-CMK (PS) Johnston v. City of Red Bluff, et al, No. 2:2009cv01353 - Document 52 (E.D. Cal. 2011)
Court Description: MEMORANDUM and ORDER signed by Judge Frank C. Damrell, Jr on 3/31/2011: Court ADOPTS 49 FINDINGS AND RECOMMENDATIONS as to plaintiff's ADEA, due process, and civil conspiracy, fraud, and wrongful termination claims. The Court DECLINES TO ADOPT findings and recommendations as to plaintiff's negligence claim. 35 Motion to Dismiss is GRANTED with leave to amend as to defendant City of Red Bluff and DENIED as to defendants Martin Nichols, Tessa Pritchard, Mark Barthel, and Richard Cra btree. Plaintiff is granted 15 daysf rom the date of this order to file a second amended comapltin in accordance with this order. Defendants are granted 30 days from the date of service of plaintiff's second amended complaint to file a response thereto. (Waggoner, D)
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-CMK (PS) Johnston v. City of Red Bluff, et al Doc. 52 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 SCOTT JOHNSTON, NO. S-09-1353-FCD-CMK-PS 13 14 15 Plaintiff, v. CITY OF RED BLUFF, et al., MEMORANDUM AND ORDER 16 17 Defendants. ____________________________/ 18 19 ----oo0oo---This matter is before the court on review of the findings 20 and recommendations (“F&R”) of the magistrate judge,1 filed 21 February 8, 2011, addressing defendants City of Red Bluff, 22 Martin Nichols, Tessa Pritchard, Mark Barthel, and Richard 23 Crabtree’s (collectively “defendants”) motion to dismiss 24 plaintiff Scott Johnston’s (“plaintiff”) first amended complaint 25 26 1 27 28 This matter was referred to a United States magistrate judge pursuant to 28 U.S.C. section 636(b)(1)(B) and Eastern District Local Rule 302. 1 Dockets.Justia.com 1 (“FAC”). 2 discrimination in violation of the Age Discrimination in 3 Employment Act (“ADEA”); 2) denial of procedural due process; 3) 4 civil conspiracy, fraud, and wrongful termination; and 4) 5 negligence. 6 judge’s findings and recommendations.2 7 magistrate judge’s findings and recommendations with respect to 8 the ADEA, procedural due process, and civil conspiracy, fraud, 9 and wrongful termination claims. The FAC alleges the following claims: 1) age Defendants filed objections to the magistrate The court adopts the However, for the reasons set 10 forth below, the court does not adopt in full the findings and 11 recommendations with respect to plaintiff’s negligence claim. 12 BACKGROUND 13 The court adopts the factual and procedural background set 14 forth by the magistrate judge in his findings and 15 recommendations. 16 2-3.) (See F&R, filed Feb. 8, 2011 [Docket # 49], at 17 18 19 20 21 22 23 24 25 26 27 28 2 In their objections, defendants challenge the Magistrate Judge’s conclusions regarding plaintiff’s Claim 3 (conspiracy/fraud/wrongful termination) and Claim 4 (negligence). As to Claim 3, defendants argue (as they did in their motion to dismiss) that a claim for conspiracy cannot lie where the individual defendants are legally incapable of committing the underlying tort. In this case, defendants contend that the only tort underlying plaintiff’s Claim 3 is alleged wrongful termination due to age discrimination. According to defendants, the individuals cannot be held liable for this tort because, under ADEA, only employers are liable. While defendants are correct that the individual defendants cannot be held liable under ADEA, it is still possible that they conspired to commit another underlying tort alleged in the complaint – violation of due process (alleged in Claim 2). Because it is possible that plaintiff can state a claim, the Magistrate Judge’s finding that plaintiff should be permitted to amend this claim is sound. 2 1 2 STANDARD When timely objections to findings by a magistrate judge 3 are filed, the district court must conduct a de novo 4 determination of the findings and recommendations as to issues 5 of law. 6 reject, or modify in part or in full the findings and 7 recommendations. 8 forth below, the court adopts the magistrate’s findings and 9 recommendations in part and declines to adopt in part. 28 U.S.C. § 636(b)(1). 28 U.S.C. § 636(b)(1)(C). 10 11 The district court may adopt, For the reasons set ANALYSIS Plaintiff’s fourth claim for relief alleges negligence.3 12 (FAC, filed June 18, 2010 [Docket # 34], ¶¶ 87-93.) 13 Specifically, plaintiff alleges that the “[h]iring, promotion 14 and contracting practices of [d]efendant [City of] Red Bluff 15 resulted in unqualified persons being given positions of 16 authority” and that these persons “contributed to, or caused the 17 [p]laintiff’s termination.” 18 “that no liability exists on behalf of a governmental entity or 19 its employees in the absence of a specific statute providing for 20 such liability,” relying on California Government Code §§ 815 21 and 815.2. 22 [Docket # 35], at 14.) 23 (Id. ¶ 92.) Defendants’ argue (Defs.’ Mot. to Dismiss [“MTD”], filed July 6, 2010 California Government Code § 815(a) provides that “[u]nless 24 otherwise provided by statute: . . . [a] public entity is not 25 liable for an injury, whether such injury arises out of an act 26 27 28 3 Except as set forth infra, the court adopts the magistrate judge’s analysis and conclusions regarding plaintiff’s negligence claim. 3 1 or omission of the public entity or a public employee . . . .” 2 Cal. Gov. Code § 815(a). 3 held directly liable for its hiring, promotion and contracting 4 practices unless plaintiff can show that a statute imposes a 5 duty upon the City of Red Bluff to the contrary or that the City 6 of Red Bluff is vicariously liable for the acts of its 7 employees.4 8 that serves as a basis for liability of the City of Red Bluff 9 nor does he allege that the City of Red Bluff is liable for Thus, the City of Red Bluff may not be Plaintiff does not point to any specific statute 10 negligence through the actions of its employees. 11 defendants’ motion to dismiss plaintiff’s negligence claim as to 12 the City of Red Bluff is GRANTED with leave to amend. 13 As such, As to plaintiff’s negligence claims against individual 14 defendants Martin Nichols, Tessa Pritchard, Mark Barthel, and 15 Richard Crabtree, defendants’ reliance on California Government 16 Code sections 815 and 815.2 is without merit. 17 only provide immunity to a public entity, not to individual 18 public employees.5 19 relevant statute granting immunity to the individual, 20 defendants’ motion to dismiss plaintiff’s negligence claim as to These statutes Because defendants failed to point to any 21 22 23 24 25 26 27 28 4 A public entity may be liable under a theory of respondeat superior. See id. § 815.2(a). However, in absence of a statute directing otherwise, a public entity cannot be held liable for an employee’s act or omission where the employee himself is immune. Id. § 815.2(b). Plaintiff’s first amended complaint alleges only direct liability on behalf of the City of Red Bluff. Nothing in this order prevents plaintiff from amending his complaint to allege that the City of Red Bluff is liable for negligence via respondeat superior. 5 Although defendants’ failed to show that the individual defendants are immune, nothing in this order prevents defendants from doing so at a later time. 4 1 the individual defendants is DENIED. 2 3 CONCLUSION For the foregoing reasons, the court adopts the magistrate 4 judge’s findings and recommendations as to plaintiff’s ADEA, due 5 process, and civil conspiracy, fraud, and wrongful termination 6 claims. 7 findings and recommendations as to plaintiff’s negligence claim. 8 Defendants’ motion to dismiss is GRANTED with leave to amend as 9 to defendant City of Red Bluff and DENIED as to defendants 10 Martin Nichols, Tessa Pritchard, Mark Barthel, and Richard 11 Crabtree. 12 of this order to file a second amended complaint in accordance 13 with this order. 14 the date of service of plaintiff’s second amended complaint to 15 file a response thereto. 16 17 18 19 The court declines to adopt the magistrate judge’s Plaintiff is granted fifteen (15) days from the date Defendants are granted thirty (30) days from IT IS SO ORDERED. DATED: March 31, 2011 _______________________________________ FRANK C. DAMRELL, JR. UNITED STATES DISTRICT JUDGE 20 21 22 23 24 25 26 27 28 5
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