Olivera et al v. Vizzusi et al
Filing
63
MEMORANDUM and ORDER signed by Judge William B. Shubb on 6/9/2011. Defendants' 56 Motion to Dismiss Fourth Amended Complaint in its entirely is GRANTED and plaintiff may NOT file Fifth Amended Complain. Defendants' 57 Motion for Excess Costs, Expenses and Attorney's Fees is DENIED. (Marciel, M)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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----oo0oo---11
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BRANDON OLIVERA and STEVEN
ORTMANN,
NO. CIV. 2:10-1747 WBS GGH
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Plaintiffs,
MEMORANDUM AND ORDER RE:
MOTIONS TO DISMISS AND FOR
COSTS AND ATTORNEY’S FEES
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v.
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BRIAN VIZZUSI; MARK SIEMENS;
CITY OF LINCOLN; CITY OF
ROCKLIN; LINCOLN POLICE
DEPARTMENT; and ROCKLIN POLICE
DEPARTMENT,
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Defendants.
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/
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----oo0oo----
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This case is before the court on defendants1 Mark
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The Fourth Amended Complaint (“FAC”) includes claims
against Brian Vizzusi, City of Lincoln, Lincoln Police
Department, and Rocklin Police Department. As the court
previously explained, these defendants are not proper defendants
because either they have been voluntarily dismissed with
prejudice or are not “persons” under 42 U.S.C. § 1983. See
Olivera v. Vizzusi, No. CIV. 2:10–1747, 2011 WL 1253887, at *1
n.1-2 (E.D. Cal. Mar. 31, 2011).
1
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Siemens and City of Rocklin’s motion to dismiss plaintiffs
2
Brandon Olivera and Steven Ortmann’s Fourth Amended Complaint
3
(“FAC”) pursuant to Federal Rule of Civil Procedure 12(b)(6) for
4
failure to state a claim upon which relief can be granted.
5
Defendants have also filed a motion for costs and attorney’s fees
6
pursuant to 42 U.S.C. § 1988 and 28 U.S.C. § 1927.
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I.
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9
Factual and Procedural Background
The parties are familiar with the general facts and the
court will refrain from reciting them in full.
A recitation of
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the facts can be found in the court’s prior decisions.
11
Olivera v. Vizzusi, No. CIV. 2:10–1747, 2011 WL 1253887 (E.D.
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Cal. Mar. 31, 2011); Olivera v. Vizzusi, No. 2:10-1747, 2011 WL
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219592 (E.D. Cal. Jan. 19, 2011); Olivera v. Vizzusi, No.
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2:10-1747, 2010 WL 4723712 (E.D. Cal. Nov. 15, 2010).
15
See
In short, when plaintiffs were employed as police
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officers for Rocklin Police Department in 2003, they were
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intoxicated while off duty and ultimately arrested one evening,
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resulting in an internal affairs investigation and report (“IA
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report”) authored by Brian Vizzusi.
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completion of the investigation and IA report about the incident,
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Vizzusi, as Chief of Police for Lincoln Police Department,
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disclosed the IA report and made oral and written statements
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about the IA report to members of that police department,
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allegedly for no apparent reason.
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In 2007, long after
The FAC alleges that defendant Siemens “authorized,
26
permitted, or otherwise allowed VIZZUSI to obtain and maintain a
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copy of Plaintiffs’ personnel records and personal information”
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after ending his employment with City of Rocklin and Rocklin
2
1
Police Department.
2
allegedly stated that he had “received permission” from Siemens
3
“to distribute Plaintiffs’ personnel records to members of the
4
LINCOLN PD.”
5
(FAC ¶ 32 (Docket No. 55).)
Vizzusi
(Id. ¶ 28.)
In their FAC, plaintiffs assert four claims under 42
6
U.S.C. § 1983 for violations of procedural due process,
7
substantive due process, equal protection rights, and the Fourth
8
Amendment,2 as well as numerous state law claims.3
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II.
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Discussion
A.
Motion to Dismiss
To survive a motion to dismiss, a plaintiff must plead
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“only enough facts to state a claim to relief that is plausible
13
on its face.”
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(2007).
15
than a sheer possibility that a defendant has acted unlawfully,”
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Ashcroft v. Iqbal, --- U.S. ----, ----, 129 S. Ct. 1937, 1949
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(2009), and “[w]here a complaint pleads facts that are ‘merely
18
consistent with’ a defendant’s liability, it ‘stops short of the
19
line between possibility and plausibility of entitlement to
20
relief.’”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
This “plausibility standard,” however, “asks for more
Id. (quoting Twombly, 550 U.S. at 557).
In deciding
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2
While the Fourth Amendment claim is brought against
both defendants, the court previously granted qualified immunity
to Siemens and afforded plaintiffs leave to allege only Monell
liability on this claim. See Olivera, 2011 WL 1253887, at *8,
*11.
3
As the court previously denied defendants’ motion to
dismiss many of the state law claims, see Olivera, No. 2:10-1747,
2010 WL 4723712, at *4 (E.D. Cal. Nov. 15, 2010), defendants do
not move to dismiss these claims pursuant to Rule 12(b)(6). To
the extent the court dismisses the federal claims, defendants
urge the court to decline to exercise supplemental jurisdiction
pursuant to 28 U.S.C. § 1367(c)(3).
3
1
whether a plaintiff has stated a claim, the court must accept the
2
allegations in the complaint as true and draw all reasonable
3
inferences in favor of the plaintiff.
4
U.S. 232, 236 (1974), overruled on other grounds by Davis v.
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Scherer, 468 U.S. 183 (1984); Cruz v. Beto, 405 U.S. 319, 322
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(1972).
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1.
In relevant part, § 1983 provides:
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Section 1983 Claim for Violation of Procedural Due
Process
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Scheuer v. Rhodes, 416
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State . . . ,
subjects, or causes to be subjected, any citizen of the
United States . . . to the deprivation of any rights,
privileges, or immunities secured by the Constitution and
laws, shall be liable to the party injured in an action
at law, suit in equity or other proper proceeding for
redress . . . .
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42 U.S.C. § 1983.
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substantive rights; it provides a cause of action against any
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person who, under color of state law, deprives an individual of
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federal constitutional rights or limited federal statutory
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rights.
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Section 1983 itself is not a source of
Id.; Graham v. Connor, 490 U.S. 386, 393-94 (1989).
“A threshold requirement to a substantive or procedural
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due process claim is the plaintiff’s showing of a liberty or
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property interest protected by the Constitution.”
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of Cal., Inc. v. City of Phoenix, 24 F.3d 56, 62 (9th Cir. 1994).
24
A protected property interest giving rise to a procedural due
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process claim generally requires that the “individual has a
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reasonable expectation of entitlement deriving from existing
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rules or understandings that stem from an independent source such
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as state law.”
Id.
Wedges/Ledges
“A reasonable expectation of entitlement is
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1
determined largely by the language of the statute and the extent
2
to which the entitlement is couched in mandatory terms.”4
3
(quoting Assoc. of Orange Cnty. Deputy Sheriffs v. Gates, 716
4
F.2d 733, 734 (9th Cir. 1983)) (internal quotation marks
5
omitted).
6
created by ‘an independent source such as state law,’ federal
7
constitutional law determines whether that interest rises to the
8
level of a ‘legitimate claim of entitlement’ protected by the Due
9
Process Clause.”
Id.
“Although the underlying substantive interest is
Memphis Light, Gas & Water Div. v. Craft, 436
10
U.S. 1, 9 (1978) (quoting Bd. of Regents of State Colleges v.
11
Roth, 408 U.S. 564, 577)).
12
Here, the FAC is not clear on the alleged property
13
interest.
Plaintiffs may be attempting to allege a property
14
interest in records and information, the continued
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confidentiality of records and information, or the expungement of
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records after five years.
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stated that the alleged property interest is the continued
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confidentiality of records and information.
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their property interest on California’s Public Safety Officers
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Procedural Bill of Rights (permitting officers to inspect their
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personnel files), California Penal Code sections 832.7(a) and
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832.8 (providing that peace officers’ personnel records are
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confidential, subject to limited exceptions), California
At the hearing, plaintiffs’ counsel
Plaintiffs base
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“Although procedural requirements ordinarily do not
transform a unilateral expectation into a protected property
interest, such an interest is created ‘if the procedural
requirements are intended to be a significant substantive
restriction on . . . decision making.’” Wedges/Ledges of Cal.,
Inc. v. City of Phoenix, 24 F.3d 56, 62 (9th Cir. 1994) (quoting
Goodisman v. Lytle, 724 F.2d 818, 820 (9th Cir. 1984)) (omission
in original).
5
1
Government Code section 6254(k) (exempting disclosure of certain
2
records from requests for public records), and a City of Rocklin
3
and Rocklin Police Department policy of expunging certain records
4
after five years.
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6254(k); Cal. Penal Code §§ 832.7(a), 832.8.
6
See Cal. Gov’t Code §§ 3300-3313; id. §
While plaintiffs have cited numerous cases and statutes
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relating to the confidentiality of California peace officers’
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records and information and expungement of records,5 plaintiffs
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have cited no state or federal cases, and the court has found
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none, holding that California peace officers have a property
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interest in records and information, the continued
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confidentiality of records and information, or the expungement of
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records protected by procedural due process.
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When asked at oral argument whether any courts have
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held that the statutes at issue or similar statutes create a
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property interest protected by federal due process, plaintiffs’
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counsel cited McDade v. West, 223 F.3d 1135 (9th Cir. 2000), but
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that case does not assist plaintiffs.
The state law at issue in
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In Pitchess v. Superior Court, 11 Cal. 3d 531, 536
(1974), the California Supreme Court held that a criminal
defendant could compel discovery of certain information in police
officer personnel files by demonstrating good cause. Four years
later, California’s legislature codified the privileges and
procedures surrounding “Pitchess motions” by enacting California
Penal Code sections 832.7 and 832.8 and California Evidence Code
sections 1043 through 1045. See City of Santa Cruz v. Mun. Ct.,
49 Cal. 3d 74, 81 (1989). These statutes create a general
privilege of confidentiality of peace officers’ records and
information with certain exceptions, not limited to criminal and
civil proceedings. See Copley Press, Inc. v. Super. Ct., 39 Cal.
4th 1272, 1284 (2006) (holding that newspaper was not entitled to
records relating to peace officer’s administrative appeal of
disciplinary matter under California Public Records Act); City of
Hemet v. Super. Ct., 37 Cal. App. 4th 1411, 1427 (4th Dist.
1995).
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McDade criminalized malicious disclosures of the locations of
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domestic violence shelters.
3
a constitutional privacy violation, but the court expressly did
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not reach that issue.
5
not before this court, we need not reach the question of whether
6
Ms. West’s disclosure resulted in a deprivation of a
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constitutional right or a federal statutory right for § 1983
8
purposes.”); id. at 1141 (“Even assuming for the moment that the
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precise disclosure violated McDade’s constitutional right to
10
11
Id. at 1139.
The plaintiff alleged
See id. at 1141 n.2 (“Since the issue is
privacy . . . .”).
Plaintiffs’ other cases are also inapposite.
See,
12
e.g., Hudson v. Palmer, 468 U.S. 517, 533 (1984) (holding that
13
intentional destruction of property by state employee does not
14
violate due process if the state provides a meaningful
15
postdeprivation remedy); Bd. of Regents of State Colleges v.
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Roth, 408 U.S. 564, 575, 578 (1972) (holding that university
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employee did not have property or liberty interest in re-
18
employment); Goldberg v. Kelly, 397 U.S. 254, 264 (1970) (holding
19
that property interest existed in welfare benefits and “only a
20
pre-termination evidentiary hearing provides the recipient with
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procedural due process”); Zimmerman v. City of Oakland, 255 F.3d
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734 (9th Cir. 2001) (addressing postdeprivation remedies issue).
23
Many of plaintiffs’ cases address sufficiency of process.
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Because plaintiffs have failed to sufficiently allege a property
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or liberty interest, the court does not reach this issue.
26
Courts have had the greatest occasion to consider the
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effect of state confidentiality laws in the context of the right
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to informational privacy.
For example, the court in Carver v.
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1
Rathlesberger, No. CIVS04-1918 DFL PAN, 2005 WL 3080856 (E.D.
2
Cal. Nov. 11, 2005), addressed a California confidentiality law
3
with respect to complaints against doctors.
4
court dismissed the right to informational privacy claim.
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*3 (“Carver responds that a right of privacy is created by
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California law because it requires the Medical Board to keep
7
confidential the records of complaints against him and to destroy
8
any complaints over five years old that had not been acted on.
9
See Cal. Bus. & Prof. Code § 800.
In that case, the
Id. at
However, even if California
10
law restricts access to complaints against medical doctors, this
11
does not create a constitutional right to privacy in those
12
documents.
It merely provides for a possible state law
13
remedy.”).
That court, however, did not have occasion to
14
consider whether plaintiff stated a procedural due process claim
15
because the court interpreted plaintiff’s complaint as alleging
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only a privacy claim.
17
Id. at *3 n.2.
Federal and state courts outside of California have
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dismissed procedural due process claims based on state
19
confidentiality laws.
20
WL 1598086, at *4 (D. Or. June 1, 2007) (holding that state
21
confidentiality law relating to juvenile records did not create
22
property or liberty interest); Shields v. Shetler, 682 F. Supp.
23
1172, 1175 (D. Colo. 1988) (granting qualified immunity because
24
it was not clearly established that state Open Records Act
25
created property interest in not having personnel records
26
disclosed); Toomer v. Garrett, 155 N.C. App. 462, 476 (2002)
27
(“Under G.S. § 126-22 [(providing that state employees’ personnel
28
files shall not be subject to inspection by public)], plaintiff
See Boyd v. Lake Cnty., No. 04-3095, 2007
8
1
may have a legitimate expectation of continued confidentiality
2
for his state personnel file, but it is not the kind of
3
‘monetizable’ property interest generally protected by procedural
4
due process.”).
5
08-4507, 2009 WL 1911687, at *3 (E.D. Pa. July 2, 2009) (while
6
not addressing whether Pennsylvania law makes peace officers’
7
records confidential, noting that “[t]here also is no authority
8
to support Plaintiffs’ contention they had a property interest in
9
their personnel files”), aff’d, 382 Fed. App’x 158 (3rd Cir.
Cf. Roberts v. Mentzer, Civil Action No.
10
2010).
11
1994 WL 612794, at *3 (E.D. Pa. Nov. 7, 1994) (holding that state
12
law prohibiting disclosure of driving records created “a tenable
13
claim of entitlement to the confidentiality of his driving
14
record”).
15
But see Hammerstone v. Solebury Tp., No. CIV. A. 94-4515,
In assessing whether plaintiffs have sufficiently
16
alleged a property interest protected by procedural due process,
17
the court finds the reasoning of Boyd, 2007 WL 1598086, at *4,
18
instructive.
19
respect to juvenile records:
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22
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25
Boyd addressed an Oregon confidentiality law with
While ORS 419A.255 might create a reasonable expectation
that certain information regarding a juvenile case will
be confidential and will not be disclosed to the public,
it does not appear that that expectation would be a
protected interest under federal constitutional law. The
“entitlement” provided by ORS 419A.255 is not like a
welfare benefit, Goldberg v. Kelly, 397 U.S. 254, 261-62
(1970), or property right in employment, Brady [v.
Gebbie], 859 F.2d 1543 [(9th Cir. 2008)], or other
statutory entitlement traditionally associated with a
protected property interest, and it does not have an
ascertainable monetary value.
26
Id.; see also id. (“The Supreme Court has stated that,
27
traditionally, ‘[] Roth-type property-as-entitlement cases’
28
9
1
implicitly require that the protected property right have a
2
readily ascertainable monetary value.”) (quoting Castle Rock,
3
Colo. v. Gonzalez, 545 U.S. 748, 767 (2005)).
4
plaintiffs had a reasonable expectation with respect to records
5
and information, such an expectation did not rise to the level of
6
a property interest protected by federal procedural due process.
7
Accordingly, the court will dismiss the procedural due process
8
claim to the extent that it relies on the California statutes and
9
City of Rocklin and Rocklin Police Department policy.
10
Here, even if
Plaintiffs appear to also base their procedural due
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process claim on injury to their reputations.
“[R]eputation
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alone, apart from some more tangible interests,” does not
13
constitute “‘liberty’ or ‘property’ by itself sufficient to
14
invoke the procedural protection of the Due Process Clause.”
15
Paul v. Davis, 424 U.S. 693, 694, 701 (1976); see also WMX Techs,
16
Inc. v. Miller, 80 F.3d 1315, 1319 (9th Cir. 1996) (announcing
17
that Paul established a “stigma-plus test”).
18
plus] test, a plaintiff must show the public disclosure of a
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stigmatizing statement by the government, the accuracy of which
20
is contested, plus the denial of ‘some more tangible interest[]
21
such as employment,’ or the alteration of a right or status
22
recognized by state law.”
23
Francisco, 308 F.3d 968, 982 (9th Cir. 2002) (quoting Paul, 424
24
U.S. at 701) (second alteration in original).
25
“loss of future income” or “psychological trauma,” or “conclusory
26
suggestions of the ‘loss of liberty’” are insufficient to meet
27
this burden under the stigma-plus test.
28
ex rel. Bd. of Regents of Nev. Sys. of Higher Educ., 616 F.3d
“Under [the stigma-
Ulrich v. City & Cnty. of San
10
Allegations of
See Krainski v. Nevada
1
963, 971 (9th Cir. 2010) (internal quotation marks omitted in
2
first and second quotations).
3
Plaintiffs, who remain employed as police officers,
4
have not alleged facts from which the court can plausibly infer
5
that they suffered more than harm to their reputations.
6
Accordingly, the court will dismiss the procedural due process
7
claim against Siemens to the extent it relies on the stigma-plus
8
test.
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2.
Section 1983 Claim for Violation of Substantive
Due Process
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For a substantive due process claim, a plaintiff must
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generally “show a government deprivation of life, liberty, or
13
property” that is regarded as “fundamental.”
14
Hansen, 451 F.3d 982, 990-91 (9th Cir. 2006) (quoting Squaw
15
Valley Dev. Co. v. Goldberg, 375 F.3d 936, 948 (9th Cir. 2004)
16
(internal quotation marks omitted).
17
allege a “fundamental” liberty or property interest, the court
18
will dismiss this claim.
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3.
Brittain v.
Because plaintiffs fail to
Section 1983 Claim for Violation of Equal
Protection
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21
The Supreme Court has held that “the class-of-one
22
theory of equal protection has no application in the public
23
employment context” based, in part, on the “common-sense
24
realization that government offices could not function if every
25
employment decision became a constitutional matter.”
26
Or. Dep’t of Agric., 553 U.S. 591, 607 (2008) (quoting Connick v.
27
Myers, 461 U.S. 138, 143 (1983)) (internal quotation marks
28
omitted).
Engquist v.
In amending their complaint, plaintiffs failed to
11
1
allege that they were a part of some “identifiable group,” as is
2
required in a traditional equal protection claim.
3
(quoting Personnel Adm’r of Mass. v. Feeney, 442 U.S. 256, 279
4
(1979).
Id. at 601
Accordingly, the court will dismiss this claim.
5
4.
Monell Liability
6
A city “may not be sued under § 1983 for an injury
7
inflicted solely by its employees or agents.”
Monell v. Dep't of
8
Soc. Servs. of N.Y., 436 U.S. 658, 693 (1978).
“Instead, it is
9
when execution of a government’s policy or custom, whether made
10
by its lawmakers or by those whose edicts or acts may fairly be
11
said to represent official policy, inflicts the injury that the
12
government as an entity is responsible under § 1983.”
13
Plaintiffs bring claims against City of Rocklin for violations of
14
procedural due process, substantive due process, equal protection
15
rights, and the Fourth Amendment.
16
17
18
19
20
21
22
Id.
With respect to plaintiffs’ claim for violation of the
Fourth Amendment, plaintiffs allege:
ROCKLIN and LINCOLN maintained a custom, practice and
policy of allowing the ROCKLIN PD and LINCOLN PD,
respectively, their officers, officials and employees,
including VIZZUSI and SIEMENS, to unlawfully, illegally,
intentionally and willfully seize this property, use this
property, to disclose the private personal information
and private peace officer confidential personnel records
of the Plaintiffs, and other similarly situated
employees, without authorization, permission and/or a
court order.
23
. . .
24
25
26
Defendants also maintained a custom, practice and policy
of disclosing private peace officer confidential
personnel records (property) to third persons, without
authorization, permission and/or a pending court order.
27
(FAC ¶¶ 64, 68.)
Plaintiffs’ procedural due process, substantive
28
due process, and equal protection rights claims contain similar
12
1
2
allegations.
(See id. ¶¶ 76-77, 79, 84-85, 94-97.)
Since Iqbal, such conclusory allegations that merely
3
allege the existence of a custom, practice, or policy without
4
providing facts from which to plausibly infer that such a custom,
5
practice, or policy existed have been repeatedly rejected.
6
Olivera, 2011 WL 1253887, at *10 (citing cases).
7
given the insufficiency of plaintiffs’ conclusory allegations,
8
the court will dismiss the claims against City of Rocklin.
9
5.
See
Accordingly,
Supplemental Jurisdiction
10
Under 28 U.S.C. § 1367(c)(3), a district court may
11
decline to exercise supplemental jurisdiction over state law
12
claims if “the district court has dismissed all claims over which
13
it has original jurisdiction . . . .”
14
For the reasons stated in the court’s previous Order, see
15
Olivera, 2011 WL 1253887, at *11, the court will decline to
16
exercise supplemental jurisdiction over the state law claims.
28 U.S.C. § 1367(c)(3).
17
6.
18
Generally, the “standard for granting leave to amend is
Leave to Amend
19
generous” and the court should not dismiss a complaint without
20
leave to amend if it “could ‘conceive of facts’ that would render
21
plaintiff’s claim viable.”
22
F.2d 696, 701 (9th Cir. 1990) (quoting Scott v. Eversole
23
Mortuary, 522 F.2d 1110, 1116 (9th Cir. 1975)).
24
standard reaches its limits, however, when a plaintiff repeatedly
25
fails to allege sufficient facts.
26
F.3d 386, 393 (9th Cir. 1996).
27
28
Balistreri v. Pac. Police Dep’t, 901
The lenient
See, e.g., Dumas v. Kipp, 90
The court has afforded plaintiffs ample opportunity to
allege a federal claim against Siemens or City of Rocklin.
13
1
Plaintiffs are on their Fourth Amended Complaint and have still
2
failed to allege a sufficient federal claim.
3
circumstances, the court “[cannot] ‘conceive of facts’ that would
4
render plaintiff[s’] claim[s] viable.”
Balistreri, 901 F.2d at
5
701 (quoting Scott, 522 F.2d at 1116).
Accordingly, the court
6
will not give plaintiffs leave to amend.
7
B.
Under the
Motion for Costs and Attorney’s Fees
8
1.
Section 1988
9
Defendants move for attorney’s fees following the
10
court’s previous dismissal with prejudice of the right to
11
informational privacy claim.
12
United States Code authorizes the court, in its discretion, to
13
award a “reasonable” attorney’s fee to the prevailing party in a
14
case brought under 42 U.S.C. § 1983.
15
“prevailing party” is one who succeeds on any significant issue
16
in litigation, achieving some of the benefit sought in bringing
17
the suit, and resulting in a “material alteration of the legal
18
relationship of the parties.”
19
Garland Indep. Sch. Dist., 489 U.S. 782, 792-93 (1989).
20
Section 1988(b) of Title 42 of the
42 U.S.C. § 1988(b).
A
Tex. State Teachers Ass’n v.
While § 1988 makes no such distinction, courts have
21
interpreted the statute to treat a prevailing defendant
22
differently from a prevailing plaintiff; fees are not awarded to
23
a defendant routinely or simply because the defendant succeeded.
24
See Patton v. Cnty. of Kings, 857 F.2d 1379, 1381 (9th Cir.
25
1988).
26
demonstrate that the “plaintiff’s action was frivolous,
27
unreasonable, or without foundation, even though not brought in
28
subjective bad faith.”
To be awarded fees, a prevailing defendant must
Christiansburg Garment Co. v. E.E.O.C.,
14
1
434 U.S. 412, 421 (1978).
2
v. Rowe, 449 U.S. 5, 14 (1980), and the Ninth Circuit repeatedly
3
has recognized that attorney’s fees in civil rights cases “should
4
only be awarded to a defendant in exceptional circumstances.”
5
Saman v. Robbins, 173 F.3d 1150, 1157 (9th Cir. 1999) (quoting
6
Barry v. Fowler, 902 F.2d 770, 773 (9th Cir. 1990)) (internal
7
quotation mark omitted); see also Herb Hallman Chevrolet, Inc. v.
8
Nash-Holmes, 169 F.3d 636, 645 (9th Cir. 1999); Brooks v. Cook,
9
938 F.2d 1048, 1055 (9th Cir. 1991).
10
This standard is “stringent,” Hughes
“An action becomes frivolous when the result appears
11
obvious or the arguments are wholly without merit.”
Galen v.
12
Cnty. of Los Angeles, 477 F.3d 652, 666 (9th Cir. 2007) (citing
13
Christiansburg, 434 U.S. at 422).
14
understandable temptation to engage in post hoc reasoning by
15
concluding that, because a plaintiff did not ultimately prevail,
16
his action must have been unreasonable or without foundation.”
17
Christianburg, 434 U.S. at 421-22.
A court must “resist the
18
Here, the Third Amended Complaint based the right to
19
informational privacy claim on conclusory allegations that the
20
disclosures included “statements about intoxication, sexual view
21
points, sexual orientation, sexual relations, arrest records, and
22
discrimination against third persons,” (Third Am. Compl. (“TAC”)
23
¶ 19 (Docket No. 49)), and allegations about: (1) the specific
24
documents disclosed; (2) plaintiffs’ potentially
25
sexually-suggestive conduct and one’s possible views on sexual
26
orientation; (3) plaintiffs’ alleged intoxication and other
27
conduct; (4) the use of ethnic slurs; and (5) information about
28
plaintiff Olivera’s relationship with his cousin.
15
1
In the previous Order, the court explained that “the
2
allegations in plaintiffs’ TAC either fail to give rise to a
3
cognizable right to informational privacy claim or are still too
4
broad for the court to evaluate.”
5
*5.
6
court cannot find that this claim was “frivolous, unreasonable,
7
or without foundation.”
8
421.
9
974918, at *1 (Apr. 8, 2008) (denying motion for attorney’s fees
10
for right to informational privacy claim based on disclosure of
11
financial information).
12
defendants’ motion for attorney’s fees pursuant to § 1988.
Olivera, 2011 WL 1253887, at
While the court dismissed this claim with prejudice, the
Christiansburg Garment Co., 434 U.S. at
Cf. Mangum v. City of Pocatello, No. CV-05-507, 2008 WL
Accordingly, the court will deny
13
2.
Section 1927
14
Section 1927 provides that “[a]ny attorney . . . who so
15
multiplies the proceedings in any case unreasonably and
16
vexatiously may be required by the court to satisfy personally
17
the excess costs, expenses, and attorneys’ fees reasonably
18
incurred because of such conduct.”
19
the statute requires that counsel multiplied the proceedings
20
vexatiously, “carelessly, negligently, or unreasonably
21
multiplying the proceedings is not enough.”
22
611 F.3d 1027, 1061 (9th Cir. 2010) (adopting in full special
23
master’s report).
24
state a federal privacy claim after filing the initial complaint
25
and three amended complaints, the court cannot conclude that
26
plaintiffs’ counsel’s conduct was vexatious.
27
court will deny defendants’ motion for costs and attorney’s fees
28
pursuant to § 1927.
28 U.S.C. § 1927.
Because
In re Girardi,
While plaintiffs were unable to ultimately
16
Accordingly, the
1
IT IS THEREFORE ORDERED that defendants’ motion to
2
dismiss plaintiffs’ Fourth Amended Complaint in its entirety be,
3
and the same hereby is, GRANTED.
4
above, plaintiffs may not file a fifth amended complaint.
5
For the reasons discussed
IT IS FURTHER ORDERED that defendants’ motion for
6
excess costs, expenses, and attorney’s fees pursuant to 28 U.S.C.
7
§ 1927 and 42 U.S.C. § 1988 be, and the same hereby is, DENIED.
8
DATED:
June 9, 2011
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