1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 PETER McNEFF, Case No. 23-cv-00106-AMO

8 Plaintiff, ORDER GRANTING DEFENDANTS’ 9 v. MOTION TO DISMISS THE SECOND AMENDED COMPLAINT WITH 10 PLEASANTON POLICE DEPARTMENT, PREJUDICE et al., 11 Re: Dkt. No. 48 Defendants.

12 13 This is a Title

case in which a police officer alleges that he faced 14 retaliatory employment actions in response to his off-duty attendance at a political event. Before 15 the Court is Defendants’ motion to dismiss the Second Amended Complaint. The matter is fully 16 briefed and suitable for decision without oral argument. Accordingly, the hearing set for May 30, 17 2024, was vacated. See Civ. L.R. 7-1(b). Having read the parties’ papers and carefully considered 18 their arguments and the relevant legal authority, and good cause appearing, the Court hereby 19 GRANTS Defendants’ motion, for the following reasons. 20 I. BACKGROUND 21 A. Factual Background1 22 Plaintiff Peter McNeff is a police officer for the Pleasanton Police Department (“PPD”) 23 and has worked for the City of Pleasanton since December 2015. Second Am. Compl. (“SAC,” 24 ECF 47) ¶¶ 1, 9. Defendant City of Pleasanton (“City”) is a city within the State of California. 25 SAC ¶ 2. Defendant David Swing (“Chief Swing”), an individual, is Chief of PPD. SAC ¶ 4. 26

27 1 Unless otherwise noted, the Court accepts McNeff’s allegations in the SAC as true and construes 1 Defendant Larry Cox (“Captain Cox”), an individual, is a Captain in PPD. SAC ¶ 5. Chief Swing 2 and Captain Cox are referred to collectively as “Individual Defendants.”2 3 On January 6, 2021, McNeff attended a “Stop the Steal” rally in Sacramento, California. 4 SAC ¶ 10; Ex. A. He attended the rally during his personal time, in civilian clothing, and posted 5 pictures of himself and his wife at the rally on his personal Facebook page. SAC ¶ 10. A PPD 6 officer sent a memo to Chief Swing on January 7, 2021, accusing McNeff of being a member of 7 the “Proud Boys.” SAC ¶ 12. PPD took no action in response to this memo and notified McNeff 8 that it would not take any action based on the memo. SAC ¶ 15. 9 Subsequently, another officer searched McNeff’s social media account and sent a 10 complaint to the City as an “anonymous concerned citizen” on January 10, 2021. SAC ¶ 16. In 11 response to the anonymous complaint, Chief Swing immediately relieved McNeff of his duties 12 and placed him on leave. SAC ¶ 17. 13 In March 2021, the PPD launched an internal affairs investigation into McNeff’s social 14 media conduct. SAC ¶ 18. “The investigation was retaliatory on its face,” and both Chief Swing 15 and Captain Cox “knew that the investigation was improper.” SAC ¶¶ 19-20. Chief Swing and 16 Captain Cox designed the investigation to review several years of McNeff’s online activity to 17 search for “off-color” social media posts to use against him. SAC ¶ 20. Swing and Cox delegated 18 the investigation to an outside law firm, which in turn investigated five separate allegations against 19 McNeff. SAC ¶ 20. 20 The outside law firm interviewed several PPD officers about each of the five allegations. 21 SAC ¶¶ 21-22. The investigation sustained two findings against McNeff for violations of PPD 22 and City policies based on the unearthed social media posts. SAC ¶¶ 22-23, Ex. A. The City 23 terminated McNeff’s employment following the investigation. SAC ¶ 23. The decision to 24 terminate McNeff’s employment “was made by Chief Swing acting pursuant to authority 25 26

27 2 In the SAC, McNeff omits two Defendants named in the First Amended Complaint (“FAC”): 1 delegated to him by the City Manager. The City Manager also knew about and ratified the 2 decision.” SAC ¶ 23. 3 McNeff challenged his termination through arbitration and prevailed. SAC ¶ 25, Ex. A. 4 Significantly, the arbitrator concluded that the allegedly offending social media posts did not 5 violate City policy and that McNeff had engaged in First Amendment-protected activity, speaking 6 as a private citizen on matters such as Islamic extremism and public health restrictions during the 7 early stages of the Covid-19 Pandemic. SAC, Ex. A at 11-18. The arbitrator ordered that McNeff 8 be reinstated and paid his full back pay, plus 10 percent interest.

Although the arbitrator 9 ordered the City to reinstate McNeff last fall, McNeff still has not returned to active duty. SAC 10 ¶ 30. 11 B. Procedural History 12 McNeff initiated this suit on January 10, 2023. ECF 1. He filed his First Amended 13 Complaint on April 29, 2023 (ECF 20), and Defendants filed a Motion to Dismiss on May 15, 14 2023 (ECF 24). The Court granted the Motion to Dismiss on November 30, 2023, with leave to 15 amend. ECF 44. McNeff filed his SAC on January 9, 2024. ECF 47. The SAC alleges the 16 following claims: (1)

/First Amendment Retaliation against the Individual 17 Defendants; and (2)

/First Amendment Retaliation against the City.3 18 The remaining Defendants filed the instant motion to dismiss on January 23, 2024. ECF 19 48. After McNeff filed his opposition and Defendants filed their reply, the Court ordered 20 supplemental briefing on the issue of futility and vacated the hearing on the motion. See ECF 56. 21 Specifically, the Court ordered “Plaintiff to submit a brief . . . describing what factual detail, if 22 any, he could add in support of” (1) his allegations regarding what Chief Swing “knew, or 23 reasonably should have known” about the sources of the complaints made against McNeff and 24 (2) his allegations about the City Manager’s simultaneous delegation and ratification of Chief 25 Swing’s decision to fire McNeff.

The Court permitted Defendants to file a response.

26 27 1 II. DISCUSSION 2 Defendants move to dismiss the SAC under Rule 12(b)(6). 3 A. Legal Standard 4 A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests for the legal 5 sufficiency of the claims alleged in the complaint. Ileto v. Glock,

, 1199-1200 (9th 6 Cir. 2003). Under Federal Rule of Civil Procedure 8, which requires that a complaint include a 7 “short and plain statement of the claim showing that the pleader is entitled to relief,” Fed. R. Civ.

(a)(2), a complaint may be dismissed under Rule 12(b)(6) if the plaintiff fails to state a 9 cognizable legal theory, or has not alleged sufficient facts to support a cognizable legal theory. 10 Somers v. Apple, Inc.,

(9th Cir. 2013). 11 While the court is to accept as true all the factual allegations in the complaint, legally 12 conclusory statements, not supported by actual factual allegations, need not be accepted. Ashcroft 13 v. Iqbal,

(2009). The complaint must proffer sufficient facts to state a claim 14 for relief that is plausible on its face. Bell Atl. Corp. v. Twombly,

, 558-59 15 (2007) (citations and quotations omitted). 16 “A claim has facial plausibility when the plaintiff pleads factual content that allows the 17 court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” 18 Iqbal,

(citation omitted). “[W]here the well-pleaded facts do not permit the court 19 to infer more than the mere possibility of misconduct, the complaint has alleged – but it has not 20 ‘show[n]’ – that the pleader is entitled to relief.”

. Where dismissal is warranted, it is 21 generally without prejudice, unless it is clear the complaint cannot be saved by any amendment. 22 Sparling v. Daou,

(9th Cir. 2005). 23 B. Analysis 24 Defendants challenge the sufficiency of the SAC on three bases: (1) that the SAC 25 specifically fails to state a claim against Captain Cox; (2) that the individual defendants are 26 entitled to qualified immunity; and (3) that the SAC fails to state a claim for Monell liability 27 1 against the City. ECF 48.4 Because the qualified immunity argument addresses McNeff’s claims 2 against both of the Individual Defendants, the Court takes up the second and third issues in turn. 3 1. Individual Defendants’ Liability 4 Defendants argue that they enjoy qualified immunity from McNeff’s claims because 5 McNeff fails to allege a violation of his constitutional rights. The Court considers the sufficiency 6 of McNeff’s allegations regarding the Individual Defendants’ liability before examining whether 7 leave to amend should be granted. 8 a. Sufficiency of Pleading 9 Defendants aver that they are entitled to qualified immunity because McNeff fails to state a 10 claim for violation of the First Amendment. They insist that McNeff only alleges in conclusory 11 fashion that the Individual Defendants (a) investigated his conduct, (b) found that McNeff violated 12 City policies unrelated to his political views or his attendance at the rally, and (c) that Defendants 13 terminated McNeff for the violation of such policies, none of which constituted a violation of a 14 constitutional right. McNeff counters that he plausibly alleges a violation of his First Amendment 15 right to political speech through employment retaliation in the forms of his placement on leave, 16 Defendants’ investigation into his social media history following his rally attendance, and his 17 termination. 18 Qualified immunity protects “government officials . . . from liability for civil damages 19 insofar as their conduct does not violate clearly established statutory or constitutional rights of 20 which a reasonable person would have known.” Harlow v. Fitzgerald,

(1982). 21 “[T]o overcome qualified immunity, Plaintiffs must show that [defendants] (1) ‘violated a federal 22 statutory or constitutional right’ and (2) ‘the unlawfulness of their conduct was clearly established 23 at the time.’” Ballentine v. Tucker,

(9th Cir. 2022) (quoting District of Columbia 24 v. Wesby,

(2018)). 25

26 4 McNeff argues in his supplemental brief that Defendants did not seek dismissal of Chief Swing. See ECF 58 at 2. Not so. Defendants argue that both Individual Defendants are entitled to 27 qualified immunity (ECF 48 at 13-16) and move for dismissal of the claims in the SAC “in their 1 “To state a First Amendment retaliation claim, a plaintiff must plausibly allege ‘that (1) he 2 was engaged in a constitutionally protected activity, (2) the defendant’s actions would chill a 3 person of ordinary firmness from continuing to engage in the protected activity and (3) the 4 protected activity was a substantial or motivating factor in the defendant’s conduct.’” Capp v. 5 Cnty. of San Diego,

(9th Cir. 2019) (quoting O’Brien v. Welty,

, 6 932 (9th Cir. 2016)). On this third element, courts require the plaintiff to “establish a ‘causal 7 connection’ between the government defendant’s ‘retaliatory animus’ and the plaintiff’s 8 ‘subsequent injury.’” Nieves v. Bartlett,

(2019) (quoting Hartman v. Moore, 9

(2006)). A plaintiff must particularly show that the defendant’s retaliatory 10 animus was “a ‘but-for’ cause, meaning that the adverse action against the plaintiff would not have 11 been taken absent the retaliatory motive.”

at 399 (quoting Hartman,

). “It is 12 not enough to show that an official acted with a retaliatory motive and that the plaintiff was 13 injured – the motive must cause the injury.”

(emphasis in original). In Nieves, for 14 example, the plaintiff alleged that the defendants, two police officers, arrested him in retaliation 15 for his First Amendment protected speech.

. The Supreme Court held that the plaintiff’s 16 failure to establish the absence of probable cause of his arrest for disorderly conduct and resisting 17 arrest, and thus his failure to establish that his protected speech was the but-for cause of arrest, 18 precluded a finding of retaliation for constitutionally-protected speech.

. The Ninth 19 Circuit further clarified the nexus requirement from Nieves in another First Amendment retaliation 20 matter, where it explained in significant part,

21 Under this test, if the outcome (the adverse action) would not have occurred without the government official’s retaliatory animus, then 22 that animus was a but-for cause of the adverse action. See [Bostock v. Clayton Cnty.,

(2020).] Conversely, if the 23 government officials would have taken the same adverse action even in the absence of their animus or retaliatory motive arising from the 24 plaintiff’s speech, then the officials’ animus was not a but-for cause of the adverse action, and there was no violation of the plaintiff’s 25 constitutional rights. See

“It may be dishonorable to act with an unconstitutional motive and perhaps in some instances be unlawful, 26 but action colored by some degree of bad motive does not amount to a constitutional tort if that action would have been taken anyway.” 27 [Hartman v. Moore,

(2006)]. 1 Boquist v. Courtney,

, 778 (9th Cir. 2022). In concluding that the plaintiff had 2 sufficiently pleaded but-for causation, the Boquist court noted that the challenged adverse action 3 had been initiated purely in response to the plaintiff’s protected speech and that the government 4 defendants did not present an alternative basis for their conduct.

. 5 Here, McNeff generally satisfies the first two prongs of the three-part test from Capp. See 6

. There is no dispute that McNeff’s attendance at the rally constituted 7 constitutionally protected activity, satisfying the first element of the test. There is also no dispute 8 that the placement of McNeff on leave and his termination constituted adverse actions that would 9 chill a person of ordinary firmness from continuing to attend political rallies, satisfying the second 10 element of the test. 11 As for the third element, that McNeff’s attendance at the rally led to or was a motivating 12 factor in the adverse actions, McNeff fails to establish a causal connection. McNeff alleges that 13 Chief Swing relieved him of his duties and placed him on leave not immediately after the 14 discovery of his rally attendance, but rather, following receipt of an anonymous email complaint 15 about McNeff’s social media history on January 10, 2021 – an “anonymous” complaint that Chief 16 Swing “knew, or reasonably should have known,” was “unfounded” and made by another PPD 17 officer. SAC ¶¶ 14-17. The Court notes, as an initial matter, that McNeff’s allegations about what 18 Chief Swing “knew, or reasonably should have known” are not entitled to the presumption of 19 truth. See Iqbal,

(finding contention that defendants “knew of” discriminatory 20 treatment to constitute nothing more than “formulaic recitation of the elements” of a constitutional 21 violation, insufficient to state a claim). Even if the Court accepted McNeff’s conclusory 22 contentions regarding the Individual Defendants’ intent, the facts presented in this case appear to 23 fall squarely in line with Nieves’s and Boquist’s holdings that the government defendants’ 24 allegedly retaliatory actions need not be purehearted so long as the government actor has an 25 alternate basis for taking the challenged action. 26 Moreover, McNeff’s concession that Chief Swing had another rationale for placing him on 27 leave and initiating an investigation into his social media history dooms his claim that Defendants 1 adverse actions against him following a complaint about his social media conduct, and they took 2 further action against him based on violations of City and PPD policies substantiated by an 3 independent law firm hired to conduct the investigation. See SAC ¶¶ 20, 22, Ex. A at 4-7. The 4 adverse actions against McNeff, by his own pleading, are thus attenuated from his attendance at 5 the rally. In response to a complaint about his rally attendance on January 7, 2021, PPD informed 6 McNeff that he would face no adverse action, and it was only on January 10, 2021, following a 7 separate complaint regarding problematic social media posts, that McNeff faced the adverse 8 actions. See SAC ¶¶ 12, 15-17. Despite McNeff’s conclusory contentions that Chief Swing and 9 Captain Cox held politically biased motives for placing him on leave, initiating the investigation 10 into his social media history, and terminating him, McNeff fails to establish that the adverse 11 actions would not have happened but for Defendants’ retaliatory animus. Cf. Boquist, 32 F.4th at 12 778. Given the lack of a nexus between McNeff’s protected speech and the adverse action, as well 13 as Defendants’ alternative rationale for taking the adverse action outside of retaliation for 14 McNeff’s First-Amendment-protected activity, McNeff fails to establish a constitutional violation 15 and Defendants are entitled to qualified immunity. The Court therefore dismisses the first cause of 16 action alleged against the Individual Defendants. 17 b. Leave to Amend 18 In his supplemental brief, McNeff claims he can “buttress” allegations that the Individual 19 Defendants knew or reasonably should have known the sources of complaints against McNeff 20 “with additional facts.” ECF 58 at 3. The potential new facts he identifies include that there was 21 another politically driven complaint with temporal proximity, that McNeff attended the rally on 22 his own time in civilian clothes, and that McNeff used a pseudonym for his social media account. 23 Id. at 3. These allegations fail to move the needle – they were already included within the SAC. 24 See SAC ¶¶ 10, 12, 16. In light of McNeff’s inability to identify additional facts to bolster his 25 claim of retaliation against the Individual Defendants, further amendment would prove futile. See 26 Ebner v. Fresh, Inc.,

(9th Cir. 2016) (overruled on other grounds) (permitting 27 dismissal without leave to amend where the trial court “determines that the pleading could not 1 possibly be cured by the allegation of other facts.”). The Court accordingly dismisses the first 2 cause of action against both Individual Defendants without leave to amend. 3 2. Monell Liability 4 Defendants additionally move to dismiss the City for failure to establish municipal liability 5 under Section 1983. The Court considers the sufficiency of McNeff’s allegations regarding 6 municipal liability before turning to whether leave to amend should be granted. 7 a. Sufficiency of Pleading 8 “The Supreme Court in Monell held that municipalities may only be held liable under 9 section 1983 for constitutional violations resulting from official . . . policy or custom.” Benavidez 10 v. Cnty. of San Diego,

(9th Cir. 2021) (citing Monell v. Dep’t of Soc. Servs. 11 of City of New York,

(1978)). “[P]olicies can include written policies, unwritten 12 customs and practices, failure to train municipal employees on avoiding certain obvious 13 constitutional violations, . . . and, in rare instances, single constitutional violations [that] are so 14 inconsistent with constitutional rights that even such a single instance indicates at least deliberate 15 indifference of the municipality[.]” Benavidez,

(internal citations omitted). 16 Municipalities also may be subject to damages when the plaintiff was injured pursuant to the 17 decision of a “final policymaker.” Ellins v. City of Sierra Madre,

(9th Cir. 18 2013). A plaintiff can establish municipality liability “by showing that an official with final 19 policymaking authority either delegated that authority to, or ratified the decision of, a 20 subordinate.” Villegas v. Gilroy Garlic Festival Ass’n,

(9th Cir. 2008) (en 21 banc) (quotations omitted); see also Lassiter v. City of Bremerton,

(9th Cir. 22 2009). 23 “Whether a particular official has final policy-making authority is a question of state law,” 24 determined by the judge, not the jury. Gillette v. Delmore,

(9th Cir. 1992); 25 Zografos v. City & Cnty. of San Francisco, No. C-05-3881-PJH,

, at *16 (N.D. 26 Cal. Dec. 13, 2006). The court must first “identify the particular area or issue for which the 27 official is alleged to be the final policymaker.” Cortez v. Cnty. of Los Angeles,

, 1 court must “analyze state law to discern the official’s actual function with respect to that particular 2 area or issue.”

In so doing, courts look to state laws, county charters and codes, and city 3 charters. See Avenmarg v. Humboldt Cnty., No. 19-CV-05891-RMI,

, at *7 4 (N.D. Cal. Aug. 4, 2020) (collecting cases). “The authority to exercise discretion while 5 performing certain functions does not make the official a final policymaker unless the decisions 6 are final, unreviewable, and not constrained by the official policies of superiors.” Zografos, 2006

, at *16 (citing Praprotnik, 485 U.S. at 126-28); see also Lopez v. City & Cnty. of 8 San Francisco, No. 12-CV-06523-MEJ,

, at *14 (N.D. Cal. June 30, 2014) 9 (“the fact that a city employee has some level of independent decision-making power does not 10 render him a final policymaker for purposes of municipal liability”). Further, in the context of 11 First Amendment retaliation claims, plaintiffs must also allege that the final policymaker “knew of 12 [the] alleged retaliatory motive for” the actions they ratified. Ellins v. City of Sierra Madre, 710

(9th Cir. 2013) 14 Here, the SAC acknowledges that the Pleasanton City Manager, not either of the remaining 15 individual defendants, has the authority to hire and fire employees and thus qualifies as an official 16 with final policymaking authority. SAC ¶ 43. This point is reinforced by the City of Pleasanton’s 17 Municipal Code, under which Chief Swing reports to the City Manager, who in turn holds 18 responsibility as the final policymaker. See RJN, Ex. A, Pleasanton Muni. Code Sections 2.08.070 19 & 2.08.090 (ECF 49-1 at 2, 4). McNeff asserts that the City Manager delegated that final 20 policymaking authority to Chief Swing for purposes of firing McNeff. SAC ¶ 23. 21 McNeff asserts that a city manager’s delegation of authority related to employee discipline 22 is a factual matter that resists resolution at the pleading stage. See Opp. (ECF 50) at 16-17 (citing 23 Barone v. City of Springfield, Oregon,

(9th Cir. 2018)). In Barone, the court 24 focused on how the factual record supported a finding of delegation, including several statements 25 demonstrating such delegation.

(discussing police chief’s concession that “the 26 buck stops” with him “[w]ithin the department”; another city employee’s admission that 27 “whatever decision [the police chief] made, the city manager would support in this case”; and the 1 employee). The Barone court distinguished the factual record presented in that case from another 2 Ninth Circuit case, Gillette v. Delmore,

(9th Cir. 1992), in which a city fire 3 chief’s discretion in hiring and firing did not give rise to municipal liability in light of the city 4 manager’s retained policymaking authority. See Barone,

(noting that “[t]he 5 plaintiff in Gillette failed to provide evidence that the City Manager delegated final policymaking 6 authority to the fire chief.”). 7 In contrast to Barone, and similar to Gillette, McNeff provides no factual support for the 8 premise that the City Manager delegated authority to Chief Swing. McNeff instead alleges the 9 conclusion that such authority was delegated. See SAC ¶¶ 42-43. McNeff alternatively asserts in 10 conclusory fashion that the City Manager knew McNeff’s termination was in retaliation for 11 protected speech “or that [he] ratified the decision despite such knowledge.” Ellins,

1066; SAC ¶ 24 (“[t]he City Manager also knew about and ratified the decision”). McNeff fails to 13 present any facts regarding how the City Manager knew that the investigation into McNeff’s social 14 media conduct arose in retaliation for his exercise of free speech. Moreover, he does not allege 15 that the City Manager’s agreement with Chief Swing’s termination recommendation constituted 16 ratification of retaliation against McNeff. Even where the final policymaker knows about the 17 factual basis for an allegedly unconstitutional employment decision, there must be sufficient 18 allegations that the official is ratifying the decision on an unlawful basis to give rise to Monell 19 liability. Ellins v. City of Sierra Madre,

(9th Cir. 2013). That is not the 20 case here. Therefore, McNeff has failed to allege that his alleged injury is attributable to the 21 City’s final policymaker and he fails to plausibly allege Monell liability. See Iqbal,

678 (“A claim has facial plausibility when the plaintiff pleads factual content that allows the court 23 to draw the reasonable inference that the defendant is liable for the misconduct alleged.” (citation 24 omitted)). The Court dismisses the Section 1983 claim as to the City. 25 b. Leave to Amend 26 “Leave to amend is warranted if the deficiencies can be cured with additional allegations 27 that are consistent with the challenged pleading and that do not contradict the allegations in the 1 (internal quotation marks and citation omitted). In its order for supplemental briefing, the Court 2 || instructed McNeff to identify additional facts he would supplement regarding the City Manager’s 3 simultaneous delegation of authority to Chief Swing and ratification of Chief Swing’s decision to 4 || fire McNeff. ECF 56 at 1 (citing SAC 23). In response, McNeff states his intent to abandon the 5 ratification theory in a subsequent pleading. ECF 58 at 4. He states further that he would assert 6 || that Chief Swing had final policymaking authority based on the practical indicia of decisionmaker 7 authority considered in Barone,

. See ECF 58 at 4. However, attributing final 8 || decisionmaker authority solely to Chief Swing would be inconsistent with McNeff’s earlier 9 || pleadings. See, e.g., Compl. (ECF 1) 4] 50, FAC (ECF 20) 4] 79-80 (both pleadings referring also 10 || to the City Manager’s final policymaker authority). Leave to amend is not warranted where 11 McNeff offers a factually unsupported theory of liability that is inconsistent with his earlier 12 || pleadings. The Court accordingly dismisses the second cause of action against the City without 13 leave to amend. 14 || 11. CONCLUSION 15 For the foregoing reasons, the Court GRANTS Defendants’ motion to dismiss. Further a 16 amendment would prove futile. Therefore, the Court DISMISSES the case with prejudice. IT IS SO ORDERED. 18 || Dated: July 17, 2024 19 □ / □ 20 ARACELI MARTINEZ-OLGUIN 21 United States District Judge 22 23 24 25 26 27 28