Sparks Police Officer George Forbush's Opposition to the Motion to Dismiss

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CALEB E. MASON (CA Bar No. 246653, pro hac vice)
LLP
WERKSMAN JACKSON & QUINN,
888 West Sixth Street, Fourth Floor
Los Angeles, California 90017
cmason@werksmanjackson.com
(213) 688-0460
MARK A. KILBURN (Nevada Bar No. 1702)
Law Offices of Mark Kilburn
327 S. Arlington Ave.
Reno, NV 89501
kilburnlaw@sbcglobal.net
(775) 329-1735
Attorneys for Plaintiff Officer George Forbush
UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
OFFICER GEORGE FORBUSH,
Plaintiff,
vs.
CITY OF SPARKS, NEVADA; CITY
MANAGER NEIL KRUTZ, in his
individual and official capacities;
ASSISTANT CITY MANAGER
JOHN MARTINI, in his individual and
official capacities; HUMAN
RESOURCES DIRECTOR MINDY
FALK, in her individual and official
capacities; DOES 1-10,
Defendants.
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PLAINTIFF’S OPPOSITION TO
DEFENDANT’S MOTION TO
DISMISS PLAINTIFF’S
COMPLAINT PURSUANT TO
FRCP RULE 12(b)(6), OR
ALTERNATIVELY MOTION TO
COMPEL ARBITRATION
PURSUANT TO 9 U.S.C. § 4 (THE
FEDERAL ARBITRATION ACT)
AND DISMISSAL PURSUANT TO
FRCP RULE 12(b)(1)
OPPOSITION TO DEFENDANT’S MOTION TO DISMISS UNDER
FRCP 12(b)(6) and 12(b)(1)
Case 3:21-cv-00163-MMD-WGC Document 19 Filed 07/12/21 Page 1 of 28

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TABLE OF CONTENTS
PAGE(S)
I. INTRODUCTION...........................................................................................1
II. ARGUMENT...................................................................................................1
A. The Complaint Is A Well-Pleaded Section
1983 Claim ............................................................................................1
B. There Is No Exhaustion Requirement...................................................3
C. Defendants’ Arbitration Arguments Lack Merit and Have Been
Repeatedly Rejected by the Courts—Including This District...............8
1. The Complaint Has Nothing to do with the Collective
Bargaining Agreement...........................................................8
2. Long-Established Case Law Holds that Arbitration Is
Not, and Can Never Be, A Substitute for Judicial
Litigation of Constitutional Claims .......................................9
3. This District Rejected an Identical Argument by the
City of Reno in the Sifre Case .............................................10
4. Courts Have Uniformly Rejected Such “Waiver”
Arguments............................................................................12
D. Defendants’ 12(b)(1) Argument Lacks Merit; This Court Has
Subject Matter Jurisdiction over Officer Forbush’s §1983 Claims ....17
E. This Court Should Decline to Take Judicial Notice of the CBA, Under
Governing Ninth Circuit Caselaw, Because Plaintiff’s Complaint Is
Not Based on the CBA ……………………………………………...17
III. CONCLUSION .............................................................................................21

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TABLE OF AUTHORITIES
PAGE(S)
SUPREME COURT CASES
14 Penn Plaza LLC v. Pyett
556 U.S. 247 (2009)....................................................................................12
Alexander v. Gardner-Denver Co.
415 U.S. 36 (1974) .......................................................................................10
Knick v. Twp. of Scott, Pennsylvania
139 S. Ct. 2162, 2167 (2019) .........................................................................4
McDonald v. City of W. Branch, Mich.
466 U.S. 284 (1984) ...............................................................................10, 13
Patsy v. Board of Regents
457 U.S. 496 (1982) ...................................................................3, 6, 7, 11, 12
Porter v. Nussle
534 U.S. 516 (2002)....................................................................................11
Republic Steel Corp. v. Maddox
379 U.S. 650 (1965) .......................................................................................6
Wright v. Universal Mar. Serv. Corp.
525 U.S. 70 (1998) .................................................................................11, 12
FEDERAL CASES
Abrego Abrego v. Dow Chem.
443 F.3d 676 (9th Cir. 2006)……………………………………………….19
Albino v. Baca
747 F.3d 1162 (9th Cir. 2014)....................................................................5, 6
Arnett v. Myers

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281 F.3d 552 (6th Cir. 2002).........................................................................5
Beren v. Bd. of Trustees of Cal. State Univ.
No. 06-cv-04706-MMC ..............................................................................16
Bromley v. Mich. Educ. Assoc.-NEA
82 F.3d 686 (6th Cir. 1996)………………………………………………...15
Carr v. Pac. Mar. Ass’n.
904 F.2d 1313 (9th Cir. 1990) ......................................................................6
Clark v. Yosemite Community Coll. Dist.
785 F.2d 781 (9th Cir. 1986)......................................................4, 7, 9, 12, 16
Clayton v. Int'l Union, United Auto., Aerospace, & Agr. Implement Workers of Am.
451 U.S. 679 (1981)......................................................................................6
Dang v. Cross,
422 F.3d 800 (9th Cir. 2005)………………………………………………...3
Downey Firemen’s Assoc. et al.
No. 8:14-cv-1213-CJC (C.D. Cal.)...............................................................2
Draper v. Rosario
836 F.3d 1072 (9th Cir. 2016) .................................................................5, 6
Gibson v. Office of Att’y Gen.
561 F.3d 920 (9th Cir. 2009).........................................................................2
Griggs v. Chickasaw Cty., Mississippi
930 F.3d 696 (5th Cir. 2019)..........................................................................5
Hall v. Marion Sch. Dist. No. 2
31 F.3d 183 (4th Cir. 1994)...........................................................................5
Heath v. Cleary
708 F.2d 1376 (9th Cir. 1983)..................................................................4, 7
Hohe v. Casey
956 F.2d 399 (3d Cir. 1992)………………………………………………..14
Hudson v. Chicago Teacher’s Union Loc. 1

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743 F.2d 1187 (7th Cir. 1984)……………………………………………...13
Knight v. Kenai Peninsula Borough Sch. Dist.
131 F.3d 807 (9th Cir.1997)..................................................................4, 5, 7
Knight v. Standard Ins. Co
No. 07-cv-1691 (N.D. Cal. Feb. 6 2008).....................................................19
La Verne Firefighters’ Assoc. et al.
No. 2:17-cv-08743-GW (C.D. Cal.)...............................................................2
Lowe v. City of Monrovia
775 F.2d 998 (9th Cir. 1985).........................................................................4
Marder v. Lopez
450 F.3d 445 (9th Cir. 2006)……………………………………………….19
McGreevy v. Stroup
413 F.3d 359 (3d Cir. 2005)...........................................................................5
Mellody v. Upper Marion Area Sch. Dist.
No. CV-A-97-5408 (E.D. Pa. 1998)………………………………………..15
Miller v. Town of Hull, Mass.
878 F.2d 523 (1st Cir. 1989).........................................................................5
Narumanchi v. Bd of Trustees
850 F.2d 70 (2d Cir. 1988)…………………………………………………13
Outdoor Media Grp., Inc. v. City of Beaumont
506 F.3d 895 (9th Cir. 2007)......................................................................4, 6
Parrino v. FHP, Inc.
146 F.3d 699 (9th Cir. 1998)……………………………………………….19
Pakdel v. City of San Francisco
977 F.3d 928 (9th Cir. 2020).....................................................................4, 5
Sifre v. City of Reno
No. 3:14-cv-0060-RCJ..........................................................................10, 11
Sizemore v. Pac. Gas & Elec. Ret. Pl.
939 F. Supp. 2d 987 (N.D. Cal. 2013)……………………………………..20

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Smith v. Barton
914 F.2d 1330 (9th Cir. 1990)....................................................................4, 7
Sydanmaa v. Moore
8:20-cv-2190-FLA (C.D. Cal.).......................................................................2
Tierney v. City of Toledo
917 F.2d 927 (6th Cir. 1990)……………………………………………….14
Wilbur v. Harris
53 F.3d 542, 544 (2d Cir. 1995)................................................................4, 5
FEDERAL STATUTES
28 USC § 1331.........................................................................................................17
42 U.S.C. § 1983...............................................................................................passim
FEDERAL RULES
FRCP 12(b)(6)......................................................................................................1, 17
Rule 12(b)(1),.......................................................................................................1, 17
Ninth Cir. Model Jury Instruction 9.9,...................................................................1, 2
Ninth Cir. Model Jury Instructions 9.10....................................................................1
Ninth Cir. Model Jury Instructions 5.5......................................................................3

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I. INTRODUCTION
The Plaintiff in this case, Sparks, Nevada Police Officer George Forbush
(“Officer Forbush” or “Plaintiff’) sued the Defendants, the City of Sparks and three
City officials (collectively “Defendants”), alleging that Defendants deliberately
infringed upon, chilled, and retaliated against him for the exercise of, his First
Amendment rights, on the basis of statements he made while off duty, regarding
matters of public concern, published on his personal social media accounts, and
made as a citizen and not as part of his official responsibilities.
Officer Forbush brought a claim for relief under 42 U.S.C. § 1983, alleging
that his municipal employer took an adverse employment action against him on the
basis of his off-duty speech as a private citizen, on matters of public concern. Such
claims are regularly and straightforwardly litigated in this Court and district courts
around the country. See, e.g., Moser v. Las Vegas Metro. Police Dept., 984 F.3d
900 (9th Cir. 2021); 9th Cir. Model Jury Instr. 9.9, 9.10.
Defendants have nonetheless filed a motion under FRCP 12(b)(6) and
12(b)(1). That Rule allows for motions arguing that a complaint “fails to state a
claim upon which relief can be granted,” or that the District Court lacks
jurisdiction over the claim asserted. Defendants’ Motion fails to make out either
argument.
II. ARGUMENT
A. The Complaint Is A Well-Pleaded Section 1983 Claim
The Section 1983 tort pled here is long-established and regularly litigated in
federal courts. A public employee who alleges that he was subjected to adverse
employment conditions because of First Amendment activity relating to matters of
public concern, in which he engaged in his capacity as a private citizen, and not as
part of his official employment, states a cognizable claim. These claims are

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regularly litigated by our federal courts. The elements are: (1) the speech was on a
matter of public concern; (2) the plaintiff spoke as a citizen and not as part of his
official job duties; (3) the municipal employer took an adverse employment action
against the plaintiff; and (4) the plaintiff’s speech at issue was a substantial or
motivating factor for the adverse employment action. 9th Cir. Model Jury Instr.
No. 9.9; see also, e.g., Gibson v. Office of Att’y Gen., 561 F.3d 920 (9th Cir.
2009).1
The Complaint squarely alleges the elements of the constitutional tort:
Officer Forbush’s speech was constitutionally protected because he spoke while
off duty, as a private citizen, on matters of public concern; his protected speech
was the basis for the adverse employment actions taken against him by the City
and its officials; and the action would not have been taken against him in the
absence of the protected speech. He has also squarely alleged that Defendants’
adverse employment actions against him have chilled, and continue to chill, his
continuing and future exercise of his First Amendment rights, and would chill
those of a reasonable person similarly situated.
1
Recent relevantly identical cases litigated by undersigned counsel include
Downey Firemen’s Assoc. et al, No. 8:14-cv-1213-CJC (C.D. Cal.) (fourteen
firefighters and their union sued their municipal employer under Section 1983 for
adverse employment actions taken in retaliation against them based on their off-
duty speech as citizens on matters of public concern); La Verne Firefighters’
Assoc. et al., No. 2:17-cv-08743-GW (C.D. Cal.) (twenty-six firefighters and their
union sued their municipal employer under Section 1983 for adverse employment
actions taken in retaliation against them based on their off-duty speech as citizens
on matters of public concern); Sydanmaa v. Moore, 8:20-cv-2190-FLA (C.D. Cal.)
(Los Angeles Police Department sergeant sued his municipal employer under
Section 1983 for adverse employment actions taken in retaliation against them
based on their off-duty speech as citizens on matters of public concern).

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He has squarely alleged his claim for punitive damages, as well. Punitive
damages are available in a section 1983 case against an individual state actor who
acts under color of law to deliberately deprive the plaintiff of constitutional rights.
See, e.g., Dang v. Cross, 422 F.3d 800, 807-08 (9th Cir. 2005) (explaining standard
for punitive damages in Section 1983 cases, including, e.g., “reckless or callous
indifference to federally protected rights” or “oppressive conduct”); 9th Model
Jury Instr. 5.5 (punitive damage instruction for Section 1983 cases, and collecting
cases). Here, the Complaint alleges that the individual defendants deliberately
took an adverse employment action against Officer Forbush, by punishing him for
his off-duty, private speech on matters of public concern, knowing that the adverse
employment action was based directly and entirely on the content and viewpoint of
Officer Forbush’s speech on matters of public concern.
Defendants’ Motion concedes all this. It never suggests that Officer Forbush
has not squarely and straightforwardly pled the elements of the constitutional tort
of First Amendment retaliation. The Motion never mentions the elements of the
tort at all.
B. There Is No Exhaustion Requirement
This is a Section 1983 lawsuit. There is no exhaustion requirement for
Section 1983 lawsuits. Congress is the only body that can create one, and it has
done so only for lawsuits by prisoners challenging the conditions of their
confinement. This body of law has been well-settled for forty years. Yet
Defendants blithely asserts that Officer Forbush “failed to exhaust his
administrative remedies.” Motion at 14:27, 15:13, 16:11. It is passing strange that
a municipal defendant, filing briefing before a federal court, would be unaware this
body of law. The absence of an exhaustion requirement for section 1983 cases is
as well-established as anything in federal procedure. See, e.g., Patsy v. Board of

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Regents, 457 U.S. 496, 516 (1982) (no exhaustion requirement for section 1983
suits); Knick v. Twp. of Scott, Pennsylvania, 139 S. Ct. 2162, 2167 (2019) (“The
Civil Rights Act of 1871, after all, guarantees a federal forum for claims of
unconstitutional treatment at the hands of state officials, and the settled rule is that
“exhaustion of state remedies is not a prerequisite to an action under [42 U.S.C.] §
1983.”) (internal quotation marks omitted); Outdoor Media Grp., Inc. v. City of
Beaumont, 506 F.3d 895, 900 (9th Cir. 2007) (no exhaustion requirement for
section 1983 lawsuits; rejecting city’s exhaustion argument in First Amendment
section 1983 suit as “fatally flawed”); Knight v. Kenai Peninsula Borough Sch.
Dist., 131 F.3d 807, 816 (9th Cir.1997) (no exhaustion requirement for section
1983 lawsuits);2
Clark v. Yosemite Community Coll. Dist., 785 F.2d 781, 790 (9th
Cir. 1986) (no exhaustion requirement where public employee sues under section
1983 based on adverse employment action taken in retaliation for protected First
Amendment activity); Smith v. Barton, 914 F.2d 1330, 1335 (9th Cir. 1990) (no
exhaustion requirement for public employees’ section 1983 action alleging
infringement of First Amendment rights); Heath v. Cleary, 708 F.2d 1376, 1378
(9th Cir. 1983) (no exhaustion requirement where public employee sues under
section 1983 based on adverse employment action taken in retaliation for protected
First Amendment activity); Lowe v. City of Monrovia, 775 F.2d 998, 1010-11 (9th
Cir. 1985) (explaining distinction between Title VII and section 1983 claims, and
holding that no EEOC filing was required for section 1983 claim against municipal
employer “[b]ecause a plaintiff does not have to exhaust administrative remedies
2
As Kenai notes, the only exhaustion requirement created by Congress for section
1983 cases is the Prison Litigation Reform Act, which requires exhaustion for
prisoners challenging their conditions of confinement. See, e.g., Kenai Peninsula,
131 F.3d at 816.

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before bringing a section 1983 action”); Pakdel v. City of San Francisco, 977 F.3d
928, 931 (9th Cir. 2020); Wilbur v. Harris, 53 F.3d 542, 544 (2d Cir. 1995) (no
exhaustion requirement where public employee sues under section 1983 based on
adverse employment action taken in retaliation for protected First Amendment
activity); Griggs v. Chickasaw Cty., Mississippi, 930 F.3d 696, 703 (5th Cir. 2019)
(no exhaustion requirement where public employee sues under section 1983 based
on adverse employment action taken in retaliation for protected First Amendment
activity); Hall v. Marion Sch. Dist. No. 2, 31 F.3d 183, 191 (4th Cir. 1994) (no
adverse employment action taken in retaliation for protected First Amendment
activity); Arnett v. Myers, 281 F.3d 552, 563 (6th Cir. 2002) (no exhaustion
required for First Amendment retaliation claim under section 1983); Miller v.
Town of Hull, Mass., 878 F.2d 523, 530 (1st Cir. 1989) (“[I]t is firmly settled that
exhaustion or resort to state remedies is not a prerequisite to a § 1983 claim.”);
McGreevy v. Stroup, 413 F.3d 359, 369 (3d Cir. 2005) (no exhaustion requirement
where public employee sues under section 1983 based on adverse employment
action taken in retaliation for protected First Amendment activity).
Only Congress can create an exhaustion requirement for section 1983 cases,
and in the 150 years since section 1983 was enacted, Congress has done so only
once, in the Prison Litigation Reform Act (“PLRA”), creating an exhaustion
requirement for prisoners challenging the conditions of their confinement. See,
e.g., Knight v. Kenai Penninsula Bor. Sch. Dist., 131 F.3d 807, 816 (9th Cir. 1997).
Defendants cite two Ninth Circuit cases applying the PLRA to prisoner claims,
Albino v. Baca, 747 F.3d 1162 (9th Cir. 2014), and Draper v. Rosario, 836 F.3d
1072 (9th Cir. 2016), see Motion at 14:24, 15:11. In what cannot be described as
candor to the tribunal regarding cited authority, Defendants fail to mention that

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both Albino and Draper are prisoner cases governed by the PLRA, Albino, 747
F.3d at 1162; 1165 Draper, 836 F.3d at 1027, 1079. And Defendants fail to
mention the forty years of caselaw on the absence of a section 1983 exhaustion
requirement.
Not only do Defendants cite inapplicable PLRA prisoner cases, they also
cite a breach-of-contract case, which has nothing to do with section 1983, without
informing the Court what those cases were about. That is not best practice. See
Motion at 16:27-17:7 (citing Carr v. Pac. Mar. Ass’n, 904 F.2d 1313, 1317-18 (9th
Cir. 1990)). Carr is a breach of contract case, alleging that an employer breached
the terms of a collective bargaining agreement. The cause of action was “breach of
collective bargaining agreements.” Carr, 904 F.2d at 1317. Defendants’ citation
to Carr as purported authority for its arguments regarding this case, which is a
section 1983 case, not a breach-of-contract case, fails to live up to the ideal of
candor to the tribunal.
For at least forty years, courts have rejected attempts by municipal
defendants to impose “administrative exhaustion” requirements on section 1983
cases. See e.g., Patsy v. Board of Regents, 457 U.S. 496, 516 (1982) (no exhaustion
requirement for section 1983 suits); Outdoor Media Grp., Inc. v. City of Beaumont,
506 F.3d 895, 900 (9th Cir. 2007) (rejecting city’s exhaustion argument in First
Amendment section 1983 suit as “fatally flawed”).3
Only Congress has the power
3
See also, Knight v. Kenai Peninsula Borough Sch. Dist., 131 F.3d 807, 816 (9th
Cir.1997) (no exhaustion requirement for Section 1983 lawsuits); Clark v.
Yosemite Community Coll. Dist., 785 F.2d 781, 790 (9th Cir. 1986) (no exhaustion
requirement where public employee sues under section 1983 based on adverse
employment action taken in retaliation for protected First Amendment activity);
Smith v. Barton, 914 F.2d 1330, 1335 (9th Cir. 1990) (no exhaustion requirement
for public employees’ section 1983 action alleging infringement of First

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to alter the section 1983 procedure and create exhaustion requirements; and it has
done so only once, for one class of plaintiffs: prisoners challenging the conditions
of their confinement. Patsy v. Board of Regents, 457 U.S. at 500-515.
What is at stake here is not an arcane point of law. The right to judicial
redress for constitutional violations is fundamental and undeniable. In enacting
section 1983, Congress expressly stated its intention to “throw open the doors of
the United States courts to individuals who were threatened with, or who had
suffered, the deprivation of constitutional rights,” understanding that “it was the
solemn duty of Congress under the Constitution to secure to the individual…
precisely the rights that the Constitution gave him . . . .” Patsy, 457 U.S. at 504
(citing Cong. Globe, 42d Cong., 1st Sess., 476 (1871)).
This axiomatic principle is understood by every lawyer who practices
federal civil rights law. The Motion cites no authority whatsoever for its claim that
there is an administrative exhaustion requirement here, because there is no such
authority. All the authority says the exact opposite. Attorneys are free to make
legal arguments, but they are not free to misstate the law, or to make arguments
directly contrary to controlling precedent. A simple Westlaw search for “‘section
1983’ /s exhaustion” would have alerted the defense that its “administrative
exhaustion” argument lacks colorable legal merit (and has lacked colorable legal
merit for over forty years).
Amendment rights); Heath v. Cleary, 708 F.2d 1376, 1378 (9th Cir. 1983) (no
adverse employment action taken in retaliation for
protected First Amendment activity).

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C. Defendants’ Arbitration Arguments Lack Merit and Have Been
Repeatedly Rejected by the Courts—Including This District
1. The Complaint Has Nothing to do with the Collective Bargaining
Agreement
Defendants’ Motion asks this Court to dismiss the Complaint and order
arbitration, in reliance on the repeated and false assertion that Officer Forbush’s
Complaint raises a breach of contract claim under the Collective Bargaining
Agreement. See, e.g., Motion at 7:24-8:2; 8:8-10; 8:14-15; 9:19-20; 10:1-9. These
contentions are also lacking in merit. In fact, the Complaint is not based on the
CBA and has nothing to do with the CBA. The Complaint is not a breach-of-
contract complaint. The Complaint does not seek relief under the CBA. The
Complaint alleges violations of the United States Constitution, actionable under
section 1983.
The Motion makes the frivolous argument that this Court cannot decide the
federal constitutional claims raised in the Complaint without “reviewing,
interpreting, and applying” the CBA. Motion, p. 1:9-21 (“His claims cannot be
decided without reviewing, interpreting, and applying the terms of the underlying
CBA…”). Yet the Motion concedes that its arbitration arguments apply only to
“disputes concerning the interpretation and application of the CBA.” Motion at
6:7. The meaning of the United States Constitution is not determined by a Sparks,
Nevada employee contract. Defendants’ argument—that a federal court cannot
rule on a constitutional claim without interpreting its employee contract, see, e.g.,
Motion at 21:11-174
—displays remarkable chutzpah, but no legal merit. Federal
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The Motion actually asserts that the Court cannot make a determination about
whether Officer Forbush’s First Amendment rights were violated without first
determining whether the CBA was violated, Motion at 21:11-17, as if an

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courts reviewing constitutional torts under section 1983 are guided by the United
States Constitution and federal caselaw thereon.
The Ninth Circuit has squarely rejected such attempts by municipal
employers to “redescribe” a constitutional tort stating a claim under section 1983,
as something else. In Clark v. Yosemite Cmty. Coll. Dist., 785 F.2d 781 (9th Cir.
1986), the municipal employer moved to dismiss, arguing that the employee’s
claims—which were, as in the instant case, First Amendment retaliation claims
brought under section 1983—were actually state-law claims requiring
administrative exhaustion. The court was not impressed, noting that “[t]he College
misperceives the nature of Clark’s claim,” and that the actual claim the plaintiff
brought was a section 1983 claim for the constitutional tort of First Amendment
retaliation, which is straightforwardly cognizable. Clark, 785 F.2d at 790–91. So
too here. Officer Forbush’s claims do not concern the interpretation and
application of the CBA. They raise a straightforward issue that Congress has
entrusted to the federal courts to decide: Did Defendants violate Plaintiff’s
constitutional rights?
2. Long-Established Case Law Holds that Arbitration Is Not, and Can
Never Be, A Substitute for Judicial Litigation of Constitutional Claims
For decades, courts have repeatedly held that arbitrations (which are a
creature of contract) do not and cannot decide questions of constitutional rights. The
Supreme Court has clearly articulated this rule, holding that “although arbitration is
well suited to resolving contractual disputes, our decisions . . . compel the
conclusion that it cannot provide an adequate substitute for a judicial proceeding in
protecting the federal statutory and constitutional rights that § 1983 is designed to
American’s constitutional rights are defined not by the Constitution, but by his
employment contract. That is not, fortunately, the nation we live in.

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safeguard.” McDonald v. City of W. Branch, Mich., 466 U.S. 284, 290 (1984); see
also, Alexander v. Gardner-Denver Co., 415 U.S. 36, 52 (1974) (contractual and
constitutional “rights have legally independent origins and are equally available to
the aggrieved employee”).
Indeed, McDonald, the seminal case on this issue, was a First Amendment
retaliation case brought by a police officer who was disciplined by his municipal
employer for his off-duty speech. The Supreme Court’s ruling 37 years ago still
governs: “is apparent . . . that in [this] § 1983 action, an arbitration proceeding
cannot provide an adequate substitute for a judicial trial.” McDonald, at 292.
3. This District Rejected an Identical Argument by the City of Reno in the
Sifre Case
Defendants’ attempt to defeat a First Amendment section 1983 claim by
claiming the CBA requires arbitration is meritless, and indeed this District has
already so ruled, in an identically situated case involving the same CBA language
Defendants invoke. In Sifre v. City of Reno, No. 3:14-cv-0060-RCJ, 2014 WL
4232570, at *6 (D. Nev. Aug. 26, 2014, the plaintiff, Reno Police Department
(“RPD”) Sergeant Paul Sifre, sued the City of Reno under 42 USC § 1983 for First
Amendment retaliation based on discipline imposed on him for off-duty private
speech as a citizen. Id. Just as in this case, the city moved to dismiss for failure to
exhaust administrative remedies and failure to state a claim. The city claimed, just
as Defendants here do, that the Collective Bargaining Agreement created an
“administrative exhaustion requirement,” and that Sergeant Sifre was obligated to
arbitrate his claim and could not sue. Id. The CBA language the defendants
invoked was that Defendants invoke here: disputes concerning the interpretation
and application of the CBA. This Court ruled that a section 1983 case alleging a
constitutional violation alleges a constitutional tort, not a violation of the CBA.

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The final questions are whether Plaintiff is required to exhaust
administrative remedies with respect to the surviving aspect of his §
1983 claim against the individual Defendants, and, if so, whether he
has done so. The Court finds that Plaintiff was not required to
exhaust any administrative remedies before bringing the present §
1983 action. See Porter v. Nussle, 534 U.S. 516, 523 (2002)
(citing Patsy v. Bd. of Regents of Fla., 457 U.S. 496, 516 (1982)).
Defendants argue that Plaintiff must follow the grievance procedure
of his Collective Bargaining Agreement (“CBA”). But Plaintiff
alleges no breach of any CBA, and statutory rights can only be
subjected to arbitration upon a clear and unmistakable waiver in
a CBA. See Wright v. Universal Mar. Serv. Corp., 525 U .S. 70, 80
(1998). Defendants produce no evidence of such a waiver. Article 27
of the CBA attached to the first motion to dismiss covers
grievance procedures and nowhere mentions § 1983 or even
“statutory rights” generally. In fact, section 27(a) explicitly limits
the scope of the grievance article to “disputes concerning the
interpretation, application, and enforcement of the express provisions
of this agreement.”
Sifre v. City of Reno, No. 3:14-CV-00060-RCJ, 2014 WL 4232570, at *6 (D. Nev.
Aug. 26, 2014) (emphasis added).
This case is the same as Sifre. There is no breach-of-contract claim brought
under the CBA in this case. Officer Forbush does not allege a breach of the CBA;
he alleges a deliberate violation of his constitutional rights in violation of section
1983. Defendants do not contend, nor could they, that the CBA ever mentions
section 1983, or contains a clear and unmistakable waiver of Officer Forbush’s, or
anyone’s, constitutional rights and rights under section 1983. The CBA does not
impede this lawsuit in any way. There is no exhaustion requirement and no
arbitration requirement. This Court should do what the Sifre Court did: deny the
motion to dismiss, and allow Plaintiff’s properly-pled constitutional tort to be
adjudicated in federal court.

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4. Courts Have Uniformly Rejected Such “Waiver” Arguments
Defendants’ argument that Plaintiff’s union “waived” his individual
constitutional rights by signing the CBA, Motion, pp. 20-21, lacks merit, and has
been consistently rejected by courts that have considered it. Defendants cite to 14
Penn Plaza LLC v. Pyett (556 U.S. 247, 255–56 (2009); Motion at 20:3-4), but fail
to mention that that case did not involve a section 1983 suit, or a claim of a
constitutional violation. (It was an age-discrimination suit arising under the
ADEA). By contrast, courts have regularly and expressly held that a collective
bargaining agreement signed by a union does not “waive” the individual members’
constitutional rights or their rights to file section 1983 suits.
On the actual issue before this Court—the claim that a municipal employer’s
collective bargaining agreement amounted to an implicit waiver of constitutional
rights cognizable under section 1983, no court has ever so held. No court has ever
held that a plaintiff had waived his individual section 1983 constitutional-rights
claims in a collective bargaining agreement. In fact, the courts that have
considered the argument firmly rejected it:
The Second Circuit rejected the argument:
Nor is it permissible, in light of Patsy v. Board of Regents, supra, to
require initial recourse to available state proceedings, including union
grievance proceedings, for the enforcement of First Amendment rights
protectable in federal court pursuant to section 1983. See Clark v.
Yosemite Community College District, 785 F.2d 781, 790 (9th
Cir.1986); Hochman v. Board of Education, 534 F.2d 1094 (3d
Cir.1976).
Narumanchi v. Bd. of Trustees of Connecticut State Univ., 850 F.2d 70, 73 (2d
Cir. 1988) (rejecting municipal employer’s argument that plaintiff employee was
required to arbitrate First Amendment claim under CBA).
The Seventh Circuit rejected the argument:

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In McDonald v. City of West Branch, supra, the Supreme Court held
that an arbitrator's determination that a public employee had been
fired for cause was not entitled to collateral estoppel effect in the
employee's subsequent 1983 suit for wrongful discharge, a suit based
on an alleged violation of the First Amendment. This result suggests
that the Supreme Court doubts the competence of arbitrators—whose
area of expertise, after all, is the interpretation of contracts rather than
the interpretation of the Constitution—to make First Amendment
determinations. Compare 104 S.Ct. at 1803 with Parrett v. City of
Connersville, 737 F.2d 690, 696–97 (7th Cir.1984). But that is what
the arbitrator would have to do in any case where the dissenter
objected that the agency fee that he was forced to pay was being used
for impermissible political or ideological purposes.
Hudson v. Chicago Tchrs. Union Loc. No. 1, 743 F.2d 1187, 1195–96 (7th Cir.
1984) (rejecting municipal employer’s argument that plaintiff employee was
required to arbitrate First Amendment claim under CBA).
The Third Circuit rejected the argument:
Thus, the first sentence in subsection (g) [of the CBA] is inconsistent
with the Supreme Court's decision in Patsy v. Board of Regents of
Florida, 457 U.S. 496, 516, 102 S.Ct. 2557, 2568, 73 L.Ed.2d 172
(1982) (“exhaustion of state remedies should not be required as a
prerequisite to bringing an action pursuant to § 1983”); see
also Felder v. Casey, 487 U.S. 131, 148, 108 S.Ct. 2302, 2312, 101
L.Ed.2d 123 (1988) (civil rights actions “are judicially enforceable in
the first instance ” in the courts) (quotation omitted). We hold,
therefore, that the first sentence in § 575(g) is constitutionally
unenforceable.
Hohe v. Casey, 956 F.2d 399, 408–09 (3d Cir. 1992) (rejecting municipal
employer’s argument that plaintiff employee was required to arbitrate First
Amendment claim under CBA).
The Sixth Circuit rejected the argument:
The [Plaintiff] officers contend that the last sentence [which reads:
“Any objecting non-member must exhaust the remedies provided by
this procedure prior to seeking judicial review of any issues capable of

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resolution under this procedure.”] is an attempt to limit dissenting
non-members' access to the courts on their constitutional claims. They
therefore argue that the union may not require them
to exhaust administrative remedies prior to filing suit
under section 1983. See Felder v. Casey, 487 U.S. 131, 147, 108 S.Ct.
2302, 2311, 101 L.Ed.2d 123 (1988) (no requirement exists
to exhaust administrative remedies when filing suit under 42
U.S.C. § 1983); Patsy v. Board of Regents of Florida, 457 U.S. 496,
102 S.Ct. 2557, 73 L.Ed.2d 172 (1982) (same).” …. [The clause is
illegal because it] “unduly implies a limitation upon the officers'
constitutional rights. Accordingly, the clause must be deleted from the
plan as it currently is written.
Tierney v. City of Toledo, 917 F.2d 927, 940 (6th Cir. 1990) (rejecting municipal
employer’s argument that plaintiff employee was required to arbitrate First
Amendment claim under CBA).
The Sixth Circuit rejected the argument again:
To protect the constitutional rights of all citizens of the United States,
42 U.S.C. § 1983 recognizes a cause of action against any person
who, acting under color of law, subjects another to the deprivation of
rights secured by the Constitution. And the district courts established
by Congress pursuant to Article III of the Constitution have been
given original jurisdiction over civil actions brought to recover
damages or to secure equitable or other relief under any Act of
Congress, including § 1983, providing for the protection of civil
rights. See 28 U.S.C. § 1343(a)(4). The statutory right to have an
Article III court adjudicate suits brought pursuant to § 1983 for
vindication of rights secured by the First Amendment of the
Constitution cannot be foreclosed by non-
statutory arbitration conducted by a privately appointed
decisionmaker.
Bromley v. Michigan Educ. Ass'n-NEA, 82 F.3d 686, 692 (6th Cir. 1996) (rejecting
municipal employer’s argument that plaintiff employee was required to arbitrate
First Amendment claim under CBA).

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The District Court for the Eastern District of Pennsylvania rejected the
argument:
It thus appears to be an open question whether plaintiff should be
required after Gilmer to exhaust her contractual remedies with regard
to her First Amendment claim. Three reasons suggest that we should
not require her to do so. First, given the Supreme Court's near uniform
application of the prohibition on exhaustion requirements
for § 1983 actions, see Hochman, 534 F.2d at 1096 (citing Supreme
Court cases), we think it more likely than not that the Court would
find no exception despite the private and voluntary nature of Ms.
Mellody's alternative remedy. Second, at least three other Circuits—
two of them pre-Gilmer—agree with that conclusion, and have
extended the logic of Patsy, albeit after only brief analysis, to
preclude exhaustion in labor settings. See Butcher v. City of
McAlester, 956 F.2d 973, 979 (10th Cir.1992); Narumanchi v. Board
of Trustees, 850 F.2d 70, 73 (2d Cir.1988); Clark v. Yosemite
Community College Dist., 785 F.2d 781, 790–91 (9th Cir.1986); see
also Freeland v. Lower Merion School Dist., Civ. A. No. 94–2559,
1995 WL 129200 at *3 (E.D. Pa. Mar. 24, 1995); Comer v. Board's
Legal Dep't, Civ. A. No. 84–3206, 1985 WL 2988 at *1 (E.D. Pa.
Oct.3, 1985). Third, our Court of Appeals has admonished that
“[w]hen appropriate federal jurisdiction is invoked alleging violation
of First Amendment rights ... we may not insist that [[[plaintiff] first
seek his remedies elsewhere no matter how adequate those remedies
may be.” Hochman, 534 F.2d at 1097.
Mellody v. Upper Merion Area Sch. Dist., No. cv-A-97-5408, 1998 WL 54383, at
*4 (E.D. Pa. Jan. 30, 1998), aff'd, 216 F.3d 1076 (3d Cir. 2000) (rejecting
municipal employer’s argument that plaintiff employee was required to arbitrate
First Amendment claim under CBA).
The District Court for the Northern District of California rejected the
argument:
The United States Supreme Court . . . has held that a union, when
entering into a CBA, may not ‘prospectively waive’ its members'
rights to a judicial forum for federal civil rights claims arising under

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that title.” Defendants cite no authority, or even advance an argument,
that the reasoning set forth in Alexander is inapplicable as to federal
civil rights claims arising under §§ 1983, 1985 and 1681.” …. Even as
to federal claims for which a union is entitled to prospectively waive a
member's statutory right to a judicial forum, the waiver must be ‘clear
and unmistakable.’” [citing Wright v. Universal Maritime Service
Corp., 525 U.S. 70, 77, 80 (1998) (finding it unnecessary to determine
whether union can prospectively waive member's right to judicial
forum for ADA claim, where CBA did not include “clear and
unmistakable” language requiring mandatory arbitration of ADA
claim)].
Beren v. Bd. of Trustees of Cal. State Univ., No. 06-cv-04706-MMC, 2007 WL
951272, at *2 (N.D. Cal. Mar. 27, 2007).
And the Ninth Circuit rejected the argument, in Clark v. Yosemite
Community College Dist., 785 F.2d 781, 790–91 (9th Cir.1986), discussed infra.
This reasoning is applicable here. First, collective bargaining agreements cannot
waive individual constitutional rights cognizable under section 1983. Second, and
as a dispositive threshold issue, Defendants here have failed, just as the Beren
defendants failed, “to point to any language in the CBA that constitutes a ‘clear
and unmistakable’ waiver of the right to a judicial forum for federal civil rights
claims, and none is apparent from the language of the CBA.” Id. *2. Just so here.
Defendants do not and cannot argue that the CBA contains a “clear and
unmistakable” waiver of federal constitutional civil rights claims. They do not
even try to do so, because there is no such waiver. Defendants instead simply
pretend that Officer Forbush has filed a breach of contract action challenging “the
interpretation or application of the terms of the CBA.” Motion, p. 7:11-15. At the
risk of repetition, that is not this lawsuit. Officer Forbush is not suing under the
CBA. He is suing under 42 U.S.C. § 1983 and the United States Constitution.

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D. Defendants’ 12(b)(1) Argument Lacks Merit; This Court Has
Subject Matter Jurisdiction over Officer Forbush’s §1983 Claims
Defendants also seek dismissal under Rule 12(b)(1), making the legally
indefensible argument that this Court lacks subject matter jurisdiction over
violations of Officer Forbush’s constitutional rights as codified under 42 USC §
1983. It is hornbook law that this Court has “original jurisdiction of all civil actions
arising under the Constitution [and] laws . . . of the United States.” 28 USC § 1331.
As set forth above, the Complaint squarely and straightforwardly pleads a long-
recognized constitutional tort. Defendants do not suggest otherwise.
E. This Court Should Decline to Take Judicial Notice of the CBA,
Under Governing Ninth Circuit Caselaw, Because Plaintiff’s
Complaint Is Not Based on the CBA
An FRCP 12(b)(6) or 12(b)(1) motion is a pleadings challenge. It must
assert that it is plain from the face of the complaint that the complaint does not
state a claim for relief (Rule 12(b)(6)), or that it is plain from the face of the
complaint that the Court does not have jurisdiction (Rule 12(b)(1)). Defendants’
Motion does not make either of these arguments. It does not argue that the
Complaint does not properly plead a well-recognized constitutional tort, or that the
District Courts of this country do not have original jurisdiction over section 1983
cases. Instead, it concedes the above two points, as it must, and makes the
argument that the CBA requires arbitration. That argument is meritless, as
discussed supra: the Complaint alleges a constitutional tort, not a contract-law
violation of the CBA; and the CBA language Defendants point to applies only to
disputes over the terms of the CBA. Defendants do not and cannot point to any
CBA language that would effect a waiver of constitutional rights.

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More fundamentally, Defendants’ request that the Court judicially notice
the CBA is improper, because Defendants are asking the Court to judicially notice
the legal effect of a document that is outside of the pleadings and plays no part in
the claims raised in the Complaint. In this context, courts have denied requests to
judicially notice a collective bargaining agreement, applying the straightforward
principle of asking whether the CBA is part of the basis for the plaintiff’s claim. If
(as here) it is not, courts will deny the request. The general rule is stated by the
Ninth Circuit in Parrino v. FHP, Inc., 146 F.3d 699 (9th Cir. 1998): if the plaintiff
bases his or her complaint on a document, the Court can judicially notice it. If the
plaintiff’s claims are not based on the document, the Court should not judicially
notice it. The rule makes sense: if a plaintiff sues for breach of contract, it is
reasonable that the Court should judicially notice the contract. But if a plaintiff’s
claims have nothing to do with a contract, then the contract becomes a fact outside
of the pleadings, which should not be judicially noticeable on a Rule 12(b) motion.
The Ninth Circuit articulated the rule as follows:
At least one other circuit has held that if a plaintiff's claims are
predicated upon a document, the defendant may attach the document
to his Rule 12(b)(6) motion, even if the plaintiff's complaint does not
explicitly refer to it. See Cortec Indus., Inc. v. Sum Holding L.P., 949
F.2d 42, 47 (2d Cir.1991)(upholding the district court's consideration
of a stock purchase agreement and an offering memorandum attached
to the defendant's Rule 12(b)(6) motion where the plaintiff alleged
securities fraud). We therefore hold that a district court ruling on a
motion to dismiss may consider a document the authenticity of which
is not contested, and upon which the plaintiff's complaint necessarily
relies.

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Parrino v. FHP, Inc., 146 F.3d 699, 706 (9th Cir. 1998) (emphasis added).5
A
later Ninth Circuit panel stated the Parrino rule as follows: “A court may consider
evidence on which the complaint ‘necessarily relies’ if: (1) the complaint refers to
the document; (2) the document is central to the plaintiff's claim; and (3) no party
questions the authenticity of the copy attached to the 12(b)(6) motion.” Marder v.
Lopez, 450 F.3d 445, 448 (9th Cir. 2006)
Here, Plaintiff’s Complaint does not rely in the slightest on the CBA, as
explained above. The Complaint does not refer to the CBA; the CBA is not central
to plaintiff’s claim; the CBA does not and could not in our constitutional system
have any effect on the constitutional rights at issue in this case. Defendant’s
request to notice it, accordingly, should be denied.
The District Court for the Northern District of California applied the Parrino
test in a similarly situated case, and its ruling is illustrative:
5
Parrino was superseded by statute on another issue (the requirement that all
defendants consent to removal of a case), see, e.g., Abrego Abrego v. The Dow
Chem. Co., 443 F.3d 676, 681 (9th Cir. 2006), but remains authoritative for the
above judicial-notice test, and many courts have relied on it for that test. See, e.g.,
Knight v. Standard Ins. Co., No. CIV. 07-1691WBSEFB, 2008 WL 343852, at *2
(E.D. Cal. Feb. 6, 2008) (“While plaintiff alleges that she submitted a claim to
defendant (First Am. Compl. ¶ 8), her complaint does not allege the existence of
the Employer's Statement or any form that Far Northern submitted to defendant.
Plaintiff's complaint also cannot be said to ‘necessarily rely on’ the Employer's
Statement because it is not a “document[ ] governing plan membership, coverage,
and administration’ of the LTD Plan. Parrino v. FHP, Inc., 146 F.3d 699, 706 (9th
Cir.1998), superseded by statute on other grounds as recognized in Abrego Abrego
v. The Dow Chem. Co., 443 F.3d 676, 681 (9th Cir. 2006) (emphasis added). The
court, therefore, cannot consider the document in deciding defendant's motion to
dismiss.”).

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Plaintiff's complaint does not refer to the collective bargaining
agreement. Defendants assert that judicial notice of the collective
bargaining is appropriate because plaintiff's claim requires
interpretation of the collective bargaining agreement (Dkt. No. 10–2).
Our court of appeals has expanded the doctrine of incorporation by
reference to include “situations in which the plaintiff's claim depends
on the contents of a document, the defendant attaches the document to
its motion to dismiss, and the parties do not dispute the authenticity of
the document, even though the plaintiff does not explicitly allege the
contents of that document in the complaint.” Parrino v. FHP, Inc.,
146 F.3d 699, 706 (9th Cir.1998). Plaintiff disputes that his claim
relies on the collective bargaining agreement (Opp. 9). Because, as
explained below, this order finds that plaintiff's claim does not rely on
the collective bargaining agreement, judicial notice of the collective
bargaining agreement is denied.
Sizemore v. Pac. Gas & Elec. Ret. Plan, 939 F. Supp. 2d 987, 989 (N.D. Cal.
2013). This reasoning applies to the instant case. The Complaint is not based on
the CBA; it does not allege a breach of the CBA; it does not seek relief under the
CBA; it never mentions the CBA; it states cognizable section 1983 claims for
violation of constitutional rights, that are not and could never be derivative of any
contract language; Defendants make no claim that the CBA contains a clear and
express waiver of constitutional rights; and no court has ever held that a CBA can
be held up as a de facto exhaustion requirement in a section 1983 case; by contrast,
every court to consider the issue has emphatically rejected such an argument.
Accordingly, this Court should follow the Ninth Circuit’s Parrino rule, and
decline the request for judicial notice of the CBA because Plaintiff’s claims do not
rely, explicitly, implicitly, necessarily, or otherwise, on the CBA.
//
//

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III. CONCLUSION
For the foregoing reasons, Plaintiff respectfully requests that the Court deny
Defendants’ motion.
Respectfully submitted,
Date: July 12, 2021 WERKSMAN JACKSON & QUINN, LLP
/s/ Caleb Mason_________________
Caleb Mason
Mark Kilburn
Attorneys for the Plaintiff

CERTIFICATE OF SERVICE
I certify that I served the above document, Plaintiff’s Opposition to
Defendants’ Motion to Dismiss, by filing it with the ECF system, which serves the
parties, and by emailing a pdf copy to counsel for all defendants, as follows:
Jordan Walsh, Esq., jswalsh@hollandhart.com.
Dated July 12, 2021 /s/ Caleb Mason
Caleb Mason
Counsel for Plaintiff

Sparks Police Officer George Forbush's Opposition to the Motion to Dismiss

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Sparks Police Officer George Forbush's Opposition to the Motion to Dismiss