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

Filing 64

ORDER Granting 44 Motion to Dismiss. Signed by Judge Vince Chhabria on April 8, 2019. (vclc2S, COURT STAFF) (Filed on 4/8/2019)

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 SECOND AMENDED
COMPLAINT
Re: Dkt. No. 44

Defendants.

The Second Amended Complaint is dismissed with prejudice.
1. Gama still fails to state a claim against Hong and Begley for violating his procedural
due process rights. See Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009) (“[E]ach Government
official . . . is only liable for his or her own misconduct.”); Chavez v. United States, 683 F.3d
1102, 1109 (9th Cir. 2012) (“[P]laintiffs cannot base a claim against supervisors on a theory of
respondeat superior, and must instead show that the supervisors, ‘through [their] own individual
actions, ha[ve] violated the Constitution.’” (quoting Iqbal, 556 U.S. at 676)).
Gama just added more facts about Hong and Begley’s general responsibilities overseeing
Title IX investigations. He didn’t add any new allegations tying the administrators to Gama’s
specific investigation let alone the alleged constitutional violations. Gama pleads sufficient facts
to support the conclusion that both Hong and Begley were aware of the investigation, but the
Second Amended Complaint alleges no facts plausibly supporting their awareness, let alone
personal perpetration, of the underlying due process violations. Gama alleges that the
investigator did not ask him certain questions, robbing him of the opportunity to proffer various

specific types of evidence; he alleges that the investigator promised him further opportunity to
provide evidence to bolster his case; he alleges that he informed the investigator that he didn’t
have ready access to his work email and therefore further communications should be sent to his
personal mail and that because they didn’t comply with that request, he missed the opportunity to
appeal. But Gama doesn’t plausibly allege that Hong was made aware of any of those pieces of
information, and therefore he fails to plausibly allege that she had any awareness of the
violations of his due process rights.
Gama does allege that he emailed these allegations to Begley on July 22, 2016, almost
two weeks after he finally read the email regarding the results of his investigation, which he
alleges he didn’t see for nearly two months because he didn’t regularly access his work email
while on leave. But an email sent months after the close of the investigation – especially when
the recipient, Begley, would have reasonably believed that Gama had been given opportunities to
contest the sexual harassment allegations in his two meetings with the investigator and that the
appeals period had passed – does “not support an inference that deliberate action or even
recklessness by [Begley] caused the due process violation.” OSU Student Alliance v. Ray, 699
F.3d 1053, 1078 (9th Cir. 2012). Therefore, Gama’s section 1983 claims against Hong and
Begley are dismissed. Because Gama has already had several opportunities to cure the defects in
his section 1983 claims, and because he does not seek a further opportunity to do so, dismissal is
with prejudice.
2. Gama’s allegations of an equal protection violation are incomprehensible. To the
extent it is an attempt to resurrect the gender discrimination argument, it is barred because this
Court dismissed that claim with prejudice. See Dkt. No. 37, ¶ 1. To the extent it is some other
claim that relies on Gama’s sole cited case, Bush v. Gore, 531 U.S. 98 (2000) (per curiam), it is
frivolous and dismissed with prejudice.
3. Gama is not permitted to bring his contract claims because this Court dismissed them
with prejudice. See Dkt. No. 37, ¶ 4. He can’t get around the Court’s dismissal by citing a
different Executive Order than what was specifically named in the Court’s Order because both

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E.O. 1096 and E.O. 1097 were part of the plaintiff’s contract claim from the beginning. See
Complaint, ¶ 29, Dkt. No. 1.
IT IS SO ORDERED.
Dated: April 8, 2019
______________________________________
VINCE CHHABRIA
United States District Judge

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