Chrisanthis v. Cason et al, No. 3:2008cv02472 - Document 47 (N.D. Cal. 2008)

Court Description: ORDER GRANTING DEFENDANTS' REQUEST FOR JUDICIAL NOTICE AND MOTION TO DISMISS WITHOUT LEAVE TO AMEND by Judge William Alsup [granting 36 Motion to Dismiss]. (whasec, COURT STAFF) (Filed on 11/7/2008)
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Chrisanthis v. Cason et al Doc. 47 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 9 ANTHONY CHRISANTHIS, 11 For the Northern District of California United States District Court 10 12 13 No. C 08-02472 WHA Plaintiff, v. 14 UNITED STATES OF AMERICA, DR. BRIAN CASON, IRVING SPIVEY, and DOES 1 to 10, 15 Defendants. 16 17 18 ORDER GRANTING DEFENDANTS’ REQUEST FOR JUDICIAL NOTICE AND MOTION TO DISMISS WITHOUT LEAVE TO AMEND / INTRODUCTION In this employment dispute, plaintiff Anthony Chrisanthis seeks damages from 19 defendants the United States of America, Dr. Brian Cason, and Irving Spivey for allegedly 20 ending his career after he complained of dangerous conditions in his place of federal 21 employment. This is plaintiff’s second lawsuit against his former supervisors Dr. Cason 22 and Mr. Spivey. Defendants request judicial notice of the proceedings and documents in the 23 prior suit. Defendants move to dismiss the current suit on various grounds including claim 24 preclusion and failure to state a claim upon which relief can be granted or, in the alternative, 25 for summary judgment. Because this order finds that the documents publicly filed in the prior 26 suit are proper subjects of judicial notice, defendants’ request for judicial notice as to those 27 documents is GRANTED. Because this order finds that plaintiff has failed to state a claim upon 28 which relief can be granted, defendants’ motion to dismiss is GRANTED. 1 STATEMENT 2 Plaintiff is a former employee of the United States Department of Veterans Affairs 3 Medical Center at Fort Miley in San Francisco. His employment at the Fort Miley Center ended 4 in 2002. Earlier that year, a claim plaintiff had filed with the United States Occupational Safety 5 and Health Administration concerning unsafe conditions at the Fort Miley Center had been 6 found valid and the conditions corrected. Plaintiff maintains that, thereafter, his supervisors 7 Dr. Cason and Mr. Spivey began to actively harass him and seek his discharge. He alleges they 8 made conditions so unbearable that he was forced to end his active employment and take a 9 medical discharge. For the Northern District of California United States District Court 10 In January 2007, plaintiff filed his first suit against Dr. Cason and Mr. Spivey; he also 11 named as defendants the Secretary of the Department of Veterans Affairs and ten Does. 12 Anthony Chrisanthis v. R. James Nicholson, et al., 2007 WL 2782860 (N.D. Cal.) (“Chrisanthis 13 I”). On May 11, the defendants filed a motion to dismiss, or in the alternative, for summary 14 judgment. After plaintiff failed to file an opposition, he stated that an amended complaint 15 would be forthcoming. On June 26, plaintiff filed his amended complaint alleging seven 16 claims. On September 25, the claims were ordered dismissed, leave to amend was denied as 17 futile, and a final judgment was entered in favor of defendants on the following grounds: (i) 18 plaintiff’s claim for wrongful discharge was dismissed because the federal employment 19 relationship was governed by federal law, not state law regarding wrongful discharge; (ii) 20 plaintiff’s claim of sexual discrimination under Title VII was dismissed because sexual 21 orientation was not a protected category; (iii) plaintiff’s claim of deprivation of constitutional 22 rights under 42 U.S.C. 1983 was dismissed because the defendants were federal, not state, 23 actors; (iv) plaintiff’s Bivens claim was dismissed because the relevant statute of limitations 24 had expired before commencement of suit; (v) plaintiff’s claim of retaliation for whistleblowing 25 under the Civil Service Reform Act (“CSRA”) was dismissed because he failed to pursue the 26 necessary administrative remedies; (vi) plaintiff’s tort claims were dismissed because he failed 27 to name the United States as a defendant and, equally fatal, the CSRA precluded Federal Tort 28 Claims Act (“FTCA”) actions; and (vii) plaintiff’s claim under the Health Insurance Portability 2 1 and Accountability Act was dismissed because there were insufficient facts alleged under a 2 cognizable legal theory and, in any event, the statute did not provide a private cause of action. For the Northern District of California United States District Court 3 Plaintiff did not appeal. Instead, in January 2008 plaintiff filed the instant action in state 4 court, again naming Dr. Cason and Mr. Spivey. On May 14, defendants removed this action to 5 the Northern District of California. On June 6, the two suits were found related. On August 4, 6 defendants requested judicial notice of the proceedings and documents filed in Chrisanthis I and 7 moved to dismiss the instant action on various grounds including claim preclusion and failure to 8 state a claim upon which relief can be granted or, in the alternative, for summary judgment. 9 Plaintiff’s opposition was due August 21. Plaintiff submitted no opposition. On August 22, 10 defendants filed a reply and notice of non-receipt of opposition. On August 25, plaintiff 11 requested leave until September 2 to file a late opposition. On August 28, plaintiff’s request 12 was granted. Instead of filing an opposition on September 2, plaintiff filed a First Amended 13 Complaint, adding as defendants the United States and ten Does. 14 Plaintiff’s First Amended Complaint contains five paragraphs of factual allegations 15 before stating a claim for relief. The principal difference in factual allegations between this 16 action and Chrisanthis I is that, whereas plaintiff previously claimed he was forced to quit his 17 job he now alleges he voluntarily left in reliance on the false promise that he would be rehired. 18 He continues to maintain that Dr. Cason and Mr. Spivey committed the alleged wrongs in 19 retaliation for his OSHA complaint. He contends he should be afforded relief under 20 Section 1983, the FTCA, and various provisions of the United States Constitution. 21 Because plaintiff filed the First Amended Complaint pursuant to Rule 15(a)(1)(A), 22 the briefing schedule and hearing date for defendants’ motion to dismiss were re-set. 23 On September 11, defendants noticed a renewed motion to dismiss. On September 17, plaintiff 24 filed a request for a continuance of the new hearing on the ground that plaintiff’s counsel had 25 been assigned prisoner cases by the State of California, which presented a scheduling conflict. 26 Continuance was granted and the hearing was rescheduled for October 30. Plaintiff’s 27 opposition was due October 9. Plaintiff failed to submit a timely opposition. On October 10, 28 defendants filed a notice of non-receipt of opposition and requested dismissal of the case on the 3 1 grounds that, inter alia, the motion was unopposed and plaintiff had failed to prosecute his case. 2 Later that day, plaintiff filed his opposition. An order to show cause for the late response was 3 issued. Plaintiff responded to the order to show cause, indicating the delay was a result of a 4 calendaring error. Due to the calendaring error, defendants were put in the untenable position 5 of being uncertain as to the status of plaintiff’s opposition and the need for a reply brief. 6 The hearing was rescheduled for November 6 and defendants were given until October 30 to 7 file a reply. On October 30, defendants filed a reply. On November 6, a hearing was held and 8 the parties were heard. 9 For the Northern District of California United States District Court 10 ANALYSIS A motion to dismiss under Rule 12(b)(6) tests for the legal sufficiency of the claims 11 alleged in the complaint. See Parks Sch. of Business v. Symington, 51 F.3d 1480, 1484 (9th Cir. 12 1995). All material allegations of the complaint are taken as true and construed in the light 13 most favorable to the nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 340 (9th 14 Cir. 1996). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need 15 detailed factual allegations, a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] 16 to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements 17 of a cause of action will not do. Factual allegations must be enough to raise a right to relief 18 above the speculative level.” Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1255, 1264–65 (2007). 19 1. 20 Defendants request judicial notice of the proceedings and documents filed in Chrisanthis JUDICIAL NOTICE. 21 I. Although materials outside of the pleadings ordinarily are not considered on a motion to 22 dismiss, a court may consider matters properly subject to judicial notice. See Adibi v. Cal. State 23 Bd. of Pharmacy, 393 F. Supp. 2d 999, 1003 (N.D. Cal. 2005). A court may take judicial notice 24 of any fact “not subject to reasonable dispute in that it is . . . capable of accurate and ready 25 determination by resort to sources whose accuracy cannot reasonably be questioned.” Fed. R. 26 Evid. 201. When adjudicating a motion to dismiss, a court may take judicial notice of public 27 filings. In re Calpine Sec. Litig, 288 F. Supp. 2d 1054, 1076 (N.D. Cal. 2003). It does not, 28 thereby, convert the motion to dismiss into one for summary judgment. MGIC Idem. Corp. v. 4 1 Weisan, 803 F.2d 500, 504 (9th Cir. 1986). Accordingly, documents publicly filed in 2 Chrisanthis I are the proper subjects of judicial notice and will be considered in the disposition 3 of this motion to dismiss. 4 2. 5 A Rule 12(b)(6) motion may be premised on res judicata if the basis for that defense can 6 be established by public records which are properly the subject of judicial notice. See Day v. 7 Moscow, 955 F.2d 807, 811 (2nd Cr. 1992) (res judicata, normally an affirmative defense, may 8 be upheld on a Rule 12(b)(6) motion “when all relevant facts are shown by the court’s own 9 records”), cert. denied, 506 U.S. 821 (1992). Taking into account Chrisanthis I, plaintiff’s 10 instant claims are not precluded. 11 For the Northern District of California United States District Court CLAIM PRECLUSION. Res judicata, or claim preclusion, provides that a prior adjudication bars a later suit 12 where there is (i) an identity of claims, (ii) a final judgment on the merits, and (iii) an identity 13 or privity between the parties. Owens v. Kaiser Found. Health Plan, Inc., 244 F. 3d 708, 713 14 (9th Cir. 2001). Plaintiff contends in his opposition that Chrisanthis I does not have preclusive 15 effect on his instant claims, because neither the parties nor the claims are identical and because 16 the previous decision was not on the merits. Defendants argue in their reply that plaintiff is 17 mistaken as to each of these contentions, except, they concede plaintiff has correctly noted that 18 the United States was not a party to Chrisanthis I. They question whether the United States is a 19 proper party to the instant action but state that dismissal is warranted, in any event, because 20 plaintiff has again failed to state a claim upon which relief can be granted. FAILURE TO STATE A CLAIM. 21 2. 22 Plaintiff alleges that following his OSHA complaint defendants’ made conditions so 23 unbearable that he was forced to end his active employment and take a medical discharge. 24 He states that, at the time, he was a “whistleblower” protected under CSRA section 25 2302(b)(8)(A). He maintains defendants’ conduct in retaliation which forced him to end his 26 active employment on the false promise of being rehired and which caused him emotional 27 distress both negligently and intentionally inflicted is actionable under Section 1983 and the 28 FTCA. 5 1 An essential ingredient of a Section 1983 claim is that the defendant acted under color 3 of state law. Flagg Bros. V. Brooks, 436 U.S. 149, 155 (1978). Federal officers generally do 4 not act under color of state law, and hence are beyond the reach of Section 1983. McCloskey v. 5 Mueller, 446 F.3d 262, 271 (1st Cir. 2006). The Department of Veterans Affairs is a federal 6 agency. Dr. Cason and Mr. Spivey were federal actors. As in Chrisanthis I, Section 1983 is 7 unavailable to afford plaintiff relief. 9 For the Northern District of California Section 1983. 2 8 United States District Court A. B. Federal Tort Claims Act. FTCA actions are preempted by the CSRA where the alleged wrongs amount to 10 prohibited personnel practices within the ambit of the CSRA. As explained by the Ninth Circuit 11 earlier this year: 12 13 14 15 16 17 18 19 20 By enacting the CSRA, Congress created “an integrated scheme of administrative and judicial review, designed to balance the legitimate interests of the various categories of federal employees with the needs of sound and efficient administration.” The CSRA creates a “remedial scheme through which federal employees can challenge their supervisors’ “prohibited personnel practices.” If the challenged conduct “falls within the scope of the CSRA’s ‘prohibited personnel practices,’ then the CSRA’s administrative procedures are [the employee’s] only remedy.” The CSRA’s remedial scheme is both exclusive and preemptive because “permit[ting] FTCA claims to supplant the CSRA’s remedial scheme” would defeat Congress’ purpose of creating “a single system of procedures and remedies, subject to judicial review.” Accordingly, where Congress has provided a process for processing prohibited personnel practices, other potential employee remedies are preempted. In fact, a federal employee’s personnel-related complaints are preempted “even if no remedy [is] available . . . under the CSRA.” 21 Mangano v. United States, 529 F.3d 1243, 1246 (9th Cir. 2008) (internal citations omitted). 22 Personnel practices prohibited under the CSRA include retaliation against 23 whistleblowers. Specifically, the CSRA prohibits “[a]ny employee who has authority to take, 24 direct others to take, recommend, or approve any personnel action,” from taking or failing to 25 take, or threatening “to take or fail to take, a personnel action with respect to any employee or 26 applicant for employment because of” “any disclosure of information by an employee or 27 applicant which the employee or applicant reasonably believes evidences (i) a violation of any 28 law, rule, or regulation, or (ii) … a substantial and specific danger to public health or safety. 6 1 5 U.S.C. 2302(b)(8)(A). Personnel actions include “reinstatement,” “restoration,” 2 “reemployment,” “decision[s] concerning pay, benefits, or awards,” and “any other significant 3 change in duties, responsibilities, or working conditions.” 5 U.S.C. 2302(a)(2)(A)(v), (vi), (vii), 4 (ix), (xi). For the Northern District of California United States District Court 5 The CSRA’s whistleblower-protection provision, Section 2302(b)(8)(A), is precisely 6 the authority cited by plaintiff for his proposition that he was a protected whistleblower 7 against whom defendants therefore retaliated by taking the personnel action of making 8 working conditions unbearable and failing to take the personnel action of reemploying him. 9 He nonetheless argues that defendants’ alleged conduct did not amount to “prohibited personnel 10 practices” under the CSRA. He cites several decisions for this proposition, none of which are 11 analogous to the present case. For example, he cites Orsay v. United States Dept. of Justice, 12 289 F.3d 1125 (9th Cir. 2002), wherein a supervisor allegedly pointed a loaded gun on several 13 occasions at deputies of the United States Marshals Service while saying things like, “You’re 14 dead,” and Collins v. Bender, 195 F.3d 1076 (9th Cir. 1999), wherein a Drug Enforcement 15 Administration agent, without a warrant, searched a fellow agent’s home and seized personal 16 firearms. Significantly, plaintiff later cites several decisions in which alleged wrongs were 17 found subject to the CSRA, including Richards v. Kiernan, 461 F.3d 880 (7th Cir. 2006) and 18 Gergick v. Austin, 997 F.2d 1237 (8th Cir. 1993), both of which held the CSRA provided the 19 exclusive remedy for whistleblower retaliation claims. 20 Because defendants’ alleged retaliatory conduct fell within the ambit of the CSRA, only 21 administrative remedies and no private causes of action were available to plaintiff. As stated in 22 Chrisanthis I, plaintiff should have pursued the proper administrative remedies. He should have 23 filed a direct appeal to the Merit System Protection Board. 5 U.S.C. 1214. He did not do so. 24 His complaint is one upon which relief cannot be granted under the FTCA. 25 26 27 28 7 1 CONCLUSION 2 For the foregoing reasons, defendants’ request for judicial notice is GRANTED and 3 defendants’ motion to dismiss is GRANTED without leave to amend. 4 5 IT IS SO ORDERED. 6 7 Dated: November 7, 2008. WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 8 9 11 For the Northern District of California United States District Court 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8