MARTA DESOTO, Ph.D., a married woman v. Gregory Mckay, a married man

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARTA DESOTO, Ph.D., a married
woman,
Plaintiff-Appellant,
v.
GREGORY MCKAY, a married man,
Defendant-Appellee.
No. 16-17358
D.C. No. 2:16-cv-00996-JAT
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
James A. Teilborg, District Judge, Presiding
Argued and Submitted December 7, 2017
San Francisco, California
Before: M. SMITH and IKUTA, Circuit Judges, and MCAULIFFE,** District
Judge.
Marta DeSoto appeals the district court’s judgment dismissing her 42
U.S.C. § 1983 claim against Gregory McKay on grounds that McKay is entitled to
qualified immunity. We have jurisdiction under 28 U.S.C. § 1291, and review de
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Steven J. McAuliffe, United States District Judge for
the District of New Hampshire, sitting by designation.
FILED
JAN 5 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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novo the district court’s dismissal, Price v. State of Hawaii, 939 F.2d 702, 706
(9th Cir. 1991). We affirm the dismissal, albeit on different grounds than those
upon which the district court relied. See United States v. McClendon, 713 F.3d
1211, 1218 (9th Cir. 2013) (“Our reasoning is different from that of the district
court, but we may affirm on any basis supported by the record and do so here.”).
DeSoto, a licensed psychologist, provided the Arizona Department of Child
Safety (“DCS”) with psychological consultation and evaluation services through a
contract between DCS and her company. She claims her constitutionally
protected right of intimate association was violated when, upon learning that she
had married a convicted murderer, the Director of DCS, Gregory McKay,
terminated her independent-contractor relationship. But, her first amended
complaint alleges insufficient facts related to McKay’s personal involvement in
the decision to terminate her employment to plausibly state a claim for relief. See,
e.g., Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (“A plaintiff must
allege facts, not simply conclusions, that show that an individual was personally
involved in the deprivation of his civil rights. Liability under § 1983 must be
based on the personal involvement of the defendant”); see also Maxwell v. Cty. of
San Diego, 708 F.3d 1075, 1097 (9th Cir. 2013) (“[T]here is no respondeat
superior liability under § 1983. Rather, a government official may be held liable
only for the official’s own conduct.”).

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DeSoto’s first amended complaint does not, for example, allege that McKay
signed the notice of termination. Nor does it allege that anyone told DeSoto that
her marriage influenced the decision to terminate her contract, or that her marriage
was something McKay considered when he (allegedly) decided to fire her. Nor
does it allege that McKay was even aware that DeSoto was married; it certainly
does not allege that McKay was aware that DeSoto was married to a convicted
murderer.
The first amended complaint merely alleges: (1) temporal proximity
between DeSoto’s firing and a local news report about her marriage to a convicted
murderer; (2) that someone other than McKay informed DeSoto that her
employment had been terminated and explained that it was done “in the best
interest of the State”; and (3) that DeSoto was “informed and believes” that
McKay participated in, directed, and endorsed her firing (an inference she draws
based upon his official-capacity status as director of DCS and the fact that his
name appears on the letterhead of the department’s formal notice of termination).
Those meager factual allegations are insufficient to “nudg[e]” DeSoto’s claims of
unconstitutional discrimination “across the line from conceivable to plausible.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); see also Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (“The plausibility standard is not akin to a ‘probability
requirement,’ but it asks for more than a sheer possibility that a defendant has

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acted unlawfully. 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.’”) (quoting Twombly, 550 U.S. at 557)).
Because we conclude that DeSoto’s first amended complaint fails to
adequately plead McKay’s personal involvement in the alleged deprivation of
DeSoto’s constitutional rights, we affirm the district court’s judgment of
dismissal. Accordingly, we need not address whether McKay would have been
entitled to qualified immunity had DeSoto pled a viable constitutional claim.
AFFIRMED.

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