Hargrove v. City of San Diego

• Court: District Court, S.D. California
• Decided: December 17, 2021
• Docket: 3:21-cv-01491
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DORIAN HARGROVE, Case No.: 21-CV-1491-CAB-WVG

12 Plaintiff, ORDER ON MOTION TO DISMISS 13 v. 14 CITY OF SAN DIEGO et al., [Doc. No. 7] 15 Defendants. 16 17 In his complaint, Plaintiff alleges that Defendants the City of San Diego, the City 18 Attorney, and an assistant city attorney, encouraged, pressured, and/or threatened 19 Plaintiff’s employer, NBC7, to take adverse employment action against Plaintiff, a reporter 20 for NBC7, because he wrote unfavorable stories about a real estate transaction involving 21 the City. NBC7 allegedly “capitulated to Defendants’ threats and took adverse 22 employment action against Plaintiff, which included barring him from further reporting 23 regarding the City of San Diego. . . .” [Doc. No. 1 at ¶ 61.] The complaint attempts to 24 assert a claim under 42 U.S.C. § 1983 that Defendants’ actions violated his free speech 25 rights under the First Amendment of the Constitution. 26 On December 16, 2021, the Court held a hearing on Defendants’ motion to dismiss 27 the complaint. In the order setting that hearing, the Court expressed skepticism that 28 Plaintiff has a First Amendment right to work for NBC7, or that the actions taken by NBC7 1 with respect to Plaintiff’s employment could give rise to a claim against Defendants under 2 42 U.S.C. § 1983 for violation of Plaintiff’s First Amendment free speech rights. At the 3 hearing, Plaintiff’s counsel conceded that there is no precedent supporting Plaintiff’s 4 position that an individual has a First Amendment free speech right to write for a particular 5 news outlet. The Court declines to create such a First Amendment right for the first time 6 here. 7 “To establish § 1983 liability, a plaintiff must show both (1) deprivation of a right 8 secured by the Constitution and laws of the United States, and (2) that the deprivation was 9 committed by a person acting under color of state law.” Chudacoff v. Univ. Med. Ctr. of 10 S. Nevada, 649 F.3d 1143, 1149 (9th Cir. 2011). Neither requirement is satisfied by the 11 complaint. As to the first requirement, a “reporter has no free-standing First Amendment 12 right to have her articles published by a privately-owned [news outlet] for which she 13 works.” Rivoli v. Gannett Co., 327 F. Supp. 2d 233, 241 (W.D.N.Y. 2004) (quoting Manson 14 v. Little Rock Newspapers, Inc., 42 F.Supp.2d 856, 865 (E.D.Ark.1999)). As to the second 15 requirement, NBC7 “is a private entity, not a governmental entity, and thus is legally 16 incapable of violating anyone’s First Amendment rights.” Manson v. Little Rock 17 Newspapers, Inc., 200 F.3d 1172, 1173 (8th Cir. 2000). If NBC7 is incapable of violating 18 Plaintiff’s First Amendment rights via an adverse employment action, then necessarily any 19 encouragement or pressure by Defendants on NBC7 related to such an adverse employment 20 action would not result in a violation of Plaintiff’s rights. 21 Ultimately, even assuming that Plaintiff could allege facts (as opposed to the 22 speculation and conclusions in the current complaint) that Defendants encouraged or 23 pressured NBC7 to take adverse employment action against Plaintiff in retaliation for 24 articles he wrote, “[a]ny First Amendment rights germane to this case are those of [NBC7], 25 not those of [Plaintiff], a reporter employed in service of [NBC7].” Id; see also Rivoli, 327 26 F.Supp. 2d at 241 (“It is true that, if a governmental body or official interferes with a 27 newspaper’s decisions about what to publish or not publish, that may violate the 28 newspaper’s First Amendment rights.”) (emphasis added). Moreover, Defendants had 1 “right[s] of [their] own to be openly critical of plaintiff’s stories . . . and for that matter of 2 plaintiff [him]self.” Id. at 243. “That does not convert [NBC7’s] response to that criticism 3 into state action. . . . [I]f mere criticism of the news media by a state official amounted to 4 governmental coercion, First Amendment violations would abound.” Id. Accordingly, 5 because Plaintiff has not and cannot state a claim for a violation of his First Amendment 6 rights arising out of Defendants’ alleged pressure on NBC7 to take an adverse employment 7 action against Plaintiff, the first claim for relief under 42 U.S.C. § 1983 must be dismissed. 8 Having dismissed Plaintiff’s sole federal claim, the Court’s “decision of whether to 9 exercise supplemental jurisdiction over the remaining state law claims ‘is purely 10 discretionary.’” Couture v. Wells Fargo Bank, N.A., No. 11-CV-1096-IEG (CAB), 2011 11 WL 3489955, at *4 (S.D. Cal. Aug. 9, 2011) (quoting Carlsbad Tech., Inc. v. HIF Bio, Inc., 12 556 U.S. 635, 639 (2009)); see also Holt v. First Franklin Fin. Corp., No. C 10-5929 SBA, 13 2011 WL 4595195, *4 (N.D. Cal. Sept. 30, 2011) (“When the federal claims that served as 14 the basis for jurisdiction are eliminated, either through dismissal by the court or by a 15 plaintiff amending his or her complaint, federal courts may decline to assert supplemental 16 jurisdiction over the remaining state law causes of action.”) (citing 28 U.S.C. § 1367(c)(3)). 17 Here, because the Court is dismissing the only federal claim at the outset of the 18 litigation, it is more appropriate to decline supplemental jurisdiction over the state law 19 claims. See Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988) (holding that 20 “when the federal-law claims have dropped out of the lawsuit in its early stages and only 21 state-law claims remain, the federal court should decline the exercise of jurisdiction by 22 dismissing the case without prejudice”); see also Sanford v. MemberWorks, Inc., 625 F.3d 23 550, 561 (9th Cir. 2010) (“A district court ‘may decline to exercise supplemental 24 jurisdiction’ if it ‘has dismissed all claims over which it has original jurisdiction.’”) 25 (quoting 28 U.S.C. § 1367(c)(3)). Plaintiff remains free to pursue his second through 26 fourth claims for relief in state court. 27 In light of the foregoing, it is hereby ORDERED that Defendants’ motion to dismiss 28 the first claim for relief in the complaint is GRANTED and that claim is DISMISSED 1 || WITH PREJUDICE. It is further ORDERED that because the Court declines 2 ||supplemental jurisdiction over the remaining state law claims, those claims are 3 || DISMISSED WITHOUT PREJUDICE to Plaintiff’s ability to pursue them in state court. 4 It is SO ORDERED. 5 ||Dated: December 17, 2021 (fb 6 Hon. Cathy Ann Bencivengo 7 United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28