Neveu v. City of Fresno

• Decision Date: 15 July 2005
• Docket Number: No. 104CV06490OWWLJO.,104CV06490OWWLJO.
• Citation: 392 F.Supp.2d 1159
• Court: U.S. District Court — Eastern District of California
• Parties: Michael NEVEU, Plaintiff, v. CITY OF FRESNO, a municipality; Jerry Dyer, individually; Michael Guthrie, individually; Greg Garner, individually; Darrel Fifield, individually; Marty West, individually; Roger Enmark, individually; and Does 1 through 10, Defendants.

392 F.Supp.2d 1159

Michael NEVEU, Plaintiff, v. CITY OF FRESNO, a municipality; Jerry Dyer, individually; Michael Guthrie, individually; Greg Garner, individually; Darrel Fifield, individually; Marty West, individually; Roger Enmark, individually; and Does 1 through 10, Defendants.

No. 104CV06490OWWLJO.

United States District Court, E.D. California.

July 15, 2005.

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Michael Alan Morguess, Lackie and Dammeier LLP, Upland, CA, for Plaintiff.

Joseph D. Rubin, Betts & Wright, Francine Marie Kanne, Fresno City Attorney's Office, Fresno, CA, for Defendants.

MEMORANDUM DECISION AND ORDER RE DEFENDANTS'

(1) MOTION TO DISMISS PURSUANT TO FED. R. CIV. P. 2(b)(6);

(2) MOTION FOR A MORE DEFINITE STATEMENT PURSUANT TO FED. R. CIV. P. 12(e); AND

(3) MOTION TO STRIKE PORTIONS OF THE SECOND AMENDED COMPLAINT PURSUANT TO FED. R. CIV. P. 12(f).

WANGER, District Judge.

I. INTRODUCTION

This is a civil rights action by a City of Fresno police officer against the City of Fresno ("CITY") and several individual members of the City of Fresno Police Department. Michael Neveu ("Plaintiff') brings a civil rights claim under 42 U.S.C. § 1983 and under two California state "whistleblower" statutes. Defendants CITY OF FRESNO, JERRY DYER, MICHAEL GUTHRIE, GREG GARNER, DARREL FIFIELD, MARTY WEST, and ROGER ENMARK ("Defendants") move to dismiss Plaintiff's Second Amended Complaint. (Doc. 33, Def.'s Mem.). Plaintiff opposes the motion. (Doc. 27, Pl.'s Opp.).

II. PROCEDURAL HISTORY

Plaintiff filed his original Complaint on November 11, 2004.¹ (Doc. 1, Compl.). Plaintiff filed a First Amended Complaint against the same defendants on December 17, 2004. (Doc. 19, First Am. Compl.). The defendants named in the First Amended Complaint moved to dismiss on January 18, 2005. (Doc. 20, Def.'s First Mot.). Plaintiff stipulated to file a Second Amended Complaint on January 28, 2005 (Doc. 22), and filed a Second Amended Complaint on March 4, 2005. (Doc. 23, Second Am. Compl.). The Second Amended Complaint is the operative complaint and it is this complaint that the Defendants now seek to dismiss. (See Doc. 33, Def.'s Mem.).²

Plaintiff opposes Defendants' Motion. (Doc. 27, Pl.'s Opp, filed March 15, 2005). Defendants replied. (Doc. 28, Def.'s Reply). Oral argument was heard on May 23, 2005. Michael A. Morguess, Esq., appeared on behalf of Plaintiff. Joseph D. Rubin, Esq., appeared on behalf of Defendants.

III. SUMMARY OF PLEADINGS

This civil rights action is brought by a Fresno City police officer against the City of Fresno, the Fresno Police Chief, and five individual Fresno City Police officers. Plaintiff brings his § 1983 claim based on an alleged violation of his First Amendment right to freedom of expression. Plaintiff claims he was retaliated against for reporting to his superiors a number of incidents of sexual harassment, racial discrimination, and cheating on police department exams. The allegations in the complaint are taken as true for the purpose of this motion to dismiss.

Plaintiff is and was at all relevant times a Fresno City police officer and has worked as a police officer for Fresno since February 1995. (Doc. 1, Compl. ¶ ¶ 3, 11).

Defendant JERRY DYER is and was during all relevant times the Chief of Police of the City of Fresno. Defendant ROGER ENMARK was at all relevant times Captain and Deputy Chief of the Fresno Police Department. Defendant DARREL FIFIELD was at all relevant times Deputy Chief for the Fresno Police Department. Defendant MICHAEL GUTHRIE was at all relevant times a Lieutenant for the Department. Defendants MARTY WEST and GREG GANER were at all relevant times Captains for the Department. (Id. at ¶ ¶ 4-8).

Plaintiff alleges that Defendants retaliated against him for having reported sexual misconduct and racial discrimination to the Internal Affairs and Human Resources Departments of the Fresno Police Department, and for having testified at an investigatory hearing that cheating was occurring on Fresno Police Department promotional exams. Plaintiff alleges two adverse employment actions. The first is that from June 1997 through December 2002, Defendants failed to promote him despite his high qualifications. The second is that, in March 2004, Defendants placed Plaintiff on administrative leave and required Plaintiff to undergo psychological examinations to determine his fitness for duty. Despite the recommendations of three psychologists that he was fit for duty, Defendants refused to reinstate him to duty in July 2004.³

Plaintiff began working for the Fresno Police Department in 1995. (Doc. 1, Second Am. Compl. ¶ 11). Plaintiff alleges that he "has never scored anything below `exceeds expectations' on [his] evaluations ...." (Id. at ¶ 13). Plaintiff alleges that he "has had only one incident of discipline in his personnel record spanning his career." (Id. at ¶ 14).

Plaintiff asserts he was retaliated against for four protected First Amendment activities. First, Plaintiff reported to Police Department Internal Affairs Investigators alleged sexual misconduct by a Richard Mata, who was a police department official who was "suspended due to allegations of sexual molestation" and was "investigated for sexual intimacy and improper behavior towards a teenage girl." (Id. at ¶ 16). On or about July 16, 1996, Plaintiff was transferred from patrol to the post of "Explorer Post Advisor," the position from which Richard Mata had been suspended. Plaintiff alleges that unidentified Internal Affairs investigators instructed him to report directly to them any additional information relating to Richard Mata. In July 1996, Plaintiff learned of "administrative improprieties that appeared designed to foster opportunities for further sex crimes" and reported these in writing to Internal Affairs. (Id. at ¶ ¶ 21, 23). In or around August 1996, after he submitted the report, Defendant WEST "ordered [Plaintiff] not to put any information he obtained regarding the Mata allegations in writing, and to only verbally report it to [Plaintiff's immediate supervisors]." (Id. at ¶ 27). According to Plaintiff, Internal Affairs had instructed him not to report any information regarding Mata to his immediate supervisors, even if they instructed him to do so. Plaintiff "refused to follow WEST'S order and reiterated that he was going to do exactly as Internal Affairs and Chief Winchester ordered." (Id. at ¶ 28).

Second, Plaintiff alleges that "[o]n or around December 23, 1996, [Plaintiff] documented and reported to [his immediate supervisors] racial harassment of Southeast Asian Explorers by Police Activity League volunteers...." (Id. at ¶ 29). One of Plaintiffs immediate supervisors (not a named defendant) advised him that "Plaintiff should not have documented the racial harassment because it caused staff at the Police Activity league to become upset, including retired Deputy Chief Lee Piscola, and that `pissing off a retired Chief is a bad career move.'" (Id.).

Third, Plaintiff alleges that "[o]n or around December, 1996, [Plaintiff] submitted an extensive end of the year report documenting potentially embarrassing or troubling incidents involving [his immediate supervisors], including the `banking' of overtime hours, which were unlawfully denied to [Plaintiff]." (Id. at ¶ 30). Furthermore, Plaintiff alleges that Defendant WEST prevented the report from reaching Chief Winchester's office. (Id.).

Fourth, Plaintiff alleges that in or about March 2002, he testified at an administrative hearing that cheating occurred on Department promotional exams. On or around March 2001, a new promotional testing system for the promotion to the rank of Sergeant was implemented by Chief DYER. (Id. at ¶ ¶ 32-34). According to Plaintiff, the system was created at the request of Defendants GARNER AND ENMARK. However, after the new system was implemented, some of the candidates complained that the system was "tainted and therefore inaccurate." (Id. at ¶ 34). The complaints resulted in a hearing that took place before the Civil Service Commission in February/March 2002. (Id.). Plaintiff he informed attorneys handling the hearing "that some promotional candidates were unlawfully given the answers prior to taking the ... promotional exam." The day after Plaintiff reported this information to the attorneys, Defendant GARNER "brought [Plaintiff] into his office, confronted [Plaintiff] in a hostile manner and stated words to the effect that `Yesterday I spent the better part of the afternoon on the stand getting my [a* *] chewed off and I only kept wondering one thing — why your name had come up as a witness.'" (Id. at ¶ 36). Moreover, Plaintiff alleges that "[i]n an attempt to discredit NEVEU's testimony, Captain GARNER advised attorneys handling the hearing that NEVEU was a `crack pot,' `screwball,' and that he had `ethical problems.'" (Id. at ¶ 37). On or about March 12, 2002, Plaintiff, as well as his wife, testified before the hearing "as to the improprieties and outright cheating on in the testing process." (Id. at ¶ 38).

Plaintiff alleges these activities are protected First Amendment activities and that Defendants retaliated against him for engaging in these activities. Plaintiff alleges two separate adverse employment actions. First, he alleges that from approximately June 1997 and December 2002, Defendants WEST, FIFIELD, GUTHRIE, and GANER failed to promote Plaintiff. (Id. at ¶ 41). Plaintiff claims that someone informed him that "at staff meetings, WEST, FIFIELD, GUTHRIE, and GARNER always disapproved of any promotion or selection of NEVEU to ... [a] special unit, despite NEVEU's record and commendations." (Id.). Furthermore, Plaintiff alleges that these Defendants denied the promotions because of reporting the Mata allegations, the alleged racial harassment, the "banking" of overtime hours, and testifying before the Civil...