1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ROBERT RAITER, No. 2:22-cv-00530-TLN-DB 12 Plaintiff, 13 v. ORDER 14 CITY OF OROVILLE, et al. 15 Defendants. 16 17 This matter is before the Court pursuant to Defendant City of Oroville’s (“Defendant”) 18 Motion to Dismiss (ECF No. 7). Plaintiff Robert Raiter (“Plaintiff”) filed an opposition (ECF 19 No. 11), and Defendant replied (ECF No. 14). For the reasons set forth below, the Court 20 GRANTS Defendant’s motion to dismiss with leave to amend. 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 1 I. FACTUAL AND PROCEDURAL BACKGROUND 2 Plaintiff was employed by Defendant as an officer starting in 2015.1 (ECF No. 1 at ¶¶ 4, 3 34.) Around June 2020, after Plaintiff reported incidences of sexual harassment and improper 4 conduct involving Lieutenant Gil Zarate, Lt. Zarate began to exhibit disrespectful and retaliatory 5 behavior toward Plaintiff. (Id. at ¶¶ 6, 9.) Plaintiff filed a formal grievance and was subsequently 6 removed from specialty assignments. (Id. at ¶¶ 14, 15.) Around July 2020,2 Plaintiff interviewed 7 with another Sheriff’s office where he revealed that “he had sex with his then girlfriend when he 8 was on break during one of his shifts.” (Id. at ¶ 18.) Plaintiff believed this was consistent with 9 the culture of the Department. (Id. at ¶ 19.) Indeed, Plaintiff cited several incidents of sexual 10 misconduct in the Department, including incidents involving Chief Joe Deal engaging in sexual 11 conduct while on shift. (Id.) 12 On August 5, 2022, Plaintiff met with Chief Deal to discuss Plaintiff’s issues with Lt. 13 Zarate. (Id. at ¶21.) Chief Deal was known to pressure department members to hire his wife as a 14 realtor. (Id. at ¶22.) During this meeting, Chief Deal attempted to pressure Plaintiff to do the 15 same, but Plaintiff did not comply. (Id.) Then on August 10, 2020, Chief Deal removed all of 16 Plaintiff’s scheduled overtime hours, changed Plaintiff’s work schedule, and made Lt. Zarate 17 Plaintiff’s supervising officer. (Id. at ¶24.) On August 20, 2020, Chief Deal gave Plaintiff notice 18 of a disciplinary action for a traffic collision Plaintiff was involved with in May 2020, despite 19 Chief Deal previously informing Plaintiff nothing would come of the collision. (Id. at ¶ 25.) On 20 August 20, 2020, Plaintiff submitted a Skelly notice detailing Chief Deal’s retaliatory acts.3 (Id.
21 1 In his Complaint, Plaintiff does not specifically allege his termination date. He states a “Final Note of Discipline issued on May 13, 2021,” but does not indicate if that constituted his 22 date of termination. (ECF No. 1 at ¶ 34.) Therefore, it is unclear whether the proceedings at 23 issue here were pre-termination or post-termination. This lack of clarity is further addressed below. 24 2 In his Complaint, Plaintiff says he applied for the new Sheriff’s position in “July of 2022.” 25 (ECF No. 1 at ¶ 18.) However, Plaintiff also says he was terminated in 2021 and withdrew his application around August 2020. (Id. at ¶¶ 21, 34.) The rest of the facts appear more consistent 26 with the July 2020 date. 27 3 A “Skelly notice” “derives its name from a California Supreme Court decision holding that 28 permanent employees of the state of California have a property interest in the continuation of 1 at ¶ 27.) Plaintiff later met with Butte County District Attorney, Mike Ramsey, to discuss illegal 2 acts and corruption at the Oroville Police Department; Plaintiff specifically named illegal acts 3 Chief Deal committed. (Id. at ¶ 28.) On October 1, 2020, Chief Deal told Lt. Zarate that he was 4 going to “get rid” of Plaintiff. (Id. at ¶ 30.) 5 Defendant brought a disciplinary action against Plaintiff for: “(1) Having sexual relations 6 with his significant other while he was on break; (2) Not wearing a mask during a traffic stop; and 7 (3) An alleged traffic collision that [Plaintiff] was involved in.” (Id. at ¶ 32.) Chief Deal 8 conducted the ensuing investigation and Ruth Wright, the Finance Director, was the Skelly 9 hearing officer during the resulting proceedings. (Id. at ¶¶ 33–34.) 10 Plaintiff filed this action on March 22, 2022, seeking to recover from the City of Oroville 11 under 42 U.S.C. § 1983 (“§ 1983”), the Fair Employment and Housing Act (California 12 Government Code § 12900 et seq.), and California Labor Code § 1102.5. (ECF No. 1 at 11–12.) 13 Defendant filed the instant motion to dismiss on May 24, 2022. (ECF No. 7.) 14 II. STANDARD OF LAW 15 A motion to dismiss for failure to state a claim upon which relief can be granted under 16 Federal Rule of Civil Procedure (“Rule”) 12(b)(6) tests the legal sufficiency of a complaint. 17 Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Rule 8(a) requires that a pleading contain 18 “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. 19 Civ. P. 8(a); see also Ashcroft v. Iqbal, 556 U.S. 662, 677–78 (2009). Under notice pleading in 20 federal court, the complaint must “give the defendant fair notice of what the . . . claim is and the 21 grounds upon which it rests.” Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007) (internal 22 citation and quotations omitted). “This simplified notice pleading standard relies on liberal 23 their employment of which they cannot be deprived without due process.” Maner v. Cnty. of 24 Stanislaus, No. 114CV01014DADMJS, 2016 WL 4011722, at *3 n. 4 (E.D. Cal. July 27, 2016), aff’d, 725 F. App’x 485 (9th Cir. 2018) (citing Skelly v. State Personnel Board, 15 Cal. 3d 25 194, 206 (1975)). In Skelly, the Court held that there are minimum procedural due process requirements when depriving someone of their property interest in the continuation of their 26 employment: “notice of the proposed action, the reasons therefor, a copy of the charges and 27 materials upon which the action is based, and the right to respond, either orally or in writing, to the authority initially imposing discipline.” 15 Cal. 3d at 215. 28 1 discovery rules and summary judgment motions to define disputed facts and issues and to dispose 2 of unmeritorious claims.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002). 3 On a motion to dismiss, the factual allegations of the complaint must be accepted as true. 4 Cruz v. Beto, 405 U.S. 319, 322 (1972). A court must give the plaintiff the benefit of every 5 reasonable inference to be drawn from the “well-pleaded” allegations of the complaint. Retail 6 Clerks Int’l Ass’n v. Schermerhorn, 373 U.S. 746, 753 n.6 (1963). A plaintiff need not allege 7 “‘specific facts’ beyond those necessary to state his claim and the grounds showing entitlement to 8 relief.” Twombly, 550 U.S. at 570 (internal citation omitted). 9 Nevertheless, a court “need not assume the truth of legal conclusions cast in the form of 10 factual allegations.” U.S. ex rel. Chunie v. Ringrose, 788 F.2d 638, 643 n.2 (9th Cir. 1986). 11 While Rule 8(a) does not require detailed factual allegations, “it demands more than an 12 unadorned, the defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678. A 13 pleading is insufficient if it offers mere “labels and conclusions” or “a formulaic recitation of the 14 elements of a cause of action.” Twombly, 550 U.S.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ROBERT RAITER, No. 2:22-cv-00530-TLN-DB 12 Plaintiff, 13 v. ORDER 14 CITY OF OROVILLE, et al. 15 Defendants. 16 17 This matter is before the Court pursuant to Defendant City of Oroville’s (“Defendant”) 18 Motion to Dismiss (ECF No. 7). Plaintiff Robert Raiter (“Plaintiff”) filed an opposition (ECF 19 No. 11), and Defendant replied (ECF No. 14). For the reasons set forth below, the Court 20 GRANTS Defendant’s motion to dismiss with leave to amend. 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 1 I. FACTUAL AND PROCEDURAL BACKGROUND 2 Plaintiff was employed by Defendant as an officer starting in 2015.1 (ECF No. 1 at ¶¶ 4, 3 34.) Around June 2020, after Plaintiff reported incidences of sexual harassment and improper 4 conduct involving Lieutenant Gil Zarate, Lt. Zarate began to exhibit disrespectful and retaliatory 5 behavior toward Plaintiff. (Id. at ¶¶ 6, 9.) Plaintiff filed a formal grievance and was subsequently 6 removed from specialty assignments. (Id. at ¶¶ 14, 15.) Around July 2020,2 Plaintiff interviewed 7 with another Sheriff’s office where he revealed that “he had sex with his then girlfriend when he 8 was on break during one of his shifts.” (Id. at ¶ 18.) Plaintiff believed this was consistent with 9 the culture of the Department. (Id. at ¶ 19.) Indeed, Plaintiff cited several incidents of sexual 10 misconduct in the Department, including incidents involving Chief Joe Deal engaging in sexual 11 conduct while on shift. (Id.) 12 On August 5, 2022, Plaintiff met with Chief Deal to discuss Plaintiff’s issues with Lt. 13 Zarate. (Id. at ¶21.) Chief Deal was known to pressure department members to hire his wife as a 14 realtor. (Id. at ¶22.) During this meeting, Chief Deal attempted to pressure Plaintiff to do the 15 same, but Plaintiff did not comply. (Id.) Then on August 10, 2020, Chief Deal removed all of 16 Plaintiff’s scheduled overtime hours, changed Plaintiff’s work schedule, and made Lt. Zarate 17 Plaintiff’s supervising officer. (Id. at ¶24.) On August 20, 2020, Chief Deal gave Plaintiff notice 18 of a disciplinary action for a traffic collision Plaintiff was involved with in May 2020, despite 19 Chief Deal previously informing Plaintiff nothing would come of the collision. (Id. at ¶ 25.) On 20 August 20, 2020, Plaintiff submitted a Skelly notice detailing Chief Deal’s retaliatory acts.3 (Id.
21 1 In his Complaint, Plaintiff does not specifically allege his termination date. He states a “Final Note of Discipline issued on May 13, 2021,” but does not indicate if that constituted his 22 date of termination. (ECF No. 1 at ¶ 34.) Therefore, it is unclear whether the proceedings at 23 issue here were pre-termination or post-termination. This lack of clarity is further addressed below. 24 2 In his Complaint, Plaintiff says he applied for the new Sheriff’s position in “July of 2022.” 25 (ECF No. 1 at ¶ 18.) However, Plaintiff also says he was terminated in 2021 and withdrew his application around August 2020. (Id. at ¶¶ 21, 34.) The rest of the facts appear more consistent 26 with the July 2020 date. 27 3 A “Skelly notice” “derives its name from a California Supreme Court decision holding that 28 permanent employees of the state of California have a property interest in the continuation of 1 at ¶ 27.) Plaintiff later met with Butte County District Attorney, Mike Ramsey, to discuss illegal 2 acts and corruption at the Oroville Police Department; Plaintiff specifically named illegal acts 3 Chief Deal committed. (Id. at ¶ 28.) On October 1, 2020, Chief Deal told Lt. Zarate that he was 4 going to “get rid” of Plaintiff. (Id. at ¶ 30.) 5 Defendant brought a disciplinary action against Plaintiff for: “(1) Having sexual relations 6 with his significant other while he was on break; (2) Not wearing a mask during a traffic stop; and 7 (3) An alleged traffic collision that [Plaintiff] was involved in.” (Id. at ¶ 32.) Chief Deal 8 conducted the ensuing investigation and Ruth Wright, the Finance Director, was the Skelly 9 hearing officer during the resulting proceedings. (Id. at ¶¶ 33–34.) 10 Plaintiff filed this action on March 22, 2022, seeking to recover from the City of Oroville 11 under 42 U.S.C. § 1983 (“§ 1983”), the Fair Employment and Housing Act (California 12 Government Code § 12900 et seq.), and California Labor Code § 1102.5. (ECF No. 1 at 11–12.) 13 Defendant filed the instant motion to dismiss on May 24, 2022. (ECF No. 7.) 14 II. STANDARD OF LAW 15 A motion to dismiss for failure to state a claim upon which relief can be granted under 16 Federal Rule of Civil Procedure (“Rule”) 12(b)(6) tests the legal sufficiency of a complaint. 17 Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Rule 8(a) requires that a pleading contain 18 “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. 19 Civ. P. 8(a); see also Ashcroft v. Iqbal, 556 U.S. 662, 677–78 (2009). Under notice pleading in 20 federal court, the complaint must “give the defendant fair notice of what the . . . claim is and the 21 grounds upon which it rests.” Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007) (internal 22 citation and quotations omitted). “This simplified notice pleading standard relies on liberal 23 their employment of which they cannot be deprived without due process.” Maner v. Cnty. of 24 Stanislaus, No. 114CV01014DADMJS, 2016 WL 4011722, at *3 n. 4 (E.D. Cal. July 27, 2016), aff’d, 725 F. App’x 485 (9th Cir. 2018) (citing Skelly v. State Personnel Board, 15 Cal. 3d 25 194, 206 (1975)). In Skelly, the Court held that there are minimum procedural due process requirements when depriving someone of their property interest in the continuation of their 26 employment: “notice of the proposed action, the reasons therefor, a copy of the charges and 27 materials upon which the action is based, and the right to respond, either orally or in writing, to the authority initially imposing discipline.” 15 Cal. 3d at 215. 28 1 discovery rules and summary judgment motions to define disputed facts and issues and to dispose 2 of unmeritorious claims.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002). 3 On a motion to dismiss, the factual allegations of the complaint must be accepted as true. 4 Cruz v. Beto, 405 U.S. 319, 322 (1972). A court must give the plaintiff the benefit of every 5 reasonable inference to be drawn from the “well-pleaded” allegations of the complaint. Retail 6 Clerks Int’l Ass’n v. Schermerhorn, 373 U.S. 746, 753 n.6 (1963). A plaintiff need not allege 7 “‘specific facts’ beyond those necessary to state his claim and the grounds showing entitlement to 8 relief.” Twombly, 550 U.S. at 570 (internal citation omitted). 9 Nevertheless, a court “need not assume the truth of legal conclusions cast in the form of 10 factual allegations.” U.S. ex rel. Chunie v. Ringrose, 788 F.2d 638, 643 n.2 (9th Cir. 1986). 11 While Rule 8(a) does not require detailed factual allegations, “it demands more than an 12 unadorned, the defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678. A 13 pleading is insufficient if it offers mere “labels and conclusions” or “a formulaic recitation of the 14 elements of a cause of action.” Twombly, 550 U.S. at 555; see also Iqbal, 556 U.S. at 678 15 (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory 16 statements, do not suffice.”). Thus, “[c]onclusory allegations of law and unwarranted inferences 17 are insufficient to defeat a motion to dismiss” for failure to state a claim. Adams v. Johnson, 355 18 F.3d 1179, 1183 (9th Cir. 2004) (citations omitted). Moreover, it is inappropriate to assume the 19 plaintiff “can prove facts that it has not alleged or that the defendants have violated the . . . laws 20 in ways that have not been alleged.” Associated Gen. Contractors of Cal., Inc. v. Cal. State 21 Council of Carpenters, 459 U.S. 519, 526 (1983). 22 Ultimately, a court may not dismiss a complaint in which the plaintiff has alleged “enough 23 facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. “A claim 24 has facial plausibility when the plaintiff pleads factual content that allows the court to draw the 25 reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 26 680. While the plausibility requirement is not akin to a probability requirement, it demands more 27 than “a sheer possibility that a defendant has acted unlawfully.” Id. at 678. This plausibility 28 inquiry is “a context-specific task that requires the reviewing court to draw on its judicial 1 experience and common sense.” Id. at 679. Thus, only where a plaintiff fails to “nudge [his or 2 her] claims . . . across the line from conceivable to plausible[,]” is the complaint properly 3 dismissed. Id. at 680 (internal quotations omitted). 4 In ruling on a motion to dismiss, a court may only consider the complaint, any exhibits 5 thereto, and matters which may be judicially noticed pursuant to federal Rule of Evidence 201. 6 See Mir v. Little Co. of Mary Hosp., 844 F.2d 646, 649 (9th Cir. 1988); Isuzu Motors Ltd. V. 7 Consumers Union of U.S., Inc., 12 F. Supp. 2d 1035, 1042 (C.D. Cal. 1998). 8 If a complaint fails to state a plausible claim, “‘[a] district court should grant leave to 9 amend even if no request to amend the pleading was made, unless it determines that the pleading 10 could not possibly be cured by the allegation of other facts.’” Lopez v. Smith, 203 F.3d 1122, 11 1130 (9th Cir. 2000) (en banc) (quoting Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995)); 12 see also Gardner v. Martino, 563 F.3d 981, 990 (9th Cir. 2009) (finding no abuse of discretion in 13 denying leave to amend when amendment would be futile). 14 III. ANALYSIS 15 Defendant moves to dismiss Claim One of the Complaint as well as Plaintiff’s request for 16 punitive damages. (ECF No. 7-1 at 3, 6.) Plaintiff does not oppose dismissal of the request for 17 punitive damages. (ECF No. 11 at 2.) Accordingly, Defendant’s motion to dismiss Plaintiff’s 18 request for punitive damages is GRANTED with prejudice. Plaintiff, however, does oppose 19 dismissal of Claim One. (Id.) 20 As to Claim One, Plaintiff brings a claim against Defendant under § 1983 for “violation of 21 civil rights” by depriving Plaintiff of his right to procedural due process. (ECF No. 1 at 11.) 22 Defendant moves to dismiss Claim One arguing that Defendant followed the requirements of due 23 process to which Plaintiff was entitled under Skelly. (ECF No. 7-1 at 3.) In opposition, Plaintiff 24 appears to concede that Defendant followed “timelines and non-substantive procedures.” (ECF 25 No. 11 at 8.) However, Plaintiff argues because Chief Deal was biased and the hearing officer 26 “rubber stamped” Chief Deal’s “investigative findings” for Plaintiff’s Skelly hearing, Chief Deal 27 was the “de facto [sic]” decisionmaker, thus depriving Plaintiff of his due process rights. (ECF 28 No. 11 at 6, 8.) In reply, Defendant argues “Chief Deal’s alleged bias and investigation are 1 immaterial to whether Plaintiff’s due process rights were violated” and any allegations that the 2 decision was “rubber stamped” are conclusory. (ECF No. 14 at 4.) 3 Procedural due process is owed when there is a deprivation of property, which is defined 4 by state law. Board of Regents v. Roth, 408 U.S. 564, 577 (1972). Under California law, a 5 permanent employee, dismissible only for cause, has a property interest in their continued 6 employment. Skelly, 15 Cal. 3d at 207–208. “Precisely what procedures the Due Process Clause 7 requires in any given case is a function of context . . . due process is not a technical conception 8 with a fixed content unrelated to time, place and circumstances . . . [r]ather, it is flexible and calls 9 for such procedural protections as the particular situation demands.” Brewster v. Bd. of Educ. of 10 Lynwood Unified Sch. Dist., 149 F.3d 971, 983 (9th Cir. 1998) (internal quotation marks and 11 citations omitted). Generally, the determination of which procedures satisfy due process in a 12 situation depends on balancing the private interest affected by the official action, the risk of 13 erroneous deprivation of the interests and the value of alternative procedures, and the government 14 entity’s interest. Id. (citing Mathews v. Eldridge, 424 U.S. 319, 335 (1976)). 15 A court may also look to what procedures are required under state law when evaluating a 16 federal due process claim. Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546 (1985) (“Our 17 holding rests in part on the provisions in Ohio law for a full post-termination hearing.”). Under 18 the California statutory scheme, if the initial decision is appealed, post-termination hearings must 19 be provided. Skelly, 15 Cal. 3d at 205; Cal. Gov’t Code § 19578 (2009). California additionally 20 requires “[m]inimal standards of due process [] that a public employee receive, prior to 21 imposition of discipline: (1) [n]otice of the action proposed[;] (2) the grounds for discipline[;] (3) 22 the charges and materials upon which the action is based[;] and (4) the opportunity to respond in 23 opposition to the proposed action. . . . The right to respond must afford the employee an 24 opportunity to present his side of the controversy before a reasonably impartial and noninvolved 25 reviewer who possesses the authority to recommend a final disposition of the matter.” Titus v. 26 Civil Serv. Com., 130 Cal. App. 3d 357, 362–63 (1982). 27 There are two types of termination hearings: pre-termination hearings and post- 28 termination hearings. A pre-termination hearing is required but “need not be elaborate” as it is 1 “an initial check against mistaken decisions — essentially, a determination of whether there are 2 reasonable grounds to believe that the charges are true and support the proposed action.” 3 Loudermill, 470 U.S. at 545–546. At a pre-termination hearing, a plaintiff is only entitled to 4 notice and an opportunity to respond. Id. at 546. While a pre-termination hearing is required, 5 post-termination hearings can lessen the amount of process the state must provide pre- 6 termination. Clements v. Airport Auth. of Washoe Cnty., 69 F.3d 321, 332 (9th Cir. 1995). 7 In the instant case, the parties do not dispute that Plaintiff has a property interest in his 8 continued employment and was therefore owed due process upon his termination. However, as 9 noted above, it is unclear if the proceeding at issue in the instant case was pre- or post- 10 termination. In other words, it is unclear whether Plaintiff asserts he was deprived of due process 11 during a pre-termination hearing or during a post-termination hearing, and Defendant provides no 12 additional commentary or clarification on the matter. Further compounding the confusion is the 13 fact that there are no allegations in the Complaint or discussion in the parties’ briefing regarding 14 the existence or non-existence of any additional proceedings. (See ECF Nos. 1, 7-1, 11, 14.) 15 These missing facts are critical in this case because Plaintiff appears to take issue with one 16 aspect of his Skelly proceedings: whether he was provided a “reasonably impartial and 17 noninvolved reviewer who possesses the authority to recommend a final disposition of the 18 matter.” (ECF No 11. at 8); Titus, 130 Cal. App. 3d at 362–63. However, the Court cannot 19 assess whether Plaintiff was adequately provided a reasonably impartial and noninvolved 20 reviewer because any due process determination depends on whether this was a pre- or post- 21 termination hearing. This is because “‘the existence of post-termination procedures is relevant to 22 the necessary scope of pre-termination procedures.’” Trevino v. Lassen Mun. Util. Dist., No. 07- 23 cv-2106 DAD, 2009 WL 385792, at *9 (E.D. Cal. Feb. 13, 2009), amended, No. 07-cv-2106 24 DAD, 2009 WL 982006 (E.D. Cal. Apr. 6, 2009) (citing Loudermill, 470 U.S. at 547 n.12). 25 “[T]he decisionmaker in a pre-termination hearing need not be impartial, so long as an impartial 26 decisionmaker is provided at the post-termination hearing.” Clements, 69 F.3d at 333. At the 27 pre-termination stage, Plaintiff is only entitled to notice and an opportunity to respond, not a 28 neutral hearing officer. Loudermill, 470 U.S. at 546. Accordingly, for the Court to determine if 1 there was adequate due process in this case, the Court must take into consideration whether there 2 were pre- and post-termination proceedings, if Plaintiff appealed a pre-termination decision, and 3 what process was followed during both proceedings. Since Plaintiff has not alleged any facts to 4 clarify what type of proceedings he was provided and when, Plaintiff has not alleged enough facts 5 to state a viable claim. 6 Additionally, Plaintiff argues that Chief Deal’s involvement in the investigation before his 7 hearing deprived Plaintiff of his due process rights because of Chief Deal’s bias. (ECF No. 11 at 8 7.) However, Plaintiff has not cited, nor can the Court find any authority to support his argument 9 that the investigator must be unbiased to satisfy his due process rights. See Peterson v. Johnson, 10 No. 16-cv-00240-AGJ, 2018 WL 5874403, at *9 (C.D. Cal. July 10, 2018) (finding that due 11 process does not impose a duty to conduct an independent investigation nor had the plaintiff cited 12 any authority for this contention). 13 Accordingly, the Court GRANTS Defendant’s motion to dismiss Plaintiff’s § 1983 claim 14 with leave to amend.4 15 IV. CONCLUSION 16 For the foregoing reasons, the Court GRANTS Defendant’s Motion to Dismiss (ECF No. 17 7) Plaintiff’s claim for punitive damages with prejudice and Claim One of the Complaint with 18 leave to amend. Plaintiff may file an amended complaint not later than thirty (30) days from the 19 electronic filing date of this Order. Defendants shall file a responsive pleading not later than 20 twenty-one (21) days after Plaintiff files an amended complaint. If Plaintiff opts not to file an 21
22 4 The Court notes that Plaintiff appears to take issue with one aspect of his Skelly proceedings: whether he was provided a “reasonably impartial and noninvolved reviewer who 23 possesses the authority to recommend a final disposition of the matter.” (ECF No 11. at 8); Titus, 130 Cal. App. 3d at 362–63. See Skelly, 15 Cal. 3d. In his Complaint, Plaintiff alleges the Final 24 Notice of Discipline “merely rubber-stamped the ‘investigation findings’ made by Chief Deal, who was [sic] biased.” (ECF No. 1 at ¶34.) Based on these facts, Plaintiff argues that Chief 25 Deal, not Ruth Wright, the hearing officer, was the “de facto[] ultimate decision make[r]” in the 26 Skelly hearing. (ECF No. 11 at 8). However, as Defendant argues, Plaintiff has not alleged any specific facts claiming that Wright was biased or that her decision was influenced in any way. 27 (ECF No. 14 at 3–4.) Plaintiff’s allegations about Chief Deal’s influence over Wright are merely conclusory. Thus, any amended complaint should seek to remedy this deficiency. 28 1 | amended complaint, the Complaint will proceed as to the remaining claims in the Complaint 2 | (Claims Two and Three) and Defendant shall file an answer not later than twenty-one (21) days 3 | from Plaintiffs deadline for filing an amended complaint. 4 IT IS SO ORDERED. 5 | Date: March 30, 2023 6 {~ /)
8 Troy L. Nunley ] 9 United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28