Ryan Couch v. Matthew Cate , 379 F. App'x 560 ( 2010 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAY 14 2010
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
RYAN COUCH; KENNETH JIMENEZ; No. 09-15599
BARNABE TORRES,
D.C. No. 1:08-cv-01621-LJO-DLB
Plaintiffs - Appellants,
v. MEMORANDUM *
MATTHEW CATE; DAVID SHAW;
JEANNE S. WOODFORD; JOHN
DOVEY; SCOTT KERNAN; MARTIN
HOSHINO; TOMMY WAN; KIMBERLI
BONCORE; RALPH DIAZ; KENNETH
CLARK; KATHY ALLISON; JACK
HUTCHINS,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, District Judge, Presiding
Argued and Submitted February 12, 2010
San Francisco, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: HALL, McKEOWN, Circuit Judges, and ZILLY, ** Senior District Judge.
Officers Couch, Jimenez, and Torres, all corrections officers at the
California Department of Corrections and Rehabilitation (“CDCR”), appeal from
the district court’s Rule 12(b)(6) dismissal of their two causes of action under 42
U.S.C. § 1983 and their private civil cause of action under 18 U.S.C. § 1964(c) of
the Racketeer-Influenced Corrupt Organizations Act (“RICO”) against twelve
defendants,1 all employees in either the CDCR prison management or the
California Office of the Inspector General. We affirm in part and reverse and
remand in part.2
I. S ECTION 1983 F IRST A MENDMENT C LAIMS
We affirm the district court’s dismissal with prejudice of Couch’s and
Jimenez’s § 1983 First Amendment claims against all defendants other than
Investigator Boncore and Associate Warden Diaz. As to Couch’s and Jimenez’s
**
The Honorable Thomas S. Zilly, Senior United States District Judge
for the Western District of Washington, sitting by designation.
1
Couch and Jimenez’s § 1983 free speech retaliation claims against
Associate Warden Tommy Wan survived the defendants’ motion to dismiss and is
not at issue in this appeal.
2
We agree with the district court that the Eleventh Amendment does not bar
relief as to any of the claims asserted by Couch, Jimenez, or Torres.
2
§ 1983 First Amendment claims against Boncore and Diaz, we reverse the
dismissal with prejudice and remand with instructions to grant leave to amend.
None of the parties discussed a seminal Supreme Court case limiting First
Amendment protection for public employees, nor did any address subsequent
Ninth Circuit cases discussing this limitation. See Garcetti v. Ceballos, 547 U.S.
410 (2006); see, e.g., Eng v. Cooley, 552 F.3d 1062 (9th Cir. 2009); Robinson v.
York, 566 F.3d 817 (9th Cir. 2009); Posey v. Lake Pend Oreille School Dist. No.
84, 546 F.3d 1121 (9th Cir. 2008); Freitag v. Ayers, 468 F.3d 528 (9th Cir. 2006).
As the Supreme Court stated in Ceballos, “when public employees make
statements pursuant to their official duties, the employees are not speaking as
citizens for First Amendment purposes, and the Constitution does not insulate their
communications from employer discipline.” Ceballos, 547 U.S. at 421.
On the face of the complaint, there are insufficient facts to ascertain the
scope of Couch’s and Jimenez’s official duties as correctional officers and whether
they made the various statements in their capacity as private citizens or public
employees under Ceballos. To satisfy this step of the inquiry against a motion to
dismiss, Couch and Jimenez would have to plead the official responsibilities of a
correctional officer and identify the speech that they made in their capacities as
private citizens (i.e., outside their official duties). Because Couch and Jimenez
3
might be able to allege facts that could cure this deficiency, dismissal of their
claims against Boncore and Diaz without leave to amend was improper. Polich v.
Burlington Northern, Inc., 942 F.2d 1467, 1472 (9th Cir. 1991).3
It is well settled that the state may not retaliate against its employees for
asserting “First Amendment rights [its employees] would otherwise enjoy as
citizens to comment on matters of public interest.” Pickering v. Bd. of Educ., 391
U.S. 563, 568 (1968). Even though Boncore, as a correctional officer, may not
herself have the supervisory authority to effect an employment action such as a
transfer, Couch and Jimenez’s pleading of the facts indicates that Boncore “was
3
The three plaintiffs did not request leave to amend the complaint at the
motion to dismiss phase, and the district court preemptively stated it would not
grant any attempt to do so. While the denial of leave to amend is reviewed for
abuse of discretion, we have consistently held that “requests for leave should be
granted with ‘extreme liberality.’” Moss v. U.S. Secret Service, 572 F.3d 962, 972
(9th Cir. 2009) (quoting Morongo Band of Mission Indians v. Rose, 893 F.2d
1074, 1079 (9th Cir.1990)). Leave to amend should be granted unless upon de
novo review, it is apparent that an amendment would not save the complaint.
Polich, 942 F.2d at 1472. Although our holding in Alaska v. United States,
suggests that absent certain circumstances, “where a party did not seek leave to
amend a pleading in the lower court, we would not remand with instructions to
grant leave to amend,” 201 F.3d 1154, 1163 (9th Cir. 2000), we also stated in Lee
v. City of Los Angeles, that “we will uphold a sua sponte dismissal without leave
to amend only where the plaintiff cannot possibly win relief.” 250 F.3d 668, 683
n.7 (9th Cir. 2001) (internal quotation marks and citation omitted). Here, the
plaintiffs did not allege, and the district court did not apply, the Ceballos rule on
speech by public officials protected by the First Amendment. The district court’s
statement that it would deny leave to amend was understandably not linked to the
plausibility of plaintiffs’ claims under Ceballos.
4
assigned to lead the ISU [Investigative Services Unit] team,” and thus she did have
some supervisory authority over the two officers, both of whom worked in the ISU.
Couch and Jimenez may also be able to plead facts to support their
retaliation claims against Diaz. Couch and Jimenez allege that Diaz, in
contravention of normal policy, instructed Couch to show an accused peacekeeper
evidence implicating him in a conspiracy to commit murder, resulting in a threat on
Couch’s life. They also allege that Diaz told another officer that Couch and
Jimenez were removed for “doing their own investigations,” which they
understood to mean that Associate Wardens Diaz and Wan decided to remove them
for prosecuting peacekeepers. These two potential adverse employment actions,
combined with Diaz’s statement to Jimenez that he “didn’t like” the presence of
federal officers at the prison, with whom Couch and Jimenez were cooperating,
constitute a plausible allegation that Diaz personally retaliated against the two
officers for their protected speech.
These alleged adverse employment actions are only cognizable, however, if
they were done in retaliation for protected speech under Ceballos. Because
amendment of the First Amendment claims might not be futile with respect
Boncore and Diaz, we remand with instructions to allow leave to amend as to those
two defendants.
5
However, dismissal was proper against Matthew Cate, David Shaw, Jeanne
Woodford, John Dovey, Scott Kernan, Martin Hoshino, Kenneth Clark, Kathy
Allison, and Jack Hutchins. “Because vicarious liability is inapplicable to . . .
§ 1983 suits, a plaintiff must plead that each Government-official defendant,
through the official’s own individual actions, has violated the Constitution.”
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1948 (2009). In pleading facts to suggest each
defendant’s liability, Couch’s and Jimenez’s allegations must be more than
“‘merely consistent with’ a defendant’s liability,” but rather, the complaint must
“plead[] factual content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Id.Couch and Jimenez claim that Cate, Woodford, Dovey, Kernan, Hoshino,
Clark, Allison,4 and Hutchins are liable based on supervisory liability, and that
each of these eight defendants plus Shaw are also liable because they each
“conspired with Defendant Wan and with each other to commit and cover up
potentially criminal conduct and violations of Couch’s and Jimenez’s civil rights.”
In a § 1983 claim, “a supervisor is liable for the acts of his subordinates ‘if the
4
Couch and Jimenez also claim that Allison and Clark are liable for First
Amendment retaliation based on their personal conduct. Because they cannot
allege facts that could plausibly state a claim on this basis, we affirm the district
court’s dismissal of this claim against Allison and Clark on this liability theory
with no further comment.
6
supervisor participated in or directed the violations, or knew of the violations of
subordinates and failed to act to prevent them.’” Preschooler II v. Clark County
Sch. Bd. of Trustees, 479 F.3d 1175, 1182 (9th Cir. 2007) (quoting Taylor v. List,
880 F.2d 1040, 1045 (9th Cir. 1989)). To show a conspiracy between the
defendants under § 1983, plaintiffs must allege “an agreement or ‘meeting of the
minds’ to violate constitutional rights.” United Steelworkers of America v. Phelps
Dodge Corp., 865 F.2d 1539, 1540-41 (9th Cir. 1989) (en banc) (quoting Fonda v.
Gray, 707 F.2d 435, 438 (9th Cir. 1983)). “To be liable, each participant in the
conspiracy need not know the exact details of the plan, but each participant must at
least share the common objective of the conspiracy.” Id.Couch and Jimenez allege that because Cate, Woodford, Dovey, Kernan,
Hoshino, Clark, Allison, and Hutchins are in the command chain, they authorized
or should have known about the actions of Wan, Boncore, and Diaz. Although
they allege a few other facts, Couch and Jimenez have not shown that they can
allege sufficient facts to create a plausible inference that these defendants are liable
in their supervisory capacity for constitutional violations against Couch and
Jimenez. Similarly, Couch and Jimenez cannot allege sufficient facts to indicate
plausibly that any of these eight defendants or Shaw conspired to violate their First
Amendment free speech rights. The district court therefore properly dismissed
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Couch’s and Jimenez’s First Amendment claims against Cate, Shaw, Woodford,
Dovey, Kernan, Hoshino, Clark, Allison, and Hutchins.
II. S ECTION 1983 D UE P ROCESS C LAIMS
The district court properly dismissed Couch’s and Jimenez’s § 1983 due
process claims, because they could not plausibly allege that they had a protected
liberty or property interest. We have recognized that a liberty interest is implicated
if a charge leveled by the government against an individual impairs that person’s
reputation for honesty or morality. Vanelli v. Reynolds Sch. Dist. No. 7, 667 F.2d
773, 777-78 (9th Cir. 1982). To establish a protected liberty interest under Vanelli,
Couch and Jimenez must establish, inter alia, that some public disclosure has been
or will be made of their allegedly stigmatizing transfers out of the ISU. Id.; see
also Guzman v. Shewry, 552 F.3d 941, 955 (9th Cir. 2009). Self-reporting by
Couch and Jimenez by answering questions on California’s standard application
form, for example, does not constitute public disclosure for purposes of Vanelli.
Guzman, 552 F.3d at 957. Other than such self-reporting, Couch and Jimenez have
pleaded no facts suggesting that the allegedly stigmatizing information has been or
will be published. Indeed, under California law, any documents memorializing the
transfers or alleged demotions would be exempt from a public records disclosure
request. See C AL. G OV’T C ODE § 6254(c) & (k); C AL. P ENAL C ODE §§ 832.7(a) &
8
832.8(d) & (e); see also Comm’n on Peace Officer Standards & Training v.
Superior Court, 165 P.3d 462, 467-68 (Cal. 2007). Nor do the transfers out of ISU
give rise to a property-based due process claim. Couch and Jimenez have not
shown that they were entitled to a specific position or that they were entitled to
remain in ISU, and their transfers were not accompanied by any decrease in salary
or benefits. See Stiesberg. v. California, 80 F.3d 353, 357(9th Cir. 1996). We
affirm the district court’s dismissal of Couch’s and Jimenez’s due process claims
against all defendants and thus have no occasion to analyze whether the defendants
also have qualified immunity as to the due process claims.
III. RICO C LAIMS
All three officers sue all twelve defendants in their personal capacities for
injuries to business and property under RICO § 1964(c), which provides a private
civil cause of action for “[a]ny person injured in his business or property by reason
of a violation of section 1962.” 18 U.S.C. § 1964(c). Section 1962, in turn,
contains the criminal provisions of the statute, and Couch, Jimenez, and Torres
allege violations under §§ 1962(b), (c), and (d). We affirm the district court’s
dismissal of Torres’s RICO claim against all defendants, and affirm the district
court’s dismissal of Couch’s and Jimenez’s RICO claims against all defendants
except Wan, Boncore, and Diaz.
9
As an initial matter, we affirm the district court’s dismissal of the officers’
§ 1962(b) claims against all defendants, because the officers do not allege or even
make any mention of facts or arguments that suggest that defendants engaged in “a
pattern of racketeering activity” in order to “acquire or maintain, directly or
indirectly, any interest in or control of” the enterprise. 18 U.S.C. § 1962(b).
Under RICO, a “plaintiff only has standing if, and can only recover to the
extent that, he has been injured in his business or property by the conduct
constituting the violation.” Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496
(1985). In order to survive the motion to dismiss, each of the officers must show
that the defendants’ conduct was the proximate cause of that injury. Holmes v.
Sec. Investor Prot. Corp., 503 U.S. 258, 268 (1992). The Supreme Court recently
clarified that this proximate cause requires “‘some direct relation between the
injury asserted and the injurious conduct alleged’” and explicitly rejected
forseeability as a standard for determining proximate causation. Hemi Group, LLC
v. City of New York, — U.S. —, 130 S. Ct. 983, 989, 991 (2010) (quoting
Holmes, 503 U.S. at 268) (emphasis added). The decision in Hemi Group was
announced after briefing in this case and less than a week before oral argument.
The officers argued in their complaint and briefs that their injuries were a
foreseeable result of the defendants’ predicate acts, thus establishing standing. In
10
doing so, they relied on Diaz v. Gates, which states that the “proximate cause
standard . . . is generous enough to include the unintended, though foreseeable
consequences of RICO predicate acts.” 420 F.3d 897, 901 (9th Cir. 2005).
However, Hemi Group definitively foreclosed RICO liability for consequences that
are only foreseeable without some direct relationship. Hemi Group, 130 S. Ct. at
991. Each officer must allege that the RICO predicate acts of obstruction of justice
in violation of 18 U.S.C. §§ 1512(b)(3), (c)(1), and (d)(1)-(4) are the proximate,
and not just foreseeable, causes of the officers’ injuries.
There are no facts that Torres could allege to state a claim that the
defendants’ commission of RICO predicate acts had a direct relationship to his
alleged injuries, including stress, need for psychiatric care, and resulting
interference with his ability to pursue contractual relations. The link between the
defendants’ alleged predicate acts and Torres’s resulting injuries is far too
attenuated to confer standing, and we therefore affirm the district court’s dismissal
of Torres’s RICO claim against all defendants. Hemi Group, 130 S. Ct. 983, 989
(“Because [the plaintiff’s] theory of causation requires us to move well beyond the
first step, that theory cannot meet RICO’s direct relationship requirement.”). In
addition, Torres’s injuries are more akin to personal injuries that are not cognizable
under RICO. Diaz, 420 F.3d at 900.
11
Our de novo analysis indicates that Couch and Jimenez might be able to
allege facts establishing a direct relation between their injuries and some of the
defendants’ predicate acts.5 For example, the transfer of Couch to a different
facility and the allegation that Wan, Boncore, and Diaz effected this transfer to
prevent him from pursuing high profile peacekeepers suggests a direct relationship
between Couch’s injury and racketeering activity in violation of § 1512(b)(3).
Likewise, Jimenez’s transfer to a different facility and the allegation that this
transfer was in retaliation for his concerns about an investigation of the murder of
an inmate also suggests a direct relationship between his injury and racketeering
activity in violation of § 1512(b)(3). Because dismissal without leave to amend is
improper unless “the complaint could not be saved by any amendment,” Polich,
942 F.2d at 1472, and because amendment of Couch’s and Jimenez’s RICO claims
might not be futile with respect to Wan, Boncore, and Diaz, we reverse and remand
Couch’s and Jimenez’s RICO claims with instructions to allow leave to amend to
5
It is possible that Couch and Jimenez may not be able to establish the
requisite injury under our en banc decision in Diaz, 420 F.3d at 900. Although we
recognized in Diaz that our decision articulates a more expansive theory of RICO
liability for employment-related losses, we expressly noted that our holding did not
create unlimited standing for loss of wages. Id. at 901. Because we reverse and
remand with respect to proximate cause under Hemi Group, we leave for another
day whether Couch and Jimenez allege sufficient injury under Diaz.
12
allege facts establishing proximate cause Hemi Group, but only as to these three
defendants.
Dismissal was proper against Cate, Shaw, Woodford, Dovey, Kernan,
Hoshino, Allison, Clark, and Hutchins because the officers allege insufficient facts
that these defendants themselves committed predicate offenses under § 1962(c).
The officers also allege that the defendants “knowingly and willfully conspired . . .
to engage in the violation” of § 1962(c) and that each “aided and abetted, and was
the co-conspirator of, each of the others and was at all times acting, and did act, in
furtherance of, and with full knowledge of, the unlawful purposes of such
conspiracy.” However, “[t]o establish a violation of section 1962(d), Plaintiffs
must allege either an agreement that is a substantive violation of RICO or that the
defendants agreed to commit, or participated in, a violation of two predicate
offenses.” Howard v. Am. Online Inc., 208 F.3d 741, 751 (9th Cir. 2000). The
officers’ RICO conspiracy claims fail as to most of the defendants, because they
allege insufficient facts to demonstrate an agreement to violate RICO or a predicate
statute by any of the defendants except Wan, Boncore, and Diaz.
IV. C ONCLUSION
In summary, we affirm the district court’s dismissal of Couch’s and
Jimenez’s § 1983 First Amendment claims against Cate, Shaw, Woodford, Dovey,
13
Kernan, Hoshino, Clark, Allison, and Hutchins. We reverse the dismissal of
Couch’s and Jimenez’s § 1983 First Amendment claims against Boncore and Diaz
and remand for leave to amend in light of Ceballos. We affirm the district court’s
dismissal of Couch’s and Jimenez’s § 1983 due process claims against all
defendants. Finally, we affirm the district court’s dismissal of Torres’s RICO
claim against all defendants. We affirm the district court’s dismissal of Couch’s
and Jimenez’s RICO claims against Cate, Shaw, Woodford, Dovey, Kernan,
Hoshino, Clark, Allison, and Hutchins. We reverse the dismissal of Couch’s and
Jimenez’s RICO claims against Wan, Boncore, and Diaz and remand for leave to
amend in light of Hemi Group.
AFFIRMED IN PART, REVERSED IN PART AND REMANDED FOR
FURTHER PROCEEDINGS. All parties shall bear their own costs on appeal.
14