United States District Court, D. Oregon
Jeffrey H. Boiler, Boiler Law Firm, Attorneys for Plaintiff.
A. Kraemer and Leslie A. Edenhofer, Kraemer & Edenhofer,
Of Attorneys for Defendants City of McMinnville, Ron Noble,
and Matt Scales.
F. Rosenblum, Attorney General, and Tracy J. White, Senior
Assistant Attorney General, Oregon Department of Justice, Of
Attorneys for Defendant Bradley Berry.
OPINION AND ORDER
Michael H. Simon United States District Judge.
the Court are Defendants' motions to dismiss the Third
Amended Complaint (“TAC”) by Plaintiff Timothy
Heidt (“Heidt”), which is his fourth attempt
sufficiently to allege a claim. Heidt, a sergeant with the
McMinnville Police Department, brings one claim under 42
U.S.C. § 1983, alleging procedural due process
violations under the Fourteenth Amendment against his
employer, City of McMinnville, acting by and through the
McMinnville Police Department (“MPD”), as well as
against former MPD police chief Ron Noble
(“Noble”), current MPD police chief Matt Scales
(“Scales”) (collectively, “City
Defendants”), and Yamhill County District Attorney
Bradley Berry (“Berry”) (collectively,
Court previously dismissed Heidt's procedural due process
violation claim without prejudice, granting Heidt leave to
replead if he can sufficiently plead a
constitutionally-protected property interest. Because the
Court finds that Heidt has failed to do so, the Court grants
the motions to dismiss filed by the City Defendants and
Motion to Dismiss
motion to dismiss for failure to state a claim may be granted
only when there is no cognizable legal theory to support the
claim or when the complaint lacks sufficient factual
allegations to state a facially plausible claim for relief.
Shroyer v. New Cingular Wireless Servs.,
Inc., 622 F.3d 1035, 1041 (9th Cir. 2010). In
evaluating the sufficiency of a complaint's factual
allegations, the court must accept as true all well-pleaded
material facts alleged in the complaint and construe them in
the light most favorable to the non-moving party. Wilson
v. Hewlett-Packard Co., 668 F.3d 1136, 1140 (9th Cir.
2012); Daniels-Hall v. Nat'l Educ. Ass'n,
629 F.3d 992, 998 (9th Cir. 2010). To be entitled to a
presumption of truth, allegations in a complaint “may
not simply recite the elements of a cause of action, but must
contain sufficient allegations of underlying facts to give
fair notice and to enable the opposing party to defend itself
effectively.” Starr v. Baca, 652 F.3d 1202,
1216 (9th Cir. 2011). All reasonable inferences from the
factual allegations must be drawn in favor of the plaintiff.
Newcal Indus. v. Ikon Office Sol., 513 F.3d 1038,
1043 n.2 (9th Cir. 2008). The court need not,
however, credit the plaintiff's legal
conclusions that are couched as factual allegations.
Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009).
complaint must contain sufficient factual allegations to
“plausibly suggest an entitlement to relief, such that
it is not unfair to require the opposing party to be
subjected to the expense of discovery and continued
litigation.” Starr, 652 F.3d at 1216. “A
claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678 (citing
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556
Procedural Due Process
Due Process Clause forbids the governmental deprivation of
substantive rights without constitutionally adequate
procedure.” Shanks v. Dressel, 540 F.3d 1082,
1090-01 (9th Cir. 2008). The Supreme Court has repeatedly
recognized that “the Government has a much freer hand
in dealing ‘with citizen employees than it does when it
brings its sovereign power to bear on citizens at
large.'” NASA v. Nelson, 562 U.S. 134, 148
(2011) (quoting Engquist v. Oregon Dep't of
Agric., 553 U.S. 591, 598 (2008)). “This
distinction is grounded on the ‘common-sense
realization' that if every ‘employment decision
became a constitutional matter, ' the Government could
not function.” Id. at 148-49 (quoting
Connick v. Myers, 461 U.S. 138, 143 (1983)); see
also Bishop v. Wood, 426 U.S. 341, 350 (1976)
(“The Due Process Clause . . . is not a guarantee
against incorrect or ill-advised personnel
prevail on a procedural due process claim, a plaintiff must
establish: (1) a constitutionally-protected liberty or
property interest; (2) a deprivation of that interest by the
government; and (3) the lack of adequate process.
Shanks, 540 F.3d at 1090. Thus, “[a] threshold
requirement to a . . . procedural due process claim is the
plaintiff's showing of a liberty or property interest
protected by the Constitution.” Wedges/Ledges of
California, Inc. v. City of Phoenix, 24 F.3d 56, 62 (9th
employee holds a protected property interest only if she or
he has a reasonable expectation of entitlement to it.
Stiesberg v. State of California, 80 F.3d 353, 356
(9th Cir. 1996); Board of Regents v. Roth, 408 U.S.
564, 577 (1972). Public employees have a “property
interest” in the terms and conditions of their
employment if that interest is established “by existing
rules or understandings that stem from an independent source
such as state law-rules or understandings that secure certain
benefits and that support claims of entitlement to those
benefits.” Board of Regents, 408 U.S. at 577;
see also Ulrich v. City & Cty of S.F., 308 F.3d
968, 975 (9th Cir. 2002). A reasonable expectation of
entitlement is derived from the wording of the independent
source of law, and the “extent to which the entitlement
is couched in mandatory terms.” Stiesberg, 80
F.3d at 356 (quoting Wedges/Ledges, 24 F.3d at 62).
When the independent source of law details procedural
requirements, even those requirements do not automatically
transform an employees' “unilateral expectations
into a protected property interest.”
Wedges/Ledges, 24 F.3d at 62. Such an interest is
only created if the “procedural requirements are
intended to be a significant substantive restriction on . . .
decision making.” T.T. v. Bellevue Sch. Dist.,
376 F. App'x. 769, 771 (9th Cir. 2010) (quoting
Stiesberg, 80 F.3d at 356).
background of this case has been discussed in the Court's
previous opinions. The critical facts relevant to this motion
are that after his personnel issues, including Defendant
Berry issuing a “Brady
letter” informing Heidt that based on reports of
his conduct the Yamhill County District Attorney had
“‘no choice but to disqualify you as a witness
for the State due to a lack of confidence in you as a
witness'” (hereinafter referred to as the
“Brady Determination”), the MPD and
Defendant Scales changed Heidt's work duties and shift
assignments. Heidt alleges that the changes in his position
have resulted in “second-class” officer status,
which has been humiliating and caused damage to his
reputation and future employment opportunities.
Due Process Claim
raises a single claim for relief against all Defendants,
alleging procedural due process violations. To survive
Defendants' motions to dismiss, Heidt's TAC must
allege facts showing that an independent source of law gives
him an entitlement to the property interests he asserts and
that the provisions of that independent source of law are
couched in mandatory terms and are intended to be a
significant substantive restriction on MPD's decision
making. See Stiesberg, 80 F.3d at 356.
alleges that the City Defendants and Defendant Berry's
involvement in the Brady Determination and resultant
change in Heidt's job duties and opportunities deprived
him of four constitutionally-protected property interests.
Specifically, Heidt alleges he is entitled under his
collective bargaining agreement (“union
contract”) and provisions of Oregon law to: (1)
overtime hours and pay; (2) previous job duties; (3)
promotions and future employability as a police officer; and
(4) training opportunities. The Court addresses each of
Heidt's alleged property interests in turn.