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Ritchie v. Multnomah County Sheriff Daniel Staton

United States District Court, D. Oregon, Portland Division

March 28, 2018

BRENT RITCHIE, Plaintiff,
v.
MULTNOMAH COUNTY SHERIFF DANIEL STATON; by and through the MULTNOMAH COUNTY SHERIFF'S OFFICE, a political subdivision of MULTNOMAH COUNTY, OREGON, Defendants.

          FINDINGS AND RECOMMENDATION

          JOHN V. ACOSTA UNITED STATES MAGISTRATE JUDGE.

         Introduction

         Plaintiff Brent Ritchie (“Ritchie”) filed this action against defendants Multnomah County Sheriff Daniel Staton (“Staton”) and Multnomah County Sheriff's Office (“MCSO”) (collectively, “Defendants”), alleging claims under 42 U.S.C. § 1983 for violations of freedom of speech under the First and Fourteenth Amendments of the United States Constitution, and under Or. Rev. Stat. 659A.200(1)(b)(A) and (B) for violations of state whistleblower protections. Defendants move to dismiss Ritchie's First Claim for Relief in the First Amended Complaint (“Complaint”) for failure to state a claim upon which relief may be granted. Indirectly, Defendants also urge the court to decline to exercise supplemental jurisdiction over Defendants' state whistleblower claim.

         The court finds Ritchie is a public employee who spoke on a matter of public concern. Consequently, his speech is not protected by the First Amendment. This court should not accept supplemental jurisdiction over the state law claim asserted against Defendants. Accordingly, Defendants' motion to dismiss Ritchie's First Claim for Relief should be granted with prejudice and this action dismissed without prejudice to refiling in the appropriate state court.

         Background

         Since 1990, Ritchie worked with the MCSO, employed in various capacities. (First Am. Compl., ECF No. 10, (“FAC”) ¶ 13.) Eventually, he obtained a position as the Executive Assistant to Staton. (FAC ¶ 13.) As Executive Assistant, Ritchie “completed several special projects on behalf of Sheriff Staton, and attended meetings as the Sheriff's representative.” (FAC ¶ 14.) In August 2014, the Portland Police Bureau (the “Bureau”) and the City of Portland entered into a consent decree with the United States Department of Justice (“DOJ”) related to the Bureau's use of force when interacting with the mentally ill. (FAC ¶ 15.) Under-Sheriff Tim Moore asked Ritchie to review the consent decree and determine its impact, if any, on the MCSO. (FAC ¶ 16.)

         Shortly thereafter, Ritchie attended a training sponsored by the DOJ about its recent use-of-force audits and findings against multiple law enforcement agencies. (FAC ¶ 17.) Ritchie returned from the training and “suggested to Sheriff Staton that . . . plaintiff should also conduct a use of force audit modeled after the U.S. Department of Justice's recent audits.” (FAC ¶ 17.) Staton agreed and “informed plaintiff to keep the findings of his audit to himself and to only share the results with Sheriff Staton.” (FAC ¶ 17.) Ritchie “presented a draft of the final report (the “Report”) to Sheriff Staton on August 26, 2015 at 12[:]30pm in a meeting with Harry Smith.” (FAC ¶ 19.) “Mr. Smith left the meeting after 15-20 minutes. Plaintiff remained and went over the details of the Use of Force Audit.” (FAC ¶ 19.)

         The Report revealed that “black inmates are involved in use of force incidents within the jails at a higher rate than other inmates.” (FAC ¶ 19.) It also indicated “that black inmates involved in use of force incidents where OC and Tasers are used, is also at a higher rate than other inmates.” (FAC ¶ 19.) Lastly, Ritchie “informed Sheriff Staton that [the] Sheriff's office needed to take appropriate steps to identify the cause of these racial disparities and proactive steps to eliminate the troubling trend.” (FAC ¶ 19.)

         Following the presentation, Ritchie was demoted from Executive Assistant to Sergeant and directed “to not speak with any County Commissioners or their staffs.” (FAC ¶ 21.) Ritchie was stripped of his job duties, almost immediately ostracized, and his office was moved. (FAC ¶ 21.) Once Ritchie realized his predicament, he retired on November 20, 2015, although he was originally planning to retire on December 20, 2019. (FAC ¶ 22.)

         Legal Standard

         I. Rule 12(b)(6)

         A well-pleaded complaint requires only “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2) (2017). A federal claimant is not required to detail all factual allegations; however, the complaint must provide “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted). “Factual allegations must be enough to raise a right to relief above the speculative level.” Id. While the court must assume that all facts alleged in a complaint are true and view them in a light most favorable to the nonmoving party, it need not accept as true any legal conclusion set forth in the complaint. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Additionally, a plaintiff must set forth a plausible claim for relief - a possible claim for relief will not do. “In sum, for a complaint to survive a motion to dismiss, the non-conclusory ‘factual content, ' and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief.” Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009) (quoting Iqbal, 556 U.S. at 678); Sheppard v. David Evans & Assocs., No. 11-35164, 2012 WL 3983909, at *4 (9th Cir. Sept. 12, 2012) (“The Supreme Court has emphasized that analyzing the sufficiency of a complaint's allegations is a ‘context-specific task that requires the reviewing court to draw on its judicial experience and common sense.'” (quoting Iqbal, 556 U.S. at 679)).

         II. Rule 15(a)

         Under Rule 15(a), leave to amend should be “freely given when justice so requires.” The trial court has discretion when deciding whether to grant leave. United States v. Webb, 655 F.2d 977, 979 (9th Cir. 1981). The court should grant leave to amend with “liberality, ” so that matters are decided based on merit, rather than “bare pleadings.” Id. The court may deny the leave to amend if the amendment demonstrates: 1) undue delay; 2) bad faith; 3) futility; or 4) prejudice. Foman v. Davis, 371 U.S. 178, 182 (1962); AmerisourceBergen Corp. v. Dialysist W., Inc., 465 F.3d 946, 951 (9th Cir. 2006).

         Discussion

         Defendants move to dismiss all claims asserted in the Complaint. The court will first address the causes of action under § 1983, and then address the remaining state cause of action against Defendants.

         I. Failure to State a § 1983 Claim for First Amendment Retaliation

         Defendants move to dismiss Ritchie's first claim, which alleges Defendants violated § 1983 by retaliating against Ritchie for an exercise of his First Amendment rights. Ritchie contends Defendants violated his First Amendment rights because they terminated him in retaliation for the Report. Ritchie asserts the Report was constitutionally protected speech; Defendants contend the Report was not protected speech and cannot support a claim for First Amendment retaliation. Defendants are correct.

         “The First Amendment shields public employees from employment retaliation for their protected speech activities.” Hagen v. City of Eugene, 736 F.3d 1251, 1257 (9th Cir. 2013). “However, ‘when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.'” Ellins v. City of Sierra Madre, 710 F.3d 1049, 1056 (9th Cir. 2013) (quoting Garcetti v. Ceballos, 547 U.S. 410, 421 (2006)). The Ninth Circuit “follow[s] a sequential five-step inquiry to determine whether an employer impermissibly retaliated against an employee for engaging in protected speech.” Id. (citing Eng v. Cooley, 552 F.3d 1062, 1070 (9th Cir. 2009)). “First, the plaintiff bears the burden of showing: (1) whether the plaintiff spoke on a matter of public concern; (2) whether the plaintiff spoke as a private citizen or public employee; and (3) whether the plaintiff's protected speech was a substantial or motivating factor in the adverse employment action.” Id. “Next, if the plaintiff has satisfied the first three steps, the burden shifts to the government to show: (4) whether the state had an adequate justification for treating the employee differently from other members of the general public; and (5) whether the state would have taken the adverse employment action even absent the protected speech.” Id.

         Defendants argue Ritchie cannot meet the first factor of this test, that Ritchie spoke on a matter of public concern, or the second factor, that Ritchie spoke as a private citizen rather than “as a public employee within the contours of his position.” (Defs.' Mot. to Dismiss Mem., ...


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