Richter v. Ausmus ( 2020 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JULIA RICHTER, Case No. 19-cv-08300-WHO 8 Plaintiff, ORDER GRANTING DEFENDANTS' 9 v. MOTION TO DISMISS 10 LISA AUSMUS, et al., Re: Dkt. No. 18 Defendants. 11 12 Plaintiff Julia Richter, an officer with the Oakland Police Department (“OPD”), brings this 13 action pro se against OPD employees Lisa Ausmus, Todd Mork, Sekou Millington, Anne 14 Kirkpatrick, Damon Gilbert, and Bryan Hubbard. She alleges multiple causes of action pursuant 15 to 42 U.S.C. § 1983 stemming from defendants’ alleged failure to properly train defensive tactics, 16 which caused her injury, and defendants’ wrongful investigations in retaliation for her pursuit of 17 disability benefits and her testimony in federal court. She also brings causes of action pursuant to 18 42 U.S.C. §§ 1985 and 1986 and California law. 19 There are a number of problems with Richter’s Amended Complaint. This Order identifies 20 in what ways Richter has failed to state any cause of action and allows her the opportunity to 21 amend and address the deficiencies. I encourage her to consult with the Legal Help Center in our 22 courthouse (15th Floor, Room 2796, phone number 415-782-8982) if she has been unable to find 23 an attorney to take her case. For the reasons stated below, defendants’ motion to dismiss is 24 GRANTED. Richter’s first, second, fourth, sixth, seventh, eighth, ninth, eleventh, twelfth, 25 thirteenth, fourteenth, fifteenth, sixteenth, eighteenth, nineteenth, and twentieth causes of action 26 are dismissed WITHOUT PREJUDICE, and her remaining claims are dismissed WITH 27 PREJUDICE. 1 BACKGROUND 2 Richter has been employed by OPD since 2013. Amended Complaint (“Compl.”) ¶ 14. 3 Her claims relate to two categories of alleged wrongdoing by OPD: a physical injury that she 4 suffered as a result of improper defensive training tactics, and an investigation instituted by 5 defendants to wrongfully terminate her and deprive her of disability retirement benefits. It is not 6 clear from the Amended Complaint the extent to which these wrongs are related.1 7 In March 2015, Richter became a defensive tactics instructor under the supervision of 8 defendant Gilbert, the Lead Defensive Instructor. Id. ¶¶ 14, 7. She alleges that Gilbert failed to 9 adequately train OPD instructors in defensive tactics, used unapproved defensive tactic 10 techniques, and caused a number of injuries with his defensive tactics trainings, ultimately injuring 11 her. Id. ¶¶ 15-24. Gilbert, as well as defendants Hubbard, Millington, and Kilpatrick, deliberately 12 disregarded requirements for such trainings that were set by the California Commission on Peace 13 Officers Standards and Training (“POST”) and the California Code of Regulations. Id. ¶¶ 16-17. 14 On February 14, 2018, Richter sustained a serious work injury while she was role-playing 15 as a “passive resister” during a defensive training tactics examination. Id. ¶ 21. Allen Nunley, 16 who is not a defendant in this action, lifted her up and “smashed her against the ground.” Id. ¶ 22. 17 Richter alleges that this was not a reasonable use of force but that Gilbert encouraged it by failing 18 to restrain or discipline Nunley, instead giving him a passing score. Id. ¶¶ 23-24. She cites 19 multiple other instances where officers were injured during Gilbert’s trainings, often while using 20 unauthorized techniques. Id. ¶ 25-30. She claims that Gilbert encouraged, rather than restrained, 21 other officers’ uses of excessive force. Id. She states that the remaining defendants were 22 deliberately indifferent to Gilbert’s activities and that Hubbard often personally attended defensive 23 tactics training sessions. Id. ¶¶ 17, 31-33. 24 On May 21, 2018, Richter filed a claim for workers’ compensation related to her injury 25 26 1 Some material facts are also obscured. Has Richter been terminated? Is she pursuing a Skelly hearing? What was the proceeding at which she testified in the Eastern District of California 27 about? Did she testify truthfully? Did she ever assert her Fifth Amendment right not to testify? 1 suffered in Gilbert’s training. Id. ¶ 34. Her claim was accepted, and the workers’ compensation 2 evaluation found that her injury caused 32 percent disability. Id. Richter claims that after 3 defendants Ausmus, Mork, Millington, and Kirkpatrick became aware of her permanent work 4 injury and her intent to apply for disability retirement benefits, they “began scrutinizing her in an 5 apparent attempt to disallow her disability claim.” Id. ¶ 35. She alleges a scheme by which 6 defendants attempted to improperly have her terminated, and states that they admitted they would 7 not consider any disciplinary measure against her other than termination. Id. ¶ 37. 8 Initially, Richter was referred for an internal investigation for allegedly missing property, 9 while her coworker was not investigated. Id. ¶ 36. On June 14, 2018, she was subpoenaed and 10 compelled to testify in federal court in Sacramento. Id. ¶ 45. She was on medical leave at the 11 time she testified. Id. On August 24, 2018, defendants placed her on administrative leave. Id. ¶ 12 44. On September 12, 2018, she was referred to the FBI for criminal prosecution, allegedly 13 related to her testimony in federal court. Id. ¶¶ 44-45. The FBI declined defendants’ referral on 14 January 24, 2019. Id. ¶ 45. 15 On July 22, 2019, Ausmus, Mork, Millington, and Kirkpatrick “presented formal charges” 16 against Richter for perjury related to her testimony in Sacramento and for an unidentified offense 17 of “reverse money laundering.” Id. ¶¶ 48, 56, 64. These charges were based upon an internal 18 investigation by Ausmus and ratified by Mork, Millington, and Kirkpatrick. Id. ¶¶ 48, 91. 19 Ausmus “proclaim[ed] herself to be an expert in money laundering” and relied upon two journal 20 articles, but did not provide any sworn testimony. Id. ¶ 85. Richter alleges that the internal 21 investigation and subsequent formal charges was designed to terminate her and prevent her from 22 receiving disability benefits. Id. ¶ 91. The defendants proceeded with their investigation despite 23 knowing that they could not prove all elements of the charges. Id. ¶ 97. Richter also alleges that 24 the defendants violated the statute of limitations set forth in California Government Code § 25 3304(d), id. ¶ 119, as well as internal OPD procedure. Id. ¶ 122. Ausmus omitted key evidence 26 and provided misleading evidence, failed to take statements from all relevant persons, did not 27 provide Richter with a summary of the complaint prior to interviewing her, and deliberately 1 ¶¶ 124-126. 2 On December 18, 2019, Daniel Low, an administrative assistant from the City of Oakland, 3 stated that the disability retirement board delayed making a determination on Richter’s claim 4 pending an outcome on her termination. Id. ¶ 40. It does not appear that she had been terminated 5 from her employment as of the filing of the Amended Complaint, or that a disability retirement 6 determination has been made. It is also unclear whether she had been afforded a Skelly hearing as 7 of the filing of the Amended Complaint. 8 Richter brought this action on December 19, 2019. Dkt. No. 1. She amended her 9 complaint on January 21, 2020. Dkt. No. 11. Fourteen of her causes of action are brought 10 pursuant to 42 U.S.C. § 1983, two pursuant to 42 U.S.C. § 1986, one pursuant to 42 U.S.C. § 11 1985, three pursuant to California law, and one is for punitive damages. Defendants moved to 12 dismiss on February 12, 2020. Dkt. Nos. 18, 22.2 13 LEGAL STANDARD 14 Under Federal Rule of Civil Procedure 12(b)(6), a district court must dismiss a complaint 15 if it fails to state a claim upon which relief can be granted. To survive a Rule 12(b)(6) motion to 16 dismiss, the plaintiff must allege “enough facts to state a claim to relief that is plausible on its 17 face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible when 18 the plaintiff pleads facts that “allow[] the court to draw the reasonable inference that the defendant 19 is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). There must be 20 “more than a sheer possibility that a defendant has acted unlawfully.” Id. While courts do not 21 require “heightened fact pleading of specifics,” a plaintiff must allege facts sufficient to “raise a 22 right to relief above the speculative level.” Twombly, 550 U.S. at 555, 570. 23 In deciding whether the plaintiff has stated a claim upon which relief can be granted, the 24 Court accepts the plaintiff’s allegations as true and draws all reasonable inferences in favor of the 25 plaintiff. Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). However, the court is 26 27 2 Richter filed a motion to extend time to file her opposition, but then filed an opposition on 1 not required to accept as true “allegations that are merely conclusory, unwarranted deductions of 2 fact, or unreasonable inferences.” In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 3 2008) (citation omitted). If the court dismisses the complaint, it “should grant leave to amend 4 even if no request to amend the pleading was made, unless it determines that the pleading could 5 not possibly be cured by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th 6 Cir. 2000) (citation omitted). In making this determination, the court should consider factors such 7 as “the presence or absence of undue delay, bad faith, dilatory motive, repeated failure to cure 8 deficiencies by previous amendments, undue prejudice to the opposing party and futility of the 9 proposed amendment.” Moore v. Kayport Package Express, 885 F.2d 531, 538 (9th Cir. 1989). 10 DISCUSSION 11 I. 1983 CLAIMS 12 Richter makes a series of allegations based upon 42 U.S.C. § 1983, asserting violations of 13 numerous constitutional rights. “To state a claim under § 1983, a plaintiff must allege two 14 essential elements: (1) that a right secured by the Constitution or laws of the United States was 15 violated, and (2) that the alleged violation was committed by a person acting under the color of 16 State law.” Long v. Cty. of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006). Because Richter 17 has alleged that defendants were acting as police officers employed by OPD, she has adequately 18 pleaded the second prong of her Section 1983 claims. See Anderson v. Warner, 451 F.3d 1063, 19 1068 (9th Cir. 2006) (“State employment is generally sufficient to render the defendant a state 20 actor”). Regarding the first prong, her various causes of action assert that defendants violated her 21 rights under the First, Fifth, and Fourteenth Amendments to the U.S. Constitution. I address each 22 in turn. 23 A. Due process claims 24 Richter’s eleventh, twelfth, and thirteenth causes of action assert substantive and 25 procedural due process violations, claiming that defendants deprived her of employment and 26 disability retirement and violated her liberty interest in being free from stigma. Compl. ¶¶ 223- 27 250. A cause of action pursuant to Section 1983 for procedural or substantive due process 1 to federal government actors, while the Fourteenth applies to state actors. Tellis v. Godinez, 5 2 F.3d 1314, 1316 (9th Cir. 1993); Bingue v. Prunchak, 512 F.3d 1169, 1174 (9th Cir. 2008). 3 Because Richter alleges that the conduct at issue was conducted by California and not federal 4 officials, her claims based upon Fifth Amendment violations fail. Bingue, 512 F.3d at 1174. 5 To assert a substantive due process claim pursuant to the Fourteenth Amendment, Richter 6 must demonstrate an arbitrary government deprivation of life, liberty, or property that is so 7 egregious as to shock the conscience. Brittain v. Hansen, 451 F.3d 982, 991 (9th Cir. 2006). A 8 procedural due process claim pursuant to the Fourteenth Amendment requires “three elements: (1) 9 a liberty or property interest protected by the Constitution; (2) a deprivation of the interest by the 10 government; (3) lack of process.” Portman v. Cty. of Santa Clara, 995 F.2d 898, 904 (9th Cir. 11 1993). 12 Richter has not identified the rights that the defendants violated that implicate substantive 13 due process. Courts have found that is unclear “whether a substantive due process right in 14 continued employment [] exists.” Moody v. Cty. of Santa Clara, No. 5:15-CV-04378-EJD, 2019 15 WL 6311406, at *5 (N.D. Cal. Nov. 25, 2019). Similarly, it is unclear whether a plaintiff has a 16 substantive due process right to disability benefits or freedom from stigma in this context. As 17 discussed below, these allegations appear to be more appropriately brought as procedural due 18 process violations. Further, even if Richter has identified a constitutionally-protected substantive 19 due process right, she has not alleged that the defendants’ conduct in violating this right was so 20 egregious as to shock the conscience. See id. (“Precedent dealing with ‘abusive executive action’ 21 has repeatedly emphasized that only the most egregious official conduct can be said to be arbitrary 22 in the constitutional sense.”) (citations omitted); see also Bravo v. Beard, No. C-12-06414 JSC, 23 2013 WL 5862749, at *3 (N.D. Cal. Oct. 30, 2013) (“When executive action is at issue, that is, a 24 specific act of a governmental officer, only egregious official conduct can be said to be arbitrary in 25 the constitutional sense: it must amount to an abuse of power lacking any reasonable justification 26 in the service of a legitimate governmental objective.”) (citation omitted). Accordingly, her 27 substantive due process claims fail. 1 “the dismissal effectively precludes future work in the individual’s chosen profession.” Braswell 2 v. Shoreline Fire Dep’t, 622 F.3d 1099, 1102–03 (9th Cir. 2010) (citations omitted). “To establish 3 a violation of such a liberty interest, Plaintiff must show that [her] dismissal destroyed [her] 4 freedom to take advantage of other employment opportunities and that, because of the dismissal, it 5 is virtually impossible for [her] to find new employment in [her] chosen field.” Id. at 1103 6 (citations omitted). A police officer’s termination or demotion at one department does not 7 necessarily mean that it is virtually impossible to find new employment in that field. Carter v. 8 Cty. of Los Angeles, 582 F. App’x 676, 677 (9th Cir. 2014); Smith v. City of Quincy, No. CV-09- 9 328-RMP, 2011 WL 611699, at *8 (E.D. Wash. Feb. 11, 2011). Richter has only alleged that she 10 has an interest in her current job, not that defendants destroyed her ability to find other 11 employment or her career. This is not sufficient to plead a protected interest for the purposes of 12 procedural due process. 13 Richter has also identified a potential liberty interest in the publication of “stigmatizing 14 charges” brought against her. Compl. ¶ 235. “The termination of a public employee which 15 includes publication of stigmatizing charges triggers due process protections.” Mustafa v. Clark 16 Cty. Sch. Dist., 157 F.3d 1169, 1179 (9th Cir. 1998). But in order “to take advantage of these 17 protections, an employee must show that (1) the accuracy of the charge is contested; (2) there is 18 some public disclosure of the charge; and (3) the charge is made in connection with termination of 19 employment.” Id. (citation omitted). Here, Richter has not identified any public disclosure of the 20 charges against her; the fact that other OPD employees learned of the charge does not necessarily 21 mean that the charges were public. In addition, her employment was apparently not terminated as 22 of the filing of the Amended Complaint. Thus, she has not properly alleged a claim based upon 23 this theory. 24 Richter contends that she need not have been formally terminated by OPD because 25 punitive action includes discharge and suspension. Dkt. No. 22 at 12. She may allege a 26 procedural due process violation based upon constructive discharge by pleading that “a reasonable 27 person in [her] position would have felt that [she] was forced to quit because of intolerable and 1 2000). But the Amended Complaint does not allege that she was constructively discharged or that 2 a reasonable person would have felt she was forced to quit because of intolerable conditions. 3 Lastly, Richter states that defendants deprived her of disability retirement benefits. She 4 has “a property interest in [her] disability retirement benefits and had a [procedural] due process 5 right to a hearing regarding [her] entitlement to such benefits.” Ostlund v. Bobb, 825 F.2d 1371, 6 1373 (9th Cir. 1987). She has adequately identified a protected interest in disability retirement. 7 However, she has not alleged the remaining elements of a procedural due process claim. 8 To allege a claim based upon deprivation of her interest in disability retirement benefits (as 9 well as any employment interests), she must also show that the government deprived her of that 10 interest and that she failed to receive the process that was due. “It is well settled that the root 11 requirement of the Due Process Clause [is] that an individual be given an opportunity for a 12 hearing before he is deprived of any significant property interest,” and that plaintiff be given some 13 kind of notice and an opportunity to respond. Clements v. Airport Auth. of Washoe Cty., 69 F.3d 14 321, 331-32 (9th Cir. 1995) (citations omitted). Richter has failed to allege that she was deprived 15 of disability retirement benefits (or her employment) or that she failed to receive a pre- 16 determination hearing. Instead, she alleges that no determination has yet been made because 17 defendants delayed her termination pending the internal investigation. Compl. ¶¶ 34-41. She 18 does not claim that this delay amounts to a due process violation and has offered no theory why 19 this would amount to a violation as a matter of law. In addition, she failed to plead any facts 20 regarding the process, notice, or opportunity to respond (or lack thereof) that she received from 21 OPD. In order to plead any procedural due process violations, she must allege how defendants 22 failed to provide her with adequate procedural protections, such as a pre-termination hearing, and 23 that she was actually deprived of such her disability retirement benefits. 24 For these reasons, Richter’s eleventh, twelfth, and thirteenth causes of action are dismissed 25 WITHOUT prejudice. 26 B. Excessive Force 27 Richter’s first two causes of action plausibly allege that Gilbert promoted the use of 1 knew of this violation but failed to take any action. Compl. ¶¶ 133-51. Defendants argue that her 2 first two causes of action fail because they are barred by California workers’ compensation law. 3 Dkt. No. 18 at 12-13. I disagree. Defendants have not cited any case law to support their position, 4 and the Ninth Circuit has suggested that Section 1983 claims are not barred by workers’ 5 compensation law. Jensen v. City of Oxnard, 145 F.3d 1078, 1084 n.3 (9th Cir. 1998) (rejecting 6 “contention that traditional state workers’ compensation law precludes . . . § 1983 claim[s]”). 7 But there are other defects in the first two causes of action. Richter asserts that the 8 defendants violated her Fifth and Fourteenth Amendment rights. Compl. ¶¶ 139, 148. As 9 discussed, the Fifth Amendment due process clause applies only to federal actors. In addition, 10 Richter has not explained how the alleged use of excessive force in this case violates the 11 Fourteenth Amendment due process clause. Benge v. Sprueill, No. CV F 10-0978 LJO SMS, 2010 12 WL 4237305, at *4 (E.D. Cal. Oct. 21, 2010). Excessive force claims are typically brought under 13 the Fourth Amendment, which does not apply here because there was no search or seizure of 14 Richter. Id. Similarly, the right to be free from excessive force under the Fourteenth Amendment 15 has been recognized for certain groups, such as civilly committed individuals or students, but not 16 more broadly. Smith v. Oreol, No. EDCV171135JFWKK, 2018 WL 8754909, at *3 (C.D. Cal. 17 Mar. 20, 2018); Robinson v. Cty. of Shasta, 384 F. Supp. 3d 1137, 1148-49 (E.D. Cal. 2019). To 18 the extent Richter alleges that defendants’ use of excessive force was a violation of her due 19 process rights, that claim fails for the reasons discussed above in Part I.A. Because she has failed 20 to identify how the excessive force violated her due process rights, these causes of action fail. 21 She also asserts that defendants denied her Fourteenth Amendment right to equal 22 protection. Compl. ¶ 148. “To establish a § 1983 equal protection violation, the plaintiffs must 23 show that the defendants, acting under color of state law, discriminated against them as members 24 of an identifiable class and that the discrimination was intentional.” Flores v. Morgan Hill Unified 25 Sch. Dist., 324 F.3d 1130, 1134 (9th Cir. 2003). Richter failed to allege a violation of her equal 26 protection rights because she has failed to allege, let alone plausibly, that she was discriminated 27 against as a member of an identifiable class (for example, based upon her race or gender). To the 1 For these reasons, Richter’s first and second causes of action are dismissed WITHOUT 2 PREJUDICE. 3 C. Fabrication of evidence, Brady violation, malicious prosecution, and making false 4 public statements 5 Richter alleges that defendants fabricated evidence in their internal investigation, destroyed 6 or concealed evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963), subjected her to 7 malicious prosecution, and made false public statements in violation of her rights under the 8 Fourteenth Amendment. Compl. ¶¶ 152-59, 170-81, 269-73. Each of these claims fails because 9 Richter was not criminally charged or prosecuted. 10 “To prevail on a § 1983 claim of deliberate fabrication, a plaintiff must prove that (1) the 11 defendant official deliberately fabricated evidence and (2) the deliberate fabrication caused the 12 plaintiff’s deprivation of liberty.” Spencer v. Peters, 857 F.3d 789, 798 (9th Cir. 2017). To 13 satisfy the element of “deprivation of liberty,” Richter must allege that she was criminally charged 14 or convicted. Caldwell v. City & Cty. of San Francisco, 889 F.3d 1105, 1115 (9th Cir. 2018). She 15 has not alleged any facts that she was criminally charged or convicted as a result of the deliberate 16 fabrication of evidence; instead, she alleges that the government declined to prosecute her. This 17 claim fails. 18 A Brady violation concerns the right to a fair trial and is implicated in criminal cases. 19 Walker v. Cty. of Santa Clara, No. C-04-02211RMW, 2007 WL 1201789, at *9 (N.D. Cal. Apr. 20 23, 2007). Richter was not prosecuted in this case and therefore could not suffer a violation of her 21 Brady rights. Therefore, this claim also fails.3 22 To state a Section 1983 claim for malicious prosecution, “a plaintiff must show that the 23 defendants prosecuted [her] with malice and without probable cause, and that they did so for the 24 purpose of denying [her] equal protection or another specific constitutional right.” Awabdy v. City 25 3 Richter argues that being subject to criminal prosecution is not an “element” of a fabrication of 26 evidence or a Brady claim. Dkt. No. 22 at 10, 14. While it is true that being subject to criminal prosecution is not an element of these claims as courts use the term, it is a prerequisite to bringing 27 such claims and can bar a plaintiff’s claim. Although a plaintiff must adequately plead each 1 of Adelanto, 368 F.3d 1062, 1066 (9th Cir. 2004). Richter cannot state a claim for malicious 2 prosecution unless she was subject to criminal proceedings. Cook v. City of California City, No. 3 16-cv-00429-DADJLT, 2017 WL 1348951, at *6 (E.D. Cal. Apr. 12, 2017). Criminal proceedings 4 were never instituted, so Richter cannot bring a cause of action for malicious prosecution. She has 5 also failed to allege that any attempted prosecution was undertaken for the purpose of denying her 6 equal protection or another specific constitutional right. Her claim for malicious prosecution thus 7 fails. 8 Richter claims that defendants failed to keep their investigation confidential in violation of 9 California Penal Code sections 832.7 and 832.8. Compl. ¶ 269. However, she does not allege, nor 10 is it likely that she can allege, that this violation implicates a constitutionally-protected liberty or 11 property interest. See Goodfellow v. Ahren, No. 13-04726 RS, 2014 WL 1248238, at *6 n.9 (N.D. 12 Cal. Mar. 26, 2014) (noting that Section 1983 does not vindicate rights under § 832.7); Mitchell v. 13 City of Santa Rosa, No. C 08-02698 SI, 2008 WL 4534050, at *5 (N.D. Cal. Oct. 7, 2008) (same). 14 As defendants note, false public statements can be grounds for a Section 1983 claim when 15 submitted in an arrest warrant in violation of the Fourth Amendment. Dkt. No. 18 at 24-25; 16 Galbraith v. Cty. of Santa Clara, 307 F.3d 1119, 1126 (9th Cir. 2002). However, such facts are 17 absent here, and Richter’s allegations based on failure to keep an investigation confidential fail. 18 For each of her claims, Richter asserts that the proceeding against her was a “quasi- 19 criminal proceeding” and thus on par with a criminal proceeding. Compl. ¶¶ 87- 96; Dkt. No. 22 20 at 10. 15. She cites Choudhry v. Regents of the Univ. of California, No. 16-CV-05281-RS, 2016 21 WL 6611067, at *3 (N.D. Cal. Nov. 9, 2016) and Baffert v. California Horse Racing Bd., 332 F.3d 22 613, 617 (9th Cir. 2003). Id. at 15. These cases discuss whether state proceedings are “quasi- 23 criminal” for the purpose of evaluating whether to apply the Younger doctrine of abstention. This 24 rationale does not apply here. For the purposes of pleading these constitutional violations under 25 Section 1983, Richter must have been subject to criminal prosecution, which she was not. 26 Because Richter was not criminally prosecuted or charged, she cannot bring her third, fifth, 27 tenth, and seventeenth causes of action as a matter of law. Accordingly, these claims are 1 D. Retaliation 2 Richter asserts that defendants improperly retaliated against her for exercising her 3 constitutional right to free speech, for exercising her Fifth Amendment right to remain silent, and 4 for filing her workers’ compensation claim. Compl. ¶¶ 193-208. These claims are also defective. 5 Section 1983 claims against a government official for First Amendment retaliation require 6 that an employee demonstrate that: (1) he or she engaged in protected speech; (2) the official took 7 adverse employment action; and (3) his or her speech was a substantial or motivating factor for the 8 adverse employment action. Coszalter v. City of Salem, 320 F.3d 968, 973 (9th Cir. 2003). With 9 respect to the second factor of adverse employment action, courts have noted that “[t]he precise 10 nature of the retaliation is not critical to the inquiry in First Amendment retaliation cases,” and 11 have found adverse actions to be those that chill the exercise of free speech. Id. at 974-75. Here, 12 Richter alleges that she was subjected to a criminal investigation by the federal government and to 13 an internal investigation by OPD. It is plausible that this type of adverse action is “reasonably 14 likely to deter employees from engaging in protected activity.” Id. at 976 (citation omitted). She 15 has thus adequately alleged the first element of her First Amendment retaliation claim. 16 However, Richter has not alleged the remaining two factors set forth in Coszalter. 17 Although she has properly alleged that she provided testimony in federal court that was unrelated 18 to her police duties, she has not alleged any facts regarding her testimony. Lane v. Franks, 573 19 U.S. 228, 231 (2014). In order to state a claim, Richter must specifically allege that the testimony 20 she provided was truthful. 21 Second, Richter has not adequately alleged that her speech was a substantial or motivating 22 factor in defendants’ investigation. She states that her “testimony was a substantial or motivating 23 factor in the adverse action by these Defendants,” Compl. ¶ 198, but that statement is a simple 24 recitation of an element of the cause of action that is not adequate under Twombly and Iqbal. See 25 Iqbal, 556 U.S. at 678 (complaint offering only “formulaic recitation of the elements of a cause of 26 action will not do.”). In order to properly state a claim, she must allege some additional facts to 27 support her assertion that this testimony was a substantial or motivating factor in the adverse 1 Next, Richter asserts that defendant Ausmus retaliated against her “for her exercise of the 2 Fifth Amendment Right to remain silent.” Compl. ¶ 202. She has not alleged that she was 3 charged with a crime, although she has alleged that she was subject to a criminal investigation. 4 She has not stated any facts that suggest that she invoked her Fifth Amendment rights during the 5 criminal investigation. See Chavez v. Martinez, 538 U.S. 760, 770 (2003) (“a violation of the 6 constitutional right against self-incrimination occurs only if one has been compelled to be a 7 witness against himself in a criminal case.”). Thus, her claim for retaliation based upon her Fifth 8 Amendment right fails. Talib v. Guerrero, No. CV 15-3825-JAK (DFM), 2015 WL 7428511, at 9 *8 (C.D. Cal. Nov. 20, 2015). In order to state a claim for retaliation based upon her Fifth 10 Amendment right, she must allege that she invoked her Fifth Amendment right and that 11 defendants retaliated against her because of her invocation of that right. 12 Lastly, Richter alleges that defendants retaliated against her for filing a workers’ 13 compensation claim. This claim for relief repeats her arguments that she was deprived of her due 14 process rights, Compl. ¶¶ 204-08, but does not articulate any constitutional right that was violated. 15 As defendants point out, she appears to make an argument pursuant to California Labor Code 16 section 132a, which prohibits employers from retaliating against employees for filing for workers’ 17 compensation.4 Dkt. No. 18 at 19-20. A violation of this state law does not appear to be protected 18 by substantive or procedural due process. Accordingly, this claim is insufficient to state a claim 19 pursuant to Section 1983. 20 Richter’s seventh, eighth, and ninth causes of action are DISMISSED WITHOUT 21 PREJUDICE. 22 E. Supervisor liability 23 Most of Richter’s causes of action are brought against all defendants, even if they did not 24 directly commit the offenses, on the theory that as supervisors each defendant acted in reckless 25 disregard of her rights. See first, second, third, fifth, seventh, ninth, tenth, eleventh, twelfth, 26 27 4 Defendants also argue that the Workers’ Compensation Appeals Board has exclusive jurisdiction 1 thirteenth, and seventeenth causes of action. In addition, she asserts two causes of action based on 2 “supervisory violations” and “ratification of unconstitutional conduct.” Compl. ¶¶ 251-261. To 3 the extent she alleges that each defendant was directly responsible for these violations, she often 4 fails to differentiate the defendants or explain what role each defendant had in the violation. This 5 is not adequate to state a claim under Rule 12(b)(6). 6 As for supervisor liability under Section 1983, “[a]n official may be liable as a supervisor 7 only if either (1) he or she was personally involved in the constitutional deprivation, or (2) a 8 sufficient causal connection exists ‘between the supervisor’s wrongful conduct and the 9 constitutional violation.’” Felarca v. Birgeneau, 891 F.3d 809, 819–20 (9th Cir. 2018). A causal 10 connection can be satisfied where the supervisor sets in motion a series of acts by others, or 11 knowingly refuses to terminate a series of acts by others, which the supervisor knew or reasonably 12 should have known would cause others to inflict a constitutional injury. Id. at 820. Richter recites 13 this language in her complaint, but does not substantiate her allegations with any facts. Compl. ¶¶ 14 255, 260. For example, she does not allege how each defendant would have known of the 15 constitutional violations, the nature of the supervisory relationship between the supervising 16 defendants and the defendants committing the violations directly, or the supervisors’ involvement 17 in or setting in motion of any policy that caused the deprivation of constitutional rights. Such 18 allegations are not adequate. Howard v. Contra Costa Cty., No. 13-CV-03626 NC, 2014 WL 19 824218, at *15 (N.D. Cal. Feb. 28, 2014). To state a claim against each defendant, she must 20 provide facts that establish how each supervisor was liable for each constitutional violation 21 pursuant to Section 1983. 22 Accordingly, Richter’s fourteenth and fifteenth causes of action are DISMISSED 23 WITHOUT PREJUDICE. 24 II. SECTION 1985 CLAIMS 25 Richter asserts two causes of action pursuant to 42 U.S.C. § 1985 and one cause of action 26 pursuant to 42 U.S.C. § 1986. Her fourth claim for relief alleges a conspiracy to deprive of 27 disability retirement benefits. Compl. ¶¶ 162-169. Her sixth claim for relief alleges obstruction of 1 report. Id. ¶¶ 182-192. Her Section 1986 claim is based upon “failure to prevent” the violations 2 of Section 1985. Compl. ¶¶ 262-267. 3 Richter does not identify the sub-section of Section 1985 that her claims are based upon. 4 Section 1985(1) applies only to federal officers and does not apply in this case. Canlis v. San 5 Joaquin Sheriff’s Posse Comitatus, 641 F.2d 711, 717 (9th Cir. 1981). Section 1985(3) requires 6 that plaintiff be deprived of her rights due to class-based animus. Pennington Manistee Town Ctr. 7 v. City of Glendale, 227 F.3d 1090, 1095 (9th Cir. 2000). Richter cannot assert a cause of action 8 under this section for the same reasons that she cannot state a cause of action pursuant to the equal 9 protection clause. 10 It appears most likely that Richter seeks relief pursuant to Section 1985(2). To state a 11 claim under this sub-section, she must show “(1) a conspiracy between two or more persons, (2) to 12 deter a witness by force, intimidation or threat from attending court or testifying freely in any 13 pending matter, which (3) results in injury to the plaintiff.” Head v. Wilkie, 936 F.3d 1007, 1010 14 (9th Cir. 2019). She alleges that defendants conspired to deprive her of her rights. See, e.g., 15 Compl. ¶¶ 42, 184. However, she fails to provide any facts to substantiate the alleged conspiracy, 16 such as when and how the agreement to deprive her of her rights took place, or any acts that 17 defendants took in furtherance of the conspiracy. Conclusory allegations of conspiracy like those 18 in the Amended Complaint fail to state a claim. Webster v. Bronson, 402 F. App’x 280, 282 (9th 19 Cir. 2010); Delacruz v. State Bar of California, No. 16-CV-06858-BLF, 2018 WL 3077750, at 20 *12 (N.D. Cal. Mar. 12, 2018); Scott v. Diesman, No. CV 09-7215-GHK PLA, 2010 WL 1194228, 21 at *9 (C.D. Cal. Mar. 23, 2010). 22 Richter has also not pleaded facts to show how defendants conspired to deprive her of her 23 rights because of her testimony in federal court. Indeed, she has not identified any facts relating to 24 the substance of her testimony or its relation to the defendants’ later disciplinary actions against 25 her. Accordingly, she has failed to state a cause of action under Section 1985 or 1986. 26 For these reasons, plaintiff’s fourth, sixth, and sixteenth claims for relief are DISMISSED 27 WITHOUT PREJUDICE. 1 III. STATE LAW CLAIMS 2 Richter asserts three causes of action under California law: negligent infliction of 3 emotional distress (“NIED”), battery, and negligence. Compl. ¶¶ 274-285. Defendants argue that 4 these causes of action are barred by the worker’s compensation exclusion of California Labor 5 Code, Sections 3600 and 3601. Dkt. No. 18 at 25. 6 In general, California’s workers’ compensation system limits the lawsuits that an employee 7 can bring against her employer or against fellow employees for injuries “arising out of and in the 8 course of the employment,” even if negligence is alleged. Cal. Lab. Code § 3600; see also Torres 9 v. Parkhouse Tire Serv., Inc., 30 P.3d 57, 60 (2001). Richter alleges that her injury arose during 10 work-related defensive tactics instructions and examinations, and in fact filed a workers’ 11 compensation claim for that injury. There appears to be no real question that her claim “arises out 12 of and in the course of the employment.” Therefore, her claims are barred unless they fall within 13 an “exception” to the workers’ compensation statutes. 14 When bringing a cause of action against fellow employees and not one’s employer, as 15 Richter has done here, two exceptions to workers’ compensation law may apply: (i) if the alleged 16 injury was proximately caused by the intoxication of the other employee(s), or (ii) if the alleged 17 injury was proximately caused by the “willful and unprovoked aggression” of the other 18 employee(s). Cal. Lab. Code § 3601. Courts have interpreted the second exception as covering 19 “unprovoked conduct intended to convey an actual, present, and apparent threat of bodily injury.” 20 Torres, 30 P.3d at 62. 21 Richter fails to allege her state law causes of action with the required specificity under 22 Rule 8. Her eighteenth claim for relief does not identify conduct forms the basis of her NIED 23 claim. Her nineteenth and twentieth claims are based on her physical injuries suffered in 24 defensive tactics training. None of these causes of action alleges that the defendants intended 25 Nunley’s conduct to harm Richter; instead, she argues that defendants were reckless and failed to 26 adequately train and supervise defendant Gilbert. Accordingly, her claims as pleaded are barred by 27 1 California workers’ compensation law.5 2 Richter’s eighteenth, nineteenth, and twentieth claims for relief are DISMISSED 3 WITHOUT PREJUDICE. 4 IV. PUNITIVE DAMAGES 5 Richter’s last claim for relief is for punitive damages. Compl. ¶¶ 286-295. “A request for 6 punitive damages is not a claim in its own right . . . but is instead a request for relief.” Grouse 7 River Outfitters Ltd v. NetSuite, Inc., No. 16-CV-02954-LB, 2016 WL 5930273, at *10 (N.D. Cal. 8 Oct. 12, 2016). If Richter files an amended complaint, she may include a request for punitive 9 damages as part of her prayer for relief. But as a cause of action, it is DISMISSED WITH 10 PREJUDICE. 11 V. QUALIFIED IMMUNITY 12 Defendants request that I grant them qualified immunity, but provide no analysis of 13 qualified immunity for the individual causes of action. Dkt. No. 18 at 1. In general, government 14 officials enjoy qualified immunity from civil damages, including from Section 1983 claims, unless 15 (i) the law governing the official was clearly established, and (ii) under that law, a reasonable state 16 official could not have believed his conduct was lawful. Jeffers v. Gomez, 267 F.3d 895, 910 (9th 17 Cir. 2001). Because I find that Richter has failed to plead each cause of action, I need not address 18 qualified immunity at this time. If she amends her complaint, she must provide facts that would 19 indicate that the defendants are not entitled to qualified immunity. 20 21 22 23 24 25 26 5 Defendants argue that Richter’s claims are further barred by California Government Code 27 section 820.2, which provides immunity for actions within an official’s discretion. Dkt. No. 18 at 1 CONCLUSION 2 For the above reasons, defendants’ motion to dismiss is GRANTED. Richter is granted 3 leave to amend with respect to the first, second, fourth, sixth, seventh, eighth, ninth, eleventh, 4 twelfth, thirteenth, fourteenth, fifteenth, sixteenth, eighteenth, nineteenth, and twentieth causes of 5 action within thirty days. She is encouraged to seek assistance from the Legal Help Center, as 6 || indicated in the beginning of this Order. 7 IT IS SO ORDERED. 8 Dated: March 24, 2020 9 10 . 11 liam H. Orrick 12 United States District Judge 13 © 15 16 = 17 Z 18 19 20 21 22 23 24 25 26 27 28