Gama v. Board of Trustees of California State University et al

Filing 37

ORDER Granting 29 Motion to Dismiss First Amended Complaint. Gama is ordered to show cause within 7 days and any amended complaint must be filed within 21 days of this order. Signed by Judge Vince Chhabria on October 22, 2018. (vclc2S, COURT STAFF) (Filed on 10/22/2018)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA

MARCOS GAMA,

Case No. 18-cv-02552-VC

Plaintiff,
v.
BOARD OF TRUSTEES OF CALIFORNIA
STATE UNIVERSITY, et al.,

ORDER GRANTING MOTION TO
DISMISS THE FIRST AMENDED
COMPLAINT
Re: Dkt. No. 29

Defendants.

1. Gama still does not allege a claim for gender discrimination under Title IX against any
of the defendants. Gama repeats that “on information and belief” university officials “have a
pattern of disproportionately sustaining findings against males.” FAC ¶ 20. Although this Court
found that conclusory statement insufficient in the original complaint, Gama added no facts to
plausibly support it. In fact, the only added allegation in the First Amended Complaint is that San
Francisco State University was on a list of schools under investigation by the U.S. Department of
Education. Gama does not explain, however, how this allegation plausibly supports his claim that
SFSU’s investigation into the sexual harassment complaints against him was affected by bias
towards men. Cf. Doe v. Columbia University, 831 F.3d 46, 57-58 (2d Cir. 2016).
The primary case that Gama cites as supporting his claim, Yusuf v. Vassar College, 35
F.3d 709 (2d Cir. 1994), required that the plaintiff allege specific facts that show a “causal
connection between the flawed outcome and gender bias.” Id. at 715. But Gama fails to do this.
He doesn’t allege, for example, that on account of gender, the investigator pursued the female
accusers’ facts differently than Gama’s. See Doe v. Columbia University, 831 F.3d at 56-57. Nor
does Gama allege that females charged with misconduct under Title IX at SFSU are treated

differently than males. See Ritter v. Oklahoma City Univ., No. CIV-16-0438-HE, 2016 WL
3982554 (W.D. Okla. July 22, 2016). Therefore, Gama’s Title IX gender discrimination claim is
dismissed with prejudice.
2. Though the First Amended Complaint purports to still bring a claim for damages
against Hong in her official capacity, that claim has already been dismissed with prejudice. See
Dkt. No. 20, ¶ 2.
3. Gama also failed to rectify the defects in his section 1983 claim that Hong, in her
individual capacity, violated his due process rights. With respect to due process, Gama appears
to assert that Hong is liable in her supervisory capacity. But Gama’s claim cannot merely be one
of vicarious liability, he must allege that Hong, through her own personal actions, violated his
constitutional rights. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009); OSU Student Alliance v.
Ray, 699 F.3d 1053, 1069 (9th Cir. 2012). The allegations that Gama includes in his complaint,
however, do not state a claim against her personally. Nowhere does Gama allege that Hong had
anything but a passive role in the investigation: She was cc’d on four emails and at the time she
served as Vice President for Student Affairs and Enrollment Management and Title IX
Coordinator for SFSU. These facts are insufficient to establish that Hong, through her personal
actions or inactions, denied Gama due process. Although it appears unlikely Gama will be able
to state a claim, the Court cannot say with certainty that he will be unable to do so. Therefore,
Gama’s section 1983 due process claims against Hong in her individual capacity are dismissed
with leave to amend.
4. Gama’s contract claims are also still deficient. He fails to allege facts from which one
could conclude that the general university policy stated in Executive Order 1096 created a
contractual relationship between him and the University. He also fails to plausibly allege that the
contract between his employer ASI and the University – even if it does incorporate the EO 1096
as a contractual provision, which is doubtful – was intended to benefit him as a third-party
beneficiary. Therefore, his contractual claims are dismissed with prejudice.
5. This Court gave Gama until July 30, 2018 to properly serve Begley. See Dkt. No. 20,

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¶ 5. He has not filed a proof of service indicating that he did so. Therefore, Gama is ordered to
show cause why the claims against Begley should not be dismissed without prejudice. Fed. R.
Civ. P. 4(m). Gama must file a response to the order to show cause within 7 days of this order.
6. Any amended complaint must be filed within 21 days of this order, otherwise dismissal
of all claims addressed in this order will be with prejudice.

IT IS SO ORDERED.
Dated: October 22, 2018
______________________________________
VINCE CHHABRIA
United States District Judge

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