Murchison v. Tucson Unified School District et al

Filing 26

ORDER granting 20 Motion to Dismiss for Failure to State a Claim; granting 24 Motion to Strike. The Clerk of Court shall strike Plaintiff's 23 sur-reply from the record. It is further ordered that Plaintiff's Second Amended Complaint is dismissed, Clerk of Court should enter judgment and close this case. Signed by Magistrate Judge D Thomas Ferraro on October 4, 2012.(BAR)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Bruce C. Murchison,

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Plaintiff,

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vs.

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Tucson Unified School District, et al.,

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Defendants.

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No. CV 11-281-TUC-DTF
ORDER

Pending before the Court are Defendants’ Motions to Strike Plaintiff’s sur-reply
(Docs. 24, 25) and to Dismiss Plaintiff’s Second Amended Complaint (Docs. 20-22).
MOTION TO STRIKE

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Plaintiff filed a sur-reply to Defendants’ reply brief on the motion to dismiss.

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Defendants then moved to strike the sur-reply because it is not allowed under the local rules.

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Plaintiff opposes the motion to strike, arguing that the sur-reply was necessary to provide the

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information Defendants contended should have been included in the complaint. A motion to

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dismiss is decided based on the allegations in the complaint, the Court cannot consider new

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allegations or evidence filed in subsequent documents. Therefore, these additional allegations

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are not helpful to resolving the motion to dismiss. Defendants did not raise any substantially

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new issues in their reply and the Court finds no grounds for a sur-reply. Therefore, the

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motion to strike is granted.

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MOTION TO DISMISS FOR PROCEDURAL VIOLATIONS

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Defendants argue Plaintiff violated the controlling procedural rules in that Plaintiff

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failed to follow the local rules governing the filing of an amended complaint. The Court

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granted Defendants’ previous motion to dismiss, with leave to amend. Plaintiff’s amended

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complaint was due February 23, 2012, which he timely filed. (Doc. 16.) The following day,

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February 24, Plaintiff filed a second amended complaint. (Doc. 17.) It is this amended

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complaint Defendants seek to dismiss.

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Under the rules, a party seeking leave to amend must include a copy of the proposed

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pleading with brackets and strike-throughs indicating how it differs from the prior pleading.

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LRCiv. 15.1. In this case, because the Court ordered the filing of an amended complaint,

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Plaintiff was not required to comply with that rule. However, Plaintiff’s filing of a second

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amended complaint, after the deadline and without leave to do so is, in violation of Federal

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Rule 15, requiring leave of Court to amend a second time. Fed. R. Civ. P. 15(a)(2).

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There is no substantive difference between the first and second amended complaints,

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except the second amended complaint corrects scrivener’s errors. For that reason, the Court

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declines to dismiss the late amendment and will grant Plaintiff leave for the filing of his

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second amended complaint.

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Defendants also argue that Plaintiff did not properly serve his amended complaints.

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Defendants’ counsel states that he received email notice of the second amended complaint

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only (not the first amendment) five days after it was filed. This is untimely service,

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conducted by improper method and Plaintiff failed to provide a certificate of service, which

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the Court explicitly informed him to do. However, because Defendants received notice

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sufficient to file a timely response, the Court will not dismiss the case on this ground.

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MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM

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FACTS

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The facts below are taken as true from the Second Amended Complaint. Plaintiff

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alleges Defendants committed a breach of contract and violation of equal protection under

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the Fourteenth Amendment. Further, he contends Defendants’ actions were intentional and

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arbitrary.

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Plaintiff Bruce Murchison is employed as a teacher by Defendant Tucson Unified

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School District (TUSD), at Catalina Magnet High School. (Doc. 17 at 2, 4.) Defendants are

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the school district; the superintendent of the district, John Pedicone; the members of the

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TUSD Governing Board, Mark Stegeman, Miguel Cuevas, Michael Hicks and Adelita

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Grijalva; Elizabeth Celina-Fagen, former TUSD superintendent; and Edith Macklin, former

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assistant superintendent for TUSD.

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TUSD participated in a state-wide program to distribute performance pay to teachers

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at schools that attained certain goals set forth in the district’s plan. TUSD informed Catalina

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Magnet that they would not receive performance pay for the 2006-2007 school year.

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Defendants did not provide the school an opportunity to establish extenuating circumstances

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for not meeting its goals nor an appeal of the decision, which was required under the plan.

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Plaintiff, and other Catalina Magnet teachers, sued TUSD in Pima County Superior

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Court in November 2007, alleging breach of contract and a violation of due process. The

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court determined that TUSD failed to provide the mandatory appeals process, and it was

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ordered to do so. The TUSD assistant superintendent for high schools, Macklin, and

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superintendent, Celina-Fagen, reviewed the data presented by Catalina Magnet and made a

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determination against the school. Plaintiff alleges those decisions were predetermined and

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the TUSD Governing Board and new superintendent, Pedicone, refused to review the data.

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Plaintiff alleges that Catalina Magnet met or exceeded its performance goals for the

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2006-2007 school year when “an appropriate cohort of students is considered.” (Doc. 17 at

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5.) When compared to other schools that were initially denied but subsequently approved for

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performance pay upon appeal, Catalina Magnet is alleged to have demonstrated greater

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improvement.

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In Count One, Plaintiff alleges that TUSD did not apply the same standard to all

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schools that appealed, and that under the standard used for other schools, Catalina Magnet

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would have been provided performance pay. In Count Two, Plaintiff alleges that TUSD

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contracts provide for performance pay upon satisfaction of the stated goals for the

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employees’ school. Upon appeal, Catalina Magnet should have been approved for

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performance pay and Plaintiff should have been paid under his contract.

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DISCUSSION

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Defendants argue that Plaintiff fails to make allegations against the individual

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defendants and, pursuant to Federal Rule of Civil Procedure 12(b)(6), fails to state a claim

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for equal protection or breach of contract. Because the Court dismisses Counts 1 and 2 on

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the same ground for all Defendants (both TUSD and the individual defendants), it does not

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address the arguments limited to the individual Defendants.

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Defendants attach to their motion to dismiss a copy of the Pima County Superior

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Court’s judgment in the prior case brought by Plaintiff and others against TUSD. (Doc. 20,

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Ex. 1.) In ruling on a motion to dismiss, the Court generally cannot consider any material

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outside the complaint. S.F. Patrol Special Police Officers v. City and Cnty. of S.F., 13 F.

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App’x 670, 675 (9th Cir. 2001). Defendants did not justify their attachment of this document

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and Plaintiff did not object. There are two exceptions to the rule, both of which apply to the

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document appended by Defendants. One, the Court may consider the judgment because

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Plaintiff refers to it in the Second Amended Complaint (Doc. 17 at 4 ¶ 20) and its

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authenticity is not in contention, and two, it is a matter of public record of which the Court

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can take judicial notice. S.F. Patrol Special Police Officers, 13 Fed. Appx. at 675. Therefore,

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the Court considers the judgment in ruling on the motion to dismiss.

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Standard for Rule 12(b)(6) Motion to Dismiss

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To survive a Rule 12(b)(6) motion to dismiss for failure to state a claim, the complaint

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must allege facts sufficient “to raise a right to relief above the speculative level.” Bell Atl.

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Corp. v. Twombly, 550 U.S. 544, 555 (2007). “A claim has facial plausibility when the

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

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defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

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The plausibility standard does not amount to a probability requirement, however, it demands

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“more than a sheer possibility that a defendant has acted unlawfully.” Id. In evaluating a

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motion to dismiss, “all well-pleaded allegations of material fact are taken as true and

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construed in a light most favorable to the nonmoving party.” Wyler Summit P’hip v. Turner

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Broad. Sys. Inc., 135 F.3d 658, 661 (9th Cir. 1998). However, “the court [is not] required to

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accept as true allegations that are merely conclusory, unwarranted deductions of fact, or

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unreasonable inferences.” Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th

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Cir. 2001). Likewise, “a formulaic recitation of the elements of a cause of action will not do.”

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Twombly, 550 U.S. at 555. Dismissal under Rule 12(b)(6) can be based on “the lack of a

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cognizable legal theory” or “the absence of sufficient facts alleged under a cognizable legal

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theory.” Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990).

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Claim One: Equal Protection

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Plaintiff alleges that TUSD violated the equal protection clause by intentionally and

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arbitrarily treating the teachers at Catalina Magnet differently than similarly situated teachers

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from other schools. (Doc. 17 ¶¶ 23, 40, 41.) He asserts that other similarly situated schools

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with less improvement were granted performance pay on appeal, but Catalina Magnet’s

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appeal was denied. (Id. ¶¶ 22, 27, 30, 37.) Plaintiff reasons that the application of different

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standards on appeal resulted in Catalina Magnet’s loss and denied Murchison and others the

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performance pay to which they were entitled. (Id. ¶¶ 31, 32.)

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The Fourteenth Amendment guards against a state’s intentional and arbitrary

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discrimination, either through statute or improper execution of the law through appointed

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agents. Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). As the first step in an

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equal protection claim based on improper enforcement of a statute, a plaintiff must show that

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the manner of enforcement results in members of a certain group being treated differently

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from other persons based on membership in that group. See Jones v. Helms, 452 U.S. 412,

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423-24, (1981); Hernandez v. Texas, 347 U.S. 475, 478 (1954).

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Plaintiff has not alleged facts sufficient to establish a prima facie case. As argued by

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Defendants, denial on appeal is not evidence of differential treatment under the Equal

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Protection Clause. Plaintiff only points to the fact that Catalina Magnet’s appeal was denied

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while other schools with less improvement were granted performance pay on appeal. These

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allegations, even if proven, do not make out a prima facie case because inequality is not

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enough – identical treatment is not mandated by the Constitution. McQueary v. Blodgett, 924

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F.2d 829, 835 (9th Cir. 1991). “There must be an allegation of invidiousness or illegitimacy

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in [application of] the statutory scheme before a cognizable claim arises: it is a ‘settled rule

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that the Fourteenth Amendment guarantees equal laws, not equal results.’” Id. (quoting

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Personnel Adm’r of Mass. v. Feeney, 442 U.S. 256, 273 (1979)). Plaintiff’s complaint

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alleges, in essence, that TUSD erroneously decided Catalina Magnet’s appeal. This assertion

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lacks the necessary element of discriminatory intent.

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The class to which Murchison purportedly belongs is that of teachers at Catalina

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Magnet school. Discriminatory intent as an element of an equal protection claim requires

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more than an act of volition, “[i]t implies that the decisionmaker . . . selected or affirmed a

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particular course of action at least in part ‘because of’ not merely ‘in spite of’ its adverse

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effects upon an identifiable group.” Id. at 279. Plaintiff’s allegation that Defendants acted

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intentionally is merely a conclusory and insufficient recitation of an element of equal

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protection, without sufficient support to be found plausible. See Iqbal, 556 U.S. at 680-81

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(declining to extend the assumption of truth to conclusory allegations of the elements of

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constitutional discrimination). Plaintiff alleges no facts that TUSD acted with discriminatory

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intent towards him or the group of teachers at Catalina Magnet, nor can one infer such intent

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from the allegations in the Second Amended Complaint. The appeal was denied “in spite of”

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the adverse affect on Murchison and the teachers at his school. Feeney, 442 U.S. at 279.

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Plaintiff does not allege that Defendants denied the appeal based on his membership, or the

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teachers’ membership, in a class and that they acted with discriminatory intent – this is fatal

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to his equal protection claim.

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Claim Two: Breach of Contract

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Plaintiff alleges that Defendants breached their employment contract with him by

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failing to pay him the performance pay to which he was entitled. The breach of contract

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claim is governed by Arizona law, under which a plaintiff must establish a contract, breach

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of that contract, and damages. Thunderbird Metallurgical, Inc. v. Arizona Testing Lab., 5

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Ariz. App. 48, 50, 423 P.2d 124, 126 (1967).

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The Court does not consider the merits of Murchison’s state law breach of contract

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claim because it declines to exercise supplemental jurisdiction over it. This is an appropriate

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course of action when a court has dismissed all the claims over which it has original

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jurisdiction. 28 U.S.C. § 1367(c)(3). Plaintiff alleges in the Second Amended Complaint that

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this Court’s jurisdiction is based on a federal question (28 U.S.C. § 1331), his allegation in

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Count One that his federal constitutional rights were violated. The Court has found that claim

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should be dismissed as to all Defendants. Because the remaining claim involves solely

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Arizona contract law and a local school district, and is connected to issues previously raised

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in state court, the Court declines jurisdiction.

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Accordingly,

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IT IS ORDERED that Defendants’ Motion to Strike (Doc. 24) is GRANTED. The

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Clerk of Court shall STRIKE Plaintiff’s sur-reply (Doc. 23) from the record.
IT IS FURTHER ORDERED that Defendants’ Motion to Dismiss (Doc. 20) is
GRANTED.

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IT IS FURTHER ORDERED that Plaintiff’s Second Amended Complaint is

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DISMISSED: Count 1 for failure to state a claim and Count 2 because the Court declines

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supplemental jurisdiction.

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IT IS FURTHER ORDERED that the Clerk of Court should enter judgment and
close this case.
DATED this 4th day of October, 2012.

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