Morrow v. City of Oakland

• Decision Date: 03 February 2012
• Docket Number: No. C 11-02351 LB,C 11-02351 LB
• Parties: FRANK MORROW, Plaintiff, v. CITY OF OAKLAND, et al., Defendants.
• Court: U.S. District Court — Northern District of California

FRANK MORROW, Plaintiff,

v.CITY OF OAKLAND, et al., Defendants.

No. C 11-02351 LB

UNITED STATES DISTRICT COURT Northern District of California Oakland Division

Dated: February 3, 2012

ORDER GRANTING DEFENDANTS' MOTION TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT

[Re: ECF Nos. 12, 17]

INTRODUCTION

On May 12, 2011, pro se plaintiff Frank Morrow sued the City of Oakland, California ("City of Oakland") and eleven individuals (the "Individual Defendants") (collectively, "Defendants") for violation of state and federal law in relation to his employment as an Oakland police officer. See Original Complaint, ECF No. 1.¹ On September 14, 2011, Mr. Morrow filed a First Amended Complaint. First Amended Complaint ("FAC"), ECF No. 6. On December 5, 2011, Defendants who had been served filed a motion to dismiss Mr. Morrow's First Amended Complaint. Motion to Dismiss ("MTD"), ECF No. 12. Two other Defendants subsequently joined the motion. Joinder, ECF No. 17. Upon consideration of the moving papers and applicable law and the parties' arguments at the February 2, 2012 motion hearing, the court GRANTS Defendants' motion todismiss.

BACKGROUND

This lawsuit is the fourth in a series of related actions. In the first lawsuit, Castaneda v. City of Oakland, No. C02-05358 MHP, filed on May 16, 2001, Mr. Morrow was accused by a member of the public - Ms. Castaneda - of inappropriate conduct during the course of her arrest. Wilson Declaration, Ex. A, ECF No. 13-1. The lawsuit settled on March 31, 2004 after a settlement conference with Magistrate Judge Zimmerman. See Castaneda v. City of Oakland, No. C02-05358 MHP, ECF No. 47 ("April 1, 2004 Minute Entry").

In the second lawsuit, Morrow v. City of Oakland, No. C04-000315 MHP ("Morrow I"), filed on February 11, 2004 (while Castaneda was still pending), Mr. Morrow alleged under 42 U.S.C. 1983 and 1985 that the City of Oakland's and numerous local officials' handling of the internal investigation surrounding Ms. Castaneda's allegations violated his First Amendment right to free speech, Fourth Amendment right to be free from unreasonable search and seizures, and Fourteenth Amendment right to equal protection. Wilson Declaration, Ex. B, ECF No. 13-2 ("Morrow I Complaint"). He also brought nine state law causes of action. Id. Morrow I settled on April 20, 2004 pursuant to a written agreement. Wilson Declaration, Ex. C, ECF No. 13-3 ("April 20, 2004 Settlement Agreement"). The April 20, 2004 Settlement Agreement released "defendants CITY OF OAKLAND . . . and their respective agents [and] attorneys" from liability for claims arising out of or related to either Castaneda or Morrow I. Id. at 5.

In the third lawsuit, Morrow v. City of Oakland, No. C05-00270 MHP ("Morrow II"), filed on January 18, 2005, Mr. Morrow alleged several additional Constitutional violations under 42 U.S.C. 1983, including that the City of Oakland and its attorneys denied his First Amendment right to freedom of speech, his Fourteenth Amendment right to due process, and his Fourteenth Amendment right to equal protection. Wilson Declaration, Ex. D, ECF No. 13-4 ("Morrow II Complaint"). He also alleged seven state law torts, including abuse of process, intentional infliction of emotional distress, defamation, and fraud. Id. Judge Patel, who presided over Castaneda and Morrow I as well, dismissed Mr. Morrow's federal claims because they were barred by res judicata and the April 20, 2004 Settlement Agreement, and she declined to exercise supplemental jurisdiction over his statelaw claims. Wilson Declaration, Ex. E, ECF No. 13-5 ("Judge Patel's Order of Dismissal"). Her order was later affirmed by the Ninth Circuit Court of Appeals. Wilson Declaration, Ex. F, ECF No. 13-6.

In the fourth lawsuit, Morrow v. City of Oakland, No. RG06250127 (Alameda County Sup. Ct.) ("Morrow III"), filed in state court on January 10, 2006, Mr. Morrow alleged violations of his state constitutional rights, ineffective assistance of counsel, fraud, abuse of process, and negligent and intentional infliction of emotional distress. Wilson Declaration, Ex. G, ECF No. 13-7 ("Morrow III Complaint"). The state court dismissed all of Mr. Morrow's claims with prejudice. Wilson Declaration, Ex. H, ECF No. 13-8. The lower court's decision was later affirmed by the California Court of Appeals. Wilson Declaration, Ex. I, ECF No. 13-9.

The instant action, filed on May 12, 2011, is the fifth lawsuit. See Original Complaint, ECF No. 1. This time, Mr. Morrow has named as defendants the City of Oakland, along with the former Oakland City Attorney (John Russo), an attorney in the City Attorney's Office (Vicki Laden), three former Chiefs of the Oakland Police Department (Wayne Tucker, Howard Jordan, and Anthony Batts), a Deputy Chief of the Oakland Police Department (Jeffrey Israel), three Oakland Police Department lieutenants (Sean Whent, Chris Shannon, and Donna Hoppenhauer), and the former manager and the Principal Employee Analyst of the Oakland Equal Opportunities Program (Donald Jeffries and Jo Anne Sommerville, respectively). First Amended Complaint ("FAC"), ECF No. 6. He has brought federal claims for violation of (1) his Fourteenth Amendment right to due process, (2) Title VII of the Civil Rights Act of 1964, as amended ("Title VII"), 42 U.S.C. § 2000e et seq. (for race discrimination, retaliation, and a hostile work environment), and (3) under 42 U.S.C. §§ 1981 (for race discrimination), 1983 (for a pattern or practice of violating his Fourteen Amendment right to due process and for failure to train and discipline in that regard), 1985 (for conspiracy to violate his Fourteenth Amendment right to due process), and 1986 (for negligently failing to prevent the conspiracy to violate his Fourteenth Amendment right to due process). Id. He also brought state law claims for violation of California's Fair Employment and Housing Act ("FEHA"), Cal. Govt Code §§ 12900-12996, and for negligent and intentional infliction of emotional distress. Id. All of the claims are brought against some number of the Individual Defendants, except that the City ofOakland is also named in Mr. Morrow's Title VII claim for a hostile work environment and his state law claims. Id.

At a high level, the factual allegations in Mr. Morrow's First Amended Complaint (which currently is the operative complaint in this action) can be summarized as follows:

• The City of Oakland's investigation of the complaint at issue in Castaneda was flawed and the City Attorney's Office refused to help him "restore his due process rights in order to protect his proprietary interest in his employment." This "conspiracy" between the Oakland Police Department, its Employee Relations Office, and City Attorney's Office decision-makers "prevented [Mr. Morrow] from challenging [Ms.] Castaneda's false allegations," and "compelled" him to file Morrow I and Morrow II. See FAC, ECF No. 6 at 7-8, ¶¶ 25-33.

•In Morrow III, the City Attorney's Office filed a cross-complaint against him to recover its attorneys' fees and costs "to retaliate against him because of his engagement in protected [activities] and his reports of corruption, fraud, waste, and abuse within [it]." See FAC, ECF No. 6 at 9-11, ¶¶ 34-42.

• In January 2004, Mr. Morrow "was compelled to take medical leave due to stress caused by the City's acts of racial discrimination and retaliation." When he was cleared to return to work in January 2005, the City of Oakland, colluding with Ms. Laden, Mr. Russo, Mr. Tucker, and other Oakland Police Department and City Attorney's Office officials, refused to follow his doctor's recommended accommodation that Mr. Morrow not work under the supervision of any individual defendants named in Morrow I. Thus, Mr. Morrow went on "no pay" status and filed for medical retirement. His medical retirement request was denied in November 2005. As a result, on January 27, 2006, Mr. Morrow filed a complaint with "FEHA" and requested an administrative appeal from the California Office of Administrative Hearings. See FAC, ECF No. 6 at 12-15, ¶¶ 46-64.

• Mr. Morrow filed another complaint with "FEHA" on November 24, 2006. The complaint alleged that, after Mr. Morrow returned to work on April 10, 2006, his "patrol watch commander" "openly disagreed" with his doctor's recommended accommodation and "repeatedly disregarded it by intentionally placing [Mr. Morrow] in the direct chain ofcommand" of named defendants in Morrow I, despite alternative placements being available. On April 30, 2007, "FEHA" notified him that it was filing discrimination and retaliation charges on his behalf. And on August 28, 2007, the "EEOC" also sent him a right-to-sue letter concerning his November 24, 2006 "FEHA" complaint. Fearing retaliation, however, he did not file suit. See FAC, ECF No. 6 at 15-17, ¶¶ 65-71.

• In July 2006, Mr. Israel ordered Mr. Morrow to appear in front of the Citizen's Police Review Board regarding a "frivolous" citizen complaint. After hearing from Mr. Morrow's legal counsel, the Oakland Police Department rescinded the order a week later. See FAC, ECF No. 6 at 17, ¶¶ 72-73

• On May 22, 2007, a "mentally ill crack cocaine addict" made a complaint against Mr. Morrow. Thereafter, without even talking to Mr. Morrow, an unidentified "[Internal Affairs Department] investigator" made an "adverse" finding against him. Mr. Morrow then filed a grievance regarding the handling of the complaint. According to Mr. Morrow, Oakland Police Department "managers" "acknowledged he was correct about violations," but nevertheless refused to "advance" his grievance. See FAC, ECF No. 6 at 17-18, ¶¶ 74-76.

• In August 2007, in retaliation for his previous complaints and legal actions, Mr. Israel denied Mr. Morrow a transfer to the Criminal Investigative Division of the Oakland Police Department, despite his seeking a transfer since 2002, while a white male was transferred instead. Thereafter, in November 2007, Mr. Morrow filed a grievance with the Oakland Police Department and a

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