Moulton v. Gjerde

Background

Brandy Moulton sued Dan Gjerde in both his individual capacity and his official capacity. The court explained that an official-capacity claim against Gjerde was effectively a claim against Mendocino County. Moulton alleged that Gjerde operated a Facebook page that she viewed as a public forum and blocked her from interacting with him or other constituents after she posted concerns about his job performance.

Moulton asserted five claims under 42 U.S.C. § 1983: First Amendment viewpoint discrimination and retaliation, First Amendment right to petition, Fourteenth Amendment due process, Fourteenth Amendment equal protection, and Fourteenth Amendment substantive due process. She also asserted a state-law claim under the California Constitution concerning speech and petition rights.

The County moved to dismiss the first amended complaint. Gjerde had not been served according to the record and had not appeared. The court also granted the County’s unopposed request for judicial notice of County Policy #50.

Court’s Analysis

A local government may be liable under Section 1983 when an unconstitutional action implements or carries out a government policy or custom. The court had previously dismissed Moulton’s Section 1983 claims against the County because she had not alleged enough facts to support municipal liability.

Moulton added an allegation that the County maintained a policy allowing Gjerde, and only Gjerde, to control the Facebook forum. She identified County Policy #50 as one of the policies supporting her claim. But Policy #50 required County social-media use to comply with applicable federal law, including the First Amendment, and identified categories of user content that could be removed. Because Moulton alleged that Gjerde violated federal law and removed posts criticizing his job performance—speech that did not fall within the listed removal categories—the court found that she was alleging Gjerde acted contrary to, rather than under, Policy #50.

The court also found that Moulton had not identified another County policy or custom with enough underlying facts to give the County fair notice of the claim. Her theory that the County had a practice of going beyond Policy #50 when that policy was silent or unclear was not supported by specific facts in the amended complaint.

Finally, the court rejected two additional municipal-liability theories. It had previously explained that a single supervisor, such as Gjerde, did not have final authority as a matter of law to establish County policy. The amended complaint also did not allege facts showing that the County’s board of supervisors, or another final policymaker, knew that Gjerde had blocked Moulton because of her criticism and approved both the decision and its basis. The court further stated that the board’s alleged decision not to change Policy #50 after learning of the lawsuit did not amount to ratification because the policy did not permit blocking someone for expressing concern about a County supervisor’s performance.

Ruling

Judge Maxine M. Chesney granted the County’s motion to dismiss. She dismissed the first through fifth causes of action to the extent they were asserted against the County and gave Moulton one additional opportunity to amend her municipal-liability claims. The order did not dismiss the first through fifth claims against Gjerde individually, or the sixth state-law claim against the defendants. If Moulton did not file a second amended complaint by October 9, 2020, the action would proceed on those remaining claims as described in the order.