United States District Court, D. Oregon
OPINION AND ORDER
MICHAEL McSHANE, District Judge.
Plaintiff Marc Boyd ("Boyd") brings this action against four Oregon State Police ("OSP") officers alleging six claims for relief. Defendants move to dismiss claims one and claims three through six under Fed.R.Civ.P. 12(b)(6). See ECF No. 11. In the alternative, the defendants move to dismiss claims three and five under Fed.R.Civ.P. 12(f). For the reasons that follow, the defendants' motion, ECF No. 11, is GRANTED in part. Claims one, three, four, and five are dismissed, with prejudice. The motion to dismiss claim six is DENIED.
On March 21, 2013, Boyd observed a fellow OSP officer, defendant Edwards, conduct what Boyd believed to be an unconstitutional search of a citizen's motor home. Boyd promptly reported the conduct to his immediate supervisor, who informed defendant Heider. On April 4, 2013, Heider served an official written directive on Boyd that instructed him to cease discussing Edwards's allegedly unconstitutional activities or Boyd would be subject to discipline. Boyd reported the written directive to his union attorney. On April 12, 2013, defendant Lanz, then the Captain supervising the OSP Office of Professional Responsibility, sent an email to Boyd. In this email, Lanz rescinded Heider's written directive and informed Boyd a separate written order was forthcoming. On April 19, 2013, Heider served Boyd with a second order that again directed Boyd to cease all communications about Edwards's allegedly illegal activities.
On that same day, defendant Lanz informed the president of the Oregon State Police Officers Association that Lanz intended to investigate Boyd for every minor infraction or perceived infraction because of Boyd's conduct in reporting Edwards. The defendants subsequently initiated several internal investigations targeting Boyd with no less than fourteen false allegations.
On October 19, 2013, the Eugene Police Department ("EPD") arrested Boyd in a manner that violated numerous EPD policies. Following the arrest, on October 21, 2013, the defendants placed Boyd on paid administrative leave pending the outcome of an internal investigation. On March 23, 2014, Edwards and Heider delivered a letter to Boyd announcing OSP's intention to terminate Boyd based upon their internal investigation. Boyd alleges this investigation was initiated in order to harass and retaliate against him for his report regarding Edwards. The letter informed Boyd he was on paid administrative leave pending the outcome of the internal investigation and discipline process.
Boyd alleges the defendants fabricated evidence to support the initiation of the internal investigations and ignored exculpatory evidence that would have exonerated Boyd of any policy violations. After Boyd served the Oregon Department of Administrative Services with a tort claim notice on June 6, 2014, Lanz admitted to fabricating evidence in order to retaliate against Boyd for his report of Edwards's conduct. Ultimately, OSP decided not to terminate Boyd, and Boyd is currently scheduled to return to his original position.
After Boyd brought this action on February 12, 2015, his scheduled supervisor, defendant Gifford, told Boyd's coworkers that Boyd should not have been allowed to return to work and could not be trusted. In a subsequent meeting, Gifford and Edwards suggested to Boyd's coworkers that they limit contact with Boyd to avoid being involved in a lawsuit.
To survive a motion to dismiss under Fed.R.Civ.P. 12(b)(6), a complaint must contain sufficient factual matter that "state[s] a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is plausible on its face when the factual allegations allow the court to infer the defendant's liability based on the alleged conduct. Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009). The factual allegations must present more than "the mere possibility of misconduct." Id. at 678.
While considering a motion to dismiss, the court must accept all allegations of material fact as true and construe in the light most favorable to the non-movant. Burget v. Lokelani Bernice Pauahi Bishop Trust, 200 F.3d 661, 663 (9th Cir. 2000). But the court is "not bound to accept as true a legal conclusion couched as a factual allegation." Twombly, 550 U.S. at 555. If the complaint is dismissed, leave to amend should be granted unless the court "determines that the pleading could not possibly be cured by the allegation of other facts." Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995).
Under Fed.R.Civ.P. 12(f) the court may strike from a pleading "any redundant, immaterial, impertinent, or scandalous matter."
Boyd alleges he faced retaliation at work after he reported the misconduct of a coworker to his supervising officer. Because Boyd is scheduled to return to his original position, Boyd's substantive due process claim fails as a matter of law. I also conclude that Boyd's communications to his supervisor were in Boyd's capacity as a public official, so claims three and four fail to establish a First Amendment violation. Claims five and six deal with alleged retaliation suffered as a result of filing this action. Because the filing of the complaint in this action constitutes speech in Boyd's capacity as a private citizen, the defendants' motion to dismiss claim 6 is denied. ...