Michael Oster v. County of Solano

FILED
NOT FOR PUBLICATION MAR 23 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL OSTER, No. 13-15791
Plaintiff - Appellant, D.C. No. 2:12-cv-01264-JAM-AC
v.
MEMORANDUM*
COUNTY OF SOLANO; SOLANO
COUNTY SHERIFF’S DEPARTMENT;
DOES, 1 through 50, inclusive,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
John A. Mendez, District Judge, Presiding
Argued and Submitted March 10, 2015
San Francisco, California
Before: BERZON, BYBEE, and OWENS, Circuit Judges.
Plaintiff-Appellant Michael Oster appeals the district court’s dismissal of his
First Amended Complaint under Federal Rule of Civil Procedure 12(b)(6). We
have jurisdiction under 28 U.S.C. § 1291, and we affirm in part and reverse in part.
The district court properly dismissed Oster’s claim of municipal liability
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
under Monell v. Department of Social Services, 436 U.S. 658 (1978), and did not
abuse its discretion in denying leave to amend that claim. Oster failed to allege
any facts that would plausibly support his claim of “an unofficial yet distinct
departmental policy” allowing supervising officers to act unlawfully, and he has
not shown that he could cure this deficiency if given an additional opportunity.
The district court abused its discretion, however, in declining to give Oster
leave to amend his First Amendment retaliation claim on the ground that any
further amendment would be futile. As the district court acknowledged, Oster
could have cured the pleading’s defect—that is, the pleading’s vagueness as to the
content of his letters to elected officials—had he simply attached the letters to his
First Amended Complaint. Because Oster can still cure this deficiency by
attaching the letters to a proposed second amended complaint, and because neither
we nor the district court is in a position to say before seeing the letters whether
they plausibly indicate that Oster’s speech was on a matter of public concern, we
cannot say that amendment is necessarily futile. It was thus improper for the
district court to deny leave to amend this claim without first reviewing the intended
amendment. See Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th
Cir. 2003).
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Accordingly, we affirm the district court’s dismissal with prejudice of
Oster’s Monell claim, reverse the district court’s denial of leave to amend Oster’s
First Amendment retaliation claim, and remand for proceedings consistent with
this disposition.1
AFFIRMED in part; REVERSED in part.
Each party shall bear its own costs on appeal.
1
We note that if Oster claims in his second amended complaint that
Defendants retaliated against him by causing him to be wrongfully arrested and
prosecuted for workers’ compensation fraud, he must plausibly allege that
Defendants lacked probable cause to believe Oster had committed workers’
compensation fraud. Cf. Lacey v. Maricopa Cnty., 693 F.3d 896, 917 n.8, 918–920
(9th Cir. 2012) (en banc) (noting that lack of probable cause is a required element
of a false arrest and malicious prosecution claim).
3