From the Introduction:
This is a motion to dismiss Plaintiff’s First Amended Complaint (“FAC”). In moving to dismiss the first Complaint filed in this action, defendant John Patrick Frey (and former defendant Christi Frey) argued that that pleading consisted of no more than a morass of meritless defamation claims recast as specious causes of action,
including a dubious federal claim under 42 U.S.C. § 1983 (“Section 1983”). The Freys asked the Court to acknowledge that Plaintiff Nadia Naffe was seeking no more than to use the courts to punish Mr. Frey—a vigorous political opponent—for exercising his First Amendment rights. The Court agreed that Plaintiff had failed to state a federal claim, issuing a Tentative Ruling on December 10, 2012 that focused on Mr. Frey’s Fed. R. Civ. P. 12(b)(6) challenge to Plaintiff’s Section 1983 claim and found the claim fatally lacking. The Court’s main basis for dismissal was that, based on the allegations in the Complaint and black-letter law, nothing Mr. Frey is accused
of doing could possibly meet even the most minimal legal standards for stating a claim under that statute.
The Tentative Ruling rejected as insufficient Plaintiff’s conclusory claims that Plaintiff’s hated political rival and critic, Mr. Frey, was acting under color of law based on the mere fact that he works as a Deputy District Attorney. The Court rejected Plaintiff’s suggestion that an assistant district attorney who “uses his blog and his Twitter account as a vehicle for his thoughts and opinions [even] during the time he was supposed to be working as a district attorney and using resources made available to him as a district attorney” was therefore acting “under color of state law.” (Tentative Ruling at 7.) The Court also rejected Plaintiff’s proposition that Mr. Frey
was “known” or identified by others as a district attorney (Id. at 7-8.) or that he referred to “criminal statutes” that Plaintiff may have violated in one of his tweets. (Id. at 10.)
Summing up its analysis, the Court concluded as follows, referring to various material referred to by Plaintiff in opposition to Mr. Frey’s motion that was not part of, or directly incorporated into, the Complaint, and expressing doubt about the validity of Plaintiff’s entitlement to a federal forum absent some saving amendment of her Section 1983 claim:
This material, which does not inform whether or not the Court should dismiss the instant allegations, does inform whether the Court would conclude that any attempt by Plaintiff to amend her allegations should be
deemed futile. The Court would therefore determine whether this is all Plaintiff has further to offer on the question of state action undertaken by Mr. Frey. If so, the Section 1983 claim would be dismissed without leave
to amend, and the Court would have to determine what, if anything, Plaintiff planned to do about her diversity allegations. If the answer is “nothing” and Plaintiff is unable to persuade that she still may maintain an action against Cooley and the County under Section 1983 then the Court would dismiss the remaining claims pursuant to 28 U.S.C. § 1367(c)(3). If the answer is “nothing” and Plaintiff does persuade that she still would have a viable Section 1983 claim against Cooley and/or the County then the Court would dismiss the remaining claims pursuant to 28 U.S.C. § 1367(c)(2). (Id. at 10-11.)
Plaintiff recognized that this ruling expressed great skepticism that she could state a Section 1983 claim. Her FAC shows a desperate attempt to say something – anything – that would be sufficient to articulate a fact showing that Mr. Frey acted under color of state law, or that her constitutional rights were violated. But as is shown below, Plaintiff does not and cannot articulate specific facts, plausible or otherwise, consistent with the record she has placed before the Court and sufficient to enable her to salvage the FAC. Once again she relies almost entirely on bald, conclusory statements in an attempt to manufacture state action. She also escalates by
making allegations that directly contradict the very documents she cites and incorporates – for instance, by citing posts in which Mr. Frey expressly stated that he was acting in his own capacity, by misrepresenting to the Court what Mr. Frey said in a tweet she incorporates, and by misrepresenting what Mr. Frey’s counsel said in a
blog post she incorporates. In short, she utterly fails to state any facts to repair the deficiencies identified by the Court. For these reasons, the Court should dismiss the FAC without further leave to amend.