Molera v. City of Nogales

Pedro A. Molera, Plaintiff, v. City of Nogales, et al., Defendants.

No. CIV 19-328-TUC-CKJ

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

January 21, 2020

ORDER

Pending before the Court is the Motion to Dismiss (Doc. 12) filed by Defendants City of Nogales ("the City"), Roy Bermudez ("Bermudez"), and Frank Felix ("Felix") (collectively, "Defendants"). Plaintiff Pedro A. Molera ("Molera") has filed a response (Doc. 14), and Defendants have filed a reply (Doc. 15).

I. Factual and Procedural Background¹

Molera began working as a police officer with the City in or about June 1996.² He was promoted to detective in December 2016.

Defendants assert that, on June 25, 2018, after learning the City intended to terminate his employment, Molera submitted a letter of resignation to Police Chief Bermudez and City Manager Felix, indicating his intent to retire effective June 29, 2018. The July 6, 2018,Employee Action Notice indicates Molera's last day worked was June 29, 2018, Molera was paid through June 29, 2018, and the retirement was effective June 29, 2018. Motion, Ex. 4 (Doc. 12-1). Molera alleges that, also on June 29, 2018, he delivered written notice to Defendants that he was withdrawing his letter of retirement. Defendants assert Molera delivered a letter requesting to retract his resignation to Human Resources Specialist Maritza Valenzuela on August 10, 2018. Defendants assert Molera has acknowledged that he did not request to rescind his resignation until August 10, 2018. Defendants point out that Molera's September 12, 2018, grievance letter demonstrates Defendants received the request to withdraw on August 10, 2018. Complaint, Ex. E (Doc. 6).

Bermudez responded to Molera's request in an August 17, 2018, letter in which he declined to accept Molera's requested withdrawal or retraction of his notice of retirement. Complaint, Ex. C (Doc. 6).

On June 21, 2019, Molera filed a Complaint alleging Count I: Procedural Due Process in violation of 42 U.S.C. §1983, Count II: Intentional Interference With a Contract, Business Relationship or Business Expectancy, Count III: Breach of Contract, and Count IV: Breach of the Covenant of Good Faith and Fair Dealing against Defendants. The parties stipulated to the dismissal of Counts II-IV; those claims were dismissed by the Court on August 6, 2019.

On August 5, 2019, Defendants filed a Motion to Dismiss (Doc. 12). Molera has filed a response (Doc. 14), and Defendants have filed a reply (Doc. 15).

II. Requirement that Action State a Claim on Which Relief Can be Granted

A complaint is to contain a "short and plain statement of the claim showing that the pleader is entitled to relief[.]" Fed.R.Civ.P. 8(a). The United States Supreme Court has found that a plaintiff must allege "enough facts to state a claim to relief that is plausible on its facts." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). While a complaint need not plead "detailed factual allegations," the factual allegations it does include "must be enough to raise a right to relief above the speculative level." Id. at 555; see also Starrv. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011) ("If there are two alternative explanations, one advanced by defendant and the other advanced by plaintiff, both of which are plausible, plaintiff's complaint survives a motion to dismiss[.]"). Indeed, Fed.R.Civ.P. 8(a)(2) requires a showing that a plaintiff is entitled to relief "rather than a blanket assertion" of entitlement to relief. Twombly, 550 U.S. at 555 n. 3. The complaint "must contain something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally cognizable right to action." Id. at 555. The Court must determine if Plaintiff has "nudge[d] [their] claims across the line from conceivable to plausible." Id. at 570. The Court also considers that the Supreme Court has cited Twombly for the traditional proposition that "[s]pecific facts are not necessary [for a pleading that satisfies Rule 8(a)(2)]; the statement need only 'give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Erickson v. Pardue, 551 U.S. 89, 93 (2007). Indeed, Twombly requires "a flexible 'plausibility standard,' which obliges a pleader to amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible." Iqbal v. Hasty, 490 F.3d 143, 157-58 (2nd Cir. 2007); see also Moss v. U.S. Secret Service, 572 F.3d 962 (9th Cir. 2009) (for a complaint to survive a motion to dismiss, the non-conclusory "factual content," and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief).

When a court is considering a motion to dismiss, allegations that are mere conclusion are not entitled to the assumption of truth if unsupported by factual allegations that allow the court "to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 663-64 (2009). While this Court must take as true all allegations of material fact and construe them in the light most favorable to Molera, See Cervantes v. United States, 330 F.3d 1186, 1187 (9th Cir. 2003), the Court does not accept as true unreasonable inferences or conclusory legal allegations cast in the form of factual allegations. Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).

III. Due Process Violation

Molera alleges that all Defendants, individually and collectively, violated his due process rights by failing to provide him with pre- and post-termination procedures after the City did not accept the withdrawal of his resignation. Defendants assert Molera has not alleged sufficient facts to state a claim for municipal liability and assert individual Defendants are entitled to qualified immunity.

A. Municipal Liability - Policy

A government entity "cannot be held liable solely because it employs a tortfeasor." Monell v. Department of Social Services of City of New York, 436 U.S. 658, 691 (2000). The local government "itself must cause the constitutional deprivation." Gilette v. Delmore, 979 F.2d 1342, 1346 (9th Cir.1992), cert. denied, 510 U.S. 932 (1993). Because liability of a local governmental unit must rest on its actions, not the actions of its employees, a plaintiff must go beyond the respondeat superior theory and demonstrate that the alleged constitutional violation was the product of a policy or custom of the local governmental unit. City of Canton, Ohio v. Harris, 489 U.S. 378, 385 (1989); Pembaur v. City of Cincinnati, 475 U.S. 469, 478-480 (1986).

To state a civil rights claim against a government entity, a plaintiff must allege the requisite culpability (a "policy or custom" attributable to municipal policymakers) and the requisite causation (the policy or custom as the "moving force" behind the constitutional deprivation). Monell, 436 U.S. at 691-694; Gable v. City of Chicago, 296 F.3d 531, 537 (7th Cir.2002). In other words, a plaintiff must plead and prove that: (1) the alleged violation was the result of "a longstanding practice or custom which constitutes the standard operating procedure of the local government entity"; (2) "by showing that the decision-making official was, as a matter of state law, a final policymaking authority whose edicts or acts may fairly be said to represent official policy in the area of decision"; or (3) "by showing that an official with final policymaking authority either delegated that authorityto, or ratified the decision of, a subordinate." Villegas v. Gilroy Garlic Festival Ass'n, 541 F.3d 950, 964 (9th Cir. 2008), quoting Ulrich v. City & Cty. of San Francisco, 308 F.3d 968, 984-85 (9th Cir. 2002)).

Additionally, a government entity "may be liable if it has a 'policy of inaction and such inaction amounts to a failure to protect constitutional rights.'" Lee v. City of Los Angeles, 250 F.3d 668, 681 (9th Cir.2001), quoting Oviatt v. Pearce, 954 F.2d 1470, 1474 (9th Cir.1992); Blankenhorn v. City of Orange, 485 F.3d 463, 484 (9th Cir.2007). However, "[l]iability for improper custom may not be predicated on isolated or sporadic incidents; it must be founded upon practices of sufficient duration, frequency and consistency that the conduct has become a traditional method of carrying out policy." Trevino v. Gates, 99 F.3d 911, 918 (9th Cir.1995), cert. denied, 520 U.S. 1117 (1997).

Defendants argue that the Complaint fails to state sufficient facts to allege the City has a policy or custom of improperly refusing to provide due process rights when an employee attempts to withdraw a resignation/retirement.³ Molera argues, however, that because there were no meaningful constraints upon City Manager Felix's discretion, Felix's action to terminate or ratify the termination of Molera represented official policy.

As pointed out by Molera, the City of Nogales Personnel Manual ("the Manual") provides that, if the manual itself does not establish a policy with regard to a particular subject, the departmental policy previously adopted shall remain in effect. The City Manager (along with the Human Resources Director and City Attorney) is given final decision-making authority over departmental policy. Further, the Manual states, "All departmental policies, rules and procedures shall be in writing and approved by the City Manager, Human Resources Director, and the City Attorney." Manual § 1.09(A). Molera argues that, because there was no express policy within the Manual as to how to handle the withdrawal of a notice of retirement (as opposed to a resignation), the policy for this matterwas ultimately a decision for the City Manager. In this case, Felix is alleged to have exercised this final decision-making power by allowing the termination of Molera on August 28, 2018. Defendants argue, however, that Molera is artificially creating a distinction between retirement and resignation where there is no real difference. Defendants...