Espinoza v. City of Tracy et al
Filing
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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)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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JUAN ESPINOZA,
Plaintiff,
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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.
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----oo0oo---On November 15, 2016, the court dismissed plaintiff’s
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complaint with leave to amend.
(Docket No. 32.)
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2016, plaintiff filed a First Amended Complaint (“FAC”),
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reasserting the original claims under 42 U.S.C. § 1983 with
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modifications in response to the courts November 15, 2016 Order,
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and adding two new claims for conspiring to violate plaintiff’s
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constitutional rights in violation of 42 U.S.C. § 1985, and for
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infringing upon plaintiff’s right to make and enforce contracts
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in violation of 42 U.S.C. § 1981.
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On December 5,
(FAC ¶¶ 49-50, 56-57, 61-62,
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65-66.)
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Mot.)
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Defendants now move to dismiss plaintiff’s FAC.
(Defs.’
On plaintiff’s section 1983 causes of action, the court
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finds that the FAC now alleges sufficient facts to survive a
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motion to dismiss under Rule 12(b)(6).
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new causes of action, Section 1985 prohibits two or more persons
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from conspiring to deprive any person or class of persons of
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certain civil rights.
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that the defendants were motivated by racial animus.
With regard to the two
42 U.S.C. § 1985.
A plaintiff must allege
See Sever
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v. Alaska Pulp Corp., 978 F.2d 1529, 1536 (9th Cir. 1992)
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(requiring racial animus in section 1985(3) actions); Sanchez v.
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City of Santa Ana, 936 F.2d 1027, 1039 (9th Cir. 1990) (requiring
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racial animus in section 1985(2) actions).
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While the FAC alleges that defendants were the
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conspirators, it is devoid of any factual allegations suggesting
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there was an agreement among defendants to violate plaintiff’s
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constitutional rights.
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without factual specificity are insufficient.
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F.3d at 929 (holding that allegations concerning the existence of
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a conspiracy to violate a federal right must be supported by
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specific facts).
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support the conclusion that defendants were motivated by
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invidious class-based animus.
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dismiss plaintiff’s section 1985 claim.
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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
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within the jurisdiction of the United States shall have the same
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right in every State and Territory to make and enforce
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contracts.”
42 U.S.C. § 1981(a).
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“To state a claim under §
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1981, a plaintiff must identify an impaired ‘contractual
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relation,’ by showing that the intentional racial discrimination
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prevented the creation of a contractual relationship or impaired
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an existing contractual relationship.”
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at *3 (quoting Boyd v. Feather River Cmty. Coll. Dist., Civ. No.
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11-0231 JAM EFB, 2011 WL 5024547, at *4 (E.D. Cal. Oct. 20,
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2011)).
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Jackson, 2012 WL 5337076,
In California, “public employment is not held by
contract but by statute . . . .”
Miller v. California, 18 Cal.
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3d 808, 813 (1977).
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employment is concerned, no employee has a vested contractual
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right to continue in employment beyond the time or contrary to
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the terms and conditions fixed by law.”
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v. San Francisco City & County, No. C 08-2261 CRB, 2016 WL
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888901, at *3 (N.D. Cal. Mar. 8, 2016) (finding a city employee
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could not bring a section 1981 claim because the terms and
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conditions of employment was determined by California statute).
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Therefore, “insofar as the duration of such
Id.; see, e.g., Fallay
Plaintiff alleges that he “and Tracy entered a relevant
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employment contract at the beginning of Plaintiff’s employment
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with [the department], which was found in the MOU and related
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materials.”1
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classified as a peace officer under Penal Code section 830.1”
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with rights codified in the PBRA.
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employee, plaintiff is not entitled to section 1981 protection
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because his employment is governed by statute.
(FAC ¶ 65.)
However, plaintiff allegedly “was
(Id. ¶ 3.)
As a public
See Woodson v.
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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.”).
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California, Civ. No. 2:15-01206 MCE CKD, 2016 WL 6568668, at *6-7
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(E.D. Cal. Nov. 4, 2016) (holding California Department of
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Corrections employee could not sue under section 1981); Zimmerman
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v. City & County of San Francisco, No. C 93-4045 MJJ, 2000 WL
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1071830, at *10 (N.D. Cal. July 27, 2000) (holding city employee
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could not sue under section 1981); see also Hittle v. City of
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Stockton, Civ. No. 2:12-00766 TLN KJN, 2016 WL 1267703, at *7
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(E.D. Cal. Mar. 31, 2016) (finding a city-employed police officer
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was a public employee and thus could not bring a breach of
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contract claim against the city).
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contractual relationship that defendants allegedly infringed
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upon.
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The FAC identifies no other
Because plaintiff fails to allege a contractual
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relationship that defendants impaired, the court must also grant
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defendants’ motion to dismiss plaintiff’s section 1981 cause of
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action.
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IT IS THEREFORE ORDERED that defendants’ motion to
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dismiss plaintiff’s first and second causes of action under 42
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U.S.C. § 1983 be, and the same hereby are, DENIED.
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IT IS FURTHER ORDERED that defendants’ motion to
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dismiss plaintiff’s third and fourth causes of action under 42
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U.S.C. §§ 1981 and 1985 be, and the same hereby are, GRANTED.
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Plaintiff has twenty days from the date this Order is
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signed to file a second amended complaint, if he can do so
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consistent with this Order.
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Dated:
February 9, 2017
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