Hernandez v. City of Phx.
| Decision Date | 27 August 2020 |
| Docket Number | No. CV-19-05365-PHX-MTL,CV-19-05365-PHX-MTL |
| Citation | 482 F.Supp.3d 902 |
| Parties | Juan HERNANDEZ, et al., Plaintiffs, v. CITY OF PHOENIX, et al., Defendants. |
| Court | U.S. District Court — District of Arizona |
Steven James Serbalik, Steven J. Serbalik PC, Scottsdale, AZ, for Plaintiffs.
Stephen Barry Coleman, Pierce Coleman PLLC, Scottsdale, AZ, for Defendants.
Pending before the Court is Defendants the City of Phoenix, Chief of Police Jeri Williams, and Commander Shane Disotell's (collectively, "Defendants") Motion to Dismiss Plaintiffs Juan Hernandez ("Hernandez"), Mark Schweikert ("Schweikert"), and the Arizona Conference of Police and Sheriffs’ ("AZCOPS"; collectively, "Plaintiffs") First Amended Complaint ("FAC"). (Doc. 48). Plaintiffs have responded, (Doc. 54), and Defendants have replied, (Doc. 55). The Court now rules on the motion.
Hernandez and Schweikert are two Phoenix police officers and members of the AZCOPS organization, which is "dedicated to fair representation of law enforcement officers around the State of Arizona." (Doc. 47-1 at 3). Claiming that the Phoenix Police Department's (the "Department") Social Media Policy (the "Policy") abridges their freedom of speech, the three seek an injunction to prevent the Department from enforcing the Policy in addition to money damages for the alleged deprivation of their constitutional rights. (Id. at 16).
As the Court explained in its prior order, Hernandez faces potential discipline for violating the Policy. (Doc. 36 at 3–5). The alleged violations center around four Facebook posts from 2013 and 2014 that came to the Department's attention when the Plain View Project, a group that maintains a database of police officer's social media posts in furtherance of "a national dialogue about police," publicized them and other posts in 2019. (Id. at 4; Doc. 47-1 at 5 (quotations omitted)). The publicized posts for which Hernandez faces discipline are:
modestly and earthquakes.
(4) January 9, 2014: Article entitled "Military Pensions Cut, Muslim Mortgages Paid by US!"
(Doc. 36 at 2–3). The release of Hernandez and other officers’ social media posts resulted in negative media attention from several local news outlets. (Doc. 48-1 at 3 (collecting stories)). Soon after, the Department launched an investigation, led by Commander Disotell, that concluded Hernandez violated the following provision of the Policy:
Department personnel are free to express themselves as private citizens on social media sites to the degree that their speech does not impair working relationships of this Department, are detrimental to the mission and functions of the Department, that [sic] undermine respect or public confidence in the Department, cause embarrassment to the Department or the City, discredit the Department or City, or undermine the goals and mission of the Department or City.
(Id. at 9). Commander Disotell's report concluded that Hernandez had violated this provision of the Policy because the "overwhelming media coverage" following the Plain View Project's release of the posts "resulted in major reputation damage to the ... Department," "could potentially spread fear and hatred towards people of Middle Eastern descent, as well as those practicing the Muslim faith," had eroded public trust in the police, and would make presenting in-court testimony more complicated. (Doc. 48-1 at 9). Accordingly, the report recommended referral to the Department's Disciplinary Review Board. (Id. at 10).
Before his disciplinary review hearing could take place, Hernandez and AZCOPS filed a complaint and a motion for a preliminary injunction in this Court to stave off any potential discipline, asserting that the Policy was unconstitutional on its face and as-applied to Hernandez. (Docs. 1 & 12). In ruling on that motion, as relevant here, the Court concluded that Plaintiffs had not shown a likelihood of success on the merits for their as-applied challenge at that stage because the four posts that the Department concluded had violated the Policy did not touch on matters of public concern and, even assuming that they did, Defendants’ interest in regulating Hernandez's speech outweighed his interest in speaking it. (Doc. 36 at 6). As for Plaintiffs’ facial challenge, which sought to enjoin enforcement of the entire Policy to vindicate the rights of AZCOPS members, the Court concluded that Plaintiffs had also not shown a likelihood of success on the merits because the Policy was "limited to speech that would interfere with the work duties of the employee or the operation of the Department." (Id. at 20). Therefore, the Court denied Plaintiffs’ motion for a preliminary injunction.
Plaintiffs have since filed an amended complaint to add Schweikert as a party. (Doc. 47). Although Schweikert does not face any impending discipline, he alleges that the mere existence of the Policy has caused him to "limit[ ] his commentary on politics, religion, and [other] newsworthy topics ... because he fears that Defendants will take disciplinary action against him." (Doc. 54 at 2). The pending motion to dismiss under Federal Rule of Civil Procedure ("Rule") 12(b)(6) soon followed.
When a claim either lacks a cognizable legal theory or alleges insufficient facts under a cognizable legal theory, the Court must grant a motion to dismiss for failure to state a claim. Balistreri v. Pacifica Police Dep't , 901 F.2d 696, 699 (9th Cir. 1990). Only a complaint that satisfies Rule 8(a)(2)’s requirement of "a short and plain statement of the claim showing that the pleader is entitled to relief," will survive a Rule 12(b)(6) motion. Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Although Rule 8 "does not require ‘detailed factual allegations,’ " it requires "more than an unadorned, the defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ). In other words, the complaint must plead sufficient facts to "state a claim for relief that is plausible on its face." Id. (quoting Twombly , 550 U.S. at 570, 127 S.Ct. 1955 ). A complaint shows facial plausibility when it pleads factual content that allows a court to draw reasonable inferences as to the defendant's liability. Id. But when "a complaint pleads facts that are ‘merely consistent with’ a defendant's liability, it ‘stops short of the line between possibility and plausibility of ‘entitlement to relief.’ " Id. (quoting Twombly , 550 U.S. at 557, 127 S.Ct. 1955 ). In sum, "the pleading must state ‘enough fact[s] to raise a reasonable expectation that discovery will reveal evidence of [the misconduct alleged]." Cafasso v. Gen. Dynamics C4 Sys., Inc. , 637 F.3d 1047, 1055 (9th Cir. 2011) (alterations in original) (quoting Twombly , 550 U.S. at 556, 127 S.Ct. 1955 ).
In ruling on the motion, the Court must accept as true all well-pleaded factual allegations. Iqbal , 556 U.S. at 679, 129 S.Ct. 1937. Pleadings that offer no more than legal conclusions, however, are not entitled that assumption. Id.
Before turning to the grounds raised in Defendants’ motion to dismiss, the Court must note that Defendants’ reply brief argues for the first time that the FAC does not adequately plead that the Policy is void for vagueness. (Doc. 55 at 7–9). "It is well established in this circuit that courts will not consider new arguments raised for the first time in a reply brief." Surowiec v. Capital Title Agency, Inc. , 790 F. Supp. 2d 997, 1002 (D. Ariz. 2011) (quoting Bach v. Forever Living Prods. U.S., Inc. , 473 F. Supp. 2d 1110, 1122 n.6 (W.D. Wash. 2007) ). Because Defendants waited until the reply brief to raise this issue, they have deprived Plaintiffs of any opportunity to respond. Therefore, the Court will not consider this argument.
In addition, Defendants’ motion sought dismissal of what it described as "several vague references to alleged violations of procedural due process during the City's investigation of Hernandez's conduct." (Doc. 48 at 15). In their response, Plaintiffs stated that "[t]he lack of due process is actionable as it relates to Plaintiffs’ free speech claims." (Doc. 54 at 11 n.7). Reviewing the allegations in the FAC confirms that Plaintiffs have not raised a separate due process claim; instead, their assertions that Defendants’ followed an improper process in disciplining Hernandez all relate to their free speech claims. (E.g. , Doc. 47-1 at 12 ¶ 79). Thus, the Court will not address Defendant's arguments that Plaintiffs has not sufficiently pleaded a procedural due process claim, because the FAC has not raised any such claim.1
The Court first addresses Defendants’ contention that Hernandez's as-applied challenge is barred by the law of the case. (Doc. 48 at 4). Specifically, Defendants assert that the Court's decision on the legal question whether Hernandez's Facebook posts touched on a matter of public concern at the preliminary injunction...
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