1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9

10 ROBERT INGERSOLL, Case No. 19-cv-01164-NC 11 Plaintiff, ORDER GRANTING 12 DEFENDANTS’ MOTION TO v. DISMISS 13 CITY OF DEL REY OAKS, et al., Re: Dkt. No. 39 14 Defendants. 15 16 17 Defendants City of Del Rey Oaks and Dino Pick move to dismiss plaintiff Robert 18 Ingersoll’s second amended complaint alleging that Defendants violated his civil rights 19 when they fired him from his position as a police officer. See Dkt. No. 39. Because 20 Ingersoll’s second amended complaint makes no meaningful changes to his prior 21 complaint, the Court GRANTS Defendants’ motion to dismiss without leave to amend. 22 I. New Allegations in the Second Amended Complaint 23 Because the parties are familiar with majority of Ingersoll’s allegations and prior 24 orders have previously recounted the facts of this case in greater detail (see Dkt. Nos. 21, 25 30), the Court focuses its discussion below to Ingersoll’s new factual allegations. 26 In 2004, Ingersoll was invited by then-Chief of Police Ron Langford to apply for a 27 position as a police officer with the Del Rey Oaks Police Department. See Dkt. No. 32 1 employment as a police officer with the Seaside Police Department because of his federal 2 misdemeanor conviction. Id. ¶¶ 10, 12. That conviction had been publicized by local 3 media. Id. ¶ 14. 4 Ingersoll was placed on administrative leave in 2017 pending an administrative 5 investigation into allegations of work misconduct. See id. ¶ 21; see also Dkt. No. 39-3.1 6 During that investigation, Del Rey Oaks failed to interview relevant witnesses including 7 Langford and a Seaside police commander, Chris Veloz. See SAC ¶¶ 23–24. Ingersoll 8 was fired in March 2018. See id. ¶ 32. The decision to fire Ingersoll was demanded and 9 orchestrated by then-councilman and mayor Edelen. See id. ¶ 31. 10 II. Legal Standard 11 A motion to dismiss for failure to state a claim under Rule 12(b)(6) tests the legal 12 sufficiency of a complaint. Navarro v. Block,

(9th Cir. 2001). On a 13 motion to dismiss, all allegations of material fact are taken as true and construed in the 14 light most favorable to the non-movant. Cahill v. Liberty Mut. Ins. Co.,

, 337– 15 38 (9th Cir. 1996). The Court, however, need not accept as true “allegations that are 16 merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” In re 17 Gilead Scis. Secs. Litig.,

(9th Cir. 2008). Although a complaint need 18 not allege detailed factual allegations, it must contain sufficient factual matter, accepted as 19 true, to “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 20

(2007). A claim is facially plausible when it “allows the court to draw 21 the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft 22 v. Iqbal,

(2009). 23 24

25 1 Docket Number 39-3 is a “Notice of Intent to Terminate Employment” sent to Ingersoll by Pick. The Notice details the misconduct allegations against Ingersoll, which includes 26 making false statements on his employment application, making false statements during the administrative investigation, and using racial epithets while on- and off-duty. See Dkt. 27 No. 39-3. The Court previously took judicial notice of the document because Ingersoll’s 1 III. Discussion 2 In a § 1983 action, a municipality is liable where the alleged action implements a 3 municipal policy or custom in violation of constitutional rights. Monell v. Dep’t of Soc. 4 Servs. of the City of N.Y.,

(1978). “Under Monell, municipalities are 5 subject to damages under § 1983 in three situations: when the plaintiff was injured 6 pursuant to an expressly adopted official policy, a long-standing practice or custom, or the 7 decision of a final policymaker.” Ellins v. City of Sierra Madre,

(9th 8 Cir. 2013) (quotations omitted). 9 In the Court’s prior orders, the Court held that Pick was a final policymaker for 10 Monell purposes (see Dkt. No. 21 at 5), but that Ingersoll failed to allege any underlying 11 constitutional violation. Ingersoll’s amendments do not cure the deficiencies in his prior 12 complaints. 13 First, Ingersoll’s second amended complaint provides additional detail as to his 14 misdemeanor conviction while working with the Seaside Police Department (see SAC 15 ¶ 14) and Langford’s knowledge of that conviction (see

¶¶ 10–12). The complaint also 16 identifies another witness with knowledge regarding his conviction that Del Rey Oaks 17 failed to interview during their investigation. See

¶ 23–24. None of these allegations, 18 however, address the fact that Defendants did not fire him solely because of his prior 19 misdemeanor conviction. Rather, Defendants fired Ingersoll because he also made false 20 statements during the administrative investigation and he “regularly and consistently 21 utter[ing] racial epithets to citizens and fellow officers and employees.” Dkt. No. 39-3. 22 Nor do these allegations suggest that the administrative charges against him were 23 vague. Contrary to his allegations, the Notice identified several specific incidents of 24 misconduct and identified potential witnesses to those incidents. See

at 5–6. 25 Next, Ingersoll adds only one additional allegation related to his First Amendment 26 claim. Ingersoll now identifies councilmember and Mayor Edelen as the individual who 27 orchestrated his termination. See SAC ¶ 31. But Ingersoll again fails to allege any facts 1 As the Court previously explained, although Ingersoll may not need to allege that he 2 was actually engaged in protected political activity under Heffernan v. City of Paterson, 3

,

(2016), he must still allege facts that plausibly suggest 4 that Defendants had an improper motive for firing him under Twombley and Iqbal. See 5 Iqbal,

(“Nor does a complaint suffice if it tenders naked assertion[s] 6 devoid of further factual enhancement.”) (quotation marks omitted and alterations in 7 original). Ingersoll only offers conclusory allegations that “Langford and his . . . 8 supporters were not supporting [Mayor Edelen’s] re-election” and that Edelen was 9 attempting to “push out of the city government the city employees he viewed as politically 10 disloyal, including but not limited to Langford.” SAC ¶ 31. The second amended 11 complaint contains no facts to support those conclusions. Ingersoll does not allege, for 12 example, any facts plausibly suggesting that Defendants believed that he was Langford’s 13 supporter and that they fired him because of it. See, e.g., Heffernan,

14 (the plaintiff was seen with a “sign in hand, talking to campaign workers”); see also 15 Peterson v. Farrow, No. 15-cv-00801-JAM,

, at *7 (E.D. Cal. July 7, 16 2016) (“[I]n order for [the plaintiff’s] claim against [the defendant] to survive, [the 17 plaintiff] must still demonstrate the requisite causal connection between his perceived 18 expressive association and the citations that were issued to him by [the defendant].”). Nor 19 does Ingersoll allege any facts substantiating his allegation that Edelen was purging the 20 Del Rey Oaks government of “politically disloyal” employees. 21 Accordingly, the Court GRANTS Defendants’ motion to dismiss Ingersoll’s § 1983 22 claims. Because Ingersoll has failed to allege sufficient facts after three attempts, further 23 amendment would be futile. Thus, dismissal is without leave to amend. 24 IV. Conclusion 25 The Court GRANTS Defendants’ motion to dismiss Ingersoll’s second amended 26 complaint without leave to amend. Because no claims remain, the Court will enter 27 judgment in favor of Defendants and against Ingersoll. 1 IT IS SO ORDERED. 2 3 || Dated: November 22, 2019 h&o_—= NATHANAEL M. COUSINS 4 United States Magistrate Judge 5 6 7 8 9 10 11 12

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