limited audience weigh[s] 22 against [a] claim of protected speech.”). Plaintiff makes no 23 allegations that her speech concerned either racism in her 24 community or racism in the police department. Further, she makes 25 no allegations as to who sent her the text messages or why that 26 person sent her the text messages. Moreover, plaintiff does not 27 suggest that her speech is a matter of public concern because of 28 her position in law enforcement. 1 To find that plaintiff’s speech constitutes a matter of 2 public concern would be to find that any mention of a topic of 3 public interest, however brief or indirect, constitutes a matter 4 of public concern. Such a finding would collapse the court’s 5 analysis of the “the content, form, and context of a given 6 statement, as revealed by the whole record” into solely a 7 consideration of content. See Eng, 552 F.3d at 1070 (citations 8 and quotations omitted). This court does not read the case law 9 to support that proposition. Cf. Desrochers, 572 F.3d at 711 10 (“We have never held that a simple reference to government 11 functioning automatically qualifies as speech on a matter of 12 public concern[.]”); Weeks v. Bayer, 246 F.3d 1231, 1235-36 (9th 13 Cir. 2001) (“Water cooler conversation would become the stuff of 14 First Amendment claims, and casual remarks about work would be 15 elevated to constitutional complaints. The First Amendment does 16 not go that far.”) (citation omitted). 17 Moreover, “[t]he Supreme Court has warned us that 18 speech ‘not otherwise of public concern does not attain that 19 status because its subject matter could, in a different 20 circumstance, have been the topic of communication to the public 21 that might be of general interest.’” See id. at 717 (quoting 22 Connick, 461 U.S. at 148 n.8). 23 For the reasons stated above as well as those set forth 24 in the court’s prior orders (Docket Nos. 16, 28), the court finds 25 that plaintiff has still failed to allege facts sufficient to 26 support her claims for violation of the First Amendment and First 27 Amendment conspiracy. 28 IT IS THEREFORE ORDERED that defendant’s motion to nee enn me nen ee NE 1 dismiss Claims 3 and 4 of the First Amended Complaint be, and the 2 same hereby is, GRANTED without leave to amend.? 3 Dated: March 27, 2023 - ak. 4 □□□□□□□□□□□□□□□□□□□□□□ 5 UNITED STATES DISTRICT JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 2 Because plaintiff was previously given leave to amend and is proceeding on six other claims, the motion is granted 28 | without leave to amend.