Canzoneri v. Prescott Unified School District

• Court: District Court, D. Arizona
• Decided: December 1, 2020
• Docket: 3:20-cv-08033
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Denise A Canzoneri, No. CV-20-08033-PCT-SMB

10 Plaintiff, ORDER

11 v.

12 Prescott Unified School District, et al.,

13 Defendants. 14 15 Pending before the Court is Defendants’ Motion to Dismiss for Failure to State a 16 Claim. (Docs. 13, 19, 22.) Oral argument was heard July 30, 2020. (Doc. 23.) Having 17 considered the complaint, pleadings, and applicable law, the motion will be granted. 18 I. BACKGROUND 19 Denise Canzoneri is a former librarian specialist who worked at Prescott United 20 School District (“PUSD”) for twenty-two years. (Doc. 1, “Compl.” ¶¶ 3-4.) On March 20, 21 2019, PUSD informed Ms. Canzoneri that “[her] position has been eliminated due to 22 budget cuts.” (Id. ¶ 14.) Almost two weeks later at a school board meeting, Ms. Canzoneri 23 publicly proposed that a focus group be formed to address library funding in K-12 schools.1 24 (Id. ¶¶ 16, 21.) The next day, she received a letter from PUSD “demanding that she cease 25 her public protected free speech concerning public matters involving the [l]ibrary, which 26 was restricted pursuant to her Employment Contract[2] with PUSD.” (Id. ¶ 17.) She was

27 1 Ms. Canzoneri claims that she has attached a printed version of what she said to the 28 complaint at this meeting, but no such thing is attached. (See Compl. ¶ 21.) 2 Defendants provided Ms. Canzoneri’s Employment Contract as an attachment to their 1 also placed on administrative leave that same day pending an investigation into her speech 2 at the school board meeting. (Id. ¶¶ 17, 22.) 3 Two days after the school board meeting, on April 4, PUSD’s assistant 4 superintendent Marti Read and high school principal Mark Goligoski met with Ms. 5 Canzoneri. (Id. ¶ 23.) During the meeting, she “felt threatened, intimidated, frightened, and 6 brow beaten.” (Id. ¶ 24.) “She was directed to not have any contact, in person, by phone, 7 or by letter with any employee of [PUSD] or any student or parent of [PUSD] unless 8 directed or permitted to do so.” (Id. ¶ 25.) Later that day, she asked PUSD’s superintendent 9 Joe Howard for permission to do various things. (Id. ¶ 26.) Without a response from Mr. 10 Howard, Ms. Canzoneri declined to attend a meeting in which her attendance was required. 11 (Id. ¶ 28.) In response, the human resources director threatened her that she would be 12 subject to further disciplinary action if she did not attend. (Id.) Ms. Canzoneri responded 13 by email to the human resources director, explaining how she had been treated. (Id. ¶¶ 29, 14 33.) Three days later, on April 15, she was placed on administrative leave for the rest of 15 the school year. (Id.) 16 About ten months later, Ms. Canzoneri filed this lawsuit pro se under 42 U.S.C. § 17 1983 against PUSD, Mr. Howard, Mr. Read, Mr. Goligoski, and the Arizona Department 18 of Education. Because the Arizona Department of Education was not timely served, it was 19 dismissed on May 12, 2020. (Doc. 12.) The Complaint alleges Fourteenth Amendment 20 equal protection and substantive due process claims against Mr. Howard, Mr. Read, and 21 Mr. Goligoski and First Amendment claims against all Defendants. (Id. ¶¶ 36-42.) She 22 requests reinstatement as a librarian specialist at PUSD, declaratory judgment that her 23 termination is unconstitutional, compensatory damages for lost wages, punitive damages 24 against select individual Defendants, and attorney’s fees and costs. (Id.) 25 The remaining Defendants now move to dismiss the lawsuit in its entirety under 26 Federal Rule of Civil Procedure 12(b)(6). (Doc. 13.) 27

28 motion to dismiss. Since the complaint necessarily relies on this document and its authenticity is not disputed, the Court will take judicial notice of it. 1 II. LEGAL STANDARD 2 To survive a Rule 12(b)(6) motion for failure to state a claim, a complaint must meet 3 the requirements of Rule 8(a)(2). Fed. R. Civ. P. 12(b)(6). Rule 8(a)(2) requires a “short 4 and plain statement of the claim showing that the pleader is entitled to relief,” so that the 5 defendant has “fair notice of what the . . . claim is and the grounds upon which it rests.” 6 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 7 41, 47 (1957)). Dismissal under Rule 12(b)(6) “can be based on the lack of a cognizable 8 legal theory or the absence of sufficient facts alleged under a cognizable legal theory.” 9 Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). A complaint that 10 sets forth a cognizable legal theory will survive a motion to dismiss if it contains sufficient 11 factual matter, which, if accepted as true, states a claim to relief that is “plausible on its 12 face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). In 13 ruling on a Rule 12(b)(6) motion to dismiss, the well-pled factual allegations are taken as 14 true and construed in the light most favorable to the nonmoving party. Cousins v. Lockyer, 15 568 F.3d 1063, 1067 (9th Cir. 2009). Facial plausibility only exists if the pleader sets forth 16 “factual content that allows the court to draw the reasonable inference that the defendant is 17 liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. “Threadbare recitals of the 18 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 19 Id. Plausibility does not equal “probability,” but requires “more than a sheer possibility 20 that a defendant has acted unlawfully.” Id. “Where a complaint pleads facts that are ‘merely 21 consistent’ with a defendant’s liability, it ‘stops short of the line between possibility and 22 plausibility of entitlement to relief.’” Id. (quoting Twombly, 550 U.S. at 557). However, 23 legal conclusions couched as factual allegations are not given a presumption of 24 truthfulness, and “conclusory allegations of law and unwarranted inferences are not 25 sufficient to defeat a motion to dismiss.” Pareto v. FDIC, 139 F.3d 696, 699 (9th Cir. 26 1998). 27 III. DISCUSSION 28 In their Motion to Dismiss, Defendants argue that Plaintiff’s Complaint should be 1 dismissed because the Complaint does not state a valid § 1983 claim against PUSD, the 2 Complaint does not state a valid wrongful termination claim,3 the Complaint does not state 3 a valid liberty interest claim, the Complaint does not state a valid property interest claim, 4 the Complaint does not state a valid equal protection claim, the Complaint does not state a 5 valid First Amendment claim, and the Complaint does not state a valid claim against the 6 individual Defendants. 7 A. § 1983 Claims 8 Defendants’ motion first argues that Plaintiff’s 42 U.S.C. § 1983 claims should be 9 dismissed because a political subdivision such as a school district cannot be liable for 10 violations of § 1983 unless the alleged deprivation results from an official custom, policy, 11 or practice under Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658 (1978). 12 In enacting § 1983, “Congress did not intend municipalities to be held liable unless action 13 pursuant to official municipal policy of some nature caused a constitutional tort.” Id. at 694 14 (“we conclude that a municipality cannot be held liable solely because it employs a 15 tortfeasor—or, in other words, a municipality cannot be held liable under § 1983 on a 16 respondent superior theory.” (emphasis original)). 17 Here, Plaintiff alleges in her Complaint that PUSD “has acted pursuant to the 18 enactment of policy, the use of practice, and the policy.” (Doc. 1 ¶ 2.) She also states that 19 PUSD “had a policy to deprive Plaintiff explicitly of free speech and association as 20 guaranteed by the First Amendment,” and that “Defendants acted in accordance with policy 21 to make sure that District Employees were not treated fairly.” (Id.) However, the Complaint 22 contains no facts about what the policy was and how PUSD or its employees acted in 23 accordance with the policy. Although Plaintiff points to paragraphs 17-18 and 32 of the 24 Complaint to show that the actions of PUSD were taken in accordance with district policy, 25 those paragraphs do not explain under what policy PUSD acted. Thus, it appears that the 26 only allegations in the Complaint that allege that PUSD acted in accordance with policy

27 3 In their Motion to Dismiss, Defendants argue that the Complaint does not state a 28 valid wrongful termination claim. However, as the Complaint does not attempt to state a claim for wrongful termination, the Court will not address these arguments. 1 are conclusory and are unsupported by factual allegations, which is not sufficient survive 2 a 12(b)(6) motion under federal law. See Iqbal, 556 U.S. at 678. Therefore, the Court finds 3 that the complaint has not adequately pled § 1983 claims on which all of her constitutional 4 claims rely. 5 B. Equal Protection Claim 6 Plaintiff’s Complaint claims that she was “denied the equal protection of the law, as 7 guaranteed by the Fourteenth Amendment to the U.S. Constitution.” (Doc. 1 ¶ 37.) 8 Defendants argue that being “vindictive and malicious” alone does not constitute an equal 9 protection violation. (Doc. 13 at 7; Doc. 1 ¶ 38.) “Conventional equal protection analysis 10 focuses on whether the government has classified individuals on the basis of impermissible 11 criteria.” Vakerua v. Davis, 307 F.3d 1036, 1039 (9th Cir. 2002). The Supreme Court has 12 ruled that a plaintiff cannot bring a “class-of-one” claim in the public employment context. 13 Engquist v. Oregon Dept. of Agr., 553 U.S. 591, 607-09 (2008) (“In concluding that the 14 class-of-one theory of equal protection has no application in the public employment 15 context—and that is all we decide—we are guided, as in the past, by the ‘common-sense 16 realization that government offices could not function if every employment decision 17 became a constitutional matter.’” (citation omitted)). Here, Plaintiff is alleging exactly 18 what the Supreme Court decided was not permissible, a class-of-one theory of equal 19 protection in the public employment context. Since the Supreme Court has explicitly 20 rejected such a theory, the Court finds that Plaintiff’s Complaint does not adequately allege 21 a claim for violation of Equal Protection and must be dismissed. 22 C. Deprivation of Liberty (Retaliatory Firing) Claim 23 Plaintiff’s Complaint alleges that PUSD’s actions in retaliation of her attempt to 24 suggest good policy alternatives in a public forum violated her liberty interest and property 25 interest in employment. (Doc. 1 ¶ 40.) “The liberty interest protected by the due process 26 clause ‘encompasses an individual’s freedom to work and earn a living.’” Portman v. Cty. 27 of Santa Clara, 995 F.2d 898, 907 (9th Cir. 1993) (quoting Bollow v. Federal Reserve Bank 28 of San Francisco, 650 F.2d 1093, 1100 (9th Cir. 1981)). To implicate a constitutional 1 liberty interest, “the reasons for dismissal must be sufficiently serious to ‘stigmatize’ or 2 otherwise burden the individual so that he [or she] is not able to take advantage of other 3 employment opportunities.’” Id. (citing Bollow, 650 F.2d at 1101.). Further, the charges 4 against the employee must be published. Id. at 907-08 (citing Bishop v. Wood, 426 U.S. 5 341, 96 S.Ct. 2074 (1976)) (concluding that the liberty interest of a terminated public 6 defender was not violated because the charges from a termination letter from the county 7 did not exclude him from the practice of law). Here, the facts alleged cannot constitute a 8 violation of Plaintiff’s liberty interest. The Complaint does not allege that PUSD made any 9 stigmatizing public statement about the Plaintiff or in any other way excluded her from her 10 chosen profession. Plaintiff clearly could seek employment elsewhere as a librarian after 11 her employment with PUSD ended. Therefore, the Court finds that Plaintiff has failed to 12 state a claim for violation of her constitutionally protected liberty interest. 13 D. Property Interest/Due Process Claim 14 Plaintiff’s Complaint alleges that PUSD’s action in retaliation to her attempt to 15 suggest good policy alternatives in a public forum violates her property right in 16 employment without due process.4 (Doc. 1 ¶ 40.) The Complaint states that Plaintiff was a 17 “permanent employee” and states that she had a liberty and property interest in her position. 18 (Id. ¶ 12.) In order to establish a due process claim, a plaintiff must show that they had a 19 protected property interest in their job under state law. Clements v. Airport Auth. Of 20 Washoe Cty., 69 F.3d 321, 331 (9th Cir. 1995) (citing Bd. of Regents v. Roth, 408 U.S. 564, 21 92 S.Ct. 2701 (1972)). “Under Arizona law, nontenured teachers and administrators do not 22 have a property right in continued employment...” Wallace v. Casa Grande Union High 23 Sch. Dist. No. 82 Bd. of Governors, 184 Ariz. 419, 429 (App. 1995) (citing Petroni v. Bd. 24 of Regents, 115 Ariz. 562, 566 (App. 1977)). Although Plaintiff’s Complaint alleges that 25 she was a permanent employee, it does not allege that she was a tenured employee, which 26 is what is required under Arizona law for school administrators to have a property interest 27

28 4 The Court construes Plaintiff’s claim of due process violation as an allegation that PUSD deprived her of property interest in her employment without due process. 1 in employment. Although the Complaint alleges that Plaintiff had a property right in her 2 employment, that claim is conclusory with no factual allegations to support it. Therefore, 3 the Court finds that the Complaint does not adequately allege a property interest/due 4 process claim. 5 E. First Amendment Free Speech Claim 6 Plaintiff’s Complaint alleges that at a school board meeting on April 2, 2019, nearly 7 two weeks after she was told she was being terminated due to budget cuts, she offered to 8 create a committee/focus group with the specific intention of addressing the cash shortfall 9 affecting the funding of the K-12 library system. (Doc. 1 ¶ 17.) The Complaint alleges that 10 in response, Plaintiff received a cease and desist letter from PUSD “demanding she cease 11 her public protected free speech concerning public matters involving the Library, which 12 was restricted pursuant to her employment contract with PUSD.” (Id.) It also states that 13 “[s]he also was placed on Administrative Leave for an investigation into her speech.” (Id.) 14 Later, Plaintiff alleges that she was told not to have any contact with any employee of 15 PUSD or any student or parent unless permitted to do so by the superintendent or the 16 director of human resources. (Id. ¶ 25.) Further, she alleges that PUSD infringed on her 17 free speech rights by telling other school district employees not to talk to her and by 18 prohibiting her from forming any committee to discuss library operations. (Id. ¶¶ 30, 35.) 19 Plaintiff alleges that these allegations constitute a violation of her constitutional right to 20 free speech. (Id. ¶ 40.) 21 The Ninth Circuit uses a version of the analysis outlined in Pickering v. Bd. of Educ. 22 of Twp. High Sch. Dist. 205, Will Cty., Ill., 391 U.S. 563, 568 88 S.Ct. 1731 (1968), to 23 determine the constitutionality of the government’s curtailment of government-employee 24 speech. Johnson v. Poway Unified Sch. Dist., 658 F.3d 954, 960-61 (9th Cir. 2011). The 25 test is: (1) whether the plaintiff spoke on a matter of public concern; (2) whether the 26 plaintiff spoke as a private citizen or public employee; (3) whether the 27 plaintiff’s protected speech was a substantial motivating factor in the adverse employment action; (4) whether the state had an adequate justification for 28 treating the employee differently from other members of the general public; 1 and (5) whether the state would have taken the adverse employment action even absent the protected speech. 2

3 Poway Unified Sch. Dist., 658 F.3d at 961 (quoting Eng v. Cooley, 552 F.3d 1062, 1070 4 (9th Cir. 2009)). 5 Applying the Eng test, the Court finds that the Complaint does not state a claim for 6 violation of Plaintiff’s First Amendment rights. Specifically, Plaintiff has not alleged facts 7 sufficient to indicate that she made the statements at issue in her capacity as a citizen, and 8 not as a public employee pursuant to her official duties. See Alozie, 431 F.Supp.3d at 1117 9 (“Normally, ‘when public employees make statements pursuant to their official duties, the 10 employees are not speaking as citizens for First Amendment purposes, and the Constitution 11 does not insulate their communications from employer discipline.’”) (citations omitted). 12 Thus, under the facts alleged, her speech did not warrant First Amendment protection. 13 Therefore, the Court finds that Plaintiff’s claim for violation of her First Amendment right 14 to free speech should be dismissed. 15 F. Claim against Individual Defendants 16 Defendants’ Motion to Dismiss claims that the individual Defendants are immune 17 from liability unless they knew or should have known that they were acting in violation of 18 clearly established law. (Doc. 13 at 8.) “Public officials are ‘shielded from liability for civil 19 damages insofar as their conduct does not violate clearly established statutory or 20 constitutional rights of which a reasonable person would have known.’” Brewster v. Bd. of 21 Educ. Of Lynwood Unified Sch. Dist., 149 F.3d 971, 977 (9th Cir. 1998) (quoting Harlow 22 v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727 (1982), cert. denied, 143 L.Ed.2d 349 23 (1999). Qualified immunity is “quite far-reaching” and safeguards “‘all but the plainly 24 incompetent or those who knowingly violate the law.’” Id. (quoting Malley v. Briggs, 475 25 U.S. 335, 341, 106 S.Ct. 1092 (1986)). If officers of reasonable competence could disagree 26 on whether a course of conduct is constitutional, immunity should be recognized. Id. (citing 27 Malley, 475 U.S. at 341.). In her response, Plaintiff argues that all the individual 28 Defendants knew or should have known that their attempts to limit Plaintiff’s contact with 1 her colleagues was a “blatant violation” of her First Amendment rights, association, and 2 due process. (Doc. 1 ¶ 38.) Plaintiff also alleges that the conduct of the individual 3 Defendants was “all in knowing disregard of Plaintiff’s rights to free speech, [sic] and 4 equal protection guaranteed to her by the First and Fourteenth Amendment of the United 5 States Constitution.” (Id. ¶ 42.) Plaintiff’s allegations that the individual Defendants knew 6 or should have known that their conduct violated Plaintiff’s rights is conclusory without 7 factual allegations to support the claim. Further, the Court finds that officers of reasonable 8 competence could disagree on whether the facts alleged in the Complaint violated 9 Plaintiff’s constitutional rights. Thus, the Court finds that the individual Defendants are 10 immune from suit under the doctrine of qualified immunity. 11 G. Leave to Amend 12 If a motion to dismiss based on Rule 12(b)(6) is granted, a court must, sua sponte, 13 give Plaintiff leave to amend unless the court finds that any amendment would be futile. 14 Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc); Chinatown Neighborhood 15 Ass’n v. Harris, 794 F.3d 1136, 1147 (9th Cir. 2015) (Reinhardt, J. dissenting). Here, the 16 Court finds that an amendment would not be futile. It appears that Plaintiff could cure the 17 defects in the Complaint with an amendment or bring some other previously unasserted 18 causes of action. Therefore, the Court will grant Plaintiff leave to file an amended 19 complaint. Plaintiff’s Complaint must be amended to address the deficiencies identified 20 above and should follow the form detailed in Rule 7.1 of the Local Rules of Civil Procedure 21 (“LRCiv”). Within thirty (30) days from the date of entry of this Order, Plaintiff may 22 submit an amended complaint. Plaintiff must clearly designate on the face of the document 23 that it is the “First Amended Complaint.” The amended complaint must be retyped or 24 rewritten in its entirety and may not incorporate any part of the original Complaint by 25 reference. 26 IV. CONCLUSION 27 For the reasons discussed above, 28 IT IS ORDERED granting Defendants motion to dismiss, (Doc. 13), as to all 1 || causes of action in Plaintiff's Complaint and dismissing the action without prejudice. (Doc. 1.) 3 IT IS FURTHER ORDERED granting Plaintiff leave to file an amended complaint within thirty (30) days of this order. 5 Dated this 30th day of November, 2020. 6 7 —— 8 9 Aonorable Susan M; Brnovich 10 United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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