Taylor v. San Francisco Sheriff's Department

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 MECHIEL TAYLOR, Case No. 23-cv-04121-DMR 8 Plaintiff, ORDER ON MOTIONS TO DISMISS 9 v. SECOND AMENDED COMPLAINT 10 FIVE KEYS SCHOOLS AND Re: Dkt. Nos. 104, 105, 107 PROGRAMS, et al., 11 Defendants. 12 13 Plaintiff Mechiel Taylor, representing herself, brings this second amended complaint 14 against seven defendants alleging civil rights and state tort claims relating to incidents that 15 happened during Plaintiff’s employment with Five Keys Schools and Programs (“Five Keys”). 16 [Docket No. 103 (Second Amended Complaint, “SAC”).]1 Defendants now move to dismiss in 17 three different motions: 18 - City and County of San Francisco (“CCSF”) [Docket No. 104 (CCSF Mot.)]; 19 - Alameda County, Nicole Tremaine Allen, and Gregory Ahern (collectively “Alameda 20 Defendants”) [Docket No. 105 (Alameda Mot.)];2 21 - Five Keys, Steve Good, and Melanie Fukuhara (collectively “Five Keys Defendants”) 22 [Docket No. 107 (Five Keys Mot.)].3 23 24 1 In the SAC, Plaintiff makes references to Alameda County Sheriff’s Office, San Francisco Sheriff’s Department, and Matthew Milton as defendants. As these parties have already been 25 dismissed from this matter with prejudice, [Docket Nos. 99, 100], the court does not consider any claims made against them. 26 2 Plaintiff drops Daniel Brodie as a Defendant. SAC ¶ 261. 27 1 Plaintiff opposes all three motions. [Docket Nos. 108, 110, 112.] The court finds the matter 2 suitable for resolution without oral argument. L. R. 7-1(b). For the following reasons, the 3 motions are granted in part and denied in part. 4 I. BACKGROUND 5 A. Statement of Facts 6 Plaintiff makes the following allegations in the SAC, which the court takes as true for 7 purposes of this motion.4 In 2009, Plaintiff began working as a full-time baking teacher at Santa 8 Rita Jail (SRJ) in Alameda County. SAC ¶ 9. Plaintiff’s duties included teaching and certifying 9 students as Food Safety Managers and Handlers, as well as maintaining the safety and security of 10 her designated classroom and kitchen in SRJ’s housing unit 25. Id. at ¶ 14. Plaintiff’s original 11 employer was the Alameda County Sheriff’s Office (ACSO), and ACSO issued Plaintiff’s security 12 badge and jail keys which she used from 2009 to 2022. Id. at ¶¶ 9, 12-13. In 2016, Plaintiff’s 13 employer changed. Id. at ¶ 27. Plaintiff appears to allege that Five Keys and CCSF both became 14 her employers starting in 2016. Id. at ¶¶ 27, 160, 202. As an employee of Five Keys/CCSF, 15 Plaintiff continued to work as a teacher at SRJ under a contract for educational services between 16 Alameda County and Five Keys/CCSF. Id. at ¶ 27-29. 17 In 2018, Nicole Tremaine Allen began working at SRJ as a deputy sheriff. Id. at ¶¶ 23, 30. 18 In April 2019, Allen began to supervise Plaintiff’s class; until that point, Plaintiff’s classroom and 19 kitchen in housing unit 25 was “the only teacher-assigned classroom that did not have security 20 cameras or dedicated deputy supervision.” Id. at ¶¶ 15, 32. In May 2019, Allen and Plaintiff 21 exchanged phone numbers. Id. at ¶ 33. In July 2019, Allen and another coworker used a work 22 computer in SRJ to “perform their own investigation into Plaintiff’s private life.” Id. at ¶ 38. 23 Although not explicitly stated in the SAC, the allegations support a reasonable inference that 24 Plaintiff and Allen began a personal relationship at some point.5 25 4 When reviewing a motion to dismiss for failure to state a claim, the court must “accept as true all 26 of the factual allegations contained in the complaint.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (citation omitted). 27 1 Plaintiff alleges that Allen’s supervision in her classroom in housing unit 25 created a 2 hostile work environment for Plaintiff. Id. at ¶ 48. This is because Allen “invaded Plaintiff’s 3 personal space . . . by sitting within inches of her once the students arrived,” and then whenever 4 Plaintiff said or did something Allen “did not like,” Allen would move to the back of the 5 classroom and look down at her personal phone, or would “shoot dirty looks” at Plaintiff. Id. at ¶¶ 6 43-47. Plaintiff characterizes this behavior as “punishment,” and alleges that Allen’s conduct 7 prevented her from freely expressing herself to her students. Id. 8 In 2020, Plaintiff’s work location changed because of COVID protocols. Id. at ¶¶ 49-50. 9 Throughout 2020 and 2021, Plaintiff was assigned to teach in the Sandy Turner Education Center 10 (STEC) and STEC II (a separate building from STEC). Id. at ¶¶ 52, 56. Allen’s office was in 11 STEC. Id. at ¶ 52. Although Allen was no longer supervising her classroom, Allen would 12 “frequently” enter Plaintiff’s STEC classroom to “deliberately take Plaintiff’s attention from 13 teaching her students,” and would coerce Plaintiff into watching “inappropriate videos” on Allen’s 14 phone. Id. at ¶¶ 54-55. When Plaintiff taught at STEC II, Allen would also monitor Plaintiff from 15 Allen’s office using the security cameras in STEC II. Id. at ¶¶ 60-61. In May 2021, as Plaintiff 16 was leaving STEC to go home, Allen detained Plaintiff behind a slider door and used the intercom 17 speaker to tell Plaintiff she was upset at her for trying to leave without saying good-bye to Allen. 18 Id. at ¶¶ 62-63. Plaintiff and Allen were both assigned to work Saturday mornings at SRJ. Id. at 19 ¶¶ 64-65. In Plaintiff’s office space, Allen would “play[] practical jokes on her, excessively 20 monitor her, and force her to engage” with Allen against Plaintiff’s will. Id. at ¶ 66. 21 Plaintiff attempted to distance herself from Allen. Id. at ¶ 51. Between 2021-2022, 22 Plaintiff began showing up for work later and later because each morning Allen would be in 23 Plaintiff’s office space. Id. at ¶ 67. Plaintiff also changed her shift days and hours in an effort to 24 avoid Allen. Id. at ¶ 68. In September or October 2021, Plaintiff “ended all communication with 25 Allen” and attempted to avoid her at work. Id. at ¶ 69. However, Allen “intimidated and 26 restraining order against Allen. [Docket Nos. 106, 107-1.] As held previously, the court takes 27 judicial notice of the fact that the hearing occurred, but not the disputed facts contained in the 1 humiliated Plaintiff into re-engaging her by showing up daily to Plaintiff’s office to speak to 2 everyone in the room but her,” and Plaintiff began communicating with her again. Id. at ¶ 73. On 3 December 4, 2021, a non-workday for both Plaintiff and Allen, Allen called Plaintiff over her 4 personal phone, shouted at her, and asked that Plaintiff call her over the weekend. Id. at ¶¶ 75-77. 5 Plaintiff refused, and Allen got upset and hung up. Id. at ¶¶ 78-79. 6 On December 6, 2021, Plaintiff and Allen both worked at SRJ. Id. at ¶¶ 81-86. 7 Throughout the workday from 8:00 am to 3:00 pm, Allen repeatedly called Plaintiff’s personal 8 phone and office phone, facetimed her, texted her, and came to Plaintiff’s workspace. Id. at ¶ 87. 9 Plaintiff ignored her. Id. at ¶ 91. Plaintiff left work one hour early at 3:00 pm and went to her 10 apartment, where she resides with her minor child. Id. at ¶¶ 89-92, 109. Allen continued calling 11 and texting Plaintiff until around 7:30 pm. Id. at ¶¶ 89-94. From 7:30 pm to 8:00 pm, Allen 12 remotely accessed Plaintiff’s home wi-fi and Nest thermostat and turned the thermostat to 90 13 degrees three separate times, despite Plaintiff’s attempts to regain control of the thermostat. Id. at 14 ¶¶ 96-99. Allen was still working her overtime shift at SRJ at this time. Id. at ¶ 97. Around 8:00 15 pm, Plaintiff finally texted Allen back, saying: “I told you before not to touch my thermostat, but 16 you continue to violate my boundaries. The only thing I want from you is money for my pg&e 17 bill.” Id. at ¶ 100. Plaintiff continued to ignore Allen. Id. at ¶ 104. Allen sent a money wire 18 transfer to Plaintiff at 8:30 pm. Id. at ¶ 101. However, the frequency of Allen’s calls increased. 19 Id. at ¶¶ 102-103. 20 At 8:30 pm, in anticipation of Allen arriving at her home, Plaintiff began constructing a 21 “heavy barrier” behind her front door. Id. at ¶ 105. Around 9:00 pm, Allen arrived and used her 22 body and her work boot to force entry into Plaintiff’s home. Id. at ¶ 107. Allen used such force 23 that both parties sustained minor injuries, Allen injuring her foot and Plaintiff injuring her arm. 24 Id. at ¶ 108. Plaintiff told Allen to leave, but Allen refused. Id. at ¶¶ 110-11. Plaintiff attempted 25 to leave the apartment, but Allen blocked her exit. Id. at ¶¶ 112-113. Plaintiff then ran to a 26 bathroom and locked herself inside. Id. at ¶ 114. Allen followed Plaintiff, shouted profanities, 27 and demanded that Plaintiff come out. Id. at ¶ 115. She found Plaintiff’s personal phone, 1 118-119. Plaintiff remained in the bathroom until Allen finally left. Id. at ¶ 119. 2 The next day, Plaintiff sought medical attention for anxiety due to Allen’s actions and was 3 ultimately diagnosed with generalized anxiety disorder. Id. at ¶¶ 121-126. From December 7, 4 2021 to May 1, 2022, Plaintiff avoided Allen “as safely as possible.” Id. at ¶ 131. On May 1, 5 2022, Allen began texting Plaintiff shortly after Plaintiff arrived for her shift at SRJ. Id. at ¶ 133. 6 Plaintiff became anxious, texted Allen that she was tired of being abused by her, and said, “Enjoy 7 your life.” Id. at ¶¶ 134-135. Plaintiff then ceased all communications with Allen permanently. 8 Id. at ¶ 135. From May 2 to May 8, 2022, Allen repeatedly called and texted Plaintiff’s personal 9 phone. Id. at ¶¶ 136-137. On May 8, 2022, Plaintiff blocked her number on her personal phone. 10 Id. at ¶ 138. From May 8 to June 12, 2022, Allen continued to initiate unwanted contact by calling 11 Plaintiff’s work phone, entering Plaintiff’s workspace, emailing Plaintiff, mailing a letter to 12 Plaintiff’s home address, and having Allen’s mother text Plaintiff. Id. at ¶¶ 139-147. Allen did 13 not stop until Plaintiff reported Allen’s behavior to the police on June 12, 2022. Id. at ¶¶ 149-150. 14 Plaintiff first reported Allen’s conduct to Five Keys staff on June 1, 2022. Id. at ¶ 146. On 15 June 12, 2022, after suffering a debilitating panic attack, Plaintiff made a formal complaint against 16 Allen with Five Keys and requested paid leave to seek mental health treatment and a temporary 17 restraining order. Id. at ¶ 8. Five Keys/CCSF refused to pay Plaintiff under the Family and 18 Medical Leave Act. Id. at ¶ 170. They also refused to arrange for a law enforcement patrol of her 19 home, denied her workers’ compensation claim, and did not submit the necessary paperwork for 20 her to obtain short term disability benefits. Id. at ¶¶ 173, 179, 183-184, 189-190. Plaintiff alleges 21 that Five Keys/CCSF and Allen’s supervisor Gregory Ahern failed to enforce Plaintiff’s 22 restraining order against Allen from June 21, 2022 to August 9, 2022, because Allen was allowed 23 to “enter Plaintiff’s workspace to visit with” Melanie Fukuhara, another Five Keys employee. Id. 24 at ¶¶ 22, 177. 25 In August 2022, Five Keys/CCSF “subjected Plaintiff to a hostile psychological 26 evaluation.” Id. at ¶ 185. In October 2022, they denied Plaintiff “all benefits listed in the 27 employee handbook and union contract.” Id. at ¶ 191. In December 2022, they terminated 1 them to “report their observations” to Five Keys or ACSO, and in response, Five Keys/CCSF 2 deactivated Plaintiff’s work email account. Id. at ¶ 197. In July 2023, Five Keys/CCSF called 3 Plaintiff and told her to resign. Id. at ¶ 198. In August 2023, they sent Plaintiff a disposition 4 email regarding her complaint against Allen, which stated that they had never investigated the 5 complaint and blamed Plaintiff for the hostile work environment. Id. at ¶ 199. 6 On June 21, 2022, Plaintiff also filed a formal complaint against Allen with ACSO. Id. at 7 ¶ 210. On August 30, 2022, ACSO emailed Plaintiff and told her that because Plaintiff’s 8 permanent restraining order had been denied in state court, ACSO was “not interested” in 9 responding to her formal complaint. Id. at ¶ 238. ACSO did not interview Plaintiff about her 10 complaint until November 3, 2022. Id. at ¶ 212. During the interview, ACSO staff “made fun of” 11 Plaintiff and ended the meeting before she could finish speaking. Id. at ¶¶ 213-214. They also 12 refused to investigate Allen’s computer or the jail’s security cameras. Id. at ¶ 237. In June 2023, 13 Plaintiff received ACSO’s disposition letter. Id. at ¶ 215. 14 B. Procedural History 15 Plaintiff filed a first amended complaint on October 23, 2023. [Docket No. 13 (FAC).] 16 The Five Keys Defendants filed an answer on January 8, 2024. [Docket No. 47.] The remaining 17 Defendants moved to dismiss, and on May 31, 2024, the court granted their motions to dismiss 18 with partial leave to amend. [Docket No. 99 (May Order).] Plaintiff then filed the SAC. 19 Plaintiff brings five federal claims: violations of 42 U.S.C. § 1983 under the First, Fourth, 20 and Fourteenth Amendments, hostile work environment under Title VII, and hostile work 21 environment under Title IX. Plaintiff also brings two state law claims: trespass to chattel and 22 intrusion upon seclusion. 23 II. LEGAL STANDARDS 24 A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the claims alleged in 25 the complaint. See Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). 26 When reviewing a motion to dismiss for failure to state a claim, the court must “accept as true all 27 of the factual allegations contained in the complaint,” Erickson, 551 U.S. at 94, and may dismiss a 1 matter to state a facially plausible claim to relief,” Shroyer v. New Cingular Wireless Servs., Inc., 2 622 F.3d 1035, 1041 (9th Cir. 2010) (citing Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009); 3 Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001)) (quotation marks omitted). A claim has 4 facial plausibility when a plaintiff “pleads factual content that allows the court to draw the 5 reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 6 678 (citation omitted). In other words, the facts alleged must demonstrate “more than labels and 7 conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. 8 Corp. v. Twombly, 550 U.S. 554, 555 (2007). 9 Pleadings by a self-represented litigant must be liberally construed and “held to less 10 stringent standards than formal pleadings drafted by lawyers.” Erickson, 551 U.S. at 94. The 11 Ninth Circuit has held that “where the petitioner is pro se,” courts have an obligation, “particularly 12 in civil rights cases, to construe the pleadings liberally and to afford the petitioner the benefit of 13 any doubt.” Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985) (en banc). “This rule 14 relieves pro se litigants from the strict application of procedural rules and demands that courts not 15 hold missing or inaccurate legal terminology or muddled draftsmanship against them.” Blaisdell 16 v. Frappiea, 729 F.3d 1237, 1241 (9th Cir. 2013). “This duty applies equally to pro se motions.” 17 United States v. Qazi, 975 F.3d 989, 993 (9th Cir. 2020). However, “a liberal interpretation of a 18 pro se civil rights complaint may not supply essential elements of the claim that were not initially 19 pled.” Byrd v. Maricopa Cty. Sheriff’s Dep’t, 629 F.3d 1135, 1140 (9th Cir. 2011) (en banc) 20 (quoting Pena v. Gardner, 976 F.2d 469, 471 (9th Cir. 1992)). 21 Under Federal Rule of Civil Procedure 15(a), leave to amend should be granted as a matter 22 of course, at least until the defendant files a responsive pleading. Fed. R. Civ. P. 15(a)(1). After 23 that point, Rule 15(a) provides generally that leave to amend the pleadings before trial should be 24 given “freely . . . when justice so requires.” Fed. R. Civ. P. 15(a)(2). “This policy is to be applied 25 with extreme liberality.” Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 (9th Cir. 26 2003) (quotation omitted). However, leave to amend may be denied where the complaint “could 27 not be saved by any amendment,” i.e., “where the amendment would be futile.” Thinket Ink Info. III. FIVE KEYS DEFENDANTS’ MOTION TO DISMISS 1 Plaintiff brings the following claims against Five Keys: 1) section 1983 violation of the 2 First Amendment, 2) section 1983 violation of the Fourteenth Amendment, 3) Title VII, 4) Title 3 IX, and 5) intrusion upon seclusion. Plaintiff also asserts the First Amendment and intrusion upon 4 seclusion claims against the individual Five Keys employees Steve Good and Melanie Fukuhara. 5 The Five Keys Defendants move to dismiss all claims on the basis that Plaintiff did not 6 plead any facts against them in the SAC. Five Keys Mot. 10-13.6 This argument lacks merit with 7 respect to Five Keys. 8 For starters, on January 8, 2024, Five Keys Defendants filed an answer instead of 9 challenging the FAC. [Docket No. 47.] In the SAC, Plaintiff cites many of the same facts against 10 her employer as she did in the FAC, but simply identifies CCSF as her employer instead of Five 11 Keys. Plaintiff emphasizes in her opposition that she did not intend to change her complaint 12 against Five Keys and merely inadvertently excluded the name Five Keys from parts of the SAC. 13 [Docket No. 112.] Five Keys cannot take advantage of technical errors made by a self-represented 14 Plaintiff to essentially renege on the answer it already filed. 15 Moreover, considering the procedural history of the case and liberally construing pro se 16 Plaintiff’s complaint, it is clear that Plaintiff intended to plead facts against Five Keys. Plaintiff 17 describes numerous facts to support her claims against her employer, which she identifies at 18 various points in the SAC as Five Keys, CCSF, Five Keys/CCSF, or “CCSF Defendants.” Taking 19 Plaintiff’s factual allegations as true, the court may reasonably infer that Plaintiff’s employer is 20 either Five Keys, CCSF, or both. The court construes Plaintiff’s allegations in the SAC against 21 her employer as supporting her claims against Five Keys. The Five Keys Defendants fail to 22 address any of those allegations. 23 Nevertheless, the court dismisses Plaintiff’s section 1983 and state law claims against the 24 Five Keys Defendants with prejudice. Although not raised by the Five Keys Defendants, the court 25 26 27 6 Five Keys Defendants also request judicial notice of the SAC. [Docket No. 107-1.] Judicial 1 sua sponte7 finds that California charter schools and their employees sued in their official capacity 2 are entitled to Eleventh Amendment immunity. See J.C. by & through W.P v. Cambrian Sch. 3 Dist., No. 12-CV-03513-WHO, 2014 WL 229892, at *5 (N.D. Cal. Jan. 21, 2014), aff’d sub nom. 4 J.C. ex rel. W.P. v. Cambrian Sch. Dist., 648 F. App’x 652 (9th Cir. 2016) (dismissing state and 5 federal claims against defendant charter school and its officials pursuant to Eleventh Amendment 6 immunity because California charter schools are considered “arms of the state”). Plaintiff 7 concedes in the SAC that Five Keys is a California charter school operating under California law. 8 SAC ¶¶ 155, 157; Exs. A, B.8 Therefore, Plaintiff’s section 1983 and state law claims against Five 9 Keys are dismissed with prejudice. 10 Steve Good and Melanie Fukuhara also have Eleventh Amendment immunity as 11 employees of Five Keys to the extent they were sued in their official capacity. Plaintiff has not 12 alleged sufficient facts to support a claim against them in their personal capacity. No factual 13 allegations were made against Good other than that he is the president and CEO of Five Keys. 14 SAC ¶ 21. As for Fukuhara, Plaintiff alleges vaguely that she had a “personal relationship” with 15 Allen. SAC ¶ 207. Plaintiff does not explain how Fukuhara violated Plaintiff’s rights simply by 16 having a relationship with Allen. Plaintiff’s section 1983 and state law claims against Good and 17 Fukuhara are dismissed with prejudice. 18 Five Keys does not otherwise argue that Plaintiff’s Title VII and Title IX claims should be 19 dismissed. Those claims will therefore go forward. See First Order on MTD 12 (“a state waives 20 its Eleventh Amendment immunity with respect to Title VII and Title IX”). 21 IV. CCSF’S MOTION TO DISMISS 22 Plaintiff brings Title VII and Title IX hostile work environment claims against CCSF. 23 In the court’s previous order dismissing the FAC, Plaintiff was granted leave to amend her 24 Title VII and Title IX claims against CCSF with “non-conclusory allegations to support that CCSF 25 26 7 “[T]he effect of the Eleventh Amendment must be considered sua sponte by federal courts.” Charley’s Taxi Radio Dispatch Corp. v. SIDA of Hawaii, Inc., 810 F.2d 869, 873 (9th Cir. 1987). 27 1 was her employer.” May Order 24. Plaintiff admits that Five Keys hired her. SAC ¶ 152. 2 However, she points to various pieces of evidence suggesting that CCSF (through the San 3 Francisco Sheriff’s Department, “SFSD”)9 was also her employer. SAC ¶¶ 151-166, Ex. A-D. 4 CCSF argues that the allegations in the SAC are insufficient to plead that CCSF was Plaintiff’s 5 employer during the relevant time period. CCSF Mot. 9-12. 6 Plaintiff points to these allegations to support her claims against CCSF: 7 1. there was a contract in effect from 2014 to 2017 between the San Francisco 8 Sheriff’s Department (SFSD), Five Keys, and the United Educators of San 9 Francisco (UESF), SAC ¶¶ 151-153, Ex. A; 10 2. a 2015 report by the Western Association of Schools and Colleges described Five 11 Keys as “a charter management non-profit corporation that operates three public 12 charter schools within the San Francisco Sheriff’s Department”, SAC ¶¶ 154-155; 13 3. Plaintiff’s 2016 onboarding documents and emails identified “The San Francisco 14 Sheriff’s Department” as her employer, SAC ¶¶ 164-166, Ex. D; 15 4. the petition to the San Francisco Unified School District to renew the charter for 16 Five Keys for years 2020-2025 stated that “SFSD’s [Five Keys] shall be a separate 17 legal entity” from the District, SAC ¶¶ 157-159, Ex. B; 18 5. in 2023, Five Keys filed a Form 990 with the IRS which identified the organization 19 name as both “San Francisco Sheriff’s Department” and “Five Keys Charter 20 School”, SAC ¶ 162; and 21 6. in 2024, SFSD approved the “Uniform Complaint Policy” for Five Keys, SAC ¶ 22 163. 23 CCSF asserts that these allegations do not create a plausible inference that SFSD or CCSF 24 was her joint employer or otherwise controlled Five Keys. CCSF Mot. 9. Citing Martinez v. 25 Combs, 49 Cal. 4th 35, 231 P.3d 259 (2010), as modified (June 9, 2010), CCSF argues that 26 27 9 In the court’s previous order, SFSD was dismissed as a Defendant because Plaintiff did not 1 Plaintiff has not met any of the three definitions of employment under Martinez: “(a) to exercise 2 control over the wages, hours or working conditions, or (b) to suffer or permit to work, or (c) to 3 engage, thereby creating a common law employment relationship.” Id. at 64. According to 4 CCSF, Plaintiff has at most only shown an arms-length relationship between Five Keys and SFSD. 5 Martinez dealt with the interpretation of wage orders by the Industrial Welfare 6 Commission (IWC). It does not apply here because the case is not governed by IWC wage orders. 7 See Hill v. Walmart Inc., 32 F.4th 811, 819 (9th Cir. 2022). Rather, the appropriate test is under 8 the common law, which states: “[t]he principal test of an employment relationship is whether the 9 person to whom service is rendered has the right to control the manner and means of 10 accomplishing the result desired.” Id. at 818 (quoting S. G. Borello & Sons, Inc. v. Dep’t of Indus. 11 Rels., 48 Cal. 3d 341, 350 (1989)).10 12 Although this is a close question, the court finds that Plaintiff has pleaded sufficient facts 13 to plausibly allege that CCSF was her employer. In particular, Plaintiff has identified an 14 employment document, emails from human resources, and tax forms which at the very least create 15 confusion about the identity of Plaintiff’s employer and the relationship between Five Keys and 16 SFSD/CCSF. SAC ¶¶ 162, 164-166. The nature of the relationship between the entities may soon 17 become clear through discovery. However, at the motion to dismiss stage, the court can dismiss a 18 claim “only where there is no cognizable legal theory” or there is an absence of “sufficient factual 19 matter to state a facially plausible claim to relief.” Shroyer, 622 F.3d at 1041. Here, it is 20 reasonable to infer that the reason “San Francisco Sheriff’s Department” is part of the legal name 21 for Five Keys and appears repeatedly in Five Keys employment documents, tax documents, and 22 emails is because SFSD is related to Five Keys in a manner that establishes an employment 23 relationship with Plaintiff. The allegations support a plausible inference that SFSD is involved 24 with Five Keys at a level that demonstrates some control over employees. At the pleadings stage, 25 the court cannot dismiss Plaintiff’s claims against CCSF on the basis that it was not her employer. 26 CCSF goes on to argue that Plaintiff’s Title VII and Title IX claims should be dismissed 27 1 because Plaintiff has only alleged conduct by Five Keys staff, and “CCSF was not involved.” 2 CCSF Mot. 12-13. As Plaintiff plausibly has pleaded that CCSF is her employer, she has alleged 3 conduct that plausibly can be attributed to CCSF, including that CCSF failed to investigate her 4 sexual harassment complaint. SAC ¶¶ 188-190, 199. The court rejects CCSF’s merits-based 5 argument that it was “not involved.” As CCSF does not make other arguments to support 6 dismissal, the court denies its motion. 7 V. ALAMEDA DEFENDANTS’ MOTION TO DISMISS 8 Plaintiff brings the following claims against Allen: 1) section 1983 violation of the First 9 Amendment, 2) section 1983 violation of the Fourth Amendment, 3) section 1983 violation of the 10 Fourteenth Amendment, 4) trespass to chattel, and 5) intrusion upon seclusion. 11 With respect to Alameda County, Plaintiff brings the same three section 1983 claims, 12 trespass to chattel, and hostile work environment claims under Title VII and Title IX. 13 As to Ahern, Plaintiff asserts a section 1983 claim for violation of the Fourteenth 14 Amendment. 15 The Alameda Defendants move to dismiss all claims against them. 16 A. Section 1983 17 “The purpose of § 1983 is to deter state actors from using the badge of their authority to 18 deprive individuals of their federally guaranteed rights.” McDade v. West, 223 F.3d 1135, 1139 19 (9th Cir. 2000) (citing Wyatt v. Cole, 504 U.S. 158, 161 (1992)). Section 1983 “is not itself a 20 source of substantive rights, but merely provides a method for vindicating federal rights elsewhere 21 conferred.” Nunn v. LeBlanc, No. C 14-0905 PJH, 2014 WL 1089551, at *3 (N.D. Cal. Mar. 17, 22 2014) (citing Graham v. Connor, 490 U.S. 386, 393–94 (1989)). To state a claim under section 23 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or 24 laws of the United States was violated, and (2) that the alleged violation was committed by a 25 person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Ketchum v. 26 Alameda Cty., 811 F.2d 1243, 1245 (9th Cir. 1987). 27 1. Allen 1 not act under color of state law. Alameda Mot. 6-7. 2 “The traditional definition of acting under color of state law requires that the defendant in a 3 § 1983 action have exercised power possessed by virtue of state law and made possible only 4 because the wrongdoer is clothed with the authority of state law.” McDade, 223 F.3d at 1139–40 5 (quoting Atkins, 487 U.S. at 48). “The acts, therefore, must be performed while the officer is 6 acting, purporting, or pretending to act in the performance of his or her official duties. Id. at 1140. 7 Off duty actions by a state employee may be found to be under color of state law where “(1) the 8 employee purports to or pretends to act under color of law, (2) his pretense of acting in the 9 performance of his duties had the purpose and effect of influencing the behavior of others, and (3) 10 the harm inflicted on plaintiff related in some meaningful way either to the officer’s governmental 11 status or to the performance of his duties.” Naffe v. Frey, 789 F.3d 1030, 1037 (9th Cir. 2015) 12 (cleaned up, internal citations omitted). For example, in McDade, the court found that a state 13 employee who accessed a password-protected state database to locate the plaintiff’s address was 14 acting “under the pretense of performing official duties.” McDade, 223 F.3d at 1139–40. 15 Although the employee’s motivation was to resolve a private domestic dispute, the employee only 16 had database access privileges due to her status as a state employee. Id. On the other hand, in 17 Stanewich, the court found that a sheriff’s deputy did not act under color of state law while 18 committing an attempted robbery. Van Ort v. Est. of Stanewich, 92 F.3d 831, 833-34, 838 (9th 19 Cir. 1996). The deputy was carrying handcuffs and a gun, and a robbery victim recognized him as 20 a deputy. Id. The court found that the deputy did not act under color of state law because he was 21 not in uniform, did not display a badge to plaintiffs, and denied being a deputy. Id. 22 Allen argues that the SAC does not establish a “nexus” between Plaintiff’s personal 23 disputes with Allen and Allen’s position as a state employee. Alameda Mot. 7. However, Allen 24 fails to address all of Plaintiff’s allegations against her. The court will examine all allegations 25 against Allen to determine if Plaintiff plausibly pleads that Allen was acting under state law and 26 that her acts violated a constitutional right. 27 a. First Amendment 1 First Amendment violation, Plaintiff must show: “(1) that the plaintiff ‘was engaged in 2 constitutionally protected activity’; (2) that the defendant’s actions caused the plaintiff ‘to suffer 3 an injury that would chill a person of ordinary firmness from continuing to engage in that 4 activity’; and (3) that the ‘defendant’s adverse action was substantially motivated as a response to 5 the plaintiff’s exercise of constitutionally protected conduct.’” Knapps v. City of Oakland, 647 F. 6 Supp. 2d 1129, 1160–61 (N.D. Cal. 2009) (citing Mendocino Environmental Center v. Mendocino 7 County, 192 F.3d 1283, 1300–01 (9th Cir. 1999)). 8 It is not clear what Allen allegedly did to chill Plaintiff’s speech. In the SAC, Plaintiff 9 points to Allen’s supervision of her classroom in housing unit 25, which prevented Plaintiff from 10 “freely expressing herself to her students” for fear that Allen would “punish” her. SAC ¶¶ 42-47. 11 Plaintiff has sufficiently pleaded that Allen was acting under state law because she was 12 supervising Plaintiff’s classroom as part of her duties as a deputy sheriff. However, Allen’s 13 alleged conduct consisted only of sitting close to Plaintiff, moving to the back of the classroom 14 and ignoring Plaintiff, or giving Plaintiff “dirty looks.” Id. This is not enough to “chill a person 15 of ordinary firmness” from expressing herself to her students. Plaintiff also vaguely alleges she 16 had a First Amendment right to file formal complaints against Allen and that Allen escalated her 17 behavior against Plaintiff in retaliation for filing the complaints. SAC ¶¶ 243-244. According to 18 the SAC, Plaintiff first notified a Five Keys staff member about Allen’s harassment on June 1, 19 2022, and first made a formal complaint against Allen on June 12, 2022. SAC ¶¶ 8, 146, 149. 20 Plaintiff alleged only one harassing text message after June 1, 2022, and no further incidents of 21 harassment after June 12, 2022. Id. at ¶ 147-148. The factual allegations do not support 22 Plaintiff’s conclusory assertion that Allen escalated her behavior after Plaintiff reported the 23 harassment. 24 Plaintiff also argues more generally that she had a constitutional right to tell Allen to leave 25 her alone, and that Allen violated her rights by refusing to do so. Plaintiff points to events in 26 September to October 2021: Plaintiff tried to stop talking with Allen, but Allen “intimidated and 27 humiliated Plaintiff into re-engaging” with her. Allen allegedly did this by speaking to “everyone 1 with a coworker. SAC ¶¶ 73-74. Plaintiff did not allege that Allen was acting under state law 2 while socializing with coworkers. Moreover, there is no First Amendment right to make someone 3 leave you alone just because you ask them to. 4 Plaintiff also cites the December 6, 2021 incident, when Plaintiff said she would not call 5 Allen and Allen responded by harassing Plaintiff throughout the workday and then escalating her 6 behavior after the workday. This also does not amount to a violation of the First Amendment, nor 7 do the allegations support that Allen acted under color of state law. There is no indication that the 8 December 6, 2021 incident was related to Allen’s status as a deputy sheriff. Allen used her office 9 phone to make personal calls to Plaintiff, but “[m]erely using the government employer’s 10 resources during the course of a private act does not transform private behavior into state action.” 11 Naffe v. Frey, No. CV 12-8443-GW(MRWX), 2012 WL 12892151, at *6 (C.D. Cal. Dec. 10, 12 2012). Plaintiff does allege that some of the harassment occurred during work hours while Allen 13 was on duty. SAC ¶¶ 83-97. But an officer who engages in “purely personal pursuits,” even when 14 on duty, does not act under color of state law where the conduct is not related to the performance 15 of her official duties. Lucas v. Cnty. of Fresno, No. 118CV01488DADEPG, 2019 WL 7370418, 16 at *5 (E.D. Cal. Dec. 31, 2019); see also Martinez v. Colon, 54 F.3d 980, 987 (1st Cir. 1995) 17 (finding that on-duty police officer who accidentally shot fellow officer while harassing him with 18 his service revolver was “bent on a singularly personal frolic: tormenting an acquaintance,” and 19 did not act under color of state law). Plaintiff does not allege that Allen’s communications with 20 Plaintiff and manipulation of her thermostat were related in any way to Allen’s position as a 21 deputy sheriff. Likewise, Plaintiff does not allege that Allen’s abusive behavior after she went off 22 duty and forced her way into Plaintiff’s home was under the pretense of performing her official 23 duties. The December 6, 2021 incident cannot support a section 1983 claim. 24 The SAC does not support a claim that Allen violated Plaintiff’s First Amendment rights. 25 As amendment would be futile, this claim is dismissed with prejudice. 26 b. Fourth Amendment 27 Plaintiff alleges that Allen violated her Fourth Amendment right to protection from 1 The Fourth Amendment provides: “The right of the people to be secure in their persons, 2 houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” 3 U.S. Const. amend. IV. “A ‘search’ occurs when the government intrudes upon an expectation of 4 privacy that society is prepared to consider reasonable. A ‘seizure’ of property occurs when there 5 is some meaningful interference with an individual’s possessory interests in that property.” 6 United States v. Jacobsen, 466 U.S. 109, 113 (1984). 7 Plaintiff again points to the December 6, 2021 incident. But as explained above, Plaintiff 8 has not alleged that Allen was acting under state law during this incident, so it does not support a 9 section 1983 claim. 10 Plaintiff also argues that Allen performed an unconstitutional search when she investigated 11 Plaintiff’s personal life on a government computer. This allegation is too conclusory for the court 12 to infer that Allen was acting under state law. As explained above, using state resources such as a 13 computer does not necessarily mean that Allen was clothed with the authority of the state. See 14 Naffe, 2012 WL 12892151, at *6. Plaintiff also does not explain what information Allen found, so 15 Plaintiff has not demonstrated a reasonable expectation of privacy in that information. See 16 Jacobsen, 466 U.S. at 113. 17 Plaintiff has not alleged that Allen violated her Fourth Amendment rights. As Plaintiff 18 already had an opportunity to amend her complaint but was still unable to state a claim, Plaintiff’s 19 Fourth Amendment claim is dismissed with prejudice. 20 c. Fourteenth Amendment 21 Plaintiff alleges that Allen violated her rights under the Equal Protection Clause by acting 22 with an intent to discriminate against her. 23 “The Equal Protection Clause of the Fourteenth Amendment commands that no State shall 24 ‘deny to any person within its jurisdiction the equal protection of the laws,’ which is essentially a 25 direction that all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne 26 Living Ctr., 473 U.S. 432, 439 (1985) (quoting Plyler v. Doe, 457 U.S. 202, 216 (1982)). “To 27 state a claim under 42 U.S.C. § 1983 for a violation of the Equal Protection Clause of the 1 to discriminate against the plaintiff based upon membership in a protected class.” Barren v. 2 Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (citing Washington v. Davis, 426 U.S. 229, 239– 3 40 (1976)). “[A]llegations of ‘persistent and unwelcome physical and verbal abuse’ in the 4 workplace ‘state a claim of sexual harassment, which can be impermissible sex discrimination in 5 violation of the Equal Protection Clause.’” Sampson v. Cnty. of Los Angeles by & through Los 6 Angeles Cnty. Dep’t of Child. & Fam. Servs., 974 F.3d 1012, 1022–23 (9th Cir. 2020) (citing 7 Bator v. Hawaii, 39 F.3d 1021, 1027, 1028 (9th Cir. 1994)). 8 Allen argues that Plaintiff failed to demonstrate that Allen’s harassment was under color of 9 state law. To determine if harassment is actionable under section 1983, the court must decide if 10 there is a “‘nexus between the defendant’s misconduct and [her] relationship to the state,’ or 11 alternatively, whether the ‘acts of co-worker harassment . . . occurred in a state-created workplace 12 but were . . . independent of state roles and functions.’” Savin v. City & Cnty. of San Francisco, 13 No. 16-CV-05627-JST, 2017 WL 2686546, at *4 (N.D. Cal. June 22, 2017) (citing Anthony v. 14 Cnty. of Sacramento, Sheriff’s Dep’t, 845 F. Supp. 1396, 1401 (E.D. Cal. 1994)). 15 In opposition, Plaintiff points out that Allen used her authority as a deputy sheriff when 16 monitoring Plaintiff over the jail security cameras to “check her out,” as well as detaining Plaintiff 17 behind a jail door to force Plaintiff to “say good-bye” to Allen before she could go home. SAC ¶¶ 18 60-63; [Docket No. 110 (Alameda Opp’n) at 4]. In reply, Allen asserts that “locking doors is 19 common in a jail,” but otherwise fails address these allegations. [Docket No. 116 (Alameda 20 Reply) at 3.] The court finds that for pleading purposes, the allegations are sufficient to 21 demonstrate a nexus between Allen’s harassment and her role as a deputy sheriff. Similar to 22 McDade, Allen was acting “under the pretense of performing official duties” when she used her 23 state-granted access to the jail’s security systems to block Plaintiff from leaving the jail. See 24 McDade, 223 F.3d at 1139–40. Plaintiff has alleged that Allen was acting under color of state law 25 because she used her state-granted authority to surveil and control Plaintiff as part of her campaign 26 of harassment. 27 Allen makes no other arguments regarding Plaintiff’s equal protection claim against her. 2. Alameda County 1 Alameda County argues that all of Plaintiff’s municipal liability claims should be 2 dismissed because Plaintiff did not plead Monell liability. Alameda Mot. 7-9. 3 A municipality may face section 1983 liability if it “‘subjects’ a person to a deprivation of 4 rights or ‘causes’ a person ‘to be subjected’ to such deprivation.” Connick v. Thompson, 563 U.S. 5 51, 60 (2011) (quoting Monell, 436 U.S. at 692). A municipality may be held liable “only for 6 ‘[its] own illegal acts.’” Id. (quoting Pembaur v. Cincinnati, 475 U.S. 469, 479 (1986)). It cannot 7 be held vicariously liable for its employees’ actions. Id. (citations omitted). To establish 8 municipal liability, plaintiffs “must prove that ‘action pursuant to official municipal policy’ caused 9 their injury.” Id. (quoting Monell, 436 U.S. at 691). “The ‘official policy’ requirement was 10 intended to distinguish acts of the municipality from acts of employees of the municipality, and 11 thereby make clear that municipal liability is limited to action for which the municipality is 12 actually responsible.” Pembaur, 475 U.S. at 479-80 (emphasis in original). Official municipal 13 policy includes “the decisions of a government’s lawmakers, the acts of its policymaking officials, 14 and practices so persistent and widespread as to practically have the force of law.” Connick, 563 15 U.S. at 61 (citations omitted). Such policy or practice must be a “moving force behind a violation 16 of constitutional rights.” Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir. 2011) (citing 17 Monell, 436 U.S. at 694). An official municipal policy may be either formal or informal. City of 18 St. Louis v. Praprotnik, 485 U.S. 112, 131 (1988) (acknowledging that a plaintiff could show that 19 “a municipality’s actual policies were different from the ones that had been announced.”). 20 In the Ninth Circuit, a municipality may be liable under section 1983 under three possible 21 theories. Rodriguez v. Cnty. Of Los Angeles, 891 F.3d 776, 802 (9th Cir. 2018). The first is where 22 “execution of a government’s policy or custom, whether made by its lawmakers or by those whose 23 edicts or acts may fairly be said to represent official policy, inflict[ed] the injury.” Id. (quoting 24 Monell, 436 U.S. at 694). Second, “a local government can fail to train employees in a manner 25 that amounts to ‘deliberate indifference’ to a constitutional right, such that ‘the need for more or 26 different training is so obvious, and the inadequacy so likely to result in the violation of 27 constitutional rights, that the policymakers of the city can reasonably be said to have been 1 deliberately indifferent to the need.’” Id. (quoting City of Canton v. Harris, 489 U.S. 378, 390 2 (1989)). Finally, a municipality may be liable under section 1983 if “the individual who 3 committed the constitutional tort was an official with final policy-making authority or such an 4 official ratified a subordinate’s unconstitutional decision or action and the basis for it.” Id. at 802- 5 03 (quoting Gravelet-Blondin v. Shelton, 728 F.3d 1086, 1097 (9th Cir. 2013) (internal quotation 6 marks and citation omitted)). 7 Plaintiff alleges that the County violated her First Amendment rights when she was 8 interviewed regarding her sexual harassment complaint against Allen. Specifically, Plaintiff 9 alleges that County staff “made fun of the Plaintiff, attempted to coerce the Plaintiff into making a 10 statement about specific evidence, asked irrelevant questions about Plaintiff’s sexual history, 11 minimized plaintiff’s facts of abuse by comparing her complaint to kids on a school yard,” and 12 ended the interview before Plaintiff could finish speaking. SAC ¶¶ 213-214. In a similar vein, she 13 alleges that her Fourteenth Amendment rights were violated because her complaint was unfairly 14 managed and not properly investigated. SAC ¶ 257; Alameda Opp’n 5. She cites several state and 15 local laws which County of Alameda allegedly failed to comply with in the course of its 16 investigation. Alameda Opp’n 6. She asserts that County staff were acting pursuant to a policy, 17 practice, and custom “carried out by every County employee who had the knowledge and capacity 18 to respond.” Id. at 5. She also asserts failure to train amounting to deliberate indifference, as well 19 as ratification by Gregory Ahern, the Sheriff of ACSO. Alameda Opp’n 5-6. 20 Plaintiff has not pleaded that a County policy, practice or custom inflicted her 21 constitutional injuries. In her opposition, Plaintiff names several laws and County policies which 22 were allegedly violated by County staff in relation to her harassment complaint. Alameda Opp’n 23 5-6. Under Monell liability, the policy itself must cause the harm, not a violation of it. Rodriguez, 24 891 F.3d at 802. To the extent Plaintiff alleges that County staff acted pursuant to an unwritten 25 policy or custom of mishandling harassment complaints, Plaintiff must first show that the policy 26 was “so permanent and well settled as to constitute a custom or usage with the force of law.” City 27 of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988) (quoting Adickes v. S.H. Kress & Co., 398 1 unconstitutional practice or custom” of violating a constitutional right through “evidence of a 2 recurring failure to investigate and discipline officers for” such violations. Hunter v. Cnty. of 3 Sacramento, 652 F.3d 1225, 1234-35 (9th Cir. 2011). Plaintiff does not allege that any 4 investigations other than her own were mishandled by Alameda County. The Ninth Circuit has 5 not “established what number of similar incidents would be sufficient to constitute a custom or 6 policy.” Oyenik v. Corizon Health Inc., 696 F. App’x 792, 794 (9th Cir. 2017). But the law is 7 clear that “[l]iability for improper custom may not be predicated on isolated or sporadic incidents; 8 it must be founded upon practices of sufficient duration, frequency and consistency that the 9 conduct has become a traditional method of carrying out policy.” Trevino v. Gates, 99 F.3d 911, 10 918 (9th Cir. 1996), holding modified by Navarro v. Block, 250 F.3d 729 (9th Cir. 2001). Plaintiff 11 alleges only that her own complaint against Allen was mishandled. The SAC is devoid of facts to 12 support a reasonable inference that the offending practices are “widespread” or “well settled as to 13 constitute a custom or usage.” See City of St. Louis, 485 U.S. at 127. 14 Plaintiff also makes a conclusory allegation that the County failed to train its employees. 15 To evaluate a failure to train claim, the court examines “whether the training program is adequate 16 and, if it is not, whether such inadequate training can justifiably be said to represent municipal 17 policy.” Long v. Cty. of Los Angeles, 442 F.3d 1178, 1186 (9th Cir. 2006) (citing Canton v. 18 Harris, 489 U.S. 378, 390 (1989)). Failure to train cannot be inferred from a single incident of a 19 constitutional violation. Hyde v. City of Willcox, 23 F.4th 863, 875 (9th Cir. 2022). As explained 20 above, Plaintiff has alleged only a single incident—the County’s mishandling of her complaint 21 against Allen. This is insufficient to state a failure to train claim. 22 Plaintiff asserts in her opposition that Ahern, as Sheriff, had final policymaking authority 23 over ACSO’s employment decisions, and that Ahern either personally mishandled or ratified the 24 mishandling of her complaint. Alameda Opp’n 6. Plaintiff also argues that Ahern ratified Allen’s 25 unconstitutional conduct. Id. Alameda County does not dispute that Ahern had final 26 policymaking authority. However, Plaintiff has not alleged that Ahern personally mishandled her 27 complaint. She has not alleged that he was present at her interview or that he was more than 1 Plaintiff’s complaint onto the next person.” SAC ¶ 260. Plaintiff does not explain why assigning 2 another staff member to handle Plaintiff’s complaint is a constitutional violation. Plaintiff alleges 3 in a conclusory manner that Ahern violated several laws and policies, such as failing to explain the 4 ACSO’s complaint procedure to Plaintiff and failing to conclude the investigation within a 6- 5 month period. Id. Plaintiff does not explain why Ahern was required to be personally involved 6 with or responsible for meeting those requirements. 7 Plaintiff also has not alleged ratification regarding the mishandling of her complaint. “To 8 show ratification, a plaintiff must prove that the ‘authorized policymakers approved a 9 subordinate’s decision and the basis for it,’” which accordingly requires, “among other things, 10 knowledge of the alleged constitutional violation.” Christie v. Iopa, 176 F.3d 1231, 1239 (9th Cir. 11 1999) (quoting City of St. Louis, 485 U.S. at 127). For example, the Ninth Circuit has found that a 12 municipality could be liable for an unconstitutional sexual harassment investigation where the 13 official policymaker “approved both the propriety of the investigation and the report’s 14 conclusion.” Fuller v. City of Oakland, Cal., 47 F.3d 1522, 1536 (9th Cir. 1995), as amended 15 (Apr. 24, 1995). Here, Plaintiff has not alleged that Ahern was aware of the mishandling of her 16 complaint against Allen, much less that he approved it. Plaintiff alleges only that Ahern passed on 17 her complaint to someone else, and that Plaintiff had reached out to him about the status of her 18 complaint before her interview. SAC ¶¶ 212, 260. These allegations do not support a plausible 19 inference that Ahern was aware of the alleged constitutional violations in the handling of 20 Plaintiff’s complaint by County staff. 21 Plaintiff also has not alleged ratification regarding Allen’s harassment. The SAC is devoid 22 of facts indicating that Ahern was aware of Allen’s harassment before Plaintiff filed a formal 23 complaint, or that the harassment continued after Ahern was notified. Plaintiff alleges in a 24 conclusory manner that Ahern “signed off” on her restraining order against Allen, and that the 25 restraining order was violated between June 21 and August 9, 2022 because Allen was “allowed to 26 enter Plaintiff’s workspace to visit with Fukuhara.” SAC ¶¶ 175, 177. It is unclear how Allen 27 1 visiting a coworker while Plaintiff was not present11 violated Plaintiff’s Fourteenth Amendment 2 rights. Regardless, Plaintiff does not allege any facts to support an inference that Ahern knew 3 about or approved of Allen’s activity in this time period. 4 In sum, Plaintiff has not pleaded Monell liability for violation of the First or the Fourteenth 5 Amendments. 6 Plaintiff’s Fourth Amendment claim against Alameda County is based on Allen’s conduct 7 as well as the loss of Plaintiff’s SRJ security badge while she was on disability leave. SAC ¶¶ 8 220, 251-253. As discussed above, because Plaintiff has not alleged that Allen violated her Fourth 9 Amendment rights, Allen’s conduct cannot create Monell liability for the Fourth Amendment. In 10 its motion to dismiss, the County argues that Plaintiff has no constitutional right to possess the 11 security badge. Alameda Mot. 8. Plaintiff fails to address the security badge issue in her 12 opposition, thereby conceding it. See, e.g., Jenkins v. Cnty. of Riverside, 398 F.3d 1093, 1095 fn. 13 4 (9th Cir. 2005) (finding that failure to raise claims in opposition was abandonment of those 14 claims). Plaintiff has not pleaded Monell liability for violation of the Fourth Amendment. 15 Plaintiff has not alleged a section 1983 claim against Alameda County. As Plaintiff 16 already had an opportunity to amend her complaint but was still unable to state a claim, Plaintiff’s 17 section 1983 claims against Alameda County are dismissed with prejudice. 18 3. Ahern 19 Plaintiff pleads a Fourteenth Amendment violation against Ahern pursuant to section 1983. 20 Plaintiff complains that Ahern failed to enforce the restraining order against Allen, failed to place 21 Allen on administrative leave, and failed to follow state and County procedures regarding 22 Plaintiff’s formal complaint against Allen. SAC ¶¶ 259-260; Alameda Opp’n 6. 23 To the extent Plaintiff is attempting to hold Ahern responsible for his subordinates’ 24 constitutional violations, liability exists only “if the supervisor participated in or directed the 25 violations, or knew of the violations and failed to act to prevent them.’” Maxwell v. Cnty. Of San 26 27 11 Plaintiff requested paid leave on June 12, 2022, the same day she filed a formal complaint 1 Diego, 708 F.3d 1075, 1086 (9th Cir. 2013) (quoting Taylor v. List, 880 F.2d 1040, 1045 (9th 2 Cir.1989)). As discussed above, Plaintiff has not alleged that Ahern participated in, directed, or 3 knew about any alleged constitutional violations by Allen or other County staff. 4 To the extent Plaintiff argues Ahern personally violated the constitution, Plaintiff has not 5 pleaded facts supporting that theory. As discussed above, the allegations indicate that Ahern was 6 no more than tangentially involved in the harassment investigation. Plaintiff’s allegations state 7 that Ahern simply “pass[ed] Plaintiff’s complaint onto the next person.” SAC ¶ 260. Plaintiff 8 does not explain why the Fourteenth Amendment would require Ahern to personally handle her 9 harassment complaint. Plaintiff also asserts that Ahern had the sole authority to place Allen on 10 administrative leave but failed to do so. Alameda Opp’n 6. Plaintiff does not explain why the 11 Fourteenth Amendment would require Ahern to place Allen on administrative leave while the 12 investigation into her complaint was ongoing. 13 As Plaintiff already had an opportunity to amend her complaint but was unable to state a 14 claim against Ahern, this claim is dismissed with prejudice. 15 B. Title VII 16 Plaintiff asserts a Title VII claims against Alameda County. Alameda County moves to 17 dismiss on the basis that it is not Plaintiff’s employer. 18 For the County to be liable, Plaintiff must plead that the County is her “employer” as 19 defined under Title VII. U.S. Equal Emp. Opportunity Comm’n v. Glob. Horizons, Inc., 915 F.3d 20 631, 637 (9th Cir. 2019) (citing 42 U.S.C. § 2000e-2(a)). It is “well-settled that an individual can 21 have more than one employer for Title VII purposes.” Id. The Ninth Circuit applies the common- 22 law agency test to determine who is an employer. Id. at 639. “Under the common-law test, ‘the 23 principal guidepost’ is the element of control—that is, ‘the extent of control that one may exercise 24 over the details of the work of the other.’” Id. at 638 (quoting Clackamas Gastroenterology 25 Associates, P.C. v. Wells, 538 U.S. 440, 447 (2003). The Ninth Circuit provided a non-exhaustive 26 list of factors to determine the extent of control: 27 the skill required; the source of the instrumentalities and tools; the projects to the hired party; the extent of the hired party’s discretion 1 over when and how long to work; the method of payment; the hired party’s role in hiring and paying assistants; whether the work is part 2 of the regular business of the hiring party; whether the hiring party is in business; the provision of employee benefits; and the tax treatment 3 of the hired party. 4 Id. (quoting Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 323-24 (1992)). 5 Plaintiff has not sufficiently pleaded that Alameda County is her employer. Plaintiff 6 pleads that the County originally hired her in 2009 but admits that Five Keys/CCSF became her 7 employer in 2016. SAC ¶ 27. During the relevant time period (approximately 2019-2023), 8 Plaintiff alleges only that Alameda County deputies supervised her in the SRJ classrooms and that 9 the County had control over her security badge to access the jail. She acknowledges that Five 10 Keys/CCSF hired her, paid her, controlled her work assignments and locations, controlled her 11 benefits, and controlled her termination. SAC ¶¶ 49, 52, 56, 179-198. The County may have 12 controlled Plaintiff’s access to the premises, but Plaintiff does not allege that it had any control 13 over her work as a teacher. For example, Plaintiff does not allege that the supervising deputies 14 had the authority to change her curriculum or teaching assignments. In a similar case applying the 15 common-law agency test, the Seventh Circuit found that a public school teacher who was assigned 16 to teach students receiving in-patient treatment at a hospital was not employed by the hospital. 17 Bronson v. Ann & Robert H. Lurie Children’s Hosp. of Chicago, 69 F.4th 437, 449 (7th Cir. 18 2023). Even though the hospital assigned a “representative supervisor” to the teacher, and even 19 though the hospital controlled the teacher’s access to the premises and the patients, the court found 20 that the public school still controlled the teaching activities of the plaintiff, and had the ultimate 21 discretion in hiring, firing, and assigning tasks or locations. Id. The public school was the 22 employer, not the hospital. Id. Likewise, Five Keys/CCSF controlled Plaintiff’s teaching 23 activities, not Alameda County. 24 Plaintiff cannot assert a Title VII claim against Alameda County because she cannot 25 plausibly allege that it was her employer. This claim is dismissed without leave to amend. 26 // 27 // C. Title IX 1 Plaintiff alleges that Alameda County violated her rights under Title IX.12 In its motion to 2 dismiss, the County does not dispute that it is subject to Title IX, nor does it argue that Plaintiff 3 failed to adequately plead the existence of a hostile work environment. Rather, the County argues 4 it is not liable because Plaintiff has not pleaded facts to support that the County acted with 5 deliberate indifference or that it subjected Plaintiff to further harassment. Alameda Mot. 13 6 Title IX of the 1972 Education Amendments prohibits discrimination on the basis of sex 7 “under any education program or activity receiving Federal financial assistance.” 20 U.S.C. § 8 1681. In cases that do not involve an official policy of the funding recipient, “a damages remedy 9 will not lie under Title IX unless an official who at a minimum has authority to address the alleged 10 discrimination and to institute corrective measures on the recipient’s behalf has actual knowledge 11 of discrimination in the recipient’s programs and fails adequately to respond. . . . [T]he response 12 must amount to deliberate indifference to discrimination.” Gebser v. Lago Vista Indep. Sch. Dist., 13 524 U.S. 274, 290 (1998). Furthermore, the plaintiff must demonstrate that the recipient’s 14 “deliberate indifference caused them to be subjected to further discrimination or deprivation.” 15 Lopez v. Regents of Univ. of California, 5 F. Supp. 3d 1106, 1125–26 (N.D. Cal. 2013) (citing 16 Williams v. Bd. of Regents of Univ. Sys. of Georgia, 477 F.3d 1282, 1296 (11th Cir. 2007)). “In 17 sexual harassment cases, it is the deliberate failure to curtail known harassment, rather than the 18 harassment itself, that constitutes the intentional Title IX violation.” Mansourian v. Regents of 19 Univ. of California, 602 F.3d 957, 967 (9th Cir. 2010). 20 The Alameda Defendants argue that an ACSO official did not have actual knowledge of 21 Allen’s harassment until June 21, 2022, when Plaintiff first filed a formal complaint with ACSO. 22 Alameda Mot. 13. They also argue that the County’s response was reasonable because Plaintiff’s 23 allegations indicate that the County interviewed Plaintiff as part of an investigation into her 24 complaint and later issued a disposition letter, and because Plaintiff did not experience harassment 25 after filing her complaint. Id. In contrast, Plaintiff alleges that the County was put on actual 26 27 1 notice of Allen’s tendency to create a hostile work environment as early as 2019, when another 2 female teacher filed a sexual harassment complaint with Five Keys/CCSF against Allen. SAC ¶ 3 205. She alleges that ACSO told her it was not interested in responding to her complaint in an 4 email from August 30, 2022, after the temporary restraining order against Allen had been lifted. 5 Id. at ¶ 238. Plaintiff characterizes the County’s November 3, 2022 interview as an attempt to 6 humiliate her rather than investigate what actually happened. Id. at ¶¶ 213-214. She also alleges 7 that the interview took place more than four months after she filed the complaint, that she received 8 the disposition letter another eight months later, and that the County did not appear to have taken 9 any action in response to her complaint other than interviewing her. Id. at ¶¶ 213-215; Alameda 10 Opp’n 8. 11 Plaintiff’s allegations are sufficient to plead deliberate indifference. A Title IX institution 12 is deliberately indifferent if its response to a complaint was “clearly unreasonable in light of the 13 known circumstances,” such that it amounted to “an official decision . . . not to remedy the 14 violation.” Oden v. N. Marianas Coll., 440 F.3d 1085, 1089 (9th Cir. 2006). Plaintiff has alleged 15 facts which, if proven, could indicate that the County’s response was clearly unreasonable. 16 According to Plaintiff, the County took no action other than the November 3, 2022 interview in 17 response to her complaint. The November 3, 2022 interview was allegedly hostile and retaliatory, 18 and insufficient by itself to remedy the harassment. Furthermore, “[an institution’s] delayed 19 response constitutes deliberate indifference if it prejudices the plaintiff or if the delay was a 20 ‘deliberate attempt to sabotage [the p]laintiff’s complaint or its orderly resolution.’” Karasek v. 21 Regents of Univ. of California, 956 F.3d 1093, 1106 (9th Cir. 2020) (citing Oden, 440 F.3d at 22 1089). The allegations of unexplained delays in the County’s investigation, combined with the 23 August 30, 2022 email and the lack of remedial action, make it facially plausible that the County 24 deliberately attempted to sabotage the orderly resolution of Plaintiff’s complaint. Plaintiff has 25 also sufficiently pleaded a causal link between the County’s deliberate indifference and her 26 harassment. Plaintiff alleges that another sexual harassment complaint had been filed against 27 Allen by a teacher in 2019. SAC ¶ 205. It is reasonable to infer that the County knew about 1 action in response, exposing Plaintiff to the harassment that she later experienced. 2 Alameda County makes no other arguments against Plaintiff’s Title IX claim. Its motion 3 to dismiss is denied. 4 D. Trespass to Chattel 5 Plaintiff brings a trespass to chattel claim against both Allen and Alameda County, 6 alleging that Allen interfered with her personal property during the December 6, 2021 incident. 7 Under California law, property is either real or personal. Vieira Enterprises, Inc. v. City of 8 E. Palo Alto, 208 Cal. App. 4th 584, 596 (2012), as modified on denial of reh’g (Sept. 13, 2012) 9 (citing Civ. Code § 657). “Real property” is defined as “land and things that are affixed to the 10 land,” such as houses and apartments. Id. Everything else is personal property (also known as 11 chattel). Id. 12 The tort of trespass to chattel “lies where an intentional interference with the possession of 13 personal property has proximately caused injury.” Thrifty–Tel, Inc. v. Bezenek, 46 Cal. App. 4th 14 1559, 1566 (1996). “A trespass to a chattel may be committed by intentionally (a) dispossessing 15 another of the chattel, or (b) using or intermeddling with a chattel in the possession of another.” 16 Jamgotchian v. Slender, 170 Cal. App. 4th 1384, 1401 (2009) (citing Restatement (Second) of 17 Torts § 217 (1965)). “[O]ne who intentionally intermeddles with another’s chattel is subject to 18 liability only if his intermeddling is harmful to the possessor’s materially valuable interest in the 19 physical condition, quality, or value of the chattel, or if the possessor is deprived of the use of the 20 chattel for a substantial time, or some other legally protected interest of the possessor is affected.” 21 Id. (citing Intel Corp. v. Hamidi, 30 Cal. 4th 1342, 1401 (2003)). The plaintiff must demonstrate 22 “actual damage” to state a claim. Hamidi, 30 Cal. 4th at 1357. 23 Allen argues that Plaintiff has not pleaded trespass to chattel because she has not shown 24 actual damages to her personal property. Plaintiff alleges that Allen deprived her of the use of her 25 thermostat for approximately 30 minutes, during which time Allen repeatedly seized control of the 26 thermostat without Plaintiff’s consent and turned it to 90 degrees. SAC ¶¶ 97-100. This is a brief 27 but measurable time during which Plaintiff could not control the temperature of her home, 1 that her phone was taken and used by Allen without her consent for a substantial amount of time 2 while Plaintiff hid in the bathroom. SAC ¶¶ 116-120. This is sufficient to plead a trespass to 3 chattel claim against Allen, albeit a modest one.13 4 Plaintiff has not stated a trespass to chattel claim against Alameda County. Under 5 California law, the County can only be liable for the torts of its employees if the tort occurred 6 within the scope of employment. Cal. Gov. Code § 815.2(a). This means the tort must be “a 7 generally foreseeable consequence of the [employment] activity.” Lisa M. v. Henry Mayo 8 Newhall Mem’l Hosp., 12 Cal. 4th 291, 299 (1995) (quoting Rodgers v. Kemper Constr. Co., 50 9 Cal. App. 3d 608, 618 (Ct. App. 1975)). As discussed above, Plaintiff has not alleged any facts 10 that connect the December 6, 2021 incident with Allen’s position as a deputy sheriff. It is not a 11 generally foreseeable consequence of Allen’s employment that she would remotely manipulate 12 Plaintiff’s thermostat using her private wi-fi, force her way into Plaintiff’s home, take control of 13 Plaintiff’s phone and read Plaintiff’s text messages. As amendment would be futile, Plaintiff’s 14 trespass claim against Alameda County is dismissed without leave to amend. 15 E. Intrusion Upon Seclusion 16 Plaintiff brings an intrusion upon seclusion claim against Allen. 17 Intrusion upon seclusion under California law has two elements: “(1) intrusion into a 18 private place, conversation or matter, (2) in a manner highly offensive to a reasonable person.” 19 Shulman v. Grp. W Prods., Inc., 18 Cal. 4th 200, 231 (1998). To establish an intrusion, the 20 plaintiff “must show the defendant penetrated some zone of physical or sensory privacy 21 surrounding, or obtained unwanted access to data about, the plaintiff.” Id. at 232. The plaintiff 22 must have had an “objectively reasonable expectation of seclusion or solitude in the place, 23 conversation or data source.” Id. Determination of whether an intrusion was offensive involves 24 analysis of all the relevant circumstances, including “the degree of intrusion, the context, conduct 25 and circumstances surrounding the intrusion as well as the intruder’s motives and objectives, the 26 13 Plaintiff also alleges that Allen’s conduct interfered with her interest in her home and her wi-fi. 27 SAC ¶ 274. Plaintiff cannot bring a trespass to chattel claim regarding her home, because her 1 setting into which he intrudes, and the expectations of those whose privacy is invaded.” Miller v. 2 Nat’l Broad. Co., 187 Cal. App. 3d 1463, 1483-84 (1986). 3 Allen references facts for which the court cannot take judicial notice, including that 4 Plaintiff had given Allen a key to her home because they were in a voluntary romantic 5 relationship. Alameda Mot. 17-18. Allen further argues that a romantic relationship “naturally 6 involves relinquishment of a certain level of privacy when the other partner is involved.” Id. at 18. 7 This is unconvincing. A romantic relationship does not give carte blanche permission under the 8 law for a partner to violate the other’s privacy. 9 Plaintiff does not clearly explain which allegations support her intrusion upon seclusion 10 claim. Liberally construed, Plaintiff appears to point to five incidents: 1) Allen investigating 11 Plaintiff’s “private life” on a work computer, SAC ¶ 38; 2) Allen monitoring Plaintiff over the jail 12 security cameras, SAC ¶ 60; 3) Allen manipulating Plaintiff’s thermostat, SAC ¶ 98; 4) Allen 13 forcing her way into Plaintiff’s residence, SAC ¶¶ 105-120; and 5) Allen mailing her items after 14 the December 6, 2021 incident without Plaintiff’s consent, SAC ¶¶ 126-130, 142-144. 15 As discussed above, Plaintiff does not specify what information Allen found about Plaintiff 16 on the work computer, so the court cannot infer that Allen’s investigation would be “highly 17 offensive to a reasonable person.” See Shulman, 18 Cal. 4th at 231. Plaintiff has not shown an 18 “objectively reasonable expectation of seclusion or solitude” in her workplace, because she knew 19 she worked in a high-security environment, and a reasonable person would expect that someone 20 would be monitoring the security cameras in a jail. See id. at 232. 21 The other facts are sufficient to allege an intrusion upon seclusion claim. In particular, 22 Plaintiff has alleged that her home is a “private place,” and Allen intruded into it in a “manner 23 highly offensive to a reasonable person.” See id. at 231. She alleges that she did not consent to 24 Allen manipulating her thermostat, forcing her way into her home, searching through her phone 25 and interrogating her about her text messages, or mailing her unsolicited items. A reasonable 26 person could find Allen’s alleged behavior to be highly offensive. Allen does not address these 27 allegations at all. The court denies the motion to dismiss the intrusion upon seclusion claim. VI. CONCLUSION 1 - Defendant Daniel Brodie is dismissed, as Plaintiff dropped her claims against him. 2 - Defendants Lisa Haynes and Mary Vigil are dismissed, as Plaintiff has not made any 3 allegations against them. 4 - Five Keys Defendants’ motion to dismiss is granted in part and denied in part. 5 o Plaintiff’s section 1983 and state law claims against the Five Keys Defendants 6 are dismissed with prejudice. Defendants Steve Good and Melanie Fukuhara 7 are dismissed. 8 o Plaintiff’s Title VII and Title IX claims against Five Keys shall go forward. 9 - CCSF’s motion to dismiss is denied. Plaintiff’s Title VII and Title IX claims against 10 CCSF shall go forward. 11 - Alameda Defendants’ motion to dismiss is granted in part and denied in part. 12 o Plaintiff’s section 1983 claims are dismissed with prejudice except for the 13 Fourteenth Amendment claim against Allen, which shall go forward. 14 o Plaintiff’s Title VII claim against Alameda County is dismissed with prejudice. 15 o Plaintiff’s Title IX claim against Alameda County shall go forward. 16 o Plaintiff’s trespass to chattel claim against Allen shall go forward. 17 o Plaintiff’s trespass to chattel claim against Alameda County is dismissed with 18 prejudice. 19 o Plaintiff’s intrusion upon seclusion claim against Allen shall go forward. 20 Judgment shall be entered in favor of Daniel Brodie, Lisa Haynes, Mary Vigil, Steve 21 Good, Melanie Fukuhara, and Gregory Ahern against Plaintiff. 22 Remaining Defendants shall file answers by November 19, 2024. The Initial Case 23 Management Conference is set for December 4, 2024 at 01:30 PM in Oakland, - Videoconference 24 Only. This proceeding will be held via a Zoom webinar. Parties can find the Zoom link to Judge 25 Ryu’s virtual Zoom courtroom at: https://cand.uscourts.gov/judges/ryu-donna-m-dmr/. All parties 26 shall jointly file one case management statement by November 27, 2024. The court refers Plaintiff 27 to the link entitled “Representing Yourself” on the Court’s website, located at 1 https://cand.uscourts.gov/pro-se-litigants/, as well as the Court’s Legal Help Centers for 2 unrepresented parties. Parties may schedule an appointment by calling 415-782-8982 or emailing 3 FedPro@sfbar.org. 4 5 6 7 IT IS SO ORDERED. 8 Dated: October 29, 2024 9 ______________________________________ Donna M. Ryu 10 Chief Magistrate Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27