Harris v. Harris

Decision Date24 April 2012
Docket NumberNo. 2:11-cv-2186 GEB KJN PS,2:11-cv-2186 GEB KJN PS
PartiesJOHN L. HARRIS III, Plaintiff, v. KAMALA HARRIS, Attorney General of the State of California, as in her official capacity, et al., Defendants.
CourtU.S. District Court — Eastern District of California

Currently pending before the undersigned is defendants' Motion to Dismiss the Second Amended Complaint.1 (Mot. to Dismiss, Dkt. No. 21-1.) Plaintiff John L. Harris III ("plaintiff"), proceeding without counsel in this action, timely filed an opposition brief ("Opposition").2 (Oppo., Dkt. No. 23.) Plaintiff also filed a "Motion for Consideration of Additional Material." (Dkt. No. 22.) Defendants filed a reply brief ("Reply") in support of their motion to dismiss. (Reply, Dkt. No. 26.)

The court heard these matters on its law and motion calendar on February 2, 2012. (Minutes, Dkt. No. 34.) Attorney Christine Mersten appeared telephonically on behalf of defendants. Plaintiff appeared on his own behalf.

The undersigned has considered the briefs, oral arguments, and the appropriate portions of the record in this case and, for the reasons stated below, grants defendants' motion to dismiss pursuant to Federal Rule of Civil Procedure 8(a) and 8(d). Plaintiff's pleading is not a short and plain statement of claims and does not provide defendants sufficient notice of the claims against them. The undersigned orders plaintiff to file an amended pleading that more clearly alleges plaintiff's claims and otherwise conforms to this order, the requirements of the Federal Rules of Civil Procedure, and the court's Local Rules.3 Further, plaintiff's "Motion for Consideration of Additional Material" is construed as a request for judicial notice and is denied.

A. The Pleading Addressed In This Order

Plaintiff filed his original complaint on August 17, 2011. (Dkt. No. 1.) The next day, on August 18, 2011, plaintiff filed a First Amended Complaint. (Dkt. No. 5.) On August 22, 2011, without seeking leave of court, plaintiff filed a "Second Amended Complaint." (Dkt. No. 7.) The undersigned struck that pleading as improperly filed. (Dkt. No. 9.) Thereafter, plaintiff filed a motion to amend his pleading, which the undersigned granted. (Dkt. No. 20.) The undersigned clarified that the "Second Amended Complaint" filed on August 30, 2011, and located at Docket Number 12 on the court's electronic docket, would serve as the operative pleading in this case. (Id. at 5.) Defendants' motion to dismiss targets the "Second AmendedComplaint" filed on August 30, 2011, and this order addresses the same.4 (Second Am. Compl., Dkt. No. 12.)

B. The Allegations In The Second Amended Complaint

Although plaintiff's second amended complaint is rather difficult to understand, what follows is the undersigned's attempt to distill factual allegations and claims from it.

Plaintiff's Second Amended Complaint (hereinafter the "SAC" or "complaint") describes six claims for relief: (1) "Violation of the Free Speech Clause;" (2) "Conspiracy in Violation of Sections 1983 and 1985;" (3) "Violation of Due Process;" (4) "Violation of California Labor Code § 1102.5;" (5) "Violation of California Government Code § 8547;" and (6) "Negligent Supervision." Plaintiff seeks damages, injunctive relief, and declaratory relief.5 (Second Am. Compl. at 3.)

Plaintiff alleges that he has been an employee of the California Department of Justice ("California DOJ") since June 2001. (Id. at 4.) Plaintiff is an Associate Governmental Program Analyst in the California Department of Justice's Risk Management Unit. (Id. ¶¶ 11, 27.)

1. Plaintiff's "Speech" Of February 10, 2010 ("Property Damage Email")

Plaintiff alleges that he made certain "off-duty" comments to co-workers on February 10, 2010, as well as on May 18, 2010. (Id. ¶ 30.) The February 10, 2010 "speech" took the form of an email to plaintiff's supervisor, defendant Artie Cooper, regarding anotheremployee believed to have damaged some property, and plaintiff's own belief that the employee may not have damaged the property. (Id. ¶ 34.)

Plaintiff alleges that another supervisor, defendant John Swift, gave plaintiff a "written reprimand" for sending the email to Artie Cooper, because the email was outside the scope of plaintiff's assigned job task and because it inappropriately challenged management's position in the property damage investigation. (Id. ¶ 41.) Plaintiff alleges that John Swift's written reprimand was included in plaintiff's November 2010 performance review. (Id. ¶ 44.) Plaintiff also alleges that John Swift wrote in plaintiff's November 2010 performance review that plaintiff had "abandoned" his assigned job tasks. (Id. ¶ 45.) Finally, plaintiff alleges that John Swift "authorized the service of" his performance review to Worker's Compensation examiners in connection with plaintiff's alleged April 20, 2010 "industrial injury." (Id. ¶ 47.)

2. Plaintiff's "Speech" Of May 6, 2010 ("Lobby Incident")

On May 6, 2010, plaintiff allegedly had a conversation in the elevator lobby with defendant Kimberly Bell, witnessed by defendant Brea Noorani. (Id. ¶ 86.) Plaintiff alleges that, according to Noorani's account, plaintiff made a "call me" hand sign to Bell and wanted Bell to call him for "personal reasons." (Id. ¶ 87.)

The Lobby Incident allegedly continued when plaintiff and Bell both observed security officers using security wands to scan visitors entering the building. (Id. ¶ 90.) Bell questioned the need for such a detailed search, and in response, plaintiff allegedly stated that there was not a "rock in his pocket." (Id. ¶ 93.) Bell later allegedly complained that the comment made her "uncomfortable." (Id. ¶ 95.)

3. Plaintiff's "Speech" Of May 18, 2010 ("Smoking Conversation")

Plaintiff alleges that on or about May 18, 2010, while on his lunch break and standing on a street corner, plaintiff had a conversation with fellow California Department of Justice employees, including defendant Kimberly Bell. (Id. ¶ 49.) The conversation began about cigarettes. (Id.) Plaintiff alleges that he "shared" with his co-workers his knowledge aboutsmoking's relation to Sigmund Freud's "theory of psychosexual development" and the "oral stage," where "the libido is focused on the mouth." (Id. ¶ 51.) As described below, plaintiff alleges he was disciplined for this off-duty "speech."

4. Plaintiff's May 25, 2010 Meeting With Swift And Jang (the "Warning Meeting")

On May 25, 2010, plaintiff was allegedly summoned to a meeting with his supervisors, defendants John Jang and John Swift. (Id. ¶ 63.) Plaintiff alleges Swift and Jang kept the meeting's topic secret in hopes that plaintiff could not prepare for it and in hopes that plaintiff would react "angrily and inappropriately." (Id. ¶ 103.)

The Warning Meeting was allegedly to confront plaintiff about defendant Carrie Saulsberry's complaint regarding the May 18, 2010 "smoking" conversation about Freud, the oral stage, oral fixation, and the duration of breast-feeding.6 (Id. ¶¶ 66, 97.) The meeting was also allegedly to confront plaintiff regarding plaintiff's so-called "advances" upon co-worker defendant Kimberly Bell. (Id. ¶¶ 67-68.) During the meeting, John Swift told plaintiff that Kimberly Bell had made complaints about plaintiff's "stalking" her around the workplace and around a Sacramento 24-hour fitness. (Id. ¶ 70.) Plaintiff denies Bell's allegations of stalking. (Id. ¶¶ 72-74, 79.)7

Also during the Warning Meeting, defendant John Swift allegedly told plaintiff that he had violated the California DOJ's "Zero Tolerance" policy by conversing with defendant Kimberly Bell in the elevator lobby on May 6, 2010. (Id. ¶ 86.) Swift allegedly told plaintiff that his use of the "call me" sign had made Bell "uncomfortable." (Id. ¶ 88.) Swift allegedly toldplaintiff that his "rock in my pocket" comment also made Bell "uncomfortable." (Id. ¶ 95.)

During the May 25, 2010 meeting, plaintiff allegedly requested names of witnesses and copies of their written statements, but Swift and Jang allegedly told him that he was not entitled to these materials because he was not being subjected to any "adverse action." (Id. ¶ 98.) Swift allegedly told plaintiff that the meeting was "to provide a formal notice . . . that the Department disapproves of your behavior, and to let you know what we expect, regarding future conduct and future communication with Kim Bell." (Id. ¶ 99.)

5. Plaintiff Receives A Memorandum of Instruction Dated May 28, 2010

Plaintiff alleges he received a "Memorandum of Instruction" dated May 28, 2010, which informed him of the "zero tolerance" policy and confirmed that plaintiff has been warned about using discretion before making comments. (Id. ¶ 108.) The Memorandum of Instruction allegedly informed plaintiff that "similar conduct in the future" will result in "adverse action against" plaintiff. (Id. ¶ 109.)

Plaintiff alleges that he "refused to accept" the Memorandum of Instruction from Jang. (Id. ¶ 150.) Plaintiff alleges that Hayashida told Jang to "place it on" plaintiff's desk instead. (Id. ¶ 150.) Plaintiff alleges that the Memorandum of Instruction constitutes a "violation of free speech, which is likely to chill the expression of the protected speech of public employees on matters of public concern." (Id. ¶ 109.)

Plaintiff alleges that his employer's "zero tolerance" policy lacks safeguards to ensure protection of plaintiff's First and Fourteenth Amendment rights. (Id. ¶ 102.) Plaintiff alleges that his employer's "classification scheme" for defining "adverse employment actions" does not "adequately protect employees' property interest[s] in their employment" because it is insufficient to grant "full procedural due process rights" only upon "adverse employment actions which contemplate[] a suspensive of five days or more." (Id. ¶ 113.) Plaintiff alleges that his employer purposefully gave him a "warning" rather than a suspension so as to avoid having to comply with "due process" requirements. (Id. ¶ 114.)

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