McDowell v. Lassen County

Opinion

TIMOTHY MCDOWELL, No. 2:23-cv-01007-DJC-DMC

Plaintiff, v. COUNTY OF LASSEN et al., Defendants.

Pending before the Court is a motion brought by Defendant County of Lassen

(the “County”) (also sued as County of Lassen Sheriff’s Office) to dismiss claims two

through five and seven through nine of Plaintiff’s Second Amended Complaint. (ECF

No. 16.)

Having considered the Parties’ briefings and arguments, the Court hereby

GRANTS the Coun ty’s motion in part, and DENIES it in part. Plaintiff Timothy McDowell was hired as a correctional officer for the Lassen County Sheriff’s Office in July 2016. (Second Am. Compl. (“SAC”) (ECF No. 14) ¶ 11.) Plaintiff, who is of African American descent, alleges he was frequently subjected to derogatory slurs and offensive use of the “N” word by his supervisor and co-workers, was unfairly targeted for discipline at a higher rate than his Caucasian counterparts, and was repeatedly denied promotion to a patrol position despite his positive

employment reviews, experience, and excellent performance at the police academy.

(Id. ¶¶ 14–23.) Plaintiff alleges this treatment led to a complaint being filed on his

behalf against his supervisor, Sergeant Morberg, which led to an investigation and

determination that Sergeant Morberg was treating Plaintiff differently because of his

race. (Id. ¶ 22.) After this investigation, Plaintiff was promoted to a patrol position on

or about January 16, 2022. (Id. ¶ 24.)

Two days later, on January 18, Plaintiff was placed on administrative leave for

conduct that allegedly occurred while he was a correctional officer. (Id. ¶¶ 24–25.)

Following an investigation and Skelly hearing,1 Plaintiff received a notice of intent to

uphold his termination on June 8, 2022. (Id. ¶¶ 25–26.) In accordance with the Lassen

County Personnel Rules and Regulations, specifically Rule 328 (referred to simply as

Rule 328 in this Order), Plaintiff submitted a written request for a post-termination

hearing within 10 days of the notice of termination to the County Personnel Director,

Defendant Richard Egan. (Id. ¶¶ 27–28.) Plaintiff alleges the Personnel Director

ignored his request and he never received a post-termination hearing. (Id. ¶¶ 28–29.)

Plaintiff filed suit against the County on May 26, 2023 and filed a First Amended

Complaint on July 7, 2023, alleging (1) deprivation of his rights and procedural due

process under 42 U.S.C. § 1983 and (2) racial discrimination under California’s Fair

Employment and Housing Act (“FEHA”), codified at Cal. Gov. Code § 12940 et seq.

(ECF Nos. 1, 4.) Plaintiff’s First Amended Complaint was dismissed by this Court on

October 10, 2023, and Plaintiff was granted leave to file an amended complaint within

30 days. (ECF No. 13.) Plaintiff filed his operative Second Amended Complaint on

November 9, 2023, adding Defendant Egan as a party, and alleging several claims

under 42 U.S.C. § 1983, including (1) deprivation of his rights and due process

1 A Skelly hearing is a “pre-disciplinary, administrative hearing, during which a public employee has an opportunity to present his version of relevant events.” Cason v. San Diego Transit Corp., No. 10CV0098-IEG-MDD, 2011 WL 1596315, at *2 n.1 (S.D. Cal. Apr. 25, 2011). (against Defendant Egan), (2) Rule 328 is unconstitutional on its face and as-applied

(against the County), (3) Rule 328 is unconstitutionally vague (against the County), and

(4) deprivation of his procedural due process rights under the Fourteenth

Amendment (against all Defendants); Plaintiff also brings state law claims for (5) a

violation of Cal. Gov. Code §3304(b) (against all Defendants); (6) racial discrimination

under the FEHA (against the County); (7) intentional infliction of emotional distress

(against all Defendants); (8) negligent infliction of emotional distress (against all

Defendants); and (9) wrongful termination in violation of public policy (against the

County). (SAC ¶¶ 33–76.)

The County moves to dismiss Plaintiff’s second, third, fourth, fifth, seventh,

eighth, and ninth causes of action, arguing (1) claims two, three, and four fail because

Plaintiff has failed to plead a facial and/or as-applied constitutional challenge to Rule

328; (2) claim five is barred by Cal. Gov. Code §§ 945.4, 945.6; (3) claim seven is

barred by Cal. Gov. Code § 945.6 and fails for want of “extreme and outrageous

conduct”; (4) claim eight is barred by Cal. Gov. Code § 945.4 and California’s Workers’

Compensation law; and (5) claims seven, eight, and nine should be dismissed

because Plaintiff did not have leave of this Court to add them. (Mot. Dismiss (ECF No.

16) at 1–2.)

The Court held a hearing on February 1, 2024 with Natalia Asbill-Bearor

appearing for Plaintiff, and Jacob Graham appearing for the County. The Court took

the matter under submission.

A party may move to dismiss for “failure to state a claim upon which relief can

be granted.” Fed. R. Civ. P. 12(b)(6). The motion may be granted only if the complaint

lacks a “cognizable legal theory or sufficient facts to support a cognizable legal theory.” Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). While the court assumes all factual allegations are true and construes “them in the light most favorable to the nonmoving party,” Steinle v. City & County of San Francisco, 919 F.3d 1154, 1160 (9th Cir. 2019) (quoting Parks Sch. of Bus. v.

Symington, 51 F.3d 1480, 1484 (9th Cir. 1995)), if the complaint's allegations do not

“plausibly give rise to an entitlement to relief” the motion must be granted, Ashcroft v.

Iqbal, 556 U.S. 662, 679 (2009).

A complaint need contain only a “short and plain statement of the claim

showing that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2), not “detailed

factual allegations,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). This rule

demands more than unadorned accusations; “sufficient factual matter” must make the

claim at least plausible. Iqbal, 556 U.S. at 678. In the same vein, conclusory or

formulaic recitations of elements alone do not suffice. Id. “A claim has facial

plausibility when the plaintiff pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.” Id. This

evaluation of plausibility is a context-specific task drawing on “judicial experience and

common sense.” Id. at 679. However, a court may not assume that the plaintiff “can

prove facts that it has not alleged . . . .” Associated Gen. Contractors of Cal., Inc. v. Cal.

State Council of Carpenters, 459 U.S. 519, 526 (1983).

These same standards apply to claims against municipal governments under 42

U.S.C. 1983. AE v. County of Tulare, 666 F.3d 631, 637 (9th Cir. 2012). A plaintiff's

allegations “may not simply recite the elements” of a claim under Monell v.

Department of Social Services, 436 U.S. 658 (1978). Id. (quoting Starr v. Baca, 652

F.3d 1202, 1216 (9th Cir. 2011)). Rather, the complaint must “contain sufficient

allegations of underlying facts to give fair notice” of the claims and allow the municipal

government “to defend itself effectively.” Id. (quoting Starr, 652 F.3d at 1216). The

plaintiff's allegations “must plausibly suggest an entitlement to relief, such that it is not

unfair to require the opposing party to be subjected to the expense of discovery and continued litigation.” Id. (quoting Starr, 652 F.3d at 1216). //// A court granting a motion to dismiss a complaint must also decide whether to

grant a leave to amend. Leave to amend should be freely given where there is no

“undue delay, bad faith or dilatory motive on the part of the movant, . . . undue

prejudice to the opposing party by virtue of allowance of the amendment, [or] futility

of amendment . . . .” Foman v. Davis, 371 U.S. 178, 182 (1962); Eminence Cap., LLC v.

Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) (listing the Foman factors as those to

be considered when deciding whether to grant leave to amend, and explaining that

“[a]bsent prejudice, or a strong showing of any of the remaining Foman factors, there

exists a presumption under Rule 15(a) in favor of granting leave to amend”). Dismissal

without leave to amend is proper only if it is clear that “the complaint could not be

saved by any amendment.” Intri-Plex Techs., Inc. v. Crest Grp., Inc., 499 F. 3d 1048,

1056 (9th Cir. 2007) (quoting In re Daou Sys., Inc., 411 F.3d 1006, 1013 (9th Cir.

2005)).

I. Second, Third, and Fourth Causes of Action (Constitutionality of

Rule 328)

Rule 328 governs disciplinary actions for County personnel. Section (b) of the

rule dictates that employees “shall be provided written notice of a proposed

discharge, suspension or demotion at least five (5) working days in advance of the

date the action is proposed to be taken,” while section (c) lays out the information the

notice of proposed disciplinary action must contain, which includes notice “that the

employee has a right to appeal the action.” (See Request for Judicial Notice (“RJN”),

Ex. A (ECF No. 16-2).2) Sections (d)-(e) of the rule lay out the procedure for appealing

a disciplinary action:

2 Pursuant to Federal Rule of Evidence 201(b), the Court shall take notice, when requested and provided with sufficient information, of facts that are not subject to reasonable dispute because they are “capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” The County requests the Court take judicial notice of (1) Rule 328 of the Personnel Rules and Regulations of Lassen County, adopted pursuant to Ordinance No. 473-A of the Board of Supervisors of the County of Lassen, and (2) Plaintiff’s tort claim presented to the County on

(d) Should the Department Head determine to proceed with the disciplinary action following the employee response or should the employee choose not to respond prior to the effective date of the discipline, the employee shall have up to ten (10) working days from the effective date of the

discipline to notify the Personnel Director that he/she wants the matter heard before a Hearing Officer. The request shall be in writing and shall contain the grounds for the appeal.

(e) Should the employee choose to have the matter heard before a Hearing Officer, the parties shall jointly request a list of five neutrals from the State Conciliation Service. Within five (5) working days after receiving the list of neutrals, the parties shall select a name from the list and shall notify the

State Conciliation Service of the name of the selected Hearing Officer. If the parties are unable to agree on a name, the Hearing Officer shall be selected by alternately striking a name from the list, with the first option to strike determined by lot. Any cost of the service of the Hearing Officer shall be

shared equally by the parties. At the hearing, all parties will be entitled t o be represented, present witnesses and evidence, and cross examine opposing witnesses. The decision of the Hearing Officer shall be final and binding except that such decision shall be advisory and subject to

ratification by the Board of Supervisors only if said decision mandates a capital expenditure or significant, unbudgeted expenditure. In those instances, actions by the Board of Supervisors may include modifications or reversals.

(Id.)

Here, Plaintiff alleges he followed the appeal procedure set forth in Rule 328

and submitted a written request for a post-termination hearing within 10 days of his

November 14, 2022, and the County’s notice of rejection on December 1, 2022. (See RJN (ECF No. 16- 2).) This request is unopposed. Accordingly, the Court grants judicial notice as to Rule 328, which is a matter of public record and therefore a proper subject for judicial notice. See Tollis Inc. v. County of San Diego, 505 F.3d 935, 938 n.1 (9th Cir. 2007) (“Municipal ordinances are proper subjects for judicial notice.”); Madani v. County of Santa Clara, No. 16-CV-07026-LHK, 2017 WL 1092398, at *4 (N.D. Cal. Mar. 23, 2017) (taking judicial notice of the rules and procedures for the county personnel board). The Court also grants judicial notice as to Plaintiff’s tort claim and the County’s notice of rejection, as the filing date, content, and rejection of a tort claim submitted in accordance with the California Government Claims Act are appropriate matters for judicial notice. See Clarke v. Upton, 703 F.Supp.2d 1037, 1042 (E.D. Cal. 2010). notice of termination to the Personnel Director. (SAC ¶¶ 27–28.) However, Plaintiff

alleges the Personnel Director ignored his request and he never received a post-

termination hearing. (Id. ¶¶ 28–29.) Accordingly, Plaintiff’s second cause of action

alleges Rule 328 is unconstitutional both on its face and as-applied to Plaintiff (SAC

¶¶ 40–43); his third cause of action alleges Rule 328 is unconstitutionally vague (id. ¶¶

44–48); and his fourth cause of action, which the County asserts is practically

indistinguishable from his second cause of action, alleges that that the County

maintains a policy and practice of unlawfully and willfully interfering with its

employees’ Fourteenth Amendment rights (id. ¶¶ 49–54).

The County argues claims two and three fail insofar as they are facial challenges

to Rule 328 and claims two and four fail insofar as they are as-applied challenges to

Rule 328.

A. Facial Challenge to Rule 328

A facial challenge to a statute “must establish that no set of circumstances exists

under which the Act would be valid.” United States v. Salerno, 481 U.S. 739, 745

(1987); see also Rosenblatt v. City of Santa Monica, 940 F.3d 439, 444 (9th Cir. 2019).

An as-applied attack, on the other hand, does not necessarily challenge the entire

statute, focusing instead on a subset of its applications or application to a specific

factual circumstance, “under the assumption that the court can separate valid from

invalid subrules or applications.” Hoye v. City of Oakland, 653 F.3d 835, 857 (9th Cir.

2011) (citations and quotations omitted).

Plaintiff alleges that Rule 328 is unconstitutional on its face because it fails to

require the County act upon a request for a post-termination evidentiary hearing

within a specified time frame, thereby denying employees their procedural due

process right to be heard at a meaningful time and in a meaningful manner. (SAC ¶¶ 40–43; Opp’n Mot. Dismiss (ECF No. 17) at 4–7.) A section 1983 claim based upon the deprivation of procedural due process has three elements: (1) a liberty or property interest protected by the Constitution; (2) a deprivation of the interest by the government; and (3) lack of process. Portman v.

County of Santa Clara, 995 F.2d 898, 904 (9th Cir. 1993). A government employee has

a constitutionally protected property interest in continued employment if a law or rule

creates a legitimate claim of entitlement to his job. Bd. of Regents v. Roth, 408 U.S.

564, 577 (1972). In Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985),

the Supreme Court established the framework for analyzing a procedural due process

claim where termination of public employment is at issue. The employee's due

process interest requires, among other things, that he not be terminated without

notice and an opportunity to be heard. Id. at 542. “[S]ome form of pretermination

hearing” is required. Id. A post-termination hearing also must occur “at a meaningful

time” and “the existence of post-termination procedures is relevant to the necessary

scope of pre-termination procedures.” Id. at 547 & n.12. Regarding the timing of the

post-termination hearing, the Court cautioned that “at some point, a delay in the post-

termination hearing would become a constitutional violation” although the nine-

month delay in that case was not a per se violation. Id. at 547; see also Gilbert v.

Homar, 520 U.S. 924, 935–36 (1997) (remanding for consideration of whether

employer violated due process by failing to provide a prompt post-suspension

hearing).

The Court finds that Rule 328 is not unconstitutional on its face. A facial

challenge is difficult to mount successfully, as the “fact that a statute ‘might operate

unconstitutionally under some conceivable set of circumstances is insufficient to

render it wholly invalid.’” Bank of N.Y. Mellon v. Highland Ranch Homeowners Ass’n,

No. 3:16-cv-00436-RCJ-WGC, 2017 WL 2259987, at *2 (D. Nev. May 23, 2017)

(quoting Salerno, 481 U.S. at 745). “To put it slightly differently, if there were any

conceivable set of circumstances where the application of a statute would not violate the constitution, then a facial challenge to the statute would necessarily fail.” Id. Here, the rule sets forth in clear terms the steps that shall be taken by the Personnel Director should a disciplined employee choose to have a post-termination hearing, namely: (1) the employee shall have ten days to submit a notice of appeal to the Personnel

Director, (2) then the parties shall jointly request a list of five neutrals, and (3) within

five days of receiving a list of neutrals, the parties shall select a neutral. (RJN, Ex. A.)

While the rule gives the Personnel Director discretion as to when to act on an

employee’s request, it does not, on its face, give him discretion to never act on an

employee’s request. Thus, the rule clearly requires employees be given some form of

post-termination due process.

Further, while Rule 328 does not require the Personnel Director to act upon a

request for a post-termination hearing within a specified time frame, the rule does not

preclude the Personnel Director from acting upon a request in a constitutionally timely

fashion. Plaintiff has not pointed to, and this Court has not found, any definitive

timeline as to when a post-termination hearing must occur. Rather, “[w]hether a delay

in a post-termination hearing constitutes a due process violation depends on ‘the

importance of the private interest and the harm to this interest occasioned by delay;

the justification offered by the Government for delay and its relation to the underlying

governmental interest; and the likelihood that the interim decision may have been

mistaken.’” Trevino v. Lassen Mun. Util. Dist., No. CIV. S-07-2106-LKK-DAD, 2009 WL

385792, at *9 (E.D. Cal. Feb. 12, 2009) (quoting Fed. Deposit Ins. Corp. v. Mallen, 486

U.S. 230, 242 (1988)). Thus, because a post-termination hearing under Rule 328 could

conceivably occur “at a meaningful time,” the Court finds Rule 328 is constitutional on

its face. See, e.g., Cassim v. Bowen, 824 F.2d 791, 798–99 (9th Cir. 1987) (finding a

due process claim that a statute and its regulations were facially invalid when they

failed to guarantee a timely post-deprivation hearing was unlikely to succeed on the

merits in the context of a preliminary injunction because “we are unwilling to

invalidate a statute because it might, but need not, be applied in an unconstitutional manner” (quoting McCahey v. L.P. Invs., 774 F.2d 543, 553 (2d Cir. 1985))). Barry v. Barchi, 443 U.S. 55, 66 (1979), cited by Plaintiff for the proposition that when “provisions for an administrative hearing, neither on its face nor as applied . . . assure[] a prompt disposition of the outstanding issues” the policy is unconstitutional,

is distinguishable. In Barchi, the New York State Racing and Wagering Board

suspended Barchi’s horse trainer's license for fifteen days after a post-race test

revealed that a horse trained by him had been drugged. Barchi's pre-suspension

process consisted of two lie-detector tests. Id. at 59, 65. The applicable New York

statute afforded Barchi a post-suspension hearing but specified no time in which the

hearing had to be held and allowed the Board to wait until thirty days after the hearing

to issue a final order. The Supreme Court held that the statute violated due process,

since it permitted the state to sanction a trainer without “assurance of a prompt post-

suspension hearing.” Id. at 68. Given the summary nature of Barchi's pre-suspension

process and the briefness of his suspension, a prompt post-suspension hearing was

critical. The Court was careful to note that “the provision for an administrative hearing,

neither on its face nor as applied in this case, assured a prompt proceeding and

prompt disposition of the outstanding issues . . . . It is as likely as not that Barchi and

others subject to relatively brief suspensions would have no opportunity to put the

State to its proof until they have suffered the full penalty imposed.” Id. at 66. Here,

however, Plaintiff received a far greater pre-deprivation process than Barchi in the

form of a Skelly hearing, and is also not subject to the same brief penalty period

Barchi was. Thus, the Court finds the reasoning in Barchi inapplicable here.

Plaintiff also alleges Rule 328 is unconstitutionally vague because it fails to

provide any timeframe as to when County personnel should act on an employee’s

request for a post-termination hearing, or provide any avenue for an employee to

compel County personnel to act. (SAC ¶¶ 44–48; Opp’n Mot. Dismiss at 7–8.)

“The standard for unconstitutional vagueness is whether the statute ‘provide[s]

a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory enforcement.’” Maldonado v. Morales, 556 F.3d 1037, 1045 (9th Cir. 2009) (quoting United States v. Williams, 553 U.S. 285, 304 (2008)). The void-for-vagueness doctrine chiefly applies to criminal statutes, but can apply to civil laws as well. Civil statutes, however, generally receive

less exacting vagueness scrutiny. Vill. of Hoffman Ests. v. Flipside, Hoffman Ests., 455

U.S. 489, 498–99 (1982). In addition, a statute that does not prohibit any conduct falls

outside the scope of the void-for-vagueness doctrine. See United States v. David H.,

29 F.3d 489, 491 (9th Cir. 1994); Porto v. City of Newport Beach, No. SACV 11-0180-

DOC-MLG, 2011 WL 2470128, at *8 (C.D. Cal. May 20, 2011), report and

recommendation adopted, No. SACV 11-00180-DOC, 2011 WL 2462555 (C.D. Cal.

June 21, 2011), aff'd, 509 F. App'x 665 (9th Cir. 2013) (stating that an ordinance

“plainly does not prohibit any conduct and therefore falls outside the purview of the

void-for-vagueness doctrine”).

The Court finds that Rule 328 is not unconstitutionally vague as the void-for-

vagueness is clearly inapplicable here. Rule 328 is not a civil statute that prohibits

conduct or imposes penalties; it is a personnel rule governing disciplinary

procedures. Accordingly, Rule 328 is not void for vagueness. See Witzke v. Idaho

State Bar, No. 1:22-cv-00478-REP, 2023 WL 3394925, at *5 (D. Idaho May 11, 2023)

(“Plaintiff's contention that the Challenged Rules are unconstitutionally vague is not

persuasive because the void-for-vagueness doctrine does not apply [to] procedural

rules. The void-for-vagueness doctrine only applies to statutes which proscribe

conduct and are punishable with civil or criminal penalties.”).

B. As-Applied Challenge to Rule 328

“Facial and as-applied challenges differ in the extent to which the invalidity of a

statute need be demonstrated.” Legal Aid Servs. of Or. v. Legal Servs. Corp., 608 F.3d

1084, 1096 (9th Cir. 2010) (citation and internal quotation marks omitted). As-applied

attacks challenge a set of rules in a statute, a subset of the statute's applications, or

application of the statute to a specific set of facts. Isaacson v. Horne, 716 F.3d 1213, 1230 (9th Cir. 2013). Plaintiff alleges Rule 328 is unconstitutional as applied because Rule 328 is silent as to when the County or its agents must act upon a request for a post- termination hearing, and Plaintiff was denied a timely post-termination hearing by the

Personnel Director under Rule 328. (Opp’n Mot. Dismiss 8–9.) Because this claim is

brought against the County, it must meet the standards in Monell, which requires that

the Plaintiff plausibly allege that (1) he was deprived of a constitutional right, (2) the

County had a policy, custom, or practice, (3) that such policy, custom, or practice

amounted to deliberate indifference to Plaintiff's rights, and (4) the policy was the

moving force behind the constitutional violation. Gordon v. County of Orange, 6 F.4th

961, 973 (9th Cir. 2021). Plaintiff may satisfy Monell’s policy requirement in one of

four ways, by alleging: (1) a formal or expressly adopted official policy; (2) a

longstanding practice or custom which constitutes the “standard operating

procedure” of the County; (3) a decision of a decision-making official who was, as a

matter of state law, a final policymaking authority whose edicts or acts may fairly be

said to represent official policy in the area of decision; or (4) an official with final

policymaking authority either delegating that authority to, or ratifying the decision of,

a subordinate. See Price v. Sery, 513 F.3d 962, 966 (9th Cir. 2008); Thomas v. County

of Riverside, 763 F.3d 1167, 1170 (9th Cir. 2014).

The Court has already held that the Personnel Director, Defendant Egan, was

not a final policymaker, nor was he delegated final policymaking authority, concerning

post-termination hearings for the purposes of Monell liability here. (See ECF No. 13).

Accordingly, Plaintiff proceeds on the first two theories of Monell liability stated

above.

Plaintiff alleges the County’s liability may be based on its express policy as

stated in Rule 328. A Monell claim predicated upon a formal policy differs from one

premised upon a practice or custom in two respects. First, formal policies often are

committed to writing, e.g., ordinances, regulations, statutes, and policy statements. See Pembaur v. City of Cincinnati, 475 U.S. 469, 480–81, 497 (1986); City of St. Louis v. Praprotnik, 485 U.S. 112, 121 (1988). Second, a single constitutional violation undertaken pursuant to a formal policy may be sufficient to establish municipal section 1983 liability. City of Oklahoma City v. Tuttle, 471 U.S. 808, 823–24 (1985).

However, a claim against a local governmental unit for municipal liability requires an

allegation that a “policy, custom or practice . . . was the ‘moving force’ behind the

constitutional violation . . . suffered.” Galen v. County of Los Angeles, 477 F.3d 652,

667 (9th Cir. 2007) (citing Monell, 436 U.S. at 694–95).

Here, Plaintiff has not sufficiently pled that the County’s policy as stated in Rule

328 motivated the deprivation of his right to a timely post-termination hearing.

Indeed, under Rule 328, the official policy of the County was to provide Plaintiff a post-

termination hearing if requested. Plaintiff has not shown that the County’s express

policy was to deny such hearings by ignoring notices of appeal. Rather, Plaintiff’s

allegations support the inference that the Personnel Director, Defendant Egan, failed

to abide by the County’s stated policy to provide post-termination hearings. See Rule

328(d)–(e) (“[T]he employee shall have up to ten (10) working days from the effective

date of the discipline to notify the Personnel Director that he/she wants the matter

heard before a Hearing Officer . . . . Should the employee choose to have the matter

heard before a Hearing Officer, the parties shall jointly request a list of five neutrals

from the State Conciliation Service.” (emphasis added)). Allegations that violations of

a policy caused harm are insufficient to state a Monell claim. See, e.g., Scott v.

Villanueva, No. 2:22-cv-06614-VBF-JDE, 2023 WL 3571957, at *5 (C.D. Cal. Feb. 6,

2023) (finding plaintiff’s allegations that a sheriff’s deputy transported him in a manner

that violated jail policy was insufficient to state a Monell claim). Accordingly, the Court

finds that Plaintiff has failed to state a Monell claim based on express County policy.

A failure to allege a formal policy does not necessarily spell the end for

Plaintiff's Monell claims, as he still may establish liability through allegations that

demonstrate the constitutional harms suffered were the result of a longstanding practice or custom which constitutes the standard operating procedure of the local government entity. Ulrich v. City & County of San Francisco, 308 F.3d 968, 984–85 (9th Cir. 2002). “Practices” and “customs” differ from express policies in that they generally have “not been formally approved by an appropriate decisionmaker” but are still “so

wide-spread as to have the force of law.” Hunter v. County of Sacramento, 652 F.3d

1225, 1233 (9th Cir. 2011).

Here, Plaintiff alleges “it is the policy and practice of the County of Lassen to

discriminate against minorities, including African Americans, and to continue the

discriminatory conduct/practice and custom by denying post-evidentiary hearing to

minorities.” (SAC ¶ 29.) Plaintiff further alleges he was “subjected to a violation of his

rights of due process in that his property interest in his job was taken as a result of a

policy of the County of Lassen which effectively denied him a post-termination

evidentiary hearing because he is a minority.” (Id. ¶ 36.) However, “to properly plead

a claim under Monell, it is insufficient to allege simply that a policy, custom, or practice

exists that caused the constitutional violations.” Brown v. Contra Costa County, No.

12-cv-1923-PJH, 2014 WL 1347680, at *8 (N.D. Cal. Apr. 3, 2014) (“The allegation that

defendants discriminated against African-American employees (including plaintiff) in

the DA's office is not sufficient to support a claim that there was an official policy or

custom of discrimination. And, even if it were, plaintiff still has not alleged facts

showing that discrimination against African-American attorneys is a long-standing or

widespread custom or practice at the Contra Costa DA's office.”). Unlike allegations

of an express policy, “[l]iability for improper custom may not be predicated on

isolated or sporadic incidents; it must be founded upon practices of sufficient

duration, frequency and consistency that the conduct has become a traditional

method of carrying out policy.” Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996).

Plaintiff has failed to allege more than this one instance of the County denying a post-

termination hearing to an employee based on their race. This is insufficient to support

a policy or practice claim. See Christie v. Iopa, 176 F.3d 1231, 1235 (9th Cir. 1999) (“A single constitutional deprivation ordinarily is insufficient to establish a longstanding practice or custom.”); see also Bagley v. City of Sunnyvale, No. 16-cv-02250-JSC, 2017 WL 5068567, at *5 (N.D. Cal. Nov. 3, 2017) (“Where courts have allowed Monell claims to proceed at the motion to dismiss stage, plaintiffs have pled multiple incidents of

alleged violations.”).

Finally, the Court notes that Plaintiff argues that the County failed to provide

adequate safeguards for Plaintiff’s constitutional rights by failing to specify a timeline

for a post-termination hearing in Rule 328. (Opp’n Mot. Dismiss at 9.) “[P]olicies of

action” and “policies of inaction” may both give rise to liability under Monell. Jackson

v. Barnes, 749 F.3d 755, 763 (9th Cir. 2014) (citation omitted). A policy of inaction “is

based on a government body’s ‘failure to implement procedural safeguards to

prevent constitutional violations.’” Id. (quoting Tsao v. Desert Palace, Inc., 698 F.3d

1128, 1143 (9th Cir. 2012)). However, in inaction cases, the plaintiff must show, first,

“that [the] policy amounts to deliberate indifference to the plaintiff's constitutional

right.” Id. (quoting Tsao, 698 F.3d at 1143). This requires showing that the defendant

“was on actual or constructive notice that its omission would likely result in a

constitutional violation.” Tsao, 698 at 1145 (citations omitted). Second, the plaintiff

must show “that the policy caused the violation in the sense that the municipality

could have prevented the violation with an appropriate policy.” Id. at 1143 (citations

and internal quotation marks omitted). Plaintiff has not made such a deliberate

indifference showing here.

Accordingly, Plaintiff’s second and fourth causes of action will be dismissed.

The Court is inclined to dismiss those claims with prejudice given that the Court

dismissed Plaintiff’s Monell cause of action previously for failing to state a claim. (See

ECF No. 13.) However, Plaintiff informed the Court at the hearing that he recently

received a letter from the County informing him the County did not respond to his

request for a post-termination hearing because it was incomplete. To the extent that

Plaintiff believes this letter may support a claim for Monell liability, Plaintiff is granted leave to amend his second and fourth claims on that basis. However, Plaintiff’s third cause of action will be dismissed with prejudice as the void-for-vagueness doctrine is inapplicable to Plaintiff’s claim and amendment would be futile. II. Fifth Cause of Action (Cal. Gov. Code §§ 945.4, 945.6)

Plaintiff’s fifth cause of action alleges a claim under the Public Safety Officers’

Procedural Bill of Rights (“POBRA”), which provides, in part, that “[n]o punitive action

. . . shall be undertaken by any public agency against any public safety officer who has

successfully completed the probationary period that may be required by his or her

employing agency without providing the public safety officer with an opportunity for

administrative appeal.” Cal. Gov. Code § 3304(b).

Suits for money or damages against a California governmental entity are

regulated by the California Government Claims Act (“CGCA”). DiCampli-Mintz v.

County of Santa Clara, 55 Cal. 4th 983, 989 (2012). In part, the CGCA provides that

“no suit for money or damages may be brought against a public entity on a cause of

action for which a claim is required to be presented . . . until a written claim therefor

has been presented to the public entity and has been acted upon . . . or has been

deemed to have been rejected . . . .” Cal. Gov. Code § 945.4. Further, “[u]nder

California Government Code § 945.6, an individual has six months from the date the

[entity] mails written notice of the rejection of his claims to file suit. Courts have

consistently found claims filed beyond the six-month period to be time-barred.”

Mohsin v. Cal. Dep't of Water Res., 52 F. Supp. 3d 1006, 1018 (E.D. Cal. 2014); see

also Cal. Gov. Code § 945.6.

Here, the County argues Plaintiff presented a tort claim to the County on

November 14, 2022 (see RNJ, Ex. B (ECF No. 16-2)), but Plaintiff’s POBRA claim, which

is subject to CGCA, was not included, violating Cal. Gov. Code § 945.4. (Mot. Dismiss

at 8–9.)

However, the Court finds that Plaintiff substantially complied with the

presentation requirement of Cal. Gov. Code § 945.4 such that his POBRA claim is not barred. There is a two-part test for substantial compliance. Garber v. City of Clovis, 698 F. Supp. 2d 1204, 1215 (E.D. Cal. 2010). “The court must determine: ‘Is there some compliance with all of the statutory requirements; and, if so, is this compliance sufficient to constitute substantial compliance?’” Id. (quoting City of San Jose v.

Superior Ct., 12 Cal. 3d 447, 456–57 (1974)). Put another way, the “test for substantial

compliance is whether the face of the filed claim discloses sufficient information to

enable the public entity to make an adequate investigation of the claim's merits and

settle it without the expense of litigation.” Connelly v. County of Fresno, 146 Cal. App.

4th 29, 38 (2006). A “claim need not contain the detail and specificity required of the

pleading, but need only fairly describe what the entity is alleged to have done.”

Stockett v. Ass’n of Cal. Water Agencies Joint Powers Ins. Auth., 34 Cal. 4th 441, 446

(2004). “Only where there has been a ‘complete shift in allegations, usually involving

an effort to premise civil liability on acts or omissions committed at different times or

by different persons than those described in the claim’ have courts generally found

the complaint barred.” Id. at 447 (quoting Blair v. Superior Ct., 218 Cal. App. 3d 221,

225 (1990)). Where, however, “the complaint merely elaborates or adds further detail

to a claim but is predicated on the same fundamental actions or failures to act by the

defendants, courts have generally found the claim fairly reflects the facts pled in the

complaint.” Id.

Here, the substance of Plaintiff’s claim complied with the requirements of Cal.

Gov. Code § 910, which dictates the contents of a tort claim. He stated the date of his

termination, named the Lassen County Sheriff’s Office as the party responsible, and

generally stated the circumstances of his termination. (RJN, Ex. B.) While Plaintiff did

not mention POBRA specifically, he claimed “Wrongful Termination in Violation of

Public Policy” and “Violation of Due Process Rights under 42 U.S.C. s. 1983.” The

Court finds this was sufficient to put the County on notice that Plaintiff alleged his due

process rights were violated in connection with the termination of his employment,

allegations which also form the basis of Plaintiff’s POBRA claim. Accordingly, the Court finds that Cal. Gov. Code § 945.4 does not bar Plaintiff’s POBRA claim here. The County also argues Plaintiff’s POBRA claim is time-barred as the County rejected Plaintiff’s tort claim on December 1, 2022, and Plaintiff’s Second Amended Complaint, which added the POBRA claim, was filed on November 9, 2023, past the 6-

month period provided by Cal. Gov. Code § 945.6. (Mot. Dismiss at 9.) Further, the

County argues Plaintiff’s POBRA claim does not relate back to his original or First

Amended Complaint. (Id.)

Under the Federal Rules of Civil Procedure, an amendment to a pleading

relates back to the date of the original pleading when “the law that provides the

applicable statute of limitations allows relation back.” Fed. R. Civ. P. 15(c)(1)(A). Thus,

“if an amendment relates back under the state law that provides the applicable statute

of limitations, that amendment relates back under Rule 15(c)(1) even if the

amendment would not otherwise relate back under the federal rules.” Butler v. Nat’l

Cmty. Renaissance of Cal., 766 F.3d 1191, 1200 (9th Cir. 2014). Under California law,

an amended claim relates back if it (1) rests on the same general set of facts,

(2) involves the same injury, and (3) refers to the same instrumentality as alleged in the

original complaint. Norgart v. Upjohn Co., 21 Cal. 4th 383, 408–09 (1999).

To involve the same general set of facts, the amended claim must be based on

the same operative facts — those creating the right to recovery — alleged in the original

complaint. Barrington v. A.H. Robins Co., 39 Cal. 3d 146, 154 (1985). Here, Plaintiff’s

initial Complaint included a procedural due process claim under 42 U.S.C. § 1983.

Plaintiff’s POBRA claim is based upon the same set of facts alleged for his due process

claim, i.e., that he was entitled to a post-termination evidentiary hearing, which was

not provided to him. (See Compl. (ECF No. 1) ¶¶ 10, 24–25, 28; SAC ¶¶ 12, 26–29, 32,

41, 55–59.) Next, to determine whether the due process claim and the POBRA claim

involve the same injury, the Court must consider the primary rights protected by each.

Furnace v. Giurbino, 838 F.3d 1019, 1024 (9th Cir. 1991). Both claims involve his right

to procedural due process. Accordingly, the underlying rights are the same. Lastly, the Court must determine whether the due process claim and POBRA claim involve the same instrumentality, or cause. Coronet Mfg. Co., Inc. v. Superior Ct., 90 Cal. App. 3d 342, 347 (1979). Here, the POBRA claim and due process claim were caused by the County terminating Plaintiff’s employment without providing him with a post-

termination hearing. Thus, the Court holds Plaintiff’s POBRA claim relates back to

Plaintiff’s first Complaint under California law. Consequently, there is no need to also

consider whether the POBRA claim relates back under Rule 15. See Butler, 766 F.3d

at 1200.

Accordingly, the Court denies the motion to dismiss Plaintiff’s fifth cause of

action.

III. Seventh Cause of Action (Cal. Gov. Code § 945.6 and Extreme

and Outrageous Conduct)

Plaintiff’s seventh cause of action alleges intentional infliction of emotional

distress (“IIED”) based on the racial discrimination he allegedly experienced while

employed by the County, citing Cal. Gov. Code § 815.2 (i.e., respondeat superior) as

the basis for the County’s liability. (SAC ¶¶ 66–69.)

The County moves to dismiss this claim, arguing that it was not brought within

six months as required under Cal. Gov. Code § 945.6. (Mot. Dismiss at 10.) The

County also argues this claim fails for want of “extreme and outrageous conduct,” as

emotional distress claims cannot be based on personnel management activity even

where improperly motived. (Id.)

The Court finds that Plaintiff’s claim relates back to the original Complaint. As

stated above, under California law, an amended claim relates back if it (1) rests on the

same general set of facts, (2) involves the same injury, and (3) refers to the same

instrumentality as alleged in the original complaint. Norgart, 21 Cal. 4th at 408–09.

The original Complaint alleged racial discrimination in violation of the FEHA. (See

Compl. ¶¶ 31–36.) Here, Plaintiff’s IIED claim is based on the same allegations of

racial discrimination as in Plaintiff’s initial Complaint. (See id. ¶¶ 8, 11, 13–21, 31–36; SAC ¶¶ 10, 13, 15–23, 60–69.) Further, the claims involve the same injury, as they are both intentional torts, and Plaintiff initial Complaint alleged that the racial discrimination caused him “humiliation, embarrassment, anxiety, mortification, mental anguish, and emotional distress.” (Compl. ¶ 36.) Finally, both claims were caused by

the racial discrimination Plaintiff allegedly experienced in the workplace. Accordingly,

the Court finds that Plaintiff’s IIED claim relates back.

The Court also finds that Plaintiff has sufficiently pled extreme and outrageous

conduct. The elements of an IIED claim are: (1) extreme and outrageous conduct by

defendant; (2) made with intent to cause, or with reckless disregard of the probability

of causing, emotional distress; (3) severe emotional suffering; and (4) actual and

proximate causation. Huntingdon Life Scis., Inc. v. Stop Huntingdon Animal Cruelty

USA, Inc., 129 Cal. App. 4th 1228, 1259 (2005); Bogard v. Emps. Casualty Co., 164 Cal.

App. 3d 602, 616 (1985). Personnel management decisions alone cannot form the

basis of an IIED claim. See Janken v. GM Hughes Elecs., 46 Cal. App. 4th 55, 80 (1996)

(“A simple pleading of personnel management activity is insufficient to support a

claim of [IIED], even if improper motivation is alleged.”). However, Plaintiff has pled

that he was subjected on a daily basis to use of the “N” word by his co-workers and

supervisors, and was denied promotions and treated differently than his Caucasian

coworkers based on his race. (SAC ¶¶ 15–16, 18–19, 21–23.) Courts have found racial

slurs and epithets sufficient to constitute intentional infliction of emotional distress.

See, e.g., Robinson v. Hewlett-Packard Corp., 183 Cal. App. 3d 1108, 1129–30 (1986)

(finding summary judgment on intentional infliction of emotional distress claim

inappropriate because use of racial slurs may constitute outrageous conduct); Alcorn

v. Anbro Eng'g, Inc., 2 Cal.3d 493, 498–99 (1970) (holding that complaint stated a

cause of action for intentional infliction of emotional distress where supervisor fired

African-American employee while shouting various racial epithets).

Accordingly, the Court declines to dismiss Plaintiff’s seventh cause of action.

IV. Eighth Cause of Action (Cal. Gov. Code § 945.4 and California’s Workers’ Compensation law) Plaintiff’s eighth cause of action alleges negligent infliction of emotional distress (“NIED”). (SAC ¶¶ 70–72.) The County moves to dismiss, arguing Plaintiff is barred from asserting this

claim under Cal. Gov. Code § 945.4 as negligence was not reflected in his tort claim to

the County. (Mot. Dismiss at 10.) Further, the County argues NIED is a common law

claim precluded by the exclusive remedy provided by California’s Worker’s

Compensation scheme. (Id. at 11.) Finally, the County argues that Plaintiff has not

identified a statutory basis for the County’s liability as to this claim. (Id. at 10.)

The Court finds, as it did with Plaintiff’s seventh claim supra, that Plaintiff

substantially complied with the presentation requirement of Cal. Gov. Code § 945.4

for the purposes of this claim. Plaintiff alleges NIED based on racial discrimination

and denial of his right to a post-termination hearing. (SAC ¶ 71.) In Plaintiff’s tort

claim, he sought damages for loss of employment and severe emotional distress, and

listed IIED and racial discrimination as potential causes of action. (See RJN, Ex. B.)

Thus, Plaintiff’s tort claim put the County on sufficient notice that it could be sued for

Plaintiff’s emotional distress, which encompasses Plaintiff’s NIED claim.

The Court also finds that Plaintiff’s NIED claim is not barred by California’s

Workers’ Compensation law. “Though generally, an employee who sustains an injury

‘arising out of and in the course of the employment’ is limited to recovery provided

under the California's Workers' Compensation Act, including for emotional distress

claims, there are exceptions where fundamental public policy is involved.” Wilson v.

City of Fresno, No. 1:19-cv-01658-DAD-BAM, 2020 WL 5366302, at *22 (E.D. Cal.

Sept. 8, 2020) (quoting Livitsanos v. Superior Ct., 2 Cal. 4th 744, 753 (1992)). “The

California Supreme Court has clarified that emotional distress caused by racial

discrimination is not subject to the exclusivity provisions of the workers' compensation

laws.” Id. (citing Fermino v. Fedco, Inc., 7 Cal. 4th 701, 715 (1994)); see also Nazir v.

United Airlines, Inc., 178 Cal. App. 4th 243, 288 (2009) (“A claim for distress arising out of employment is ‘not barred where the distress is engendered by an employer's illegal discrimination practices.’” (quoting Accardi v. Superior Ct., 17 Cal. App. 4th 341, 352 (1993))). The County argues courts have held claims for intentional and negligent

infliction of emotional distress are barred by workers compensation exclusivity even

when based on purported violations of public policy or discriminatory, retaliatory, or

harassing conduct in the workplace, citing Miklosy v. Regents of Univ. of California, 44

Cal. 4th 876, 902 (2008) and Yau v. Santa Margarita Ford, Inc., 229 Cal. App. 4th 144,

161 (2014). (Mot. Dismiss at 10–11; Reply Mot. Dismiss (ECF No. 18) at 5.) However,

Miklosy and Yau do not compel dismissal here. “While the Supreme Court in Miklosy

held that allegations of whistleblower retaliation were insufficient to state an exception

to workers' compensation exclusivity, it did not remove the jurisprudential basis on

which numerous authorities have held that allegations of FEHA discrimination and

retaliation did state such an exception.” Light v. Dep’t of Parks & Recreation, 14 Cal.

App. 5th 75,101 (2017) (emphasis in original). Thus, Miklosy did not “abandon the

long-standing view that unlawful discrimination and retaliation in violation of FEHA

falls outside the compensation bargain and therefore claims of intentional infliction of

emotional distress based on such discrimination and retaliation are not subject to

workers' compensation exclusivity.” Id. Here, Plaintiff’s NIED claim is based on racial

discrimination in the workplace, which is prohibited under the FEHA. See Crawford v.

MCI Worldcom Communs., Inc., 167 F. Supp. 2d 1128, 1132 (S.D. Cal. 2001)

(“California's FEHA and Title VII both prohibit employment discrimination based on

race.”). Accordingly, Plaintiff’s claim is not barred by California Workers’

Compensation law.

However, the County is correct that, as a public entity, it is not liable for an

injury except as otherwise provided by statute. Cal. Gov. Code § 815(a); see also Hoff

v. Vacaville, 19 Cal. 4th 925, 932 (1998) (“[I]n California, all government tort liability

must be based on statute.” (internal quotations omitted)). Plaintiff has not alleged which statutory authority permits his direct claim against the County here. Because the Complaint fails to identify an appropriate statute, dismissal of this claim against the County is warranted. See, e.g., Strawn v. Sokoloff, No. 1:22-CV-1245-AWI-EPG, 2023 WL 2760904, at *10–11 (E.D. Cal. Mar. 31, 2023) (granting dismissal of plaintiff’s

NIED claim against a city with leave to amend because the complaint failed to specify

a statute imposing direct liability).

Accordingly, Plaintiff’s eighth claim will be dismissed with leave to amend.

V. Leave to Add Claims Seven, Eight, and Nine

Finally, the County argues that Plaintiff’s seventh, eighth, and ninth claims

should be dismissed because Plaintiff was not granted leave to add these claims in the

Court’s order dismissing Plaintiff’s First Amended Complaint. (Mot. Dismiss at 11–12.)

Under Rule 15, a party may amend his or her pleading “once as a matter of

course [and] . . . in all other cases, a party may amend its pleading only with the court's

leave. The court should freely give leave when justice so requires.” Fed. R. Civ. P.

15(a). District courts in this circuit generally allow plaintiffs to add new claims or

parties to an amended complaint where a prior order of dismissal granted leave to

amend without limitation. Jameson Beach Prop. Owners Ass'n v. United States, No.

2:13-cv-01025-MCE-AC, 2014 WL 4925253, at *3 (E.D. Cal. Sept. 29, 2014). On the

other hand, where a prior court order granted limited leave to amend, district courts

in this circuit generally strike new claims or parties contained in an amended

complaint when the plaintiff did not seek leave to amend. See, e.g., Benton v. Baker

Hughes, CV 12-07735-MMM, 2013 WL 3353636, at *3 (C.D. Cal. June 30, 2013);

Crane v. Yarborough, CV 05-8534 DSF-JC, 2012 WL 1067956, at *1 (C.D. Cal. Mar. 29,

2012). Thus, whether a district court will accept new claims and/or parties in an

amended complaint after a motion to dismiss will depend on whether the plaintiff was

granted leave to amend with or without limitation. Urista v. Bank of Am., N.A., No.

C11-03097 HRL, 2012 WL 10596, at *6 (N.D. Cal. Jan. 3, 2012).

Here, the Court finds that leave to amend was granted without limitation. While the Court specifically noted in its previous order that amendment would be granted in order for Plaintiff to add claims concerning the constitutionality of Rule 328 and POBRA, nothing in the Court’s language dictated these were the only claims Plaintiff could add or that Plaintiff needed to seek leave of the Court to add further claims. Cf.

Rodriguez v. County of San Joaquin by & through the San Joaquin County Human

Servs. Agency, No. 2:16-cv-00770-TLN-JDP, 2022 WL 956558, at *7 (E.D. Cal. Mar. 30,

2022) (finding leave to amend was limited when the court’s previous order stated “if

Plaintiff wishes to bring claims against [Defendant] at a later date, he may file a motion

to do so pursuant to Rule 15”).

Accordingly, the Court finds that leave to amend was freely given, and will not

strike Plaintiff’s seventh, eighth, or ninth claim on this basis. See, e.g., Gilmore v.

Union Pacific R. Co., No. 09-CV-02180, 2010 WL 2089346, at *4 (E.D. Cal. May 21,

2010) (allowing plaintiff to add new claims without having asked leave because court

had granted leave to amend without limitation and defendants would not be

prejudiced).

In accordance with the above, IT IS HEREBY ORDERED the County’s Motion to

Dismiss (ECF No. 16) is GRANTED in part and DENIED in part. Specifically, Plaintiff’s

second, fourth, and eighth causes of action are DISMISSED with leave to amend, while

Plaintiff’s third cause of action is DISMISSED with prejudice.

Plaintiff is further GRANTED leave to file an amended complaint within thirty

(30) days. However, if Plaintiff wishes to bring any new claims against either

Defendant, Plaintiff must file a motion to do so pursuant to Rule 15 of the Federal

Rules of Civil Procedure.

Dated: March 1, 2024 /s/ Daniel J. Calabretta THE HONORABLE DANIEL J. CALABRETTA UNITED STATES DISTRICT JUDGE