MEMORANDUM AND ORDER
WILLIAM B. SHUBB, District Judge.
Plaintiff, a female criminal defense attorney, brings this action against the County of Sacramento, the Sacramento County Main Jail Commander and several deputy sheriffs based upon the alleged denial of her right to use the pass-through meeting rooms1 at the Rio Cosumnes Correctional Center ("RCCC") and the Sacramento County Main Jail. Plaintiff's only federal claims are asserted under 28 U.S.C. § 1983 for gender discrimination in violation of the Equal Protection Clause, and for violation of plaintiff's procedural due process rights.
Presently before the court is defendants' motion to dismiss the complaint for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Docket No. 8.)
A. Plaintiff's § 1983 Claim for Violation of the Equal Protection Clause — Gender Discrimination
The Equal Protection Clause of the Fourteenth Amendment provides that "no State shall . . . deny to any person within its jurisdiction equal protection of its laws." The essence of the Equal Protection Clause is a requirement that similarly situated people be treated alike. Ariz. Dream Act Coal. v. Brewer, 757 F.3d 1053, 1063-64 (9th Cir. 2014). A plaintiff may prevail on an "equal protection claim by showing `that a class that is similarly situated has been treated disparately.'" Id. at 1064 (citation omitted). The Complaint here fails to contain any allegation that male attorneys were treated differently under similar circumstances. The court must therefore grant defendants' motion to dismiss plaintiff's § 1983 claim for violation of the Equal Protection Clause.
B. Plaintiff's § 1983 Claim for Violation of Procedural Due Process
A § 1983 claim based upon a procedural due process violation "has three elements: (1) a liberty or property interest protected by the Constitution; (2) a deprivation of the interest by the government; (3) lack of process." Portman v. County of Santa Clara, 995 F.2d 898, 904 (9th Cir. 1993). The procedural due process guarantees "apply only when a constitutionally protected liberty or property interest is at stake." Soranno's Gasco, Inc. v. Morgan, 874 F.2d 1310, 1316 (9th Cir. 1989). "The Due Process Clause does not create substantive rights in property; the property rights are defined by reference to state law." Id.
In order "`[t]o have a property interest in a benefit, a person clearly must have more than an abstract need or desire' and `more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.'" Town of Castle Rock, Colo. v. Gonzales, 545 U.S. 748, 756 (2005) (citation omitted). A benefit is not a protected entitlement "if government officials may grant or deny it in their discretion." Id.
Plaintiff alleges defendants violated her procedural due process rights by revoking her pass-through privileges and repeatedly broadcasting that she had engaged in sexual conduct "without any process." (Compl. ¶ 57.) Defendants allegedly did not provide plaintiff with an administrative hearing and reinstate her pass-through privileges until eight months after the initial incident. (Id. ¶¶ 48-50.) Further, the administrative hearing was provided only after a Sacramento County Superior Court Judge ordered the Sheriff's Department to either reinstate plaintiff's privileges or provide her an administrative hearing. (Id. Ex. 2, May 29, 2015 Sacramento Superior Ct. Order at 2, 4 (Docket No. 5).)
Plaintiff contends pass-through privileges are a liberty or property interest because of a combination of state regulations and Sacramento County jail rules. (Pl.'s Opp'n at 17-20.) First, plaintiff cites section 3178 of the California Code of Regulations, which specifies procedures that must be followed if an administrator seeks "to restrict, where cause exists, the confidential privileges . . . and/or normal visiting privileges afforded an attorney." Cal. Code of Regs. tit. 15, § 3178(s).
This state regulation, however, governs attorney visitation in state prisons, not visitation in local detention facilities. See id. § 3000 (defining "inmate" as "a person under the jurisdiction of the Secretary and not paroled"; "secretary" as the secretary of the Department of Corrections and Rehabilitation; and "facility" as "any institution; community-access facility or community correctional facility; or any camp or other subfacility of an institution under the jurisdiction of the" California Department of Corrections and Rehabilitation); Id. § 5058 (authorizing the Secretary of the Department of Corrections and Rehabilitation to "prescribe and amend rules and regulations for the administration of the prisons").
Instead, the state regulation that governs attorney visitation in local correctional facilities is section 1068. This regulation provides that the "facility administrator shall develop written policies and procedures to ensure inmates have access to the court and to legal counsel" and this access "shall consist of" unlimited mail and "confidential consultation with attorneys." Id. § 1068; see also id. § 1006 (defining "facility/system administrator" as "the sheriff, chief of police, chief probation officer, or other official charged by law with the administration of a local detention facility/system"); Id. § 6030 ("The Board of State and Community Corrections shall establish minimum standards for local correctional facilities."). Section 1068 therefore requires facility administrators to ensure inmates have access to "confidential consultation with attorneys," not confidential consultation in pass-through rooms.
Plaintiff next argues that the Sacramento County jail rules also create an attorney entitlement to pass-through privileges. (Pl.'s Opp'n at 18.) Plaintiff cites Sacramento County Sheriff's Department Operations Order 6/18, which outlines "the procedures for inmate access to confidential visits at the Main Jail and the Rio Consumnes Correctional Center (RCCC) in accordance with the California Code of Regulations, Title 15, Article 6, Section 1068." (Id. Ex. 1, Sacramento Cnty. Sheriff's Dep't Operations Order 6/18 ("Operations Order") at 1.) The Operations Order provides that "confidential visits shall be granted to those persons who qualify under the law for such privileges" and will be "conducted in areas that cannot be audibly monitored by other inmates and custody staff." (Id.) More specifically, it provides that a "confidential pass-through booth may be authorized for: licensed attorneys" and that "[p]ass-through booth privileges will be granted . . . unless the person has had his/her privileges revoked by the division commander." (Id. (emphasis added).)
Like the applicable state regulation, the Operations Order reinforces an inmate's right to confidential consultation with an attorney but not to consultation in a pass-through room. The Operations Order makes clear that pass-through privileges will be authorized for attorneys unless revoked by the division commander. The right to confidential consultations in pass-through rooms is therefore discretionary and cannot be construed as a mandatory liberty or property entitlement. Furthermore, while liberty or property entitlements can be created by state law, it is not clear to the court that such entitlements can be created by a county operations order implementing a state regulation. Accordingly, the court must dismiss plaintiff's procedural due process claim based upon denial of the pass-through privilege.
Plaintiff also argues that defendants violated her procedural due process rights by harming her professional reputation. (Compl. ¶ 57.) She alleges that defendants "tried to prevent Plaintiff from getting any work by informing inmates, other attorneys and other correctional officers, that Plaintiff engaged in sexual misconduct with inmate clients." (Id. ¶ 37.) Harm to reputation, without more, is neither a liberty nor property interest guaranteed against state deprivation without due process of law. Paul v. Davis, 424 U.S. 693, 712 (1976). Under the "stigma plus" test, "a plaintiff must show the public disclosure of a stigmatizing statement by the government, the accuracy of which is contested, plus the denial of `some more tangible interest[] such as employment,' or the alteration of a right or status recognized by state law." Ulrich v. City and County of San Francisco, 308 F.3d 968, 982 (9th Cir. 2002) (citation omitted and alteration original). Because the court will dismiss plaintiff's pass-through entitlement claim, plaintiff's harm to reputation claim would stand alone. As a result, plaintiff has failed to satisfy the "stigma plus" test and the court must also dismiss plaintiff's harm to reputation claim.
Accordingly, the court will grant defendants' motion to dismiss plaintiff's § 1983 claim for violations of procedural due process.
C. Plaintiff's § 1983 Monell Claim
Because the court dismisses. See Simmons v. Navajo County, 609 F.3d 1011, 1021 (9th Cir. 2010); Patel v. Maricopa County, 585 Fed. Appx. 452, 452 (9th Cir. 2014) ("Patel's Monell and supervisory liability claims fail as there was no underlying constitutional violation.").
D. State Law Claims
Plaintiff asserts state law claims for violation of the Unruh Civil Rights Act, negligence, defamation, and tortious interference with business relations. Because plaintiff has not alleged a cognizable federal claim, the court declines to exercise supplemental jurisdiction over her state law claims. See 28 U.S.C. § 1367(c)(3) ("[A court] may decline to exercise supplemental jurisdiction over a claim . . . if . . . [it] has dismissed all claims over which it has original jurisdiction."); Reynolds v. County of San Diego, 84 F.3d 1162, 1171 (9th Cir. 1996), overruled on other grounds by Acri v. Varian Assocs., Inc., 114 F.3d 999, 1000 (9th Cir. 1997) ("[I]n the usual case in which federal law claims are eliminated before trial, the balance of factors . . . will point toward declining to exercise jurisdiction over the remaining state law claims.").
IT IS THEREFORE ORDERED that defendants' motion to dismiss (Docket No. 8) be, and the same hereby is, GRANTED.
Plaintiff is granted twenty days from the date this Order is signed to file an amended complaint, if she can do so consistent with this Order.
