Silva v. City of Los Gatos ( 2021 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 8 JOHNATHON SILVA, Case No. 5:21-cv-02639-EJD 9 Plaintiff, ORDER GRANTING MOTION TO DISMISS 10 v. 11 CITY OF LOS GATOS, et al., Re: Dkt. No. 12 Defendants. 12 13 Plaintiff Johnathon Silva (“Silva”) is a former peace officer for Defendant City of Los 14 Gatos (“the City”). Silva initiated this suit against the City and others after the City terminated his 15 employment. He asserts a single claim under 42 U.S.C. § 1983 for violation of his substantive due 16 process rights under the Fourteenth Amendment. Defendants the City and Chief of Police Peter 17 Decena (“Decena”) move to dismiss the complaint pursuant to Federal Rule of Civil Procedure 18 12(b)(6). Dkt. No. 12. Plaintiff filed an opposition to the motion (Dkt. No. 15), and Defendants 19 filed a reply (Dkt. No. 16). The motion was heard on December 2, 2021. For the reasons stated 20 below, Defendants’ motion to dismiss is GRANTED. 21 I. BACKGROUND1 22 In September of 2018, the City2 hired Silva as a peace officer for the Los Gatos-Monte 23 Sereno Police Department. Compl. ¶ 7. Prior to his employment with the City, Silva was 24 employed as a career peace officer for San Jose State University Police Department (“SJSU PD”). 25 26 1 The Background is a summary of the allegations in the Complaint. 27 2 During the hearing, Defendants indicated that Los Gatos is a town, not a city. However, because the Complaint alleges Los Gatos is a city, this Order refers to Los Gatos as “the City.” 1 Before leaving the SJSU PD, Silva was subjected to an Internal Affairs (“IA”) investigation for an 2 alleged use of force incident for which he was ultimately exonerated. Id. The City assured Silva 3 that the investigation and outcome would not be an impediment to his employment. Id. After 4 receiving the City’s assurance, Silva left his permanent, vested SJSU position and accepted the 5 position with the City. Id. 6 Silva began employment with the City on a probationary basis. Id. ¶ 12. In approximately 7 February 2019, he received an evaluation indicating that he met all job performance standards. Id. 8 ¶¶ 8, 12. Subsequently, a video of Silva’s alleged use of force was released to the public. Id. ¶ 14. 9 Members of the public then questioned the City’s hiring of Plaintiff. Id. ¶ 9. “Some public 10 pressure and vocal opposition ensued against the City.” Id. On or about July 11, 2018, the City 11 and Decena told Silva he was being terminated. Id. The decision to terminate Silva was “based 12 solely on certain members of the community being upset and some public pressure.” Id. He was 13 not terminated for his work performance, work productivity or skill set. Id. Silva alleges that he 14 was terminated for reasons that are arbitrary, capricious, and have no reasonable or rational 15 support. Id. Silva also alleges that “if [he] can lawfully be terminated on such a basis, he in 16 effect, would never be able to secure employment in any way.” Id.3 17 II. STANDARDS 18 A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of claims alleged in the 19 complaint. Fed. R. Civ. P. 12(b)(6); Conservation Force v. Salazar, 646 F.3d 1240, 1241–42 (9th 20 Cir. 2011). To survive a motion to dismiss, the complaint “must contain sufficient factual matter, 21 accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 22 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim 23 has facial plausibility when the plaintiff pleads factual content that allows the court to draw the 24 reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 25 678 (citation omitted). 26 27 3 During the hearing, Defendants characterized the alleged termination as a release from probation. 1 When reviewing the complaint, the court must accept as true all “well pleaded factual 2 allegations” and determine whether the allegations “plausibly give rise to an entitlement to relief.” 3 Iqbal, 556 U.S. at 679. The court must also construe the alleged facts in the light most favorable 4 to the plaintiff. Retail Prop. Tr. v. United Bhd. of Carpenters & Joiners of Am., 768 F.3d 938, 945 5 (9th Cir. 2014). Dismissal “is proper only where there is no cognizable legal theory or an absence 6 of sufficient facts alleged to support a cognizable legal theory.” Navarro v. Block, 250 F.3d 729, 7 732 (9th Cir. 2001). 8 III. DISCUSSION 9 Substantive due process “forbids the government from depriving a person of life, liberty, 10 or property in such a way that ‘shocks the conscience’ or ‘interferes with rights implicit in the 11 concept of ordered liberty.’” Nunez v. City of Los Angeles, 147 F.3d 867, 871 (9th Cir. 1998). To 12 plead a cognizable substantive due process claim, a plaintiff must, as a threshold matter, allege 13 facts demonstrating a deprivation of “life, liberty or property.” Id. Although the Ninth Circuit has 14 not recognized a substantive due process right to a particular public employment position, it has 15 recognized a general substantive due process claim of occupational liberty. Engquist v. Or. Dept. 16 of Agric., 478 F.3d 985, 997 (9th Cir. 2007). “[A] plaintiff can make out a substantive due process 17 claim if [he] is unable to pursue an occupation and this inability is caused by government actions 18 that were arbitrary and lacking a rational basis.” Id. at 997. Occupational liberty claims under the 19 substantive due process clause are limited, however, “to extreme cases, such as a government 20 blacklist, which when circulated or otherwise publicized to prospective employers effectively 21 excludes the blacklisted individual from his occupation, much as if the government had yanked the 22 license of an individual in an occupation that requires licensure.” Id. at 997-98 (citation and 23 internal quotation omitted). 24 In Engquist, the plaintiff brought suit alleging several claims, including a substantive due 25 process claim, after she was terminated by the Oregon Department of Agriculture and was 26 unsuccessful in securing new full-time employment despite submitting approximately 200 job 27 applications. Id. at 991. The Ninth Circuit determined that plaintiff’s evidence presented at trial 1 was insufficient to show that the plaintiff had been deprived of her right to pursue a profession. In 2 evaluating the sufficiency of the evidence, the Ninth Circuit applied the standard set forth by the 3 Seventh Circuit in Bordelon v. Chi. Sch. Reform Bd., 233 F.3d 524 (7th Cir. 2000): “a plaintiff 4 must show that the ‘character and circumstances of a public employer’s stigmatizing conduct or 5 statements are such as to have destroyed an employee’s freedom to take advantage of other 6 employment opportunities.’” Engquist, 478 F.3d at 998 (quoting Bordelon, 233 F.3d at 531). 7 Here, Silva alleges that Defendants terminated his employment in response to public 8 pressure. This allegation, without more, is insufficient to state a cognizable substantive due 9 process claim. “It is not enough that the employer’s conduct had some adverse effect on the 10 employee’s job prospects; instead, the employee must show that the stigmatizing actions make it 11 virtually impossible for the employee to find new employment in his chosen field.” Id. (quoting 12 Bordelon, 233 F.3d at 531). Silva does not allege that Defendants took any stigmatizing action, 13 much less action akin to “blacklisting” him from working as a police officer. Nor does he allege 14 that Defendants’ conduct makes it virtually impossible for him to find new employment. Instead, 15 Silva alleges only that “[i]f [he] can lawfully be terminated on such a basis, he in effect, would 16 never be able to secure employment in any way.” Compl. ¶ 9. There are no factual allegations 17 from which to reasonably infer Defendants’ actions “destroyed” his freedom to take advantage of 18 other employment opportunities. 19 Silva relies on Sagana v. Tenorio, 384 F.3d 731 (9th Cir. 2004), but that case is factually 20 distinguishable. Moreover, the Ninth Circuit rejected the due process claim. In Sagana, a 21 nonresident worker sued the Secretary of Department of Labor of the Commonwealth of the 22 Northern Mariana Islands (“CNMI”), alleging that the CNMI’s Nonresident Workers Act 23 (“NWA”) restricted his right to freely market his labor. Id. The Sagana court recognized a 24 generalized due process right to choose one’s field of employment, but also noted that this 25 generalized right is subject to reasonable government regulation. Id. at 743. The Sagana court 26 held that the plaintiff’s claim failed, reasoning that there were “legitimate reasons” for enacting 27 the NWA and that the CNMI “violate[d] no constitutional principles by conditioning an alien’s 1 entry on his or her willingness to enter into limited labor contract.” Jd. at 735. Unlike Sagana, the 2 instant action challenges a termination, not legislation. As such, Silva’s claim is far more 3 analogous to the plaintiff's claim in Engquist. 4 During the hearing, Silva argued that Engquist does not control and that his claim is 5 cognizable under the reasoning of Bateson v. Geisse, 857 F.2d 1300 (9th Cir. 1988). Silva’s 6 || reliance on Bateson is misplaced. In Bateson, the plaintiffs substantive due process claim was 7 predicated on an alleged deprivation of property, not a deprivation of liberty. The Ninth Circuit 8 || found a substantive due process violation when a landowner was arbitrarily denied a building 9 || permit for political reasons. /d. at 1303. Unlike in Bateson, Silva does not allege a deprivation of 10 || property. Therefore, Bateson is inapplicable. 11 || IV. CONCLUSION 12 For the reasons discussed above, Silva’s claim fails to satisfy the standard articulated in 5 13 Engquist. The Complaint fails to allege sufficient facts to state a cognizable substantive due 14 || process claim.* Defendants’ motion to dismiss is accordingly GRANTED. The dismissal is 3 15 without leave to amend because allowing for further amendment would be futile. Gardner v. a 16 || Martino, 563 F.3d 981, 990 (9th Cir. 2009) (“When a proposed amendment would be futile, there 3 17 is no need to prolong the litigation by permitting further amendment.”’). 18 IT IS SO ORDERED. 19 Dated: December 9, 2021 20 71 EDWARD J. DAVILA 22 United States District Judge 23 24 25 | Because Silva has not stated a cognizable claim, it is unnecessary to consider Defendants’ 27 assertions that there is no basis for municipality liability under Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690-91 (1978)) and that Decena is entitled to qualified immunity. 28 || Case No.: 5:21-cv-02639-EJD ORDER GRANTING MOTION TO DISMISS