-GGH Olivera et al v. Vizzusi et al, No. 2:2010cv01747 - Document 48 (E.D. Cal. 2011)
Court Description: ORDER granting 36 dfts Rocklin and Siemens' Motion to Dismiss, signed by Judge William B. Shubb on 1/18/11. Pltfs have 20 days from the date of this Order to file an amended complaint.(Kastilahn, A)
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-GGH Olivera et al v. Vizzusi et al Doc. 48 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---11 12 BRANDON OLIVERA and STEVEN ORTMANN, NO. CIV. 2:10-1747 WBS GGH 13 Plaintiffs, MEMORANDUM AND ORDER RE: MOTION TO DISMISS 14 v. 15 16 17 BRIAN VIZZUSI; MARK SIEMENS; CITY OF LINCOLN; CITY OF ROCKLIN; LINCOLN POLICE DEPARTMENT; and ROCKLIN POLICE DEPARTMENT, 18 Defendants. 19 / 20 ----oo0oo---- 21 Plaintiffs Brandon Olivera and Steven Ortmann filed 22 23 this action against Brian Vizzusi, Mark Siemens, City of Lincoln, 24 City of Rocklin, Lincoln Police Department, and Rocklin Police 25 Department arising from the alleged disclosure of plaintiffs’ 26 personnel records. 27 Lincoln, Lincoln Police Department, and Brian Vizzusi from this 28 action. Plaintiffs have voluntarily dismissed City of City of Rocklin, Rocklin Police Department (“Rocklin PD” 1 Dockets.Justia.com 1 and collectively “Rocklin defendants”), and Mark Siemens now move 2 to dismiss the three federal claims in the Second Amended 3 Complaint (“SAC”) pursuant to Federal Rule of Civil Procedure 4 12(b)(6) for failure to state a claim upon which relief can be 5 granted. 6 I. Factual and Procedural Background On or around October 30, 2003, Rocklin PD Sergeant 7 8 Vizzusi conducted an administrative investigation of plaintiffs, 9 who were Rocklin PD police officers,1 relating to an incident in 10 Humboldt County, California, and prepared an internal affairs 11 investigation report (“report”). 12 30).) 13 Police Siemens, but obtained or retained a copy of the report. 14 (Id. ¶¶ 18-19.) 15 ¶ 17.) (SAC ¶¶ 17, 24 (Docket No. Vizzusi then transmitted the report to Rocklin PD Chief of 16 The investigation was subsequently closed. (Id. The SAC alleges that the report consisted of “over 17 twenty pages” (id. ¶ 39) and contained plaintiffs’ names, 18 plaintiffs’ positions at Rocklin PD, a “detailed” description of 19 alleged misconduct, and summaries of interviews with plaintiffs. 20 (Id. ¶¶ 42-43.) 21 information, such as intoxication, fighting, sexual view points, 22 sexual orientation, sexual relations, arrest records, medical 23 conditions, and discrimination against third persons.” 24 43.) 25 the evidence, and recommendations on the disposition. The report allegedly “disclosed various personal (Id. ¶ The report also contained witness statements, analysis of (Id. ¶ 26 1 27 28 Olivera is currently employed as a County of Placer District Attorney investigator. (Second Am. Compl. (“SAC”) ¶ 9 (Docket No. 30).) Ortmann is still a police officer for Rocklin PD. (Id. ¶ 10.) 2 1 49.) The SAC alleges that the report was confidential pursuant 2 to state law regarding police officers’ personnel records and 3 records maintained by police departments. 4 84.) 5 (Id. ¶¶ 40-41, 48, 52, In 2004, Vizzusi left Rocklin PD and was hired by City 6 of Lincoln as a Lincoln Police Department (“Lincoln PD”) 7 lieutenant. 8 report with him to Lincoln PD. 9 “authorized, permitted, or otherwise allowed Vizzusi to obtain (Id. ¶ 20.) Vizzusi allegedly took a copy of the (Id. ¶ 23.) Siemens allegedly 10 and maintain a copy of Plaintiffs’ personnel records and personal 11 information after ending his employment” with City of Rocklin and 12 Rocklin PD. 13 of Lincoln PD Chief of Police in 2006. 14 (Id. ¶ 28.) Vizzusi was appointed to the position (Id. ¶¶ 21-22.) On or around June 15, 2007, Vizzusi met with Lincoln PD 15 Lieutenant Paul Shlegren and Lincoln PD Sergeant Brendan 16 Lebrecht. 17 copy of the report and emailed them a copy immediately after the 18 meeting. 19 Lebrecht that Siemens had given him permission to distribute 20 plaintiffs’ “personnel records” to members of the Lincoln PD. 21 (Id. ¶ 25.) 22 was “accompanied by oral statements.” 23 18 (“Oral and written statements were also made by the Defendants 24 to third persons about intoxication, sexual view points, sexual 25 orientation, sexual relations, arrest records, medical 26 conditions, and discrimination against third persons.”).) 27 28 (Id. ¶ 24-25.) (Id. ¶¶ 25-26.) Vizzusi provided them with a paper Vizzusi allegedly told Shlegren and The SAC alleges that the disclosure of the report (Id. ¶ 42; see also id. ¶ The disclosure to Shlegren and Lebrecht allegedly “result[ed]” in plaintiffs’ “confidential personnel records and 3 1 confidential personal information bec[oming] widely known 2 throughout the Lincoln PD, law enforcement communities in the 3 region, and to other third persons and agencies.” 4 In January of 2010, a peace officer for Placer County “revealed 5 the disclosure” to plaintiffs. 6 27, 2010, plaintiffs’ counsel requested that Siemens “take 7 appropriate steps to investigate the Police Department’s apparent 8 breach of its duty to safeguard its employees’ personnel files.” 9 (Id. ¶ 34.) (Id. ¶ 33.) (Id. ¶ 30.) On or about January Plaintiffs’ counsel also requested that City of 10 Lincoln’s City Manager account for all copies of plaintiffs’ 11 “personnel files,” destroy all electronic copies, return all 12 physical copies, and provide a sworn affidavit from Vizzusi 13 attesting that all copies had been destroyed or returned to 14 plaintiffs. 15 (Id. ¶ 35.) On February 12, 2010, City of Lincoln confirmed that 16 Vizzusi had “disseminated” plaintiffs’ “personnel records,” 17 indicated the records would be destroyed, and agreed to provide 18 the physical copy of the records to plaintiffs’ counsel. 19 36.) 20 declaration from Vizzusi to plaintiffs’ counsel. 21 Plaintiffs allege that electronic copies are still maintained on 22 Lincoln PD’s 23 that they have been and will continue to be stigmatized, 24 humiliated, and embarrassed and that the disclosure of personal 25 information has resulted in “risks to their status as law 26 enforcement officers.” 27 28 (Id. ¶ On March 18, 2010, City of Lincoln provided a signed computers. (Id. ¶ 38.) (Id. ¶ 37.) Plaintiffs also allege (Id. ¶ 32.) On July 7, 2010, plaintiffs filed an initial complaint alleging various federal and state law claims. 4 (Docket No. 1.) 1 On September 9, 2010, plaintiffs filed the First Amended 2 Complaint (“FAC”), asserting three federal claims pursuant to 42 3 U.S.C. §§ 1983 and 1985 for constitutional privacy violations and 4 state law claims. 5 court granted the Rocklin defendants and Siemens’ motion to 6 dismiss with respect to the federal claims and the claim for 7 violation of California Civil Code section 1798.42 (California’s 8 Information Practices Act of 1977) and denied it with respect to 9 the other state law claims. (Docket No. 16.) On November 15, 2010, the (Docket No. 29.) Plaintiffs then 10 filed the SAC, which asserts three § 1983 and § 1985 claims and 11 numerous state law claims. 12 now move to dismiss the three federal claims in the SAC pursuant 13 to Rule 12(b)(6) for failure to state a claim upon which relief 14 can be granted. 15 II. The Rocklin defendants and Siemens (Docket No. 36.) Discussion To survive a motion to dismiss, a plaintiff must plead 16 17 “only enough facts to state a claim to relief that is plausible 18 on its face.” 19 (2007). 20 than a sheer possibility that a defendant has acted unlawfully,” 21 Ashcroft v. Iqbal, --- U.S. ----, 129 S. Ct. 1937, 1949 (2009), 22 and where a complaint pleads facts that are “‘merely consistent 23 with’ a defendant’s liability, it ‘stops short of the line 24 between possibility and plausibility of entitlement to relief.’” 25 Id. (quoting Twombly, 550 U.S. at 557). 26 plaintiff has stated a claim, the court must assume that the 27 plaintiff’s allegations are true and draw all reasonable 28 inferences in the plaintiff’s favor. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 This “plausibility standard,” however, “asks for more 5 In deciding whether a Usher v. City of L.A., 828 1 F.2d 556, 561 (9th Cir. 1987). 2 required to accept as true “allegations that are merely 3 conclusory, unwarranted deductions of fact, or unreasonable 4 inferences.” 5 (9th Cir. 2008) (internal quotation mark omitted). 6 However, the court is not In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 The Rocklin defendants and Siemens have provided, as an 7 exhibit to a declaration from Siemens, a copy of a document that 8 purports to be the report and a news article about plaintiffs’ 9 alleged misconduct. (Docket No. 45.) While not addressing its 10 authenticity, Plaintiffs argue that the alleged copy of the 11 report should not be considered. (Pls.’ Opp’n to Mot. to Dismiss 12 SAC at 3:11-20 (Docket No. 44).) The Rocklin defendants and 13 Siemens argue that the court may consider the report because it 14 is incorporated by reference into the SAC. 15 A. in Supp. of Mot. to Dismiss SAC (“Defs.’ Mot.”) at 7:4-8:15 16 (Docket No. 45).) 17 report by reference. 18 nor does the SAC purport to quote the substance of the report. 19 (Defs.’ Mem. of P. & The SAC, however, does not incorporate the The report is neither attached to the SAC, The Ninth Circuit has held that when ruling on a 20 12(b)(6) motion a court may “consider certain materials-- 21 documents attached to the complaint, documents incorporated by 22 reference in the complaint, or matters of judicial notice-- 23 without converting the motion to dismiss into a motion for 24 summary judgment.” 25 (9th Cir. 2003). 26 conclude that the report submitted by defendants is what “forms 27 the basis” of plaintiffs’ claim. 28 declines to consider the attachments to Siemens’ declaration. United States v. Ritchie, 342 F.3d 903, 909 Here, there is no foundation for the court to Id. 6 Accordingly, the court 1 2 3 4 5 In relevant part, § 1983 provides: 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 . . . . 6 42 U.S.C. § 1983. Section 1983 itself is not a source of 7 substantive rights; it provides a cause of action against any 8 person who, under color of state law, deprives an individual of 9 federal constitutional rights or limited federal statutory 10 rights. 42 U.S.C. § 1983; Graham v. Connor, 490 U.S. 386, 393-94 11 (1989). 12 The Ninth Circuit has held that the Constitution 13 protects an “individual interest in avoiding disclosure of 14 personal matters.”2 In re Crawford, 194 F.3d 954, 958 (9th Cir. 15 1999) (internal quotation marks omitted). However, the “courts 16 have construed this right narrowly, limiting it to those rights 17 which are ‘fundamental or implicit in the concept of ordered 18 liberty.’” Carver v. Rathlesberger, No. 04-1918 DFL PAN, 2005 WL 19 3080856, at *2 (E.D. Cal. Nov. 11, 2005) (quoting St. Michael’s 20 Convalescent Hosp. v. Cal., 643 F.2d 1369, 1375 (9th Cir. 1981)). 21 In its Order filed November 15, 2010, this court 22 dismissed the § 1983 claims in plaintiffs’ First Amended 23 Complaint, because the allegations were too conclusory and 24 general. The court noted that it was unable to plausibly infer 25 that defendants disclosed information that implicates “rights 26 27 28 2 Plaintiffs also allege a Fourth Amendment violation. The Fourth Amendment applies to government employers. O’Connor v. Ortega, 480 U.S. 709 (1987). 7 1 which are ‘fundamental or implicit in the concept of ordered 2 liberty,’” Carver, 2005 WL 3080856, at *2 (quoting St. Michael’s 3 Convalescent Hosp., 643 F.2d at 1375), or disclosed information 4 that is of such a “highly personal or sensitive nature that it 5 falls within the zone of confidentiality.” Flanagan v. Munger, 6 890 F.2d 1557, 1570-71 (10th Cir. 1989). 7 to cure those deficiencies in their SAC. In order for the court to determine whether the 8 9 Plaintiffs have failed allegedly disclosed information rose to the level required to 10 amount to a violation of the Constitutional right of privacy, the 11 nature and substance of that information must be set forth in the 12 complaint. 13 have raised the defense of qualified immunity. 14 in any qualified immunity analysis is to characterize the 15 defendant’s alleged conduct, so that the court can determine 16 whether that conduct violated clearly established law. 17 Pearson v. Callahan, --- U.S. ----, ----, 129 S. Ct. 808, 815, 18 (2009)(holding that the doctrine of qualified immunity protects 19 government officials “from liability for civil damages insofar as 20 their conduct does not violate clearly established statutory or 21 constitutional rights of which a reasonable person should have 22 known.”) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)) 23 (internal quotation marks omitted). 24 is the disclosure of information, a proper characterization of 25 that conduct depends upon a proper understanding of what 26 information was allegedly disclosed. 27 28 This is especially true where, as here, defendants An essential step See Where the assailed conduct On that score, plaintiffs continue to make conclusory allegations. (See SAC ¶ 43 (The report “disclosed various 8 1 personal information, such as . . . sexual orientation, sexual 2 relations, . . . [and] medical conditions . . . .”; id. ¶ 18 3 (“Oral and written statements were also made by the Defendants to 4 third persons about . . . sexual orientation, sexual relations, . 5 . . [and] medical conditions . . . .”); id. ¶ 63 (“These 6 disclosures involved personal matters, including information 7 relating to counseling . . . .”).) 8 conclusory allegations, the court is unable to conclude that the 9 factual allegations in the SAC plausibly suggest a constitutional With no more than those 10 privacy violation, or that the defendants are not entitled to 11 qualified immunity. 12 See Iqbal, 129 S. Ct. at 1949. Accordingly, the court must grant the motion to dismiss 13 the § 1983 claims against the Rocklin defendants and Siemens.3 14 The court will also dismiss the § 1985 claim. 15 City of St. Helens, 425 F.3d 1158, 1168 (9th Cir. 2005) (“The 16 absence of a [42 U.S.C. §] 1983 deprivation of rights precludes a 17 [42 U.S.C. §] 1985 conspiracy claim predicated on the same 18 allegations.”) 19 See Thornton v. (internal quotation marks omitted). IT IS THEREFORE ORDERED that the Rocklin defendants and 20 Siemens’ motion to dismiss the § 1983 and § 1985 claims be, and 21 the same hereby is, GRANTED. 22 23 Plaintiffs have twenty days from the date of this Order to file an amended complaint, if they can do so consistent with 24 25 26 27 28 3 Because plaintiffs fail to sufficiently allege a constitutional violation, plaintiffs have also not sufficiently alleged Monell liability. Monell liability requires an underlying constitutional violation. Dixon v. Wallowa Cnty., 336 F.3d 1013, 1021 (9th Cir. 2003); see also Murray v. City of Carlsbad, No. 08-2121, 2010 WL 2839477, at *8 (C.D. Cal. July 19, 2010). 9 1 this Order. 2 DATED: January 18, 2011 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10
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