Gagic v. Maricopa, County of

• Court: District Court, D. Arizona
• Decided: April 6, 2021
• Docket: 2:21-cv-00037
• Status: Unknown

Opinion

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

9 Vladimir Gagic, No. CV-21-00037-PHX-MTL

10 Plaintiff, ORDER

11 v.

12 County of Maricopa, et al.,

13 Defendants. 14 Before the Court is Defendants Maricopa County (the “County”) and the County 15 Manager and Chief Administrative Officer, Joy Rich’s (collectively, the “Defendants”) 16 Motion to Dismiss (the “Motion”). (Doc. 12.) The Court resolves the Motion as follows.1 17 I. BACKGROUND 18 In October 2018, while under contract as a Public Defender with the County’s 19 Office of Public Defender Services (“OPDS”), Plaintiff, Vladimir Gagic, was physically 20 assaulted by a client. (Doc. 1 ¶ 11.) Soon after the assault, Mr. Gagic filed a lawsuit against 21 the County in Maricopa Superior Court alleging violations of his OPDS contract and 22 assignments thereunder.2 (Doc. 12 at 2.) In that state action, Mr. Gagic claimed breach of 23 contract, breach of the covenant of good faith and fair dealing, intentional infliction of 24

25 1 Both parties have fully briefed the issues and oral argument would not have aided the 26 Court’s decisional process. See Partridge v. Reich, 141 F.3d 920, 926 (9th Cir. 1998); see also LRCiv 7.2(f); Fed. R. Civ. P. 78(b). 27 2 This case is currently pending before the Arizona Court of Appeals. See Gagic v. 28 Maricopa Cnty., CV2019-056955. In August 2020, Mr. Gagic also filed a new Notice of Claim against the County in relation to his OPDS contract. (See Doc. 12 at 2–3.) 1 emotional distress, and defamation/libel per se. (Doc. 1-4 at 10–11.) Mr. Gagic then filed 2 a complaint with the County’s Human Resources Department and Board of Supervisors 3 alleging among other things, that OPDS discriminatorily assigns a disproportionate number 4 of cases involving dangerous clients to “all male and mostly African-American contract 5 lawyers.” (See Doc. 1 ¶ 21; Doc. 1-2 at 29–31.) Mr. Gagic’s internal complaint alleged 6 wrongdoing by County and OPDS employees and relied on similar facts to those pled in 7 his ongoing state lawsuit and pending Notice of Claim. (Doc. 1-2 at 29–30.) 8 After filing the state lawsuit, Notice of Claim, and internal complaint, Mr. Gagic 9 repeatedly emailed employees within the County’s Human Resources Department, 10 Managers Office, OPDS, and Procurement Services. (See id. at 4–20.) Mr. Gagic’s emails 11 inquired about an ongoing internal investigation stemming from his allegation of 12 discrimination. (Id. at 2, 11.) He requested access to a report detailing the investigation’s 13 findings and the status of any employee disciplinary actions. (Doc. 1 ¶ 3.) On December 14 18, 2020, Mr. Gagic received an email from the County’s outside counsel, which provided:

15 [P]lease be advised that if you have any further questions or 16 concerns related to your contract with Maricopa County/OPDS, which pertain in any way to your legal claims 17 and allegations in the lawsuit in which you have now noticed 18 your appeal (Gagic v. Maricopa County, CV2019-056955), as well as related to your newer August 2020 Notice of Claim, 19 you are to direct those communications to me, as outside 20 counsel for Maricopa County. Unless it is a communication required or necessitated under the contract governing your 21 assignment of criminal defense cases, and related to specific 22 assignments under that contract, then you will need to communicate with me. That includes the substance of your 23 recent communications with Valerie Beckett in the County 24 Manager’s Office, and Jan Plank in the County’s HR office – those concerns and questions you raise in your emails to them 25 all relate to the legal matters for which I am representing the 26 County; Ms. Beckett and Ms. Plank, and any others in the County, will no longer be responding to your communications 27 in that regard.

28 (Doc. 1-2 at 21 (emphasis added).) 1 Essentially, this email (the “Request”) instructed Mr. Gagic to direct all 2 communications relating to his pending lawsuit or Notice of Claim to the County’s outside 3 counsel, Sarah Barnes.3 Mr. Gagic then filed his Complaint in this Court. (Doc. 1.) 4 Defendants soon thereafter filed the instant Motion. (Doc. 12.) The Motion is now fully 5 briefed. (Docs. 13, 15.) 6 II. LEGAL STANDARD 7 To survive a motion to dismiss, a complaint must contain “a short and plain 8 statement of the claim showing that the pleader is entitled to relief” such that the defendant 9 is given “fair notice of what the . . . claim is and the grounds upon which it rests.” Bell Atl. 10 Corp. v. Twombly, 550 U.S. 545, 555 (2007) (quoting Fed. R. Civ. P. 8(a)(2); Conley v. 11 Gibson, 355 U.S. 41, 47 (1957)). A complaint does not suffice “if it tenders ‘naked 12 assertion[s]’ devoid of ‘further factual enhancement.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 13 (2009) (quoting Twombly, 550 U.S. at 556). Dismissal under Rule 12(b)(6) “can be based 14 on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 15 1988). A complaint, however, should not be dismissed “unless it appears beyond doubt that 16 the plaintiff can prove no set of facts in support of the claim that would entitle it to relief.” 17 Williamson v. Gen. Dynamics Corp., 208 F.3d 1144, 1149 (9th Cir. 2000). 18 In deciding motions to dismiss, the court must accept material allegations in the 19 complaint as true and construe them in the light most favorable to the plaintiff. North Star 20 Int’l v. Arizona Corp. Comm’n, 720 F.2d 578, 580 (9th Cir. 1983). “Indeed, factual 21 challenges to a plaintiff’s complaint have no bearing on the legal sufficiency of the 22 allegations under Rule 12(b)(6).” See Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th 23 Cir. 2001). Additionally, review of a Rule 12(b)(6) motion is “limited to the content of the 24 complaint.” North Star Int’l, 720 F.2d at 581. A court may also consider certain materials 25 outside the complaint without converting the motion to dismiss into a motion for summary 26

27 3 Ms. Barnes is also undersigned counsel representing the County in Mr. Gagic’s pending 28 lawsuit before the Arizona Court of Appeals and recently filed Notice of Claim. (Doc 12. at 1–3.) 1 judgment, such as “documents attached to the complaint, documents incorporated by 2 reference in the complaint, or matters of judicial notice.” United States v. Ritchie, 343 F.3d 3 903, 908 (9th Cir. 2003). 4 III. DISCUSSION 5 Mr. Gagic brings two claims—a First and Fourteenth Amendment claim—under 42 6 U.S.C. § 1983. (Doc. 1 ¶¶ 23–29.) Section 1983 provides in pertinent part that “[e]very 7 person who, under color of any statute, ordinance, regulation, custom, or usage, of any 8 State . . . subjects, or causes to be subjected, any citizen of the United States or other person 9 within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities 10 secured by the Constitution and laws, shall be liable to the party injured.” Section 1983 is 11 “not itself a source of substantive rights.” Albright v. Oliver, 510 U.S. 266, 271 (1994). 12 Rather, it provides “a method for vindicating federal rights elsewhere conferred.” Baker v. 13 McCollan, 443 U.S. 137, 144 n.3 (1979). Accordingly, to prevail in a civil action under 14 § 1983, the plaintiff must show that the conduct complained of deprives him of some right, privilege, or immunity protected by the Constitution or federal law. Oliver, 510 U.S. at 15 271. 16 Mr. Gagic alleges that the “communication ban” implemented by the County’s 17 outside counsel violates his First Amendment right to free speech because it unduly 18 restricts his ability to engage in “core political expression and expressive activity,” is 19 “overinclusive and substantially overbroad,” and is shielding matters of “public concern.” 20 (Doc. 1 ¶¶ 25–27.) Mr. Gagic further alleges that the “communication ban” violates his 21 Equal Protection Clause rights under the Fourteenth Amendment because it “engages in 22 speaker-based discrimination.” (Id. ¶ 29.) The Court addresses each allegation in turn. 23 A. First Amendment 24 The First Amendment, applicable to the States through the Fourteenth Amendment, 25 precludes state and local governments from “abridging the freedom of speech.” U.S. Const. 26 amend. I. “Above ‘all else, the First Amendment means that government’ generally ‘has 27 no power to restrict expression because of its message, its ideas, its subject matter, or its 28 content.’” Barr v. Am. Ass’n of Pol. Consultants, Inc., 140 S. Ct. 2335, 2347 (2020) 1 (quoting Police Dep’t of Chicago v. Mosley, 408 U.S. 92, 95 (1972)). In certain situations, 2 governments may nonetheless impose “reasonable time, place, or manner” restrictions on 3 speech. See Ward v. Rock Against Racism, 491 U.S. 781, 790 (1989). 4 Defendants argue that the Request does not restrict Mr. Gagic’s free speech because 5 he is “free to communicate on any matters he chooses with the County employees or 6 representatives, with no consequence.” (Doc. 12. at 4.) Defendants assert that the County 7 has merely taken the position that if Mr. Gagic wishes to receive substantive responses, he 8 must communicate directly with outside counsel. (Id.) Defendants further assert that should 9 the Request be construed as a restriction on free speech, as a limited public forum, “the 10 County can impose reasonable restrictions based on the subject matter of the speech or the 11 identity or status of the speaker.” (Id. at 5–7.) Mr. Gagic responds that “while it may trivial 12 [sic] to go through counsel rather than directly to the County . . . this is a free country, and 13 [he] will not be bullied into giving up [his] 1st Amendment rights on a pretext.” (Doc. 13 14 at 12.) Mr. Gagic argues that the Request restricts his free speech in violation of the First Amendment because the County, in forcing him to communicate with outside counsel, is 15 attempting to “shelter corrupt bureaucrats from public scrutiny.” 4 (Doc. 13 at 17.) Thus, 16 Mr. Gagic argues that his communications are a matter of “public concern,” and that an 17 “exacting scrutiny” standard should be applied. (Doc. 1 ¶ 25; Doc. 13 at 17.) The Court 18 finds Defendants’ arguments persuasive. 19 The Request does not restrict Mr. Gagic’s freedom of speech despite his 20 characterization of it as a “gag order” and outright “communication ban.” Mr. Gagic does 21 not allege that Defendants have enacted any law, ordinance, policy, or regulation that 22 prevents him from communicating with County employees. Additionally, Mr. Gagic has 23 24 4 Additionally, in Mr. Gagic’s Response, he argues for the first time that the Request 25 violates his right to “petition the government for redress of grievances.” (Doc. 13 at 16.) 26 Mr. Gagic’s Complaint makes no mention of this claim. (See Doc. 1 ¶¶ 23–29.) As it is “axiomatic that the complaint may not be amended by the briefs in opposition to a motion 27 to dismiss,” the Court will not address this claim. See Lee, 250 F.3d at 688. As explained 28 below, it would be futile to allow Mr. Gagic to include this claim even if it was considered. 1 not presented any set of facts that suggest Defendants are penalizing him for 2 communicating with County employees; rather, Defendants are merely requesting that Mr. 3 Gagic direct all future communications to a designated person. Mr. Gagic is still free to 4 communicate anything he wishes to the County’s outside counsel. Thus, Mr. Gagic has 5 failed to show that the Request restricts his speech at all, let alone that the Request 6 constitutions a cognizable restriction of his speech. See Barr, 140 S. Ct. at 2347. 7 Mr. Gagic does not have a First Amendment right to force County employees to 8 listen or respond to his communications. As Defendants argue, the Request imposes “no 9 restriction on [Mr. Gagic’s] freedom of speech, and instead simply notifies him that those 10 ‘listeners’ to whom he was directing communications no longer want to listen.” (Doc. 12 11 at 5.) The First Amendment, in protecting freedom of speech, assumes both a willing 12 speaker and a willing listener. See Virginia State Bd. of Pharmacy v. Virginia Citizens 13 Consumer Council, Inc., 425 U.S. 748, 756 (1976). Regardless of whether outside counsel 14 had sent the Request to Mr. Gagic, County employees have no obligation to respond to Mr. Gagic’s report requests or listen to his communications. Mr. Gagic has failed to present 15 any case or sound legal argument to support his assertion that the County employees’ 16 failure to respond to his communications, and the subsequent designation of a new point 17 of contact, violates the First Amendment. 18 Assuming, arguendo, that the Request was a restriction on Mr. Gagic’s free speech, 19 it is a reasonable restriction. The Court agrees with Defendants’ classification of the 20 County as a “limited public forum” in this instance, thus subject to a reasonableness test. 21 (See Doc. 12 at 6.) A limited public forum is established when governmental entities open 22 property for “use by certain groups or dedicated solely to the discussion of certain 23 subjects.” Pleasant Grove City, Utah v. Summons, 555 U.S. 460, 470 (2009). When speech 24 is subject to First Amendment protection, limited public forums may still impose 25 restrictions that are reasonable and viewpoint neutral. See id. Here, the Maricopa County 26 Department of Human Resources’ complaint filing system for citizen concerns is a limited 27 public forum. Given that only the complaints of citizens who have interacted with County 28 employees will be considered, the forum is limited to certain groups of people. Also, given 1 that only complaints raising concerns about those types of interactions will be considered, 2 the forum is limited to the discussion of certain subjects. The Complaint does not plausibly 3 allege that the Request restricts Mr. Gagic’s speech in a non-viewpoint neutral manner. 4 As Defendants argue, the Request is a reasonable restriction because it leaves 5 substantial avenues open for Mr. Gagic to communicate with the County. (Doc. 12 at 6.) 6 The reasonableness of a restriction is often supported by evidence that “substantial 7 alternative channels” remain open for the restricted speech or communication. See Perry 8 Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 53 (1983). Mr. Gagic has several 9 alternative ways to communicate with the County. Mr. Gagic has stated that he only wishes 10 to communicate with County employees on “strictly logistical and administrative” matters, 11 that is, when the “report will be ready and how can [he] get it.” (Doc. 13 at 12.) As the 12 Request states, Mr. Gagic can communicate directly with Ms. Barnes and ask her for access 13 to the report. Additionally, as Mr. Gagic admits, he could also file a public information 14 request with the County to receive the report. (See Doc. 1 ¶ 3.) Mr. Gagic has failed to show how such a trivial communication request, which is of 15 no consequence for him to comply with, restricts his freedom of speech and violates the 16 First Amendment. Because the Court finds that Mr. Gagic has failed to state a claim under 17 § 1983, it finds no basis for relief. The Court therefore dismisses Mr. Gagic’s First 18 Amendment cause of action for failure to state a claim. 19 B. Fourteenth Amendment 20 The Fourteenth Amendment’s Equal Protection Clause provides “that no State shall 21 ‘deny to any person within its jurisdiction the equal protection of the laws,’ which is 22 essentially a direction that all persons similarly situated should be treated alike.” City of 23 Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (quoting Plyler v. Doe, 457 24 U.S. 202, 216 (1982)). To state an Equal Protection violation under § 1983, “a plaintiff 25 must show that the defendants acted with an intent or purpose to discriminate against the 26 plaintiff based upon membership in a protected class.” Lee v. City of Los Angeles, 250 F.3d 27 668, 686 (9th Cir. 2001) (citing Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 28 1998)). A plaintiff, acting as a “class of one,” may also allege facts showing he has been 1 intentionally treated differently from others similarly situated without a rational basis for 2 the difference in treatment, when he cannot allege membership in a class or group. See 3 Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam). 4 Defendants argue that the Request does not violate the Equal Protection Clause 5 because “[Mr. Gagic] does not allege that he was discriminated against based on his 6 membership in a suspect class,” “[Mr. Gagic] does not allege that he is treated differently 7 from others similarly situated,” and the County’s request to “refer . . . communications to 8 its outside counsel” was rational given Mr. Gagic’s pending state lawsuit, Notice of Claim, 9 and internal complaint. (Doc. 12 at 8–9.) Mr. Gagic argues that the Request violates the 10 Equal Protection Clause because it “engages in speaker-based discrimination and penalizes 11 [him] based on [his] exercise of fundamental First Amendment rights.” (Doc. 1 ¶ 29.) The 12 Court finds Defendants’ arguments persuasive. 13 Mr. Gagic does not allege that he is a member of a protected class for purposes of 14 this lawsuit. Although Mr. Gagic has generally alleged that the County discriminated against him and other similar lawyers by “unfairly assigning . . . a disproportionate amount 15 of dangerous clients” to “all male and mostly African-American-contract lawyers,” these 16 discriminatory allegations are irrelevant to the Request at issue and to this Court’s decision. 17 (Doc. 1 ¶ 21.) Throughout both his Complaint and Response, Mr. Gagic continuously 18 conflates his allegation of general discrimination by disproportionate case assignment with 19 his allegation that the Request discriminates against him. (See id.; Doc. 13 at 18.) For 20 instance, Mr. Gagic implies that the Request discriminated against him based on his 21 membership in a protected class because he is one of the OPDS lawyers who has allegedly 22 been targeted for dangerous case assignments “based on [his] sex and national origin.” 23 (Doc. 13 at 18.) These discriminatory allegations, however, are solely related to the 24 substance of Mr. Gagic’s pending state lawsuit, Notice of Claim, and internal complaint 25 against the County. They do not weigh on whether the Request itself discriminates against 26 Mr. Gagic based on his membership in a protected class. 27 As Mr. Gagic does not allege that he was discriminated against as a member of a 28 protected class, it must follow that his claim is based on discrimination as a “class of one.” 1 A plaintiff states a valid Equal Protection Clause claim under § 1983 as a class of one if he 2 can provide sufficient facts to show that the defendant intentionally treated him differently 3 than others similarly situated. See Olech, 528 U.S. at 565. As Defendants point out, Mr. 4 Gagic has not alleged the disparate treatment of others who are similarly situated to him. 5 (See Doc. 12 at 8.) Mr. Gagic’s Complaint is devoid of any instances where County 6 employees have received similar requests to communicate with outside counsel. Including, 7 other instances where a County employee has filed active litigation or initiated an internal 8 investigation against the County. Thus, Mr. Gagic has failed to plead any facts to state a 9 plausible claim for relief. For these reasons, Mr. Gagic’s Equal Protection Clause claim 10 fails. 11 Even if Mr. Gagic could establish that he was intentionally discriminated against as 12 a class of one, which he has not, the County has a rational basis for its classification. The 13 Equal Protection Clause is not violated against a class of one if “any reasonably 14 conceivable state of facts” could provide some rational basis for the different classification. See F.C.C. v. Breach Commc’ns, Inc., 508 U.S. 307, 313 (1993); Heller v. Doe, 509 U.S. 15 312, 321 (1993). Defendants effectively argue that “it cannot be said that it is not rational 16 or reasonable for the County employees to elect to refer [Mr. Gagic’s] communications to 17 its outside counsel.” (Doc. 12 at 9.) Defendants further argue that as a licensed attorney, 18 Mr. Gagic “must be aware of the potential perils that can arise if lay persons continue to 19 communicate directly with a trained and licensed attorney on matters relating to ongoing 20 litigation, when they have counsel they can and have designated to address those 21 communications with the other attorney.” (Id.) The County’s request that Mr. Gagic 22 communicate solely with outside counsel on matters relating to active litigation and 23 internal investigations is rationally related to the County’s interest in maintaining internal 24 consistency and upholding legal confidentiality. Mr. Gagic also argues that because the 25 pending lawsuit has “no cause of action for illegal assignment of case based on race or 26 sex . . . nor any constitutional causes of action,” the Request to communicate through 27 outside counsel does not directly relate to his pending state lawsuit. (Doc. 1. ¶ 22.) Even if 28 Mr. Gagic’s argument is true, he has not rebutted the County’s rational reasons for 1 implementing its communication request. The County thus has a rational reason for 2 wanting all related communications to go through its outside counsel who is well-versed 3 in Mr. Gagic’s allegations, professionally equipped to answer his questions, and legally 4 required to maintain confidentiality. 5 Mr. Gagic does not show how the Request discriminates against him in violation of 6 the Fourteenth Amendment’s Equal Protection Clause. The Court, therefore, finds that Mr. 7 Gagic has failed to state a claim under § 1983 and finds no basis for injunctive relief. The 8 Court will dismiss Mr. Gagic’s second cause of action. 9 C. Leave to Amend 10 Rule 15(a)(2) of the Federal Rules of Civil Procedure provides that “[t]he court 11 should freely give leave [to amend a pleading] when justice so requires.” Fed. R. Civ. P. 12 15(a)(2). “The power to grant leave to amend . . . is entrusted to the discretion of the district 13 court, which ‘determines the propriety of a motion to amend by ascertaining the presence 14 of any of four factors: bad faith, undue delay, prejudice to the opposing party, and/or futility.’” Serra v. Lappin, 600 F.3d 1191, 1200 (9th Cir. 2010) (quotation omitted). 15 “Generally, this determination should be performed with all inferences in favor of granting 16 the motion.” Griggs v. Pace Am. Grp., Inc., 170 F.3d 877, 880 (9th Cir. 1999). District 17 courts properly deny leave to amend if the proposed amendment would be futile or the 18 amended complaint would be subject to dismissal. Saul v. United States, 928 F.2d 829, 843 19 (9th Cir. 1991). “[A] proposed amendment is futile only if no set of facts can be proved 20 under the amendment to the pleadings that would constitute a valid and sufficient claim.” 21 Miller v. Rykoff-Sexton, Inc., 845 F.2d 209, 214 (9th Cir. 1988). Here, the Court finds that 22 amendment would be futile as to either of the two causes of action. 23 As to his First Amendment claim, Mr. Gagic has not provided any facts or legal 24 analysis to establish a basis for the Court to conclude that the Request restricts his freedom 25 of speech. Mr. Gagic has failed to show how the Request restricts his “political expression,” 26 because he has not explained how his communications could be construed as political.5 Mr. 27

28 5 Although it is not entirely clear from the Complaint, to the extent Mr. Gagic alleges his communications relate to matters of “public concern,” his claim also fails. (See Doc 1. 1 Gagic has also failed to show how the Request is restrictive, as he did not present any facts 2 showing that he has been penalized by the County or lost his ability to communicate with 3 the County. There are no facts Mr. Gagic could add to show that the County’s reasonable 4 request violates the First Amendment. As to his Fourteenth Amendment claim, Mr. Gagic 5 has not provided any facts or legal analysis to establish a basis for the Court to conclude 6 that the Request violates the Equal Protection Clause. Mr. Gagic does not claim to be a 7 member of a protected class and has not presented any evidence of others similarly situated 8 to him. Mr. Gagic has failed to state any viable claims that could be cured by amendment. 9 Therefore, any amendment would be futile as to Mr. Gagic’s First and Fourteenth 10 Amendment claims. 11 Additionally, it would be futile for Mr. Gagic to add a “right to petition the 12 government for redress of grievances” claim because he has failed to allege any material 13 facts that support his assertion that the Request shields matters of public concern. See 14 Borough of Duryea, Pa. v. Guarnieri, 564 U.S. 379, 389 (2011). Further, although Mr. Gagic’s right to petition may allow him to file a state lawsuit, Notice of Claim, and internal 15 complaint, it does not prevent the County from redirecting his related inquiries to their 16 outside counsel. There are no facts that could be added to support a right to petition claim 17 in this context. For these reasons, Mr. Gagic will not be given leave to amend. See James 18 River Ins. Co. v. Thompson, No. CV-20-01052-PHX-DGC, 2021 WL 424088, at *2 (D. 19 Ariz. Feb. 8, 2021). 20 IV. CONCLUSION 21 Accordingly, 22 IT IS ORDERED that Defendants’ Motion to Dismiss (Doc. 12) is granted for 23

24 ¶ 25.) The First Amendment protects the right of public employees in certain circumstances “to speak as a citizen addressing matters of public concern,” however, to prevail on a public 25 concern claim, the plaintiff must show that some adverse employment action was taken 26 against him. See Garcetti v. Ceballos, 547 U.S. 410, 417 (2006); Ellins v. City of Sierra Madre, 710 F.3d 1049, 1053 (9th Cir. 2013). Mr. Gagic has not alleged that any adverse 27 employment action has been taken against him. In fact, Mr. Gagic has failed to show that 28 he has suffered any harm at all from the Request. See Nunez v. City of Los Angeles, 147 F.3d 867, 875 (9th Cir. 1998). || failure to state a claim. The case is dismissed with prejudice. 2 IT IS FURTHER ORDERED directing the Clerk of the Court to terminate this 3|| case and enter judgment accordingly. 4 Dated this 5th day of April, 2021. 5 6 : 7 WM clad T. Hburde Michael T. Liburdi 8 United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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