Anthony Luckey v. City of Porterville, et al.

• Court: District Court, E.D. California
• Decided: September 30, 2025
• Docket: 1:23-cv-00551
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ANTHONY LUCKEY, Case No. 1:23-cv-00551-BAM 12 Plaintiff, ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ 13 v. MOTION TO DISMISS 14 CITY OF PORTERVILLE, et al., (Doc. 48) 15 Defendants. 16 17 Plaintiff Anthony Luckey (“Plaintiff”) brings this action against Defendants City of 18 Porterville and Bruce Sokoloff (“Defendants”) asserting claims for race discrimination in 19 violation of Title VII, deprivation of civil rights in violation of 42 U.S.C. § 1983, race 20 discrimination in violation of the California Constitution, and race discrimination in violation of 21 California’s Fair Employment and Housing Act (“FEHA”). (Doc. 43.) Defendants previously 22 moved to dismiss Plaintiff’s second amended complaint pursuant to Rule 12(b)(6) of the Federal 23 Rules of Civil Procedure. (Doc. 21 at 1-2.) On September 30, 2024, the Court issued an order 24 granting Defendants’ motion (the “Order”), dismissing all claims with leave to amend. (Doc. 37.) 25 On November 8, 2024, Plaintiff filed a third amended complaint (the “TAC”). (Doc. 43.) 26 On December 6, 2024, Defendants moved to dismiss Plaintiff’s TAC, arguing that (1) the TAC 27 still fails to state a prima facie case for race discrimination under Title VII or FEHA, (2) the Court 28 has already dismissed Plaintiff’s Section 1983 claim with prejudice, Plaintiff is asserting a new 1 theory of its Section 1983 claim, and that Plaintiff’s new theory is time-barred by the statute of 2 limitations, and (3) Article I, Sections 8 and 31 of the California Constitution do not afford a 3 private right of action. (Doc. 48.) Plaintiff opposed Defendants’ motion, arguing that (1) 4 Plaintiff has pled adequate facts to meet the “similarly situated” and “other circumstances” 5 prongs, (2) the Court did not dismiss Plaintiff’s entire Section 1983 claim with prejudice, Plaintiff 6 is not pleading a new theory of his Section 1983 claim, and the statute of limitations does not 7 apply, and (3) the right to sue for damages for race discrimination under Article I, Sections 8 and 8 31 of the California Constitution is well-established. (Doc. 55.) Defendants replied to Plaintiff’s 9 opposition. (Doc. 56.) 10 The Court finds the motion suitable for decision without oral argument pursuant to Local 11 Rule 230(g).1 For the reasons set forth below, Defendants’ motion to dismiss is granted in part 12 and denied in part. 13 I. Summary of Third Amended Complaint 14 A. Claims for Relief 15 Plaintiff forwards the following claims for relief: (1) race discrimination in violation of 16 Title VII against Defendant City of Porterville; (2) deprivation of civil rights in violation of 42 17 U.S.C. § 1983 against Defendant Sokoloff; (3) race discrimination in violation of the California 18 Constitution against Defendant City of Porterville; and (4) race discrimination in violation of the 19 FEHA against Defendant City of Porterville. 20 B. Summary of Allegations 21 Plaintiff graduated from the Tulare-Kings Police Academy in February 2017 and was 22 employed by the Tulare County Sherriff’s Office from October 2017 to October 2020. (Doc. 43 23 ¶¶ 10, 16.) During Plaintiff’s time at Tulare County Sherriff’s Office, he was identified “as being 24 a leader and a mentor for new officers,” “provided special training” not typically available to the 25 average Patrol Deputy “in recognition of his exceptional performance and potential,” and 26 completed SWAT School in Huntington Beach. (Id. ¶¶ 13, 12.) Plaintiff served in the Tulare 27 1 The parties have consented to magistrate judge jurisdiction over this action for all purposes, 28 including trial and entry of final judgment, pursuant to 28 U.S.C. § 636(c)(1). (Docs. 27, 28, 30.) 1 Area Gang and Narcotics Enforcement Team (“TAGNET”), where he acted as the lead 2 investigator on several gang-related violent crimes, authored dozens of search and arrest warrants, 3 completed several gang packets, and made dozens of entries as a SWAT operator. (Id. ¶ 14.) 4 During this time, Plaintiff alleges that he “never received a verbal or written reprimand.” (Id. ¶ 5 15.) 6 In November 2020, Plaintiff accepted a position as a patrol officer with the Porterville 7 Police Department (“PPD”). (Id. ¶ 17.) During Plaintiff’s employment with PPD, he made over 8 one hundred and thirty-five arrests, including fifty felony arrests, twenty-five DUI arrests, forty- 9 five narcotics arrests, and recovered six firearms. (Id. ¶ 18.) 10 In January 2021, Plaintiff began a relationship with Officer Ana Moreno (“Officer 11 Moreno”), a White female PPD officer. (Doc. 43 ¶ 19.) Plaintiff is African American. (Id. ¶ 1.) 12 Plaintiff alleges that as a result of this relationship, Defendant Sergeant Bruce Sokoloff 13 “orchestrated a campaign to get Plaintiff fired after he learned that Plaintiff, a Black man, and 14 Officer Ana Moreno, a White woman, were in a romantic relationship and cohabitating because 15 he disapproved of interracial relationships,” “attempted unsuccessfully to engage Officer Moreno 16 in a romantic relationship while he was her supervising Sergeant,” and engaged in efforts to 17 “separate” Plaintiff and Officer Moreno. (Id.) Plaintiff alleges that Sokoloff made numerous 18 statements to Officer Moreno while he was her supervisor supporting the idea that his religion 19 “has very strict ideas about race, color, and genetics,” including such statements as “You gotta 20 keep the bloodlines clean,” “You don’t mix with other races,” and remarks concerning racial 21 purity. (Id. ¶ 20.) Plaintiff believes that Sokoloff became aware that Plaintiff and Officer 22 Moreno were dating in February 2021. (Id. ¶¶ 21-22.) 23 On or about April 27, 2021, Plaintiff was involved in a pursuit while assigned to a detail 24 with Corporal Benas, Plaintiff’s direct supervisor, to provide security for extracted marijuana 25 plants that were pulled from a warehouse earlier in the day. (Id. ¶ 26.) Plaintiff and Corporal 26 Benas were parked facing a roadway, where they observed a vehicle fail to stop at an intersection 27 while speeding at approximately one hundred miles per hour. (Doc. 43 ¶ 26.) Corporal Benas 28 instructed Plaintiff to “[g]o get it.” (Id.) Plaintiff caught up with the vehicle and initiated a traffic 1 stop, during which the suspect vehicle drove away. (Id.) Plaintiff then engaged in a pursuit and 2 self-terminated the pursuit after the vehicle continued to dive recklessly. (Id.) The vehicle later 3 crashed and the suspect was apprehended after fleeing on foot. (Id.) When Sergeant Sokoloff 4 arrived on the scene, he indicated that he was upset that Plaintiff conducted a traffic stop while 5 assigned on a detail. (Id.) 6 On or about April 29, 2021, Plaintiff was served with a letter of intent for an internal 7 investigation initiated by Sokoloff concerning the pursuit. (Doc. 43 ¶ 28.) Plaintiff alleges that 8 several White officers were involved in pursuits around this time who were not subject to 9 disciplinary action from PPD. (Id. ¶¶ 23, 24, 31, 35.) Plaintiff states that he asked another officer 10 why he was being subjected to discipline, to which they responded that “it was due to Plaintiff 11 dating Officer Moreno and certain persons being jealous.” (Id. ¶ 29.) Plaintiff alleges that he 12 continued to be praised for his performance within the PPD (id. ¶ 27, 30, 40, 41), was told that a 13 Personnel Incident Report stemming from the pursuit was not a “reflection of you,” that PPD 14 “really like[s] the work you’re doing,” (id. ¶ 33), that the Plaintiff “did not have anything to 15 worry about” regarding the disciplinary action, and to “start looking at the ‘bigger picture’ as far 16 as promoting.” (Id. ¶ 34). 17 On September 30, 2021, Plaintiff was terminated from his position at PPD. (Doc. 43 ¶ 18 42.) He was informed that he had failed “to meet the standards and conduct of a Probationary 19 Police Officer.” (Id.) Plaintiff alleges that his impression of the conversation included that the 20 Captain terminating him indicated “genuine remorse” during the termination. (Id.) Plaintiff 21 further alleges that the Captain’s words and behavior suggested that the Captain “believed the 22 termination was improper and unjustified but was going along with it.” (Id.) Plaintiff alleges that 23 he had a conversation several months later with another PPD officer who had recently left PPD 24 regarding why Plaintiff was fired. (Id.) Plaintiff provides that the officer stated that “[a] certain 25 Lieutenant had feelings for your girlfriend.” (Id.) 26 II. Legal Standard 27 Dismissal is proper under Rule 12(b)(6) if a claim lacks a cognizable legal theory or if 28 there is the absence of sufficient facts alleged under a cognizable legal theory. Conservation 1 Force v. Salazar, 646 F.3d 1240, 1241–42 (9th Cir. 2011) (quotation marks and citations 2 omitted). A court may only consider the complaint, any exhibits thereto, and matters which may 3 be judicially noticed pursuant to Federal Rule of Evidence 201. See Mir v. Little Co. of Mary 4 Hosp., 844 F.2d 646, 649 (9th Cir. 1988); Isuzu Motors Ltd. v. Consumers Union of U.S., Inc., 12 5 F. Supp. 2d 1035, 1042 (C.D. Cal. 1998). 6 To survive a motion to dismiss, a complaint must contain sufficient factual matter, 7 accepted as true, to state a claim that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 8 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)) (quotation marks 9 omitted); Conservation Force, 646 F.3d at 1242; Moss v. U.S. Secret Serv., 572 F.3d 962, 969 10 (9th Cir. 2009). “A claim has facial plausibility when the plaintiff pleads factual content that 11 allows the court to draw the reasonable inference that the defendant is liable for the misconduct 12 alleged.” Iqbal, 556 U.S. at 678. While the plausibility requirement is not akin to a probability 13 requirement, it demands more than “a sheer possibility that a defendant has acted unlawfully.” Id. 14 This plausibility inquiry is “a context-specific task that requires the reviewing court to draw on its 15 judicial experience and common sense.” Id. at 679. 16 In considering a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), 17 the court must accept as true the allegations of the complaint in question, Erickson v. Pardus, 551 18 U.S. 89, 94 (2007), and construe the pleading in the light most favorable to the plaintiff. Jenkins 19 v. McKeithen, 395 U.S. 411, 421 (1969); Meek v. County of Riverside, 183 F.3d 962, 965 (9th Cir. 20 1999). However, the court need not credit “labels and conclusions” or “a formulaic recitation of 21 the elements of a cause of action.” See Twombly, 550 U.S. at 555. 22 If a complaint fails to state a plausible claim, “‘[a] district court should grant leave to 23 amend even if no request to amend the pleading was made, unless it determines that the pleading 24 could not possibly be cured by the allegation of other facts.’” Lopez v. Smith, 203 F.3d 1122, 25 1130 (9th Cir. 2000) (en banc) (quoting Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995)) 26 III. Discussion and Analysis 27 A. First and Fourth Claims (Race Discrimination) 28 Defendant moves to dismiss Plaintiff’s first and fourth claims on the basis that Plaintiff 1 fails to allege facts showing that similarly situated individuals outside his protected class were 2 treated more favorably, or other circumstances surrounding the adverse employment action give 3 rise to an inference of discrimination. (Doc. 48 at 12-14.) Defendant argues that (1) Plaintiff’s 4 new allegations that five White officers involved in pursuit incidences because they were not 5 employed as Probationary Police Officers and were not assigned to a specific detail before 6 abandoning the detail to engage in a pursuit like Plaintiff did; (2) the pursuit instances are too 7 dissimilar and the alleged facts are conclusory and vague; (3) Plaintiff’s allegation that Sokoloff 8 “orchestrated a campaign to get Plaintiff fired” fails to articulate sufficient facts as to what 9 Sokoloff did as a part of the campaign; and (4) any references to the “discriminatory campaign” 10 after Plaintiff started dating Ms. Moreno is too vague to create an inference of discrimination. 11 (Doc. 48 at 12-14.) 12 In opposition, Plaintiff asserts that his allegations are sufficient to satisfy the “similarly 13 situated” and “other circumstances” prongs of his prima facie case for race discrimination based 14 on disparate treatment. Plaintiff asserts that (1) Defendants are overstating the requirements to 15 plead the “similarly situated” prong; (2) Defendants fail to acknowledge that PPD had a “no 16 pursuit” policy for all officers; (3) Defendants ignore that Plaintiff was ordered by his on-scene 17 supervisor to leave the detail and initiate the pursuit; (4) Plaintiff has pled the “other 18 circumstances,” specifically that (a) Sokoloff openly held racist beliefs, which he shared with 19 Officer Moreno when he was her supervisor, (b) Plaintiff was told by another officer that his 20 disparate treatment was because he was dating Officer Moreno, (c) Plaintiff was ordered not to 21 contact Officer Moreno when she had COVID-19, and (d) Plaintiff was informed by a former 22 sergeant at PPD that he was terminated because “[a] certain Lieutenant had feelings for your 23 girlfriend.” (Doc. 55 at 6-8.) 24 Title VII makes it unlawful for an employer to discriminate based on an “individual's race, 25 color, religion, sex, or national origin.” 42 U.S.C. § 2000e–2(a). A plaintiff in a disparate 26 treatment case must show by either direct or circumstantial evidence that “the motive to 27 discriminate was one of the employer's motives.” Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. 28 Ct. 2517, 2523 (2013); McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1122 (9th Cir. 2004). A 1 plaintiff may establish a case for disparate treatment by showing that he: (1) was a member of a 2 protected class; (2) was qualified for the position and performing the job satisfactorily; (3) 3 experienced an adverse employment action; and (4) that “similarly situated individuals outside 4 [the] protected class were treated more favorably, or other circumstances surrounding the adverse 5 employment action give rise to an inference of discrimination.” Hawn v. Exec. Jet Mgmt., Inc., 6 615 F.3d 1151, 1156 (9th Cir. 2010) (quoting Peterson v. Hewlett–Packard Co., 358 F.3d 599, 7 603 (9th Cir. 2004)). “[A]lthough a plaintiff alleging employment discrimination is not required 8 to allege a prima facie case to survive a motion to dismiss, the prima facie elements are 9 nonetheless valuable in determining whether plaintiff has alleged sufficient facts to state a claim 10 that is plausible and not merely speculative.” Albro v. Spencer, No. 1:18-cv-01156-DAD-JLT, 11 2019 WL 2641667, at *6 (E.D. Cal. June 27, 2019). 12 As the Court notes in its prior Order (Doc. 37 at 4 n.2), the FEHA “uses largely the same 13 language and promotes the same objective as Title VII,” and “the Title VII framework is applied 14 to claims brought under . . . FEHA, including discrimination claims brought under a disparate 15 treatment theory.” Freeling v. PCX, Inc., No. 8:23-cv-00173-DOC-KES, 2023 WL 6194259, at 16 *4 (C.D. Cal. Aug. 15, 2023). Accordingly, the Court will therefore assess Plaintiff’s Title VII 17 and FEHA claims under the Title VII framework and federal law. 18 Here, Plaintiff alleges that he is a member of a protected class on the basis of race (Doc. 19 43 ¶ 1), he qualified for his position by education and experience (id. ¶¶ 10-17), was performing 20 the job satisfactorily (receiving praise for his performance within the PPD (id. ¶ 27, 30, 40, 41), 21 was told that the Department “really like[s] the work you’re doing,” (id. ¶ 33) and to “start 22 looking at the ‘bigger picture’ as far as promoting” (id. ¶ 34)), and experienced an adverse 23 employment action when he was terminated from his job. This leaves the fourth element as the 24 key factor. 25 The question of whether two employees are similarly situated is “a question of fact.” 26 Hawn, 615 F.3d at 1157. “The employees’ roles need not be identical; they must only be similar 27 in all material respects.” Id. (internal quotation marks and citation omitted). Generally, the Court 28 has determined that “individuals are similarly situated when they have similar jobs and display 1 similar conduct.” Id. 2 With respect to the fourth element, Plaintiff alleges that several similarly situated White 3 officers were treated more favorably when they were involved in pursuits: (1) on or around March 4 9, 2021, Officer A. Hernandez was involved in a pursuit in which he advised dispatch he was not 5 pursuing, despite having his siren activated and continuing to provide updates as the suspect 6 vehicle continued to speed and run red lights, and no disciplinary action was taken (Doc. 43 ¶ 23), 7 (2) on or around April 23, 2021, PPD Officer Sanders and Officer Scott were involved in a 8 pursuit that continued after being terminated by the shift supervisor that ended with the suspect 9 vehicle being involved in a traffic accident and neither officer received any form of discipline (id. 10 ¶ 25), (3) on or around May 14, 2021, Officer R. Machiche was involved in a pursuit due to an 11 incorrect belief that the vehicle was stolen, and no disciplinary action was taken (id. ¶ 31), and (4) 12 on or around July 7, 2021, Officer Bray was involved in a pursuit and no disciplinary action was 13 taken (id. ¶ 35). Because Plaintiff alleges employees outside of his protective class were treated 14 more favorably, Plaintiff sufficiently establishes the fourth element. 15 In addition, viewing the evidence presented in the light most favorable to Plaintiff, the 16 Court finds that Plaintiff has alleged “other circumstances” giving rise to an inference of 17 discrimination. The burden to produce enough evidence to support an inference of discrimination 18 under Title VII’s disparate-treatment provision is “not onerous.” Ames v. Ohio Dep't of Youth 19 Servs., 605 U.S. 303, 309 (2025) (citing Texas Dep't of Cmty. Affs. v. Burdine, 450 U.S. 248, 253 20 (1981)). Plaintiff alleges that he was in an inter-racial relationship with Officer Moreno. (Doc. 21 43 ¶ 1.) Plaintiff further alleges that Sokoloff made numerous statements to Officer Moreno 22 regarding race, including “You gotta keep the bloodlines clean,” “You don’t mix with other 23 races,” and remarks concerning racial purity. (Id. ¶ 20.) These allegations are sufficient at this 24 stage to give rise to an inference of discrimination. 25 The Court concludes that Plaintiff has stated a plausible claim for race discrimination in 26 violation of Title VII and race discrimination in violation of the FEHA. Defendants’ motion to 27 dismiss claims one and four is DENIED. 28 /// 1 B. Second Claim (Monell Liability) 2 Plaintiff appears to assert his second claim only against Defendant Sokoloff. (Doc. 43 at 3 10 (“Against Defendant Sokoloff”).) Another allegation contained within the TAC, however, 4 asserts that “Defendants deprived Plaintiff of rights secured to him by the Constitution” and that 5 “Defendant Sokoloff’s unconstitutional conduct was performed under color of law and was 6 known and ratified by the authorized policymaker in the supervisory position above him, Captain 7 Maniss.” (Id. ¶ 55.) 8 Municipalities “cannot be held liable [for the actions of their employees] under § 1983 on 9 a respondeat superior theory.” Monell v. Dep't of Soc. Servs. of City of N.Y., 436 U.S. 658, 591 10 (1978). Instead, the constitutional injury must occur during the execution of an official “policy or 11 custom.” Id. at 694. “A plaintiff may assert Monell liability based on: (1) an official policy; (2) a 12 ‘longstanding practice or custom which constitutes the standard operating procedure of the local 13 government entity’; (3) the act of an ‘official whose acts fairly represent official policy such that 14 the challenged action constituted official policy’; or (4) where “an official with final policy- 15 making authority ‘delegated that authority to, or ratified the decision of, a subordinate.’” 16 Bustamante v. County of Shasta, No. 2:23-cv-01552-TLN-DMC, 2024 WL 3673529, at *2 (E.D. 17 Cal. Aug. 6, 2024) (quoting Price v. Sery, 513 F.3d 962, 966 (9th Cir. 2008)). 18 Only ratification appears to be at issue. (See Doc. 43 at ¶ 55.) A municipality may be 19 liable under this theory if “an official with final policy-making authority ratified a subordinate’s 20 unconstitutional decision or action and the basis for it.” Gillette v. Delmore, 979 F.2d 1342, 21 1346–1347 (9th Cir. 1992). “Ratification requires that the policymaker engage in a ‘conscious, 22 affirmative choice’ to endorse a subordinate’s conduct.” Bustamante, 2024 WL 3673529 at *3, 23 quoting Gillette, 979 F.2d at 1347. 24 To the extent that Plaintiff’s TAC asserts Monell liability against the City of Porterville, 25 Plaintiff does not state a plausible Monell claim. The allegation that “Defendant Sokoloff’s 26 unconstitutional conduct was performed under color of law and was known and ratified by the 27 authorized policymaker in the supervisory position above him, Captain Maniss” (id. ¶ 55) alone is 28 conclusory and insufficient to state a Monell claim based on ratification against the City of 1 Porterville. Bustamante v. Cnty. of Shasta, No. 2:23-CV-01552-TLN-DMC, 2024 WL 3673529, 2 at *3 (E.D. Cal. Aug. 6, 2024) (concluding that allegations certain officials with final policy- 3 making authority had “direct knowledge of the facts of this incident” and “made a deliberate 4 choice to endorse the decisions of [probation department employees] and the basis for those 5 decisions” were “unclear, conclusory, and insufficient to state a Monell claim . . . based upon 6 ratification”); Thurston v. City of Vallejo, No. 2:19-CV-1902-KJM-CKD, 2021 WL 1839717, at 7 *6 (E.D. Cal. May 7, 2021) (finding that “simply listing a number of high-ranking individuals is 8 not sufficient to allege a specific final policymaker” and “allegations that the policymakers 9 ‘ratified’ or ‘knew and/or reasonably should have known about’ the alleged constitutional 10 violations are conclusory”). 11 Plaintiff fails to state a plausible Monell claim. Defendants’ motion to dismiss the Monell 12 claim against the City of Porterville, to the extent that the TAC asserts such a claim, is 13 GRANTED. Any Monell claim will be dismissed without leave to amend. 14 C. Second Claim – Deprivation of Civil Rights against Sokoloff (Qualified 15 Immunity) 16 Defendants move to dismiss Plaintiff’s second claim on the basis that the Court previously 17 dismissed the claim that Defendant Sokoloff discriminated against Plaintiff by violating 18 Plaintiff’s right to associate with a member of another race.2 (Doc. 48 at 15.) Defendant points to 19 the Court’s prior Order, which dismisses Plaintiff’s Section 1983 claim “with prejudice insofar as 20 it seeks money damages from Sokoloff in his individual capacity for allegedly infringing upon 21 Plaintiff's right to intimate association.” (Doc. 37 at 11.) Defendant characterizes the second 22 claim in the TAC as a “new legal theory.” (Doc. 56 at 6 (“Plaintiff now attempts to revive this 23 claim by reframing it as a violation of his right to associate with a member of another race.”)). 24 Defendant further argues that to the extent that Plaintiff’s Section 1983 claim is based on a new 25

2 In its prior Order, the Court noted that “Plaintiff’s second claim alleges unlawful conduct by 26 ‘intentionally discriminating against him on the basis of his race and interfering with his intimate 27 relationship with a white, Hispanic, female co-worker.’ By this order, the Court grants leave to amend as to the claims based on race discrimination.” (Doc. 37 at 8 n.3) (internal citation 28 omitted). 1 legal theory, it is barred by the two-year statute of limitations set by California’s personal injury 2 statute. (Doc. 48 at 16.) 3 In opposition, Plaintiff asserts that the Court did not dismiss Plaintiff’s entire Section 4 1983 claim against Sokoloff with prejudice. (Doc. 55 at 9.) Rather, Plaintiff argues that the 5 Court dismissed Plaintiff’s claim with prejudice only to the extent that “it seeks money damages 6 from Sokoloff in his individual capacity for allegedly infringing upon Plaintiff’s right to intimate 7 association.” (Id.) (quoting Doc. 37, at 12:28-13:2). Plaintiff also argues that he is not setting 8 forth a new theory in Plaintiff’s second claim and is instead providing additional detail to support 9 the claim that Sokoloff discriminated against Plaintiff based on race. (Doc. 55 at 9 (noting that 10 “Plaintiff added the following: ‘EEOC decisions consistently have held that an employer who 11 takes adverse action against an employee because of interracial association violates Title 12 VII.’”)) Plaintiff argues that the statute of limitations defense cannot apply because he is not 13 bringing a new claim or theory. (Id. at 10.) 14 Defendant argues he is entitled to qualified immunity. Qualified immunity protects 15 “government officials performing discretionary functions generally” “from liability for civil 16 damages insofar as their conduct does not violate clearly established statutory or constitutional 17 rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 18 (1982). However, police officers are not entitled to qualified immunity if (1) the facts “[t]aken in 19 the light most favorable to the party asserting the injury” show that “the officer’s conduct violated 20 a constitutional right” and (2) “the right was clearly established” at the time of the alleged 21 violation.” Saucier v. Katz, 533 U.S. 194, 201 (2001), overruled in part on other grounds by 22 Pearson v. Callahan, 555 U.S. 223 (2009). As the Supreme Court has opined, qualified 23 immunity protects “all but the plainly incompetent or those who knowingly violate the law.” 24 White v. Pauly, 580 U.S. 73, 79 (2017) (internal quotation marks and citations omitted). This 25 Court may address these two prongs in either order. Pearson, 555 U.S. at 236. 26 The Court’s prior order noted that Plaintiff has not identified any authority which held that 27 a “dating” or close friend relationship is sufficiently intimate to warrant constitutional protection. 28 See Hittle v. City of Stockton, No. 2:12-cv-00766-TLN-KJN, 2018 WL 1367451, at *15 (E.D. 1 Cal. Mar. 16, 2018) (identifying that neither the Ninth Circuit nor the Supreme Court has 2 recognized a friendship, however close, as sufficiently intimate to warrant constitutional 3 protection). The Court held that Plaintiff’s alleged right to this kind of intimate association was 4 not clearly established at the time of the challenged conduct and accordingly Sokoloff is entitled 5 to qualified immunity. (Doc. 37 at 11.) 6 Plaintiff’s TAC has not pled additional facts to address the deficiencies identified in the 7 Court’s prior Order. (Doc. 37 at 10-11.) Accordingly, Plaintiff’s second claim for relief against 8 Defendant Sokoloff is dismissed with prejudice. 9 D. Third Claim (Race Discrimination in Violation of California Constitution) 10 Defendants move to dismiss Plaintiff’s third claim on the basis that Article I, Sections 8 11 and 31 of the California Constitution do not contain a private right of action for race 12 discrimination. Defendants assert that the FEHA is the primary state law that provides a private 13 right of action for employment discrimination—including race discrimination—in California, and 14 that there is no authority supporting Plaintiff’s stand-alone Constitutional claim. (Doc. 48 at 16- 15 17.) 16 In opposition, Plaintiff asserts that the cases cited by Defendant are inapposite and do not 17 support Defendants’ argument. (Doc. 55 at 10-11.) Rather, Plaintiff asserts that it is “well- 18 established” under case law that a plaintiff alleging wrongful termination may bring a claim 19 directly under Article I, Sections 8 and 31 of the California Constitution. (Doc. 55 at 11-12.) 20 Article 1, Section 8 of the California Constitution provides that “[a] person may not be 21 disqualified from entering or pursuing a business, profession, vocation, or employment because of 22 sex, race, creed, color, or national or ethnic origin.” Cal. Const. art. I, § 8. The standard that 23 Plaintiff must meet mirrors that for a violation of FEHA. Jackson v. DSC Logistics, Inc., 2016 24 WL 11755179, at *6 (C.D. Cal. July 19, 2016). 25 Article 1, Section 31 of the California Constitution provides that “[t]he State shall not 26 discriminate against, or grant preferential treatment to, any individual or group on the basis of 27 race, sex, color, ethnicity, or national origin in the operation of public employment, public 28 education, or public contracting.” Cal. Const. art. I, § 31. 1 The Ninth Circuit has analyzed discrimination claims under Article I, § 8 of the California 2 Constitution. See Strother v. S. California Permanente Med. Grp., 79 F.3d 859, 871 (9th Cir. 3 1996) (“We affirm the district court on the ground that a claim brought directly under Article I, § 4 8 of the California Constitution may only be brought where a plaintiff has been denied entrance 5 into a profession or particular employment or terminated from the same.”). Claims under Art. 1, 6 § 8 may be brought by plaintiffs who have been terminated by their employer. Bragg v. E. Bay 7 Reg'l Park Dist., No. C-02-3585-PJH, 2003 WL 23119278, at *5 (N.D. Cal. Dec. 29, 2003). 8 Furthermore, this District has expressly found that a claim could be made through state tort law 9 mechanism in order to bring private cause of action under California constitutional amendment. 10 Scott v. Solano Cnty. Health & Soc. Servs. Dep't, 459 F. Supp. 2d 959, 970 (E.D. Cal. 2006) 11 (“Nowhere in [Himaka] did the district court conclude that monetary damages are not allowed 12 under Section 8.”) (citing Himaka v. Buddhist Churches of America, 919 F.Supp. 332, 334–35 13 (N.D. Cal. 1995)). 14 Defendants bear the burden of establishing that Plaintiff has failed to state a claim under 15 Rule 12(b)(6). Defendants have not established that Plaintiff has failed to state a claim, and has 16 not provided substantive arguments against recognition of an Article I, Sections 8 and 31 claim. 17 See Parks v. Bd. of Trs. of California State Univ., No. 1:09-CV-1314 AWI GSA, 2009 WL 18 10692084, at *8 (E.D. Cal. 2009) (“Because Defendants cite non-article I, Section 31 cases and 19 do not adequately develop a substantive argument that no private right of action exists, dismissal 20 on this ground is inappropriate.”) 21 Defendants’ motion to dismiss Plaintiff’s claims for relief under the California 22 Constitution is DENIED. 23 IV. Leave to Amend 24 The Court's discretion to deny such leave is “particularly broad where the plaintiff has 25 previously amended its complaint.” Ecological Rights Found. v. Pac. Gas & Elec. Co., 713 F.3d 26 502, 520 (9th Cir. 2013) (internal quotation marks and citation omitted). Plaintiff has had four 27 chances to assert his claims. In its prior order, the Court indicated that this would be Plaintiff’s 28 final opportunity to amend to cure the identified pleading deficiencies. (Doc. 37 at 12.) 1 Accordingly, Plaintiff will not be granted an additional opportunity to amend his complaint with 2 regard to any claims that have been dismissed herein. 3 V. Conclusion And Order 4 For the reasons stated, IT IS HEREBY ORDERED as follows: 5 1. Defendants’ motion to dismiss (Doc. 48) is GRANTED as follows: 6 a. Defendants’ motion to dismiss the second claim for relief alleging a Monell claim 7 against the Defendant City of Porterville and the 42 U.S.C. § 1983 claim against 8 Defendant Sokoloff is GRANTED without leave to amend. 9 2. Defendants’ motion to dismiss (Doc. 48) is DENIED as follows: 10 a. Defendants’ motion to dismiss Plaintiff’s first and fourth claims for relief alleging 11 Title VII and FEHA discrimination premised on a theory of disparate treatment is 12 DENIED. 13 b. Defendants’ motion to dismiss Plaintiff’s third claim for relief alleging race 14 discrimination in violation of Article I, Sections 8 and 31 of the California 15 Constitution is DENIED. 16 3. The remaining Defendant shall file an answer to the TAC within twenty-one (21) days of 17 the date of this Order. 18 IT IS SO ORDERED. 19

20 Dated: September 30, 2025 /s/ Barbara A. McAuliffe _ UNITED STATES MAGISTRATE JUDGE 21

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