Espinoza v. City of Tracy et al

Filing 44

ORDER re 36 Defendants' Motion to Dismiss signed by Senior Judge William B. Shubb on 2/9/2017: IT IS ORDERED that defendants' motion to dismiss plaintiff's first and second causes of action under 42 U.S.C. § 1983 be, and the same hereby are, DENIED. IT IS FURTHER ORDERED that defendants' motion to dismiss plaintiff's third and fourth causes of action under 42 U.S.C. §§ 1981 and 1985 be, and the same hereby are, GRANTED. Plaintiff has twenty days from the date this Order is signed to file a second amended complaint, if he can do so consistent with this Order. (Kirksey Smith, K)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
----oo0oo----

11
12

JUAN ESPINOZA,
Plaintiff,

13
14
15
16
17

CIV. NO. 2:15-751 WBS KJN
ORDER RE: MOTION TO DISMISS

v.
CITY OF TRACY, R. LEON
CHURCHILL, and DOES 1 through
40 inclusive,
Defendants.

18
19
20

----oo0oo---On November 15, 2016, the court dismissed plaintiff’s

21

complaint with leave to amend.

(Docket No. 32.)

22

2016, plaintiff filed a First Amended Complaint (“FAC”),

23

reasserting the original claims under 42 U.S.C. § 1983 with

24

modifications in response to the courts November 15, 2016 Order,

25

and adding two new claims for conspiring to violate plaintiff’s

26

constitutional rights in violation of 42 U.S.C. § 1985, and for

27

infringing upon plaintiff’s right to make and enforce contracts

28

in violation of 42 U.S.C. § 1981.
1

On December 5,

(FAC ¶¶ 49-50, 56-57, 61-62,

1

65-66.)

2

Mot.)

3

Defendants now move to dismiss plaintiff’s FAC.

(Defs.’

On plaintiff’s section 1983 causes of action, the court

4

finds that the FAC now alleges sufficient facts to survive a

5

motion to dismiss under Rule 12(b)(6).

6

new causes of action, Section 1985 prohibits two or more persons

7

from conspiring to deprive any person or class of persons of

8

certain civil rights.

9

that the defendants were motivated by racial animus.

With regard to the two

42 U.S.C. § 1985.

A plaintiff must allege
See Sever

10

v. Alaska Pulp Corp., 978 F.2d 1529, 1536 (9th Cir. 1992)

11

(requiring racial animus in section 1985(3) actions); Sanchez v.

12

City of Santa Ana, 936 F.2d 1027, 1039 (9th Cir. 1990) (requiring

13

racial animus in section 1985(2) actions).

14

While the FAC alleges that defendants were the

15

conspirators, it is devoid of any factual allegations suggesting

16

there was an agreement among defendants to violate plaintiff’s

17

constitutional rights.

18

without factual specificity are insufficient.

19

F.3d at 929 (holding that allegations concerning the existence of

20

a conspiracy to violate a federal right must be supported by

21

specific facts).

22

support the conclusion that defendants were motivated by

23

invidious class-based animus.

24

dismiss plaintiff’s section 1985 claim.

25

Plaintiff’s conspiracy allegations
See Olsen, 363

Likewise, there are no factual allegations that

Accordingly, the court must

Section 1981 states, in relevant part, “[a]ll persons

26

within the jurisdiction of the United States shall have the same

27

right in every State and Territory to make and enforce

28

contracts.”

42 U.S.C. § 1981(a).
2

“To state a claim under §

1

1981, a plaintiff must identify an impaired ‘contractual

2

relation,’ by showing that the intentional racial discrimination

3

prevented the creation of a contractual relationship or impaired

4

an existing contractual relationship.”

5

at *3 (quoting Boyd v. Feather River Cmty. Coll. Dist., Civ. No.

6

11-0231 JAM EFB, 2011 WL 5024547, at *4 (E.D. Cal. Oct. 20,

7

2011)).

8
9

Jackson, 2012 WL 5337076,

In California, “public employment is not held by
contract but by statute . . . .”

Miller v. California, 18 Cal.

10

3d 808, 813 (1977).

11

employment is concerned, no employee has a vested contractual

12

right to continue in employment beyond the time or contrary to

13

the terms and conditions fixed by law.”

14

v. San Francisco City & County, No. C 08-2261 CRB, 2016 WL

15

888901, at *3 (N.D. Cal. Mar. 8, 2016) (finding a city employee

16

could not bring a section 1981 claim because the terms and

17

conditions of employment was determined by California statute).

18

Therefore, “insofar as the duration of such

Id.; see, e.g., Fallay

Plaintiff alleges that he “and Tracy entered a relevant

19

employment contract at the beginning of Plaintiff’s employment

20

with [the department], which was found in the MOU and related

21

materials.”1

22

classified as a peace officer under Penal Code section 830.1”

23

with rights codified in the PBRA.

24

employee, plaintiff is not entitled to section 1981 protection

25

because his employment is governed by statute.

(FAC ¶ 65.)

However, plaintiff allegedly “was

(Id. ¶ 3.)

As a public

See Woodson v.

26
1

27
28

The court need not accept plaintiff’s legal conclusion
that his employment relationship was contractual. See Papasan v.
Allain, 478 U.S. 265, 286 (1986) (“[W]e are not bound to accept
as true a legal conclusion couched as a factual allegation.”).
3

1

California, Civ. No. 2:15-01206 MCE CKD, 2016 WL 6568668, at *6-7

2

(E.D. Cal. Nov. 4, 2016) (holding California Department of

3

Corrections employee could not sue under section 1981); Zimmerman

4

v. City & County of San Francisco, No. C 93-4045 MJJ, 2000 WL

5

1071830, at *10 (N.D. Cal. July 27, 2000) (holding city employee

6

could not sue under section 1981); see also Hittle v. City of

7

Stockton, Civ. No. 2:12-00766 TLN KJN, 2016 WL 1267703, at *7

8

(E.D. Cal. Mar. 31, 2016) (finding a city-employed police officer

9

was a public employee and thus could not bring a breach of

10

contract claim against the city).

11

contractual relationship that defendants allegedly infringed

12

upon.

13

The FAC identifies no other

Because plaintiff fails to allege a contractual

14

relationship that defendants impaired, the court must also grant

15

defendants’ motion to dismiss plaintiff’s section 1981 cause of

16

action.

17

IT IS THEREFORE ORDERED that defendants’ motion to

18

dismiss plaintiff’s first and second causes of action under 42

19

U.S.C. § 1983 be, and the same hereby are, DENIED.

20

IT IS FURTHER ORDERED that defendants’ motion to

21

dismiss plaintiff’s third and fourth causes of action under 42

22

U.S.C. §§ 1981 and 1985 be, and the same hereby are, GRANTED.

23

Plaintiff has twenty days from the date this Order is

24

signed to file a second amended complaint, if he can do so

25

consistent with this Order.

26

Dated:

February 9, 2017

27
28
4