-GWF Boykin v. Forti et al, No. 2:2009cv02373 - Document 53 (D. Nev. 2011)
Court Description: ORDER Granting in part and Denying in part 38 Motion to Dismiss as described in the Summary section of this Order. Signed by Judge Roger L. Hunt on 8/30/2011. (Copies have been distributed pursuant to the NEF - SLR)
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-GWF Boykin v. Forti et al Doc. 53 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 DISTRICT OF NEVADA 9 *** 10 11 12 13 14 15 16 MARK ANTHONY BOYKIN, ) ) Plaintiff, ) ) vs. ) ) CITY OF NORTH LAS VEGAS, and JOSEPH ) CHRONISTER in his personal and official ) capacity; and JAMES RANDOLPH SALYER, ) ) Defendants. ) _______________________________________) Case No.: 2:09-cv-002373-RLH-GWF Case No.: 2:10-cv-000737-RLH-GWF ORDER (Motion to Dismiss–#38) 17 Before the Court is Defendants City of North Las Vegas, Joseph Chronister, and 18 19 James Randolph Salyer’s Motion to Dismiss (#38, filed Jan. 13, 2011) the First Amended 20 Complaint based on a failure to state a claim. The Court has also considered Plaintiff Mark 21 Anthony Boykin’s Opposition (#48, filed Apr. 15, 2011), and Defendants’ Reply (#52, filed May 22 2, 2011). 23 24 BACKGROUND This dispute arises out of Boykin’s allegedly wrongful firing from the North Las 25 Vegas Police Department. Boykin was hired by the North Las Vegas Police Department (“Police 26 Dept.”) in February 2007. He was then assigned to work with Field Training Officer Mario Perez AO 72 (Rev. 8/82) 1 Dockets.Justia.com 1 as a trainee. Boykin alleges that Perez treated African Americans differently than people of other 2 races (specifically, checking African Americans for outstanding warrants) and commented on this 3 observation to other trainees. Boykin alleges that after Salyer, who was in charge of training, 4 learned of Boykin’s concerns he simply suspended Boykin and convened a “Non-confirmation 5 Board” to terminate him for dishonesty rather than investigating the situation. The Police Dept. 6 fired Boykin in October 2007. Boykin filed a complaint with the Eighth Judicial District Court for the State of 7 8 Nevada on October 14, 2009, against the City of North Las Vegas and Joseph Forti in his official 9 capacity. In his complaint Boykin alleged a First Amendment claim under 42 U.S.C. § 1983 and a 10 separate claim under § 1981. The Court then consolidated this case with Boykin’s separate Title 11 VII case against North Las Vegas. Boykin then moved to amend his complaint on September 23, 12 2010, which the Court granted on December 8. Boykin’s amended complaint dropped Forti as a 13 Defendant, added Chronister and Salyer as Defendants as to all claims, and added a Fourteenth 14 Amendment due process claim against all parties. Now before the Court is Defendants’ motion to dismiss. Defendants request the 15 16 Court dismiss all claims against Chronister and Salyer (the First and Fourteenth Amendment-based 17 § 1983 claims and the § 1981 claim) and the Fourteenth Amendment and § 1981 claims against the 18 North Las Vegas. They do not request dismissal of Boykin’s First Amendment-based § 1983 19 claim against the city. For the reasons discussed below, the Court grants Defendants’ motion in 20 part and denies it in part. 21 22 DISCUSSION I. Legal Standard 23 A court may dismiss a plaintiff’s complaint for “failure to state a claim upon which 24 relief can be granted.” Fed. R. Civ. P. 12(b)(6). A properly pled complaint must provide “a short 25 and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 26 8(a)(2); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). While Rule 8 does not require AO 72 (Rev. 8/82) 2 1 detailed factual allegations, it demands “more than labels and conclusions” or a “formulaic 2 recitation of the elements of a cause of action.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) 3 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). “Factual allegations must be enough to rise 4 above the speculative level.” Twombly, 550 U.S. at 555. Thus, to survive a motion to dismiss, a 5 complaint must contain sufficient factual matter to “state a claim to relief that is plausible on its 6 face.” Iqbal, 129 S. Ct. at 1949 (internal citation omitted). 7 In Iqbal, the Supreme Court recently clarified the two-step approach district courts 8 are to apply when considering motions to dismiss. First, a district court must accept as true all 9 well-pled factual allegations in the complaint; however, legal conclusions are not entitled to the 10 assumption of truth. Id. at 1950. Mere recitals of the elements of a cause of action, supported only 11 by conclusory statements, do not suffice. Id. at 1949. Second, a district court must consider 12 whether the factual allegations in the complaint allege a plausible claim for relief. Id. at 1950. A 13 claim is facially plausible when the plaintiff’s complaint alleges facts that allows the court to draw 14 a reasonable inference that the defendant is liable for the alleged misconduct. Id. at 1949. Where 15 the complaint does not permit the court to infer more than the mere possibility of misconduct, the 16 complaint has “alleged—but not shown—that the pleader is entitled to relief.” Id. (internal 17 quotation marks omitted). When the claims in a complaint have not crossed the line from 18 conceivable to plausible, the complaint must be dismissed. Twombly, 550 U.S. at 570. 19 However, the “documents ‘whose contents are alleged in a complaint and whose 20 authenticity no party questions, but which are not physically attached’” to the pleading, may be 21 considered in ruling on a Rule 12(b)(6) motion to dismiss. In re Silicon Graphics Inc. Sec. Litig., 22 183 F.3d 970, 986 (9th Cir. 2002) (superseded by statute on other grounds) (quoting Branch v. 23 Tunnell, 14 F.3d 449, 454 (9th Cir. 1994)). Also, “on a motion to dismiss a court may properly 24 look beyond the complaint to matters of public record and doing so does not convert a Rule 25 12(b)(6) motion to one for summary judgment.” Mack v. South Bay Beer Distribs., Inc., 798 F.2d 26 1279, 1282 (9th Cir. 1986). Therefore, the Court may look to the collective bargaining agreement AO 72 (Rev. 8/82) 3 1 between North Las Vegas and the North Las Vegas Police Officer’s Association (“CBA”) (Dkt. 2 #48, Ex. 1) and at the Nevada Local Government Employee-Management Relations Board 3 decision (“Board Decision”) (Id., Ex. 2) relating to this matter. 4 II. 5 Analysis A. 6 Section 1981 Claim Boykin’s § 1981 claim fails. In their motion, Defendants seek dismissal of 7 Boykin’s § 1981 and § 1983 claims. In his response to the motion, Boykin addressed his § 1983 8 claim but failed to defend the propriety of his § 1981 claim. The failure to oppose an issue 9 constitutes consent to the Court granting the motion to dismiss as to that issue. Accordingly, the 10 Court dismisses Boykin’s § 1981 claim for failure to oppose. However, additionally, the Court has 11 reviewed the issue, finds merit in the motion as to the § 1981 claim, and would dismiss regardless 12 of the failure to oppose because Boykin’s alleged activity is not protected under § 1981. 13 B. Section 1983 Fourteenth Amendment Claim 14 1. 15 Boykin’s claims against Chronister and Salyer are barred by the statute of Statute of Limitations 16 limitations. Nevada’s two-year statute of limitations period for personal injuries applies to this § 17 1983 claim. TwoRivers v. Lewis, 174 F.3d 987, 991 (9th Cir. 1999). Boykin contends that his 18 claims are not barred because the statute of limitations does not begin to run until he knew or 19 should have known of Chronister and Salyer’s involvement and that this issue is a fact question for 20 a jury. Oak Grove Investors v. Bell, 668 P.2d 1075 (Nev. 1983) (“When the plaintiff knew or in 21 the exercise of proper diligence should have known of the facts constituting the elements of his 22 cause of action is a question of fact for the trier of fact.”) Here, Boykin simply argues that he did 23 not know of Salyer or Chronister’s involvement until Salyer testified at the Nevada Local 24 Government Employee-Management Relations Board hearing in June of 2010. However, Boykins 25 presents no reason why he could not have found out this information in the two and a half years 26 between when he was fired and the hearing or explain why (or if) he did not search for this AO 72 (Rev. 8/82) 4 1 information. See Alires v. Crowther, 279 Fed. Appx. 499, 500 (9th Cir. 2008) (determining that 2 plaintiffs must act with reasonable diligence to ascertain the identities of defendants). Further, 3 Boykins does not explain the three month delay between the hearing and moving to amend the 4 complaint to add Chronister and Salyer as defendants. See id. (stating that plaintiffs could have 5 identified defendants prior to official discovery through informal discovery or “other means.”) 6 Accordingly, Boykin’s claims against Chronister and Salyer are barred by the statute of 7 limitations. 8 2. 9 The doctrine of qualified immunity protects government officials from liability for Qualified Immunity 10 civil damages to the extent their conduct does not violate clearly established statutory or 11 constitutional rights of which a reasonable person would have known at the time of the conduct. 12 Pearson v. Callahan, 555 U.S. 223, 231 (2009). This immunity is granted broadly and “provides 13 ample protection to all but the plainly incompetent or those who knowingly violate the law.” 14 Moran v. Washington, 147 F.3d 839, 844 (9th Cir 1998) (quoting Malley v. Briggs, 475 U.S. 335, 15 341 (1986)) “The protection of qualified immunity applies regardless of whether the government 16 official’s error is a mistake of law, a mistake of fact, or a mistake based on mixed questions of law 17 and fact.” Pearson, 55 U.S. at 231 (internal quotation omitted). The determination of whether an 18 official is protected by qualified immunity should take place “‘at the earliest possible stage in 19 litigation.’” Id. (quoting Hunter v. Bryant, 502 U.S. 224, 227 (1991)). Courts considering 20 whether an official is shielded by qualified immunity consider two questions: first, whether the 21 facts alleged show the officer’s conduct violated a constitutional right, and second, whether the 22 right was clearly established. Id. at 232. 23 Even if Boykin’s due process claim against Chronsiter and Salyer was not time- 24 barred, they would be protected by qualified immunity. Citing Cleveland Board of Education v. 25 Loudermill, 470 U.S. 532, 545-46 (1985), Boykin argues that a Fourteenth Amendment right to a 26 pre and post-termination hearing from government employment is clearly established. This may AO 72 (Rev. 8/82) 5 1 be true as a general matter, however, where an employee is at-will or in a probationary status, they 2 do not have a property interest in their continued employment and therefore do not have a 3 Fourteenth Amendment due process claim. See Board of Regents v. Roth, 408 U.S. 564, 578 4 (1972). 5 Here, the North Las Vegas Municipal Code 2.68.290 clearly states that “Police 6 officers ... shall serve eighteen (18) months probation as a new hire” and “[d]uring the 7 probationary period, probationary employees may be separated at will for any reason not violative 8 of state or federal law and shall not have any entitlement to continued employment.” (See also 9 Dkt. 48, Resp. to Mot., Ex. 2, State of Nevada Local Government Employee-Management 10 Relations Board Order at 6–7 (holding that Boykin was a probationary employee under the 11 municipal code).) As a probationary employee, Boykin did not have a property interest in his 12 employment necessitating due process for termination. See Bishop v. Wood, 426 U.S. 341, 344-46, 13 348 (1976) (holding that the existence of a property interest in employment is determined by state 14 law). Boykin argues, however, that the Board’s decision was wrong on this point because of a past 15 practice of not putting new employees on probationary status. Boykin is appealing the Board’s 16 decision in state court. Regardless of the outcome of this appeal, it was at least not clearly 17 established that Boykin had a Fourteenth Amendment property right in his continued employment 18 because of the municipal code provision apparently making him a probationary employee, 19 terminable for any reason. Thus, Chronister and Salyer are entitled to qualified immunity even if it 20 turns out they were mistaken as to the law. 21 22 C. Summary In sum, the Court dismisses Boykin’s § 1981 claim against North Las Vegas, 23 Chronsiter, and Salyer because Boykin failed to oppose the Defendants’ argument. The Court 24 further dismisses Boykin’s § 1983 claims against Chronsiter and Salyer as barred by the statute of 25 limitations and, as to the Fourteenth Amendment claim, because they are entitled to qualified 26 immunity. The Court, however, does not dismiss the Fourteenth Amendment claim as pled against AO 72 (Rev. 8/82) 6 1 North Las Vegas. The Court finds that the North Las Vegas Municipal Code states that Boykin is a 2 probationary employee and the Board found that he was a probationary employee. Nonetheless, 3 the issue is on appeal and the Court hesitates to make a decision that could conflict with the state 4 court decision. Therefore, the Court declines to dismiss the Fourteenth Amendment claim against 5 North Las Vegas, but if the Board decision is upheld, the Court will be open to reconsidering this 6 denial upon a motion from North Las Vegas. Finally, North Las Vegas does not seek dismissal of 7 the First Amendment claim pled against it and the Court does not address that claim. 8 CONCLUSION 9 Accordingly, and for good cause appearing, 10 IT IS HEREBY ORDERED that Defendants’ Motion to Dismiss (#38) is 11 12 GRANTED in part and DENIED in part as described in the Summary section of this Order. Dated: August 30, 2011. 13 ____________________________________ ROGER L. HUNT United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 AO 72 (Rev. 8/82) 7
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