Sangervasi v. City Of San Jose

1

WILLIAM GERARD SANGERVASI, Plaintiff, v. CITY OF SAN JOSE, et al., Defendants.

No. 22-cv-07761-VKD

United States District Court, N.D. California, San Jose Division

May 22, 2023

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS DENYING PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION

Re: Dkt. Nos. 9, 22

VIRGINIA K. DEMARCHI, MAGISTRATE JUDGE

On December 8, 2022, plaintiff William Gerard Sangervasi II filed a complaint in this action against defendants the City of San Jose, Edgardo Garcia, and Anthony Mata (collectively “City”). On February 14, 2023, Mr. Sangervasi filed a motion for preliminary injunction. Dkt. No. 9. On March 20, 2023, the City filed a motion to dismiss Mr Sangervasi's complaint. Dkt. No. 22. The Court heard both motions on April 24, 2023.^[1] Having considered the parties' submissions and arguments made at the hearing, the Court grants the City's motion to dismiss and denies Mr. Sangervasi's motion for a preliminary injunction.

I. BACKGROUND

Unless otherwise indicated, the following background facts are drawn from the factual allegations of the complaint, which for present purposes, are deemed true.

Mr. Sangervasi was employed by the San Jose Police Department (“SJPD”) as a police officer beginning in 2013. Dkt. No. 1 ¶ 13. In approximately August 2017, defendant Edgardo Garcia, then the Chief of Police, created a Lesbian, Gay, Bisexual, Transgender, and Queer (“LGBTQ”) Advisory Board at the SJPD. Id. ¶ 16. According to the City:

The LGBTQ advisory board is comprised of LGBTQ members of the community and employees within SJPD, as well as representatives from other government agencies who have a mission of serving the LGBTQ community. On a regular basis, the board meets with the police chief and works on a variety of issues including police policies and responses. The board serves as an opportunity for LGBTQ community members and LGBTQ employees of the department to have open ongoing discussions with the police chief about LGBTQ issues. The board's mission includes ensuring equality in policing practices, helping foster an inclusive workplace and as a working group for the departments LGBTQ related projects and initiatives.

See Id. ¶ 22; San Jose Police Department, LGTBQ Community Liaison, https://www.sjpd.org/about-us/organization/office-of-the-chief-of-police/lgbtq-community-liaison (last accessed: May 18, 2023). Concurrent with the creation of the advisory board, Chief Garcia created a LGBTQ Liaison Officer position within the SJPD. Id. ¶ 32. According to the City:

The San Jose Police Department's LGBTQ Liaison Officer serves as a contact point for members of the LGBTQ community within the police department. The Liaison Officer's duties include: Working closely with the LGBTQ community on a variety of community-related events and issues[;] Attending meetings and maintaining relationships with LGBTQ community organizations[;] Coordinating multi-governmental agency responses to the needs of the LGBTQ community[; and] Facilitating SJPD participation in LGBTQ related events throughout the region.

Dkt No. 1 ¶ 36; San Jose Police Department, LGTBQ Community Liaison, https://www.sjpd.org/about-us/organization/office-of-the-chief-of-police/lgbtq-community-liaison (last accessed: May 18, 2023).

In August 2019, as part of the region's celebration of Silicon Valley Pride Month, Chief Garcia raised a rainbow-themed LGBTQ pride flag in place of the City of San Jose flag on the flagpole outside SJPD headquarters. Id. ¶ 70.

On July 28, 2020, Chief Garcia issued official SJPD Memorandum #2020-33, introducing a rainbow-themed LGBTQ pride shoulder patch for the SJPD uniform. Id. ¶ 93. On the same day, Chief Garcia also issued official SJPD Memorandum #2020-36, authorizing SJPD uniformed personnel to “permanently” wear either a Breast Cancer Awareness, Pride, or Military specialty patch on their uniforms “in lieu of the traditional shoulder patch.” Id. ¶ 122; see also Dkt. No. 9-4 at 18.

On November 11, 2020, Mr. Sangervasi sent a memorandum to Chief Garcia titled, “Desecration of The Uniform by Memorandum #2020-33.” Dkt. No. 1 ¶ 133; see also Dkt. No. 91 ¶ 16; Dkt. No. 9-4. Mr. Sangervasi's memorandum “detailed his intent to forever protect and defend the sacrosanct neutral and impartial visual appearance of The American Uniform” by submitting various “free speech patch and flag designs” that he wanted the SJPD to adopt. Dkt. No. 1 ¶¶ 134, 143. Mr. Sangervasi proposed patch designs featuring phrases and images such as “natural hetero-sexual pride,” what appears to be Christian rosary beads encircling the traditional SJPD crest, and an image of the Christian archangel Saint Michael. See Dkt. No. 9-4 at 20-21. He proposed flag designs featuring phrases and images including, for example, “father + mother = girls + boys,” “white lives matter,” and the confederate battle flag. See id. at 19. Two days later, on November 13, 2020, Mr. Sangervasi was placed on indefinite administrative leave. Dkt. No. 1 ¶ 156. On December 11, 2020, Mr. Sangervasi received a letter from Acting Chief Dave Knopf^[2]denying Mr. Sangervasi's demand that the SJPD adopt Mr. Sangervasi's patch and flag designs. Id. ¶ 158.

In March 2021, defendant Anthony Mata was confirmed as the new Chief of Police for the SJPD. Id. ¶ 166. Chief Mata has raised the LGBTQ pride flag at SJPD headquarters and personally worn the LGBTQ pride patch on his own uniform. Id. ¶ 168.

On June 7, 2021, the SJPD sent Mr. Sangervasi notice of an internal affairs complaint against him, initiated by the office of the Chief of Police. Id. ¶ 169. On August 19, 2021, Mr. Sangervasi met with internal affairs as part of its investigation. Id. ¶ 174. On November 10, 2021, the SJPD served Mr. Sangervasi a Notice of Intended Discipline (“NOID”) officially stating SJPD's intent to terminate Mr. Sangervasi's employment. Id. ¶ 182. On January 28, 2022, Mr. Sangervasi responded to the NOID in writing. Id. ¶ 191. The SJPD served Mr. Sangervasi a Notice of Discipline on February 11, 2022, terminating him from his position effective February 12, 2022. Id. ¶ 196. Mr. Sangervasi appealed his termination to San Jose's Civil Service Commission. Id. ¶¶ 199-203. The Civil Service Commission issued its order upholding the termination on May 12, 2022. Id. ¶ 206. On August 10, 2022, pursuant to California Code of Civil Procedure § 1094.5, Mr. Sangervasi filed a petition for a writ of administrative mandate in California state court requesting judicial review of the Civil Service Commission's decision. Id. ¶ 207. As of the date of this order, Mr. Sangervasi's state court petition remains pending.^[3]

In his complaint in this action, Mr. Sangervasi asserts three claims for relief under 42 U.S.C. § 1983. He alleges that the City violated the free speech and free exercise of religion clauses of the First Amendment and the equal protection clause of the Fourteenth Amendment. Id. ¶¶ 209-277. In addition, he asserts three claims for violations of similar provisions of the California Constitution. Id. ¶¶ 278-295. Mr. Sangervasi seeks declaratory and injunctive relief, nominal and punitive damages, and costs. Id. at 59-65.

II. LEGAL STANDARDS

A. Motion to Dismiss

A motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure tests the legal sufficiency of the claims in the complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Dismissal is appropriate where there is no cognizable legal theory or an absence of sufficient facts alleged to support a cognizable legal theory. Id. (citing Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990)). In such a motion, all material allegations in the complaint must be taken as true and construed in the light most favorable to the claimant. Id.

However, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Moreover, “the court is not required to accept legal conclusions cast in the form of factual allegations if those conclusions cannot reasonably be drawn from the facts alleged.” Clegg v. Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir. 1994). Although pro se pleadings are liberally construed and held to a less stringent standard than those drafted by lawyers, see Haines v. Kerner, 404 U.S. 519, 520-21 (1972), a complaint (or portion thereof) should be dismissed for failure to state a claim if it fails to set forth “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554 (2007); see also Fed.R.Civ.P. 12(b)(6).

Rule 8(a)(2) requires only “a short and plain statement of the claim showing that the pleader is entitled to relief.” This means that the “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted). However, only plausible claims for relief will survive a motion to dismiss. Iqbal, 556 U.S. at 679. A claim is plausible if its factual content permits the court to draw a reasonable inference that the defendant is liable for the alleged misconduct. Id. A plaintiff does not have to provide detailed facts, but the pleading must include “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id. at 678.

Documents appended to or incorporated into the complaint or which properly are the subject of judicial notice may be considered along with the complaint when deciding a Rule 12(b)(6) motion. Khoja v. Orexigen Therapeutics, 899 F.3d 988, 998 (9th Cir. 2018); Coto Settlement v. Eisenberg, 593 F.3d 1031, 1038 (9th Cir. 2010).

B. Motion for Preliminary Injunction

Preliminary...