Fitzgerald v. City of Fresno

• Decision Date: 21 April 2022
• Docket Number: 1:21-CV-01409-AWI-SAB
• Parties: RICHARD FITZGERALD, Plaintiff, v. CITY OF FRESNO; THOMAS ESQUEDA, City Manager, PACO BALDERRAMA, Chief of Police for the City of Fresno, JERRY DYER, Mayor of Fresno; and DOES 1 through 20, inclusive, Defendants.
• Court: U.S. District Court — Eastern District of California

RICHARD FITZGERALD, Plaintiff, v. CITY OF FRESNO; THOMAS ESQUEDA, City Manager, PACO BALDERRAMA, Chief of Police for the City of Fresno, JERRY DYER, Mayor of Fresno; and DOES 1 through 20, inclusive, Defendants.

No. 1:21-CV-01409-AWI-SAB

United States District Court, E.D. California

April 21, 2022

ORDER ON DEFENDANTS' MOTION TO DISMISS COMPLAINT (DOC. NO. 6)

This case involves an employment dispute between Plaintiff Richard Fitzgerald and Defendants City of Fresno, Jerry Dyer, Thomas Esqueda, and Paco Balderrama. Following his removal from employment, Plaintiff initiated this lawsuit asserting state and federal law claims in state court. Defendants removed the matter to this Court on the basis of federal question jurisdiction. Pending before the Court is Defendants' Motion to Dismiss and to Strike Portions of the Complaint (Doc. No. 6). Defendants seek dismissal of four causes of action and all official capacity claims against the individual Defendants. For the following reasons, the Court will grant in part and deny in part Defendants' motion.

BACKGROUND^[1]

Plaintiff Richard Fitzgerald was a police officer employed by the City of Fresno in the Fresno Police Department until he was served with an Order of Immediate Termination on April 9, 2021. Doc No. 1 at 7, ¶ 9. Prior to his termination, Plaintiff was not provided an opportunity to review all materials on which the termination was based nor a pre-termination hearing to respond to the charges that led to his termination. Id. at 7-8, ¶ 10. Instead, the City proceeded with the termination pursuant to Fresno Municipal Code Section 3-280(d), which provides:

In those extraordinary circumstances, wherein the appointing authority determines immediate disciplinary action is necessary against an employee having permanent status as a result of accusations against such employee involving misappropriation of public funds or property, drug addition mistreatment of persons in the custody of the employee physical assault upon another employee or a member of the public, or action which would constitute a felony or misdemeanor involving moral turpitude, the appointing authority may proceed to impose disciplinary action in accordance with the provisions of Sections 3282 through 3-290 of the Code without compliance with the procedure set forth in this section.

Id. at 8, ¶ 11. The City based its decision for termination on the following alleged conduct: (1) Plaintiff attended a protest in the presence of persons believed to be members of the Proud Boys; (2) Plaintiff displayed Instagram pictures of himself wearing the costume of the comic book character “The Punisher” while holding an AR-style rifle with a caption that said “(s)hit is a lot easier when you can kill people”; (3) Plaintiff admitted he was a member of the “Proud Boys” organization; (4) Plaintiff participated in a protest in Sacramento, California on November 21, 2020; (5) Plaintiff participated in a conspiracy to physically remove a flag from a counterdemonstrator; (6) Plaintiff proclaimed on his deleted Instagram account that “(s)hit is a lot easier when you can kill people”; (7) Plaintiff displayed “memes” that alluded to his alleged “advocacy of violence”; and (8) Plaintiff had a “tattoo violation.” Id. at 8-9, ¶¶ 13-15.

Before Plaintiff's termination, several major news outlets, including the Fresno Bee, Associated Press, Daily Beast, Yahoo News, U.S. News, Fox News, and USA Today, had published articles on or around March 15, 2021 regarding the above alleged conduct. Doc. No. 6-2 at Exs. I-O. In several of the articles, Defendant Balderrama is quoted as saying, “Any allegations of actions unbecoming of a police officer or the affiliation with any alleged criminal or hate group will always be investigated and addressed. Fair and impartial policing are extremely important in our society. There is no place in our police ranks for any biased, racists, or anti-Semantic views.” Doc. No. 6-2 at Exs. I-K, M-O. Additionally, several of the articles quote Defendant Dyer for his statement that “[a]s the mayor of this city, I will not tolerate any city of Fresno employee belonging to organizations that promote views of supremacy, racism or criminal conduct. This matter is under investigation and appropriate action will be taken to address any misconduct.”

Doc. No. 6-2 at Exs. I-J, M-N. Furthermore, the Fresno Police Officers Association is quoted as stating “racism, discrimination, and criminal conduct among our ranks is absolutely intolerable.” Doc. No. 6-2 at Exs. K and N.

On March 17, 2021, District Attorney for the County of Fresno, Lisa Smittcamp, issued the following news release:

Upon learning of the allegations that Fresno Police Department Officer Richard “Rick” Fitzgerald was recently a member of the Proud Boys, an organization that the Southern Poverty Law Center has designated as a “hate group, ” the Fresno County District Attorney's Office has proactively taken steps to identify all cases involving Officer Fitzgerald.

It's important that every citizen in the County of Fresno trust that members of our law enforcement community will behave equitably and free from biases when investigating evaluating and prosecuting cases. To the extent that Officer Fitzgerald's alleged affiliations, publicly available statements, social media posts or observed conduct undermine that public trust is of grave concern. I am committed to working with the Fresno Police Department, the Fresno County Public Defender, all members of the criminal defense bar, and the courts in addressing these concerns and the impact it may have on any cases.

As has been made public elsewhere, the Fresno Police Department has placed Officer Fitzgerald on administrative leave pending a departmental “internal affairs” investigation. Such investigations do not involve the Fresno County District Attorney's Office. Outcomes of internal affairs investigations are generally subject to privacy rights established by statute. Because the law affords this confidentiality, findings are not automatically shared with either party to a criminal case. However, once an investigation is complete, legal process does allow parties to a criminal case to seek information, with agreement and input from the court, about the investigation and any findings. It is anticipated that this procedure will be utilized as appropriate in matters involving Officer Fitzgerald.

Id. at 9-10, ¶ 17.

On April 10, 2021, one day after Plaintiff's termination, Defendant Dyer published the following statement on his Mayor of Fresno Twitter page:

After discussions with Chief Balderrama regarding the ongoing internal investigation of Officer Rick Fitzgerald, who is accused of participating with the Proud Boys extremist group, it is clear to me that there were egregious violations of department policy.

I am pleased that Officer Fitzgerald will no longer be serving as a police officer with the City of Fresno. As Mayor, I want to reiterate to the community that I will not tolerate any form of racism displayed by City of Fresno employees.

Id. at 11, ¶ 19.

The Fresno Municipal Code and the Memorandum of Understanding between the City of Fresno and the Fresno Police Officers Association (Non-Supervisory Police - Unit 4) allowed Plaintiff to appeal his termination by (1) filing an appeal before the Civil Service Board, (2) requesting a hearing before a hearing officer who would then make a recommendation to the Civil Service Board, or (3) filing for binding arbitration. Doc. No. 6-2 at Exs. A-E. On April 19, 2021, Plaintiff elected to request a hearing before a hearing officer. Doc. No. 6-2 at Ex. D.

On August 2, 2021, Plaintiff filed his Complaint in the Fresno County Superior Court alleging state and federal law violations against the City of Fresno, City Manager Thomas Esqueda, Fresno City Chief of Police Paco Balderrama, and Fresno Mayor Jerry Dyer. On September 22, 2021, Defendants removed the matter to this Court.

LEGAL STANDARD

Under Federal Rule of Civil Procedure 12(b)(6), a cause of action may be dismissed where a plaintiff fails “to state a claim upon which relief can be granted.” Fed.R.Civ.P 12(b)(6). Dismissal under Rule 12(b)(6) may be based on the lack of a cognizable legal theory or on the absence of sufficient facts alleged under a cognizable legal theory. Conservation Force v. Salazar, 646 F.3d 1240, 1242 (9th Cir. 2011); Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116, 1121-22 (9th Cir. 2008). To survive a Rule 12(b)(6) motion for failure to allege sufficient facts, a complaint must include a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). Compliance with this rule ensures that the defendant has “fair notice of what the ... claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)) (internal quotation marks omitted). Under this standard, a complaint must contain sufficient factual matter to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570) (internal quotation marks omitted). 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 alleged misconduct. Id. at 663 (citation omitted).

In reviewing a complaint under Rule 12(b)(6), all allegations of material fact are taken as true and construed in the light most favorable to the nonmoving party. See Mollett v Netflix, Inc., 795 F.3d 1062, 1065 (9th Cir. 2015); Marceau v. Blackfeet Hous. Auth., 540 F.3d 916, 919 (9th Cir. 2008). But the Court is “not ‘required to accept as true...