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UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF CALIFORNIA 

RICK R. TUCKER, 

Plaintiff, 

vs. 

NOVATO UNIFIED SCHOOL DISTRICT, ET 

AL., 

Defendants.

CASE NO. 17-cv-00642-YGR 

ORDER RE MOTION TO DISMISS

Re: Dkt. No. 20 

Plaintiff Rick Tucker brings this action against defendants Shalee Cunningham and the 

Novato Unified School District (the “District”), alleging violations of constitutional rights under 

section 1983, as well as state tort and labor claims. (Dkt. No. 13, First Amended Complaint 

(“FAC”).) The District moves to dismiss all counts alleged in the FAC arising out of defendant 

Cunningham’s supervisory capacity, false reports to law enforcement and to the California State 

Teachers’ Retirement System (“CalSTRS”), and for retaliation. These claims include unreasonable 

seizure of person (Counts 2 and 3) and property (Count 5 and 6); retaliation (Count 9 and 10); and 

malicious prosecution (Count 12 and 13) against the District based final policymaking authority 

and ratification. (Dkt. No. 20.)1

 Having carefully considered the pleadings and the arguments of 

the parties, the Court hereby DENIES defendants’ motion to dismiss as to Counts 2, 5, 9 and 12; 

 1

 Accordingly the motion does not challenge the claims against Cunningham in her 

individual capacity for unreasonable seizure of person (Count 1) and property (Count 4); 

retaliation (Count 8); and malicious prosecution (Count 11); and against all defendants for 

conversion (Court 7) and unlawful denial of wages pursuant to California Labor Code Section 216 

(Count 14). 
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DENIES IN PART the motion as to Counts 3, 6, 10 and 13 based on Shalee Cunningham’s 

ratification of Pamela Haessley’s alleged conduct; and GRANTS WITHOUT PREJUDICE the motion 

as to Counts 3, 6, 10 and 13 based on the District Board of Education’s ratification of 

Cunningham’s alleged conduct.2

I. FACTUAL BACKGROUND AS ALLEGED

Plaintiff Rick Tucker was the Executive Director of Novato Public Access Television 

(“NPAT”), a non-profit corporation created and controlled by the District. (FAC ¶¶ 7-8.) On 

November 21, 2013, he alleges that his employment was terminated at the request of Cunningham, 

the District’s Superintendent at the time. (Id. ¶ 7.) Plaintiff alleges that Cunningham was 

disappointed with him for reporting student vandalism at the NPAT television studio. He believes 

Cunningham interpreted the vandalism reports as calling into question Cunningham’s ability to 

ensure a secure campus. (Id. ¶ 10.) In response, plaintiff alleges Cunningham retaliated by 

terminating Tucker and making a false police report accusing plaintiff of bringing a firearm to 

school. (Id. ¶¶ 10-11.) She further told police that plaintiff “was a pathological liar and had anger 

management problems.” (Id. ¶ 35) 

Plaintiff alleges that on December 13, 2013, Cunningham conspired with Pamela Haessly, 

who replaced plaintiff as NPAT’s Executive Director, to “advocate[] for the fabrication of 

criminal charges to be filed against T[ucker].” (Id. ¶¶ 14, 25.) Specifically, plaintiff alleges that 

Cunningham suggested a number of possible allegations that could be made against plaintiff. (Id.) 

For example, Cunningham allegedly suggested that they could accuse plaintiff of fraud. (Id.) 

Plaintiff alleges that defendants ultimately accused him of stealing approximately $32,000 worth 

of NPAT equipment, and later changed this to an accusation that plaintiff had improperly received 

$15,222.28 in expense reimbursements. (Id.) Plaintiff further alleges that defendants gave Haessly 

 2

 Plaintiff filed his opposition brief on July 7, 2017. (Dkt. No. 24, Opposition.)

Defendants replied on July 17, 2017. (Dkt. No. 25, Reply.) Defendants have submitted 

documents for judicial notice as has plaintiff. (Dkt. Nos. 21, 24.) In light of the lack of opposition 

to either, the Court GRANTS both requests for judicial notice, but does not accept the truth of any 

matters asserted in the documents. The Court gives such documents their proper evidentiary 

weight. 
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all of the plaintiff’s original expense reimbursements from the previous five years, which she then 

kept for two months, disassembled from their supporting documents, wrote on, lost portions of, 

and never returned as a complete set. (Id. ¶¶ 15-16.) Further, Trucker claims that defendants sent 

these “intentionally disordered and adulterated original documents to the District Attorney’s 

office.” (Id. ¶ 18.) On February 12, 2015, Plaintiff was arrested and charged with grand theft and 

embezzlement by an employee. (Id. ¶ 17.) Tucker alleges that he was not aware that defendants 

intended to file criminal charges against him until the date of his arrest. (Id.) Ultimately, charges 

against plaintiff were dismissed by the Marin County District Attorney on August 10, 2016. (Id. ¶ 

19.) 

Meanwhile, on January 9, 2014, plaintiff alleges that NPAT Board discussed a plan 

conceived by Cunningham and Haessly to “attack[]” plaintiff’s CalSTRS pension “as a catalyst to 

get R[ick]. T[ucker]. to back off his litigation.” (Id. at ¶¶ 20, 46.) Plaintiff claims that the “NPTA 

Minutes also confirm the intent to steal half of Plaintiff’s pension contributions.” (Id. ¶ 21.) On 

February 5, 2014, plaintiff alleges that the District and/or Cunningham, through Haessly, filed a 

“Pension Abuse Report” with CalSTRS, which caused his pension to be automatically terminated. 

(Id. at ¶ 47.) 

On January 13, 2016, plaintiff, through counsel, made a formal request to NPAT for the 

return of his pension funds. (Id.) On February 12, 2016, the District issued plaintiff a check for 

$23,270.11 of the contested funds. (Id. ¶ 22.) On August 10, 2016, the same date the criminal 

charges against him were dismissed, plaintiff submitted a Government Code claim to the District 

for claims related to the taking of the CalSTRS funds. (Id. ¶ 58.) On November 17, 2016, plaintiff 

received a check for $55,506.16 from NPAT. (Id. ¶ 59.) Plaintiff alleges the District still has 

$96,092.14 of his retirement funds. (Id.) This action was filed on December 16, 2016, in the 

Superior Court of the State of California in the County of Marin. 

II. LEGAL FRAMEWORK

A. Legal Standard 

Pursuant to Rule 12(b)(6), a complaint may be dismissed for failure to state a claim upon 

which relief may be granted. Dismissal for failure to state a claim under Federal Rule of Civil 
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Procedure 12(b)(6) is proper if there is a “lack of a cognizable legal theory or the absence of 

sufficient facts alleged under a cognizable legal theory.” Conservation Force v. Salazar, 646 F.3d 

1240, 1242 (9th Cir. 2011) (citing Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 

1988)). The complaint must plead “enough facts to state a claim [for] relief that is plausible on its 

face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is plausible on its face 

“when the plaintiff pleads factual content that allows the court to draw the reasonable inference 

that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 

(2009). If the facts alleged do not support a reasonable inference of liability, stronger than a mere 

possibility, the claim must be dismissed. Id. at 678–79. Mere “conclusory allegations of law and 

unwarranted inferences are insufficient to defeat a motion to dismiss.” Adams v. Johnson, 355 

F.3d 1179, 1183 (9th Cir. 2004). 

B. Section 1983 Claims 

In Monell v. Dep’t of Social Servs., the Supreme Court held that local governments are 

“persons” under section 1983 subject to liability for damages where “action pursuant to official 

municipal policy of some nature cause[s] a constitutional tort.” 436 U.S. 658, 691 (1978). Monell 

rejects government liability based on the doctrine of respondeat superior. Thus, a municipality 

may not be held vicariously liable for the unconstitutional acts of its employees on the basis of an 

employer-employee relationship with the tortfeasor. Id. at 691–92. Instead, under Monell, 

government liability only attaches when the constitutional injury results from the implementation 

or “execution of a government’s policy or custom, whether made by its lawmakers or by those 

whose edicts or acts may fairly be said to represent official policy.” Id. at 694 (emphasis 

supplied); see also Lytle v. Carl, 382 F.3d 978, 982 (9th Cir. 2004) (“A school district’s liability 

under Monell may be premised on any of three theories: (1) that a district employee was acting 

pursuant to an expressly adopted official policy; (2) that a district employee was acting pursuant to 

a longstanding practice or custom; or (3) that a district employee was acting as a ‘final 

policymaker.’” (citation omitted)) . 

Plaintiff has not alleged in this case that any District employee was acting pursuant to an 

express official policy or a longstanding practice or custom. Rather, plaintiff argues that District 
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liability is based on Superintendent Cunningham’s role as a “final policymaker.” Two routes are 

available to establish municipal liability under this theory. Zografos v. City & Cty. of San 

Francisco, No. C 05-3881 PJH, 2006 WL 3699552, at *16 (N.D. Cal. Dec. 13, 2006) (citation 

omitted). First, “a plaintiff may show that the decision-making official was, as a matter of state 

law, a final policymaking authority whose edicts or acts may fairly be said to represent official 

policy in the area of the decision.” Id. (internal quotation marks and citation omitted). Second, 

“the plaintiff may show that an official with final policymaking authority either delegated that 

authority to, or ratified the decision of, a subordinate.” Id. (internal quotation marks and citation 

omitted). Under either, the policymaker must “make a deliberate choice from among various 

alternatives to follow a particular course of action.” Id. (citation omitted). “The authority to 

exercise discretion while performing certain functions does not make the official a final 

policymaker unless the decisions are final, unreviewable, and not constrained by the official 

policies of superiors.” Id. (citation omitted). 

III. DISCUSSION

A. Final Policymaker 

To determine whether an official is a final policymaker, the court must first “identify the 

particular area or issue for which the official is alleged to be the final policymaker.” Id. (quoting 

Cortez v. County of Los Angeles, 294 F.3d 1186, 1189 (9th Cir. 2002)); see Lytle, 382 F.3d at 983 

(court’s inquiry regarding final policymaking authority focused on “employment-related 

disciplinary decisions for District employees”). When determining whether an individual has final 

policymaking authority, courts look to “whether he or she has authority ‘in a particular area, or on 

a particular issue.’” Lyle v. Carl, 382 F.3d 978 at 983 (9th Cir. 2004) (quoting McMillian v. 

Monroe County, 520 U.S. 781, 785 (1997). The court must then analyze state law to determine 

the character of an official’s function. Zografos, 2006 WL 369952, at *16 (whether an official is a 

final policymaker is a matter of law to be determined by the judge rather than the jury with 

reference to state law). 

Thus, this Court must determine whether, under state law, Cunningham had final 

policymaking authority with respect to the “particular area[s] or issue[s]” from which Tucker’s 
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allegations arise, namely terminating a District employee and filing a criminal complaint and 

Pension Abuse Report against such employee. See Lyle, 382 F.3d at 983. For this proposition, 

plaintiff cites Novato Unified School District Board Policy 2210, which provides, in relevant part: 

Through the adoption of written policies, the Board of Education [the “Board”] 

conveys its expectations for actions that will be taken in the district, clarifies roles 

and responsibilities of the Board and Superintendent, and communicates Board 

philosophy and direction. However, the Board recognizes that, at times, issues 

may arise in the operation of district schools that are not addressed in Board 

policy or administrative regulation. When resolution of such issues necessitates 

immediate action, the Superintendent or designee shall have the authority to act 

on behalf of the district. 

(FAC ¶ 30.) Plaintiff also cites Board Policy 2000, which indicates that the “Superintendent is the 

chief executive officer and educational leader of the district . . . .” (Id. ¶ 29.) Defendants counter 

that these Board Policies do not help plaintiff for two reasons, namely (i) each of plaintiff’s 

operative causes of action relate to actions taken by Cunningham after Tucker was terminated, and 

(ii) the Policies describe a Superintendent’s authority as limited to implementing and supporting 

Board decisions. 

 Defendants’ augment that Tucker’s claims relate to actions taken by Cunningham after

Tucker was terminated fails for at least three reasons according to the allegations in the FAC: first, 

plaintiff had a continuing relationship with the District based on his pension funds which were 

allegedly withheld due to the Pension Abuse Report filed at the direction of Cunningham. Second, 

the criminal complaint and Pension Abuse Report each accuse Tucker of engaging in unlawful 

conduct while employed at NPTA. Specifically, the criminal complaint accused plaintiff of 

improperly receiving $15,222.28 in expense reimbursements while he was NPTA’s Executive 

Director. (FAC ¶ 14.) This resulted in formal charges against Tucker for “grand theft and 

embezzlement of an employee.” (Id. ¶ 17) (emphasis supplied.) Similarly, the Pension Abuse 

Report accused Tucker of improperly suspending NPTA operations, engaging in careless 

spending, and claiming suspicious expenditures. (Id. ¶ 47.) Finally, a close reading of the FAC 

shows that plaintiff’s retaliation claim (Count 9) arises in part from Cunningham’s alleged 

involvement in plaintiff’s termination, which necessarily occurred while Tucker was still 
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employed at NPAT. (FAC ¶ 222 (“Plaintiff was deprived of his rights under the First Amendment 

to the Constitution when he was terminated in his position . . . adverse actions included 

termination of employment . . .”) Terminating an NPTA employee is an “employment-related 

disciplinary decision” which plausibly involves District operations, thus providing an additional 

ground to deny the motion to dismiss Tucker’s retaliation claim based on final policymaking 

authority. See Lyle, 382 F.3d at 983. 

 Defendant’s second argument, which is that Board Policies 2000 and 2210 do not indicate 

that Cunningham had broad policymaking authority, does not persuade in light of the contrary 

language contained in these same Board Policies. For example, Policy 2000 identifies the 

superintendent as the District’s “chief executive officer.” Further, Policy 2210 delegates to the 

superintendent authority to act on behalf of the District regarding operational issues which 

necessitate immediate action. This is sufficient to raise a plausible inference that Cunningham was 

a final policymaker over the actions alleged in the FAC. 

The Court thus finds that the allegations in the FAC are sufficient to state a section 1983 

claim based on final policymaking authority over the “particular area[s], or on [the] particular 

issue[s]” from which Tucker’s claims arise. Zografos, 2006 WL 3699552, at *16. Tucker’s 

allegations support a plausible inference that Cunningham’s actions in terminating plaintiff and 

directing a criminal complaint and Pension Abuse Report to be filed against him involved 

“operation[s] of district schools” on which Cunningham had “authority to act on behalf of the 

district” as the District’s chief executive officer. (See RFJN, Exhs. A-B.) Therefore, the Court 

DENIES the motion to dismiss the section 1983 claims for unreasonable seizure of person (Count 

2) and property (Count 5), retaliation (Count 9) and malicious prosecution (Count 12) based on 

final policymaking authority. 

B. Ratification 

 To establish municipal liability under a ratification theory, “the plaintiff may show that an 

official with final policymaking authority either delegated that authority to, or ratified the decision 

of, a subordinate.” Zografos, 2006 WL 3699552, at *16. “To show ratification, a plaintiff must 

prove that the authorized policymakers approve a subordinate’s decision and the basis for it.” 
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Christie v. Iopa, 176 F.3d 1231, 1239 (9th Cir. 1999). A policymaker must make a deliberate 

choice to endorse a subordinate’s decision. Gillette v. Delmore, 979 F.2d 1342 (9th Cir. 1992). 

“[S]imply going along with the discretionary decisions made by one’s subordinates . . . is not a 

delegation to them of authority to make policy.” Praprotnik, 485 U.S at 128-130; Gillette, 979 

F.2d at 1348. “[M]ere refusal to overrule a subordinate’s completed act does not constitute 

approval. To hold cities liable under section 1983 whenever policymakers fail to overrule the 

unconstitutional discretionary acts of subordinates would simply smuggle respondeat superior 

liability into section 1983.” Christie, 176 F.3d at 1239-1240. (Internal quotations omitted.) 

 Plaintiff offers two ratification theories, namely that (i) Cunningham, as final policymaker, 

ratified Haessley’s decision to fabricate allegations of embezzlement and pension fraud against 

Tucker, and (ii) the Board knew of and approved the conduct alleged in the FAC before the 

alleged violations were completed. 

1. Cunningham’s ratification of Haessly’s alleged conduct 

The first theory is based on Cunningham’s alleged ratification of Haessley’s conduct. 

Plaintiff avers that Haessly was an agent and employee of the District who received her salary, and 

federal W-2 tax forms from the District. (FAC ¶ ¶ 9, 27.) With regard to the criminal complaint, 

plaintiff alleges that Cunningham ratified Haessley’s actions by directing and conspiring with 

Haessly to “advocate[] for the fabrication of criminal charges to be filed against T[ucker].” (Id. ¶¶ 

14, 25.) Specifically, plaintiff claims that Cunningham suggested accusing Tucker of fraud. (Id.) 

With regard to the Pension Abuse Report, Tucker alleges that the District and/or Cunningham, 

through Haessly, filed a “Pension Abuse Report” with CalSTRS, which caused Tucker’s pension 

to be automatically terminated. (Id. ¶ 47.) These allegations are sufficient to raise a plausible 

inference that Cunningham, as the District’s chief executive officer in charge of District 

operations, had supervisory authority over and ratified Haessly’s conduct with regard to the 

criminal complaint and Pension Abuse Report. The Court therefore DENIES defendant’s motion as 

to plaintiff’s unreasonable seizure of person (Count 3) and property (Count 6), retaliation (Count 

10), and malicious prosecution (Count 13) claims against the District based Cunningham’s 

ratification of Haessly’s alleged conduct. 
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2. The Board’s ratification of Cunningham’s alleged conduct 

 By contrast, plaintiff fails to allege sufficient facts to create a plausible inference that the 

District Board ratified Cunningham’s decision to file a criminal complaint against Tucker. 

Plaintiff alleges that he sent “multiple emails” to the Board in November, 2013, “complaining that 

he had been defamed.” (Id. ¶ 39.) However, the FAC does not describe the emails in which 

plaintiff communicated Cunningham’s conduct to the District Board. The FAC focuses on three 

reports conveyed to the District Board, none of which give rise to an inference that the Board 

knew of, much less ratified, Cunningham’s conduct. The first relates to a financial conflict of 

interest involving a Board member, the second an unrelated sexual harassment complaint, and the 

third concerned vandalism of public assets and property at the television studio. (Id. ¶ 39.) 

Plaintiff later references “complaints filed with the California Labor Commissioner, letters from 

Plaintiff’s counsel, and Government Code claims” to support his position that the Board knew “his 

rights were being deprived” as a result of Cunningham’s conduct. (Id. at ¶ 56.) However, plaintiff 

fails to explain how these letters and complaints notified the Board of Cunningham’s conduct 

before the alleged violations were completed. 

 Plaintiff’s allegations regarding the Board's ratification of the plan to target plaintiff's 

pension fund are similarly insufficient. (Id. ¶ 20.) Plaintiff avers that the Board's ratification of the 

plan to withhold monies from plaintiff's pension fund is documented in January 14, 2014, NPTA 

Board meeting minutes which suggest that an attack on plaintiff's pension fund could be used "as a 

catalyst to get R[ick].T[ucker]. to back off his litigation.” (Id.) This allegation could support an 

inference that the NPTA Board knew of the plan to accuse plaintiff of fraud, but does not give rise 

to a sufficient inference that the Board of Education had any such knowledge. 

The Court therefore GRANTS WITHOUT PREJUDICE defendant’s motion as to plaintiff’s 

unreasonable seizure of person (Count 3) and property (Count 6), retaliation (Count 10), and 

malicious prosecution (Count 13) claims against the District based on the Board’s ratification of 

Cunningham’s alleged conduct. Plaintiff may amend the FAC if discovery shows that the Board 

ratified Cunningham’s alleged conduct. 
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C. Litigation Privilege 

The District moves to dismiss plaintiff’s claims for unreasonable seizure of person and 

retaliation (Counts 2-3 and 9-10, respectively) on the basis that California’s litigation privilege 

covers all communications to the police, even those alleged to be false and malicious. See Cal. 

Civ. Code § 47(b); Hagberg v. California Fed. Bank FSB, 32 Cal. 4th 350, 372 (2004.) Statements 

made to the police fall within the absolute privilege established by section 47(b). Id. at 364. “[T]he 

absolute privilege established by section 47(b) serves the important public policy of assuring free 

access to the courts and other official proceedings. It is intended to assure utmost freedom of 

communication between citizens and public authorities whose responsibility is to investigate and 

remedy wrongdoing.” Id. at 360-61 (quoting Silberg v. Anderson, 50 Cal. 3d 205, 213 (1990)). 

“[T]he effective administration of justice . . . would be threatened by permitting tort liability for 

[such] communications . . . courts have applied the privilege to eliminate the threat of liability, 

which of course already providers certain immunities for state officials . . . .” Id. at 361 (internal 

citations omitted). 

Defendants’ argument fails in light of the Supreme Court’s ruling in Martinez that state 

law immunity is not a valid defense to a Section 1983 claim. Martinez v. California, 444 U.S. 277, 

284 (1980); see also Felder v. Casey, 487 U.S. 131, 139 (1988) (“[W]e have held that a state law 

that immunizes government conduct otherwise subject to suit under § 1983 is preempted . . . 

because the application of the state law would thwart the congressional remedy . . .”) In Kimes, the 

Ninth Circuit interpreted Martinez and Felder in holding that Section 47(b) did not bar plaintiff’s 

Section 1983 claims for deprivation of property rights and causing unwarranted imposition of state 

and federal taxes because “state immunity law does not govern § 1983 claims.” Kimes v. Stone, 84 

F.3d 1121, 1127 (9th Cir.1996); see also Pardi v. Kaiser Foundation Hospitals (9th Cir. 2004) 

389 F.3d 840, 851; Oei v. N. Star Capital Acquisitions 486 F. Supp. 2d 1089, 1098) (C.D. Cal. 

2006); Winters v. Jordan, 2011 U.S.Dist. LEXIS 25944, at *20 (E.D.Cal. 2011). 

Defendants fail to address any of the Supreme Court and Ninth Circuit case law holding 

that Section 47(b) does not bar Section 1983 claims, which suggests that defendants concede this 

argument fails. The motion fails on this ground. 
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D. Statute of Limitations 

The District moves to dismiss plaintiff’s claims for retaliation (Counts 9 and 10), arguing 

that the statute of limitations has expired. The parties agree that the statute of limitations on 

section 1983 actions in California is two years. Knox v. Davis, 260 F.3d 1009, 1012 (9th Cir. 

2001) (“Actions brought pursuant to 42 U.S.C. § 1983 are governed by the forum state’s statute of 

limitations for personal injury actions.”) (citing Wilson v. Garcia, 471 U.S. 261, 276 (1985)); Cal. 

Civ. Proc. Code § 335.1 (California’s statute of limitations for injury caused by the wrongful 

conduct of another is two years). 

Under federal law, “a claim accrues when the plaintiff knows or has reason to know of the 

injury which is the basis of the action.” Knox, 260 F.3d at 1013. “A retaliatory act is considered a 

discrete act that occurs at a particular time, and the fact that some ‘acts . . . fall within the statutory 

time period’ does ‘not make timely acts that fall outside the time period.’” Eng v. Cty. of Los 

Angeles, 737 F. Supp. 2d 1078, 1098 (C.D. Cal. 2010) (quoting Nat'l R.R. Passenger Corp. v. 

Morgan, 536 U.S. 101, 110, 112 (2002)). 

This action was filed on December 16, 2016, in the Superior Court of the State of 

California in the County of Marin. Plaintiff argues that his claim for retaliation accrued when he 

was arrested on February 12, 2015, within the two-year statute of limitations because he was 

unaware of defendants’ intent to file a criminal charge against him until the date of his actual 

arrest. (FAC ¶ 17.) The District argues that the claim accrued earlier, in either December 2013 or 

January 2014, when plaintiff “attempted to intervene in Cunningham and Haessley’s actions by 

requesting that the District produce ‘annual equipment inventory reports’” on an unspecified date. 

(Reply at 6.) Thus, the District contends that plaintiff’s action accrued outside the two-year statute 

of limitations and is time-barred.3

 

// 

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 Defendants further ague that Tucker became aware that Cunningham had accused him of 

possessing a gun on District property when police interviewed him about this accusation in 2013. 

(See FAC ¶ 35). This argument fails because plaintiff’s retaliation claims are not related to 

Cunningham’s report accusing Tucker of bringing a firearm to school property. 
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Defendants do not persuade. Plaintiff is not required to allege the exact date on which he 

“attempted to intervene” in the alleged conspiracy at this juncture. Further, defendants have made 

no showing that Tucker’s attempt to intervene in Cunningham’s actions occurred more than two 

years before this action was filed. 

 The Court thus finds plaintiff’s allegations sufficient to raise a plausible inference that the 

retaliation claims are not time-barred and DENIES defendants’ motion to dismiss Counts 9 and 10 

on statute of limitations grounds. 

IV. CONCLUSION

For the foregoing reasons, the Court hereby DENIES defendants’ motion to dismiss as to 

Counts 2, 5, 9 and 12; DENIES IN PART the motion as to Counts 3, 6, 10 and 13 based on 

Cunningham’s ratification of Haessley’s alleged conduct; and GRANTS WITHOUT PREJUDICE the 

motion as to Counts 3, 6, 10 and 13 based on the Board’s ratification of Cunningham’s alleged 

conduct. Defendant shall answer the FAC in 21 days. 

The Case Management Conference in this matter is CONTINUED from August 21, 2017, to 

Monday, September 11 at 2:00 p.m. in the Ronald V. Dellums Federal Building, located at 1301 

Clay Street, Oakland, California, Courtroom 1. 

This order terminates Docket No. 20. 

IT IS SO ORDERED. 

Dated: 

 YVONNE GONZALEZ ROGERS

 UNITED STATES DISTRICT COURT JUDGE

August 8, 2017