Itta v. Harvey et al

WO IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
BOBBY ITTA, )
)
Plaintiff, )
)
vs. )
)
PAULINE HARVEY, in her official capacity )
and individual capacity as North Slope ) Case No. 4:21-cv-00010-HRH
Borough School District Superintendent, )
et al., )
)
Defendants. )
_______________________________________)
O R D E R
Motion to Dismiss1
Defendants Pauline Harvey and the North Slope Borough School District
(“NSBSD”) move to dismiss petitioner Bobby Itta’s complaint.2 This motion is opposed.3
Oral argument was requested and heard.
Background
In her complaint, plaintiff Bobby Itta asserts § 1983 “due process” claims against
defendants.4 She sues Pauline Harvey in her individual and official capacities as super-
1Docket No. 8.
2Docket Nos. 8 and 9.
3Docket No. 14.
4Complaint at 12-15, ¶¶ 3.1-3.15, Docket No. 1.
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intendent of the NSBSD and the NSBSD.5 Itta alleges that she was employed at the Qargi
Academy, a charter school in the NSBSD.6 She alleges that Qargi Academy principal
Emily Roseberry hired her to work as a teacher at the school, and that she was employed
there between July 29, 2020, and December 15, 2020.7 She alleges that at the time of her
hiring, she was not a NSBSD employee.8
Itta alleges that NSBSD superintendent Pauline Harvey had final decision-making
authority for personnel employed at non-charter schools in the district.9 She alleges that
under various Alaska statutes and certain enumerated NSBSD policies, the Qargi Acade-
my was exempt from the administrative control of the NSBSD superintendent; instead,
Principal Roseberry maintained administrative control over the school.10 She alleges that
statutorily, the superintendent did not have administrative authority over complaints
against Qargi personnel and that Principal Roseberry “was the entity responsible for
investigating any personnel complaints dealing with charter school employees.”11 She
further alleges that the Qargi Academy’s Academic Policy Committee (“the APC”)
5Id. at 1, 15.
6Id. at 1, ¶ 1.1.
7Id. at 2, ¶¶ 2.1, 2.3.
8Id. at 2, ¶ 2.4.
9Id. at 1, ¶ 1.2.
10Id. at 3, 9, ¶¶ 2.7, 2.35.
11Id. at 7, 9, ¶¶ 2.29, 2.35.
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selected the school principal, and that “[o]nce selected, the Qargi Principal was author-
ized to select, appoint, or otherwise supervise employees of the charter school.”12
In September 2020, a Qargi employee reported to Principal Roseberry, the
NSBSD, the “School board,” and the Utqiagvik Police Department that Itta had previ-
ously been engaged in an inappropriate sexual relationship with a high school student.13
Itta alleges that on September 22, 2020, she received an email from NSBSD attorney
Bonnie Bull, “demanding that she participate in an investigation that was being conducted
on behalf of the NSBSD. This new investigation . . . was . . . conducted by a law firm
selected by Superintendent Pauline Harvey.”14 She alleges that on September 30, 2020,
Harvey ordered Itta to attend an investigatory hearing regarding the allegations of
inappropriate sexual conduct.15
Itta alleges that on October 20, 2020, Attorney Bull produced a report on her
investigation of Itta, which Harvey shared with the NSBSD Board of Education.16 She
alleges that in the report, Attorney Bull “issued the false and defamatory statement that
Bobby Itta had ‘engaged in a sexual relationship with a NSBSD student’” and that Itta
had committed sexual abuse of a minor, a felony offense.17 She alleges that this report
was based on hearsay, “filled with clearly false statements,” had not allowed for “cross
12Id. at 3, ¶ 2.7.
13Id. at 3, 6-7, ¶¶ 2.8, 2.23-2.25.
14Id. at 7, ¶ 2.28.
15Id. at 7, ¶ 2.29.
16Id. at 8-9, ¶¶ 2.33, 2.36.
17Id. at 8-9, ¶¶ 2.33-2.34.
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examination of the witnesses,” and was “not the result of any due process hearing.”18 Itta
alleges that after Harvey “received this slanderous and false report, she authorized it to be
published and shared with the NSBSD Board of Education.”19 She alleges that Harvey
did not share this report with Principal Roseberry, “even though Bobby Itta was solely a
Qargi employee.”20
Itta alleges that Harvey did not share Attorney Bull’s report with her until
November 4, 2020.21 She alleges that on that date, she also received from Harvey a notice
of proposed termination.22 The notice informed Itta that she needed to attend a pre-
termination hearing, which was scheduled for November 18, 2020.23 Itta alleges that the
notice “was not sent to Principal Roseberry at Qargi Academy, even though Bobby Itta
was employed at the Qargi and not at any of the NSBSD schools over which the [s]uper-
intendent had authority.”24 She alleges that Harvey then conducted the hearing on
November 18, even though the hearing constituted “an unlawful violation of Bobby Itta’s
due process rights because only Qargi’s [p]rincipal, Emily Roseberry[,] had the jurisdic-
tion to determine whether or not Bobby Itta should be terminated.”25
18Id.
19Id. at 9, ¶ 2.34.
20Id.
21Id. at 9, ¶ 2.36.
22Id.
23Id. at 9-10, ¶ 2.37.
24Id. at 10, ¶ 2.37.
25Id. at 10, ¶ 2.38.
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Itta alleges that on December 14, 2020, Harvey sent her a notice of non-retention,
which stated that Itta would not be retained as a teacher at the Qargi Academy for the
2021-2022 school year.26 She alleges that this notice was not sent to Principal Roseberry
or to the Qargi APC.27 Itta alleges that she asked Harvey to provide a statement of
cause.28 She alleges that on December 30, 2020, Harvey sent Itta a statement of cause for
her non-retention.29 She alleges that the stated cause was that Itta had engaged in sexual
relations with a student and committed sexual abuse of a minor.30 The notice further
“stated that the ‘d[i]strict cannot trust you to teach and supervise children.’”31
Itta alleges that on December 15, Harvey sent her a notice of termination.32 Itta
alleges that the notice stated that she was being dismissed for cause, effective immedi-
ately.33 She alleges that the stated reason for her termination, like that given for her
notice of non-retention, was that she “engaged in a sexual relationship with a North Slope
Borough School student.”34 She alleges that the allegations in this notice “lacked any
26Id. at 10, ¶ 2.40.
27Id.
28Id.
29Id. at 11, ¶ 2.44
30Id.
31Id.
32Id. at 11, ¶ 2.41.
33Id.
34Id.
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evidentiary support, and yet were placed in [her] employment file.”35 Itta further alleges
that the notice also stated that she had a right to request a hearing before the school board,
but that she had already “been deprived of her right to a fair hearing before the [s]chool
[b]oard because Superintendent Harvey had already sent . . . [to the school board attor-
ney] Bull’s investigation report, in which it was declared that Ms. Itta had committed the
felony of sexual abuse of a minor.”36 Itta alleges that Harvey did not send a copy of her
notice of termination to Principal Roseberry or to the Qargi APC.37
Itta alleges that even though the Qargi Academy did not terminate Itta’s employ-
ment, Harvey instructed the NSBSD payroll personnel to stop paying her.38 She alleges
that Harvey also informed “State of Alaska licensing” of Itta’s firing.39 She alleges that
Harvey “defamed [her], intentionally interfered with her contract with Qargi Academy,
and placed a permanent impediment on her ability to ever work again as a teacher.”40 She
further alleges that Harvey’s conduct “violated Ms. Itta[’s] presumption of innocence, and
violated her rights guaranteed by the Fifth and Fourteenth Amendments to the United
States Constitution.”41
Itta alleges that she “possessed a property interest in her continued employment” as
a teacher at the Qargi Academy and that “her enjoyment in the property right to her job[]
35Id.
36Id. at 11, ¶ 2.42.
37Id. at 11, ¶ 2.43.
38Id. at 12, ¶ 2.45.
39Id.
40Id. at 12, ¶ 2.46.
41Id.
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also entitled her to enjoy this right without interference from other governmental agents,
except by due process of law.”42 She claims that while employed as a Qargi teacher, she
never engaged in sexual activity with any Qargi or NSBSD student and alleges that she
has never been permitted a trial by jury or the presumption of innocence for the criminal
act(s) alleged by Superintendent Harvey.43
Itta alleges that Harvey violated 42 U.S.C. § 1983 when she violated her “due
process” rights under the Fifth and Fourteenth Amendments of the United States Consti-
tution.44 Defendants Harvey and the North Slope Borough School District now move to
dismiss Itta’s complaint pursuant to Rule 12(b)(6), Federal Rules of Civil Procedure.45
Discussion
Federal Rule of Civil Procedure 12(b)(6) provides that a defendant may move for
dismissal of a plaintiff’s case when the plaintiff “fails [] to state a claim upon which relief
can be granted.” To survive such a motion, “a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim for relief that is plausible on its face.’” Zixiang
Li v. Kerry, 710 F.3d 995, 999 (9th Cir. 2013) (quoting Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009)). “A claim is facially plausible ‘when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.’” Id. (quoting Iqbal, 556 U.S. at 678). This standard “requires more
than the sheer possibility or conceivability that a defendant has acted unlawfully.” Id.
42Id. at 12-13, ¶ 3.4.
43Id. at 13, ¶¶ 3.5, 3.8.
44Id. at 12.
45Motion to Dismiss at 1, Docket No. 8.
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“Where a complaint pleads facts that are merely consistent with a defendant’s
liability, it stops short of the line between possibility and plausibility of entitlement to
relief.” Id. (quoting Iqbal, 556 U.S. at 678). Rather, “the complaint must provide ‘more
than labels and conclusions, and a formulaic recitation of the elements of a cause of
action will not do.’” In re Riegel Pharm., Inc. Sec. Litig., 697 F.3d 869, 875 (9th Cir.
2012) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
As the court evaluates a Rule 12(b)(6) motion, it accepts as true “the complaint’s
well-pleaded factual allegations . . . and draws all reasonable inferences in the light most
favorable to the plaintiff.” Adams v. U.S. Forest Serv., 671 F.3d 1138, 1142-43 (9th Cir.
2012). But the court need not “accept as true conclusory allegations in a complaint or
legal claims asserted in the form of factual allegations.” In re Tracht Gut, LLC, 836 F.3d
1146, 1150 (9th Cir. 2016). The court construes allegations of material fact in the light
most favorable to the nonmoving party. Parks Sch. of Bus., Inc. v. Symington, 51 F.3d
1480, 1484 (9th Cir. 1995).
Title 42 of the United States Code, section 1983, provides that “[e]very person
who, under color of any statute, ordinance, regulation, custom, or usage, of any State or
Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of
the United States or other person within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the Constitution and laws, shall be liable to
the party injured. . . .” Municipalities and other local government units, such as school
districts and their boards, are subject to § 1983. See Lytle v. Carl, 382 F.3d 978, 982 (9th
Cir. 2004); Hopper v. City of Pasco, 241 F.3d 1067, 1082 (9th Cir. 2001). “[A] suit
against public employees in their official capacities is equivalent to a claim against their
municipal employer.” Santos v. Cnty. of Los Angeles Dep’t of Children and Family
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Servs., 299 F. Supp. 2d 1070, 1078 (C.D. Cal. 2004). A plaintiff bringing a claim under
§ 1983 “must allege two essential elements: (1) that a right secured by the Constitution or
laws of the United States was violated, and (2) that the alleged violation was committed
by a person acting under the color of State law.” Long v. Cnty. of Los Angeles, 442 F.3d
1178, 1185 (9th Cir. 2006).
While it is not clear from Itta’s complaint whether she is raising procedural or
substantive due process claims, or both, Itta clarified in her opposition brief and at oral
argument that she is only bringing substantive due process claims and no procedural due
process claims.46 The court accepts Itta’s clarification of her due process claim and will
now turn to her substantive due process claim.
“The substantive component of the Due Process Clause forbids the government
from depriving a person of life, liberty, or property in such a way that . . . interferes with
rights implicit in the concept of ordered liberty.” Enquist v. Or. Dep’t of Agric., 478 F.3d
985, 996 (9th Cir. 2007) (omissions in original) (quoting Squaw Valley Dev. Co. v.
Goldberg, 375 F.3d 936, 948 (9th Cir. 2004)). A plaintiff bringing a substantive due pro-
cess claim must, as a threshold requirement, make a showing of a liberty or property
interest protected by the Constitution. Id. (quoting Wedges/Ledges of Cal., Inc. v. City of
Phoenix, 24 F.3d 56, 62 (9th Cir. 1994)). If a plaintiff satisfies this initial requirement,
the plaintiff must then demonstrate “conscience shocking behavior by the government.”
Brittain v. Hansen, 451 F.3d 982, 991 (9th Cir. 2006) (footnote omitted).
46The court seriously doubts that Itta could state a procedural due process claim in
light of the fact that she was offered and declined a hearing before the NSBSD Board and
in light of the fact that she has steadfastly pleaded and argued that her employer was the
Qargi Academy, not the NSBSD. Under most circumstances, a third-party non-employer
does not owe non-employees procedural due process.
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The Ninth Circuit does not recognize a substantive due process right to a particular
public employment position and only recognizes a narrow substantive due process right
“for a public employer’s violations of occupational liberty.” Enquist, 478 F.3d at 996-98.
A public employee can only raise a colorable substantive due process claim for a public
employer’s violation of occupational liberty in “extreme cases, such as a ‘government
blacklist, which when circulated or otherwise publicized to prospective employers effec-
tively excludes the blacklisted individual from his occupation, much as if the government
had yanked the license of an individual in an occupation that requires licensure.’” Id. at
997-98 (quoting Olivieri v. Rodriguez, 122 F.3d 406, 408 (7th Cir. 1997)). There is only
a “substantive due process protection against government employer actions that foreclose
access to a particular profession to the same degree as government regulation.” Id. at
998.
Here, Itta has asserted property and/or liberty interests in her continued employ-
ment at the Qargi Academy and in her reputation. Clearly NSBSD and Qargi Charter
School are public employers. Under Enquist, Itta had no property interest in her con-
tinued public employment as a Qargi teacher. And, under Enquist, Itta’s conclusory alle-
gations that she was defamed, that her employment contract with Qargi Academy was
intentionally interfered with, and that Harvey interfered with her ability to ever work
again as a teacher do not present a plausible claim for relief. She has not alleged that she
suffered any reputational damage so extreme as to foreclose or blacklist her from again
working as a teacher. While Itta does allege that Harvey informed the state’s licensing
division that she had been fired, she does not claim that Harvey told the state about any of
the allegedly defamatory, reputation-damaging information.
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Itta’s claim and that “she has never been permitted a trial by jury or the presump-
tion of innocence for the criminal allegations that Superintendent Harvey stated that she
committed” and that Harvey violated her “presumption of innocence”47 is wholly without
merit. These are rights inherent in criminal prosecutions, which did not occur here. See
Lilienthal’s Tobacco v. United States, 97 U.S. 237, 267 (1877) (“Innocence is presumed
in a criminal case until the contrary is proved . . . but the presumption of innocence as
probative evidence is not applicable in civil cases.”).
Because Itta has not satisfied the threshold requirement of identifying any liberty
or property interest protected by the Constitution, she has not pleaded any plausible sub-
stantive due process claims as to defendant Harvey.
Because plaintiff has sued defendant Harvey in her official capacity and defendant
NSBSD is a governmental entity, the NSBSD might be liable to plaintiff based upon
Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690-91, 694 (1978). In Monell, the court
held that a governmental entity can only be held liable under § 1983 for constitutional
deprivations based upon a governmental custom or policy. A district’s § 1983 liability
under Monell may also be premised on the theory that a district employee was acting as a
final policymaker. Lytle v. Carl, 382 F.3d 978, 982 (9th Cir. 2004). Here, Itta has not
alleged that Harvey acted pursuant to a district policy or custom, or that she was acting as
a final policymaker on matters involving charter schools. She has therefore not stated a
plausible § 1983 claim against the North Slope Borough School District.
For the foregoing reasons, Itta has not pled any plausible § 1983 substantive due
process claims against the defendants.
47Complaint at 12, 13, ¶¶ 2.46, 3.5, Docket No. 1.
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Conclusion
Itta’s complaint is dismissed in its entirety. Inasmuch as this dismissal is on plaus-
ibility grounds, leave to amend is granted. If Itta elects to file an amended complaint, it
shall be served and filed on or before 14 days from the date of entry of this order.
DATED at Anchorage, Alaska, this 24th day of January, 2022.
/s/ H. Russel Holland
United States District Judge
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