Morrow v. Oakland

• Decision Date: 12 June 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 San Francisco Division

Dated: June 12, 2012

ORDER (1) DENYING PLAINTIFF'S MOTION TO STAY CASE AND (2)

GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION

TO DISMISS PLAINTIFF'S SECOND AMENDED COMPLAINT

[Re: ECF Nos. 39, 46]

INTRODUCTION

On May 12, 2011, pro se plaintiff Frank Morrow sued the City of Oakland, California ("City of Oakland") and numerous individuals (the "Individual Defendants") (collectively, "Defendants") for violations of state and federal law in relation to his employment as an Oakland police officer. See Original Complaint, ECF No. 1.¹ The court dismissed his First Amended Complaint on February 3, 2012, and Mr. Morrow filed a Second Amended Complaint on February 17, 2012. Second Amended Complaint ("SAC"), ECF No. 38; see First Amended Complaint ("FAC"), ECF No. 6; 2/3/2012 Order, ECF No. 35. On March 8, 2012, Defendants filed a motion to dismiss Mr. Morrow's Second Amended Complaint. Motion to Dismiss SAC, ECF No. 39. Plaintiff then filed a motion to stay the case. Motion to Stay, ECF No. 46. Upon consideration of the moving papers and applicable law,and the parties' arguments at the June 7, 2012 motion hearing, the court DENIES Plaintiff's motion to stay and GRANTS IN PART and DENIES IN PART Defendants' motion to dismiss.

BACKGROUND

As the court described in its order dismissing Mr. Morrow's First Amended Complaint, this lawsuit is the fourth in a series of related actions. In the first lawsuit, Castaneda v. City of Oakland, No. C02-05358 MHP, which was filed in state court on May 16, 2001 and removed to federal court on November 8, 2011, 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 emotionaldistress, 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 state law 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. See Morrow v. City of Oakland, 200 Fed. Appx. 644, 645-46, 2006 WL 2472190, at *1 (9th Cir. 2006).

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, defamation, 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 ("Superior Court Order Sustaining Demurrer"). The lower court's decision was later affirmed by the California Court of Appeals. Morrow v. City of Oakland, 2007 WL 2677288, at *4 (Cal. Ct. App. 1st Dist. 2007).

The instant action, filed on May 12, 2011, is the fifth lawsuit. See Original Complaint, ECF No. 1. This time, Mr. Morrow 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). SAC, ECF No. 38 at 3-5, ¶¶ 8-18.² He has brought federal claimsfor violations of 42 U.S.C. § 1981 (for retaliation and a hostile work environment) and his Fourteenth Amendment right to due process. Id. at 35-38, ¶¶ 176-86. He also brought state law claims for violation of California's Fair Employment and Housing Act ("FEHA"), Cal. Govt Code §§ 12900-12996 (for harassment, failure to prevent discrimination, and retaliation) and of California Labor Code § 1102.5 (for retaliation). Id. at 38-40, ¶¶ 187-94.

At a high level, the factual allegations in Mr. Morrow's Second Amended Complaint³ can be summarized as follows:

• The City of Oakland's investigation of the complaint at issue in Castaneda was flawed, and its result - a finding that her allegations were "not sustained" - "unnecessarily impugned guilt upon [Mr. Morrow] and lent credibility to her false allegation[s]." In addition, the City "conspired" with others "to prevent [Mr. Morrow] from exercising his contractual, as well as state and federally protected rights to receive an impartial administrative due process name[-] clearing hearing." See SAC, ECF No. 38 at 5-10, ¶¶ 23-50.

• Judge Patel forced Mr. Morrow to settle Morrow I and illegally used her position to coerce the City into approving the settlement. See id. at 10-17, ¶¶ 51-90.

•In Morrow III, the City Attorney's Office, in violation of the Ninth Circuit's order upholding Judge Patel's order dismissing Morrow II, sought 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. See id. at 21-22, ¶¶ 107-110.

• After returning to work after a medical leave due to stress caused by the City's acts of racial discrimination and retaliation, the City did not provide him with a reasonable accommodation inretaliation for his previous complaints and placed him under the supervision of defendants from his previous lawsuits. On January 27, 2006, Mr. Morrow filed a complaint with "FEHA" "alleging [that the] [C]ity was retaliating against him by not participating in the interactive process due to [his] engagement[] in protected EEO participation. See id. at 18-21, ¶¶ 91-106.

• The City failed to honor its commitments under the April 20, 2004 Settlement Agreement by, among other things, failing "to provide [him] with the $5,000.00 payment [he] was entitled to receive" under the Agreement. See id. at 22-23, ¶¶ 111-15.

• Mr. Morrow filed another complaint with "FEHA" on November 24, 2006. The complaint "concern[ed] Captain Ben Fairow's deliberate disregard of [Mr. Morrow's] physician's recommended accommodation" and repeated placement of Mr. Morrow "under the direct supervision of named defendants in Morrow I, despite alternative placements being available. On April 30, 2007, "FEHA" notified him that it was filing a charge on his behalf. See id. at 2324, ¶¶ 116-20.

• 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 complaint with "EEOC" concerning the transfer. According to Mr. Morrow, the "EEOC filed discrimination and retaliation charges" against the City. See id. at 24-26, ¶¶ 121-31.

• On January 30, 2008, the Oakland Police Department's Internal Affairs Department notified Mr. Morrow that it would investigate all of his discrimination complaints. The assigned investigators (Mr. Whent, Mr. Shannon, and Ms. Hoppenhauer), however, lacked training and failed to properly investigate the complaints, and had conflicts of interest. As a result, on April 25, 2008, Mr. Morrow filed a grievance alleging that the investigation of his discrimination complaints was itself being conducted in a racially discriminatory way. His grievance was denied as untimely. Mr. Morrow alleges that Defendants failed to investigate his grievance as required, failed to participate in mediation to resolve the complaints, and participated in a conspiracy to deny his civil rights and prevent meaningful investigation of his complaints. See id. at 26-31, ¶¶ 132-56.

• On

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