The opinion of the court was delivered by: Oliver W. Wanger, United States District Judge
MEMORANDUM DECISION RE DEFENDANTS' MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM (DOC. 4)
Plaintiff Philip Andrew Mounts ("Plaintiff"), appearing pro se, filed suit against the State of California ("State"), the California Department of Corrections ("CDC"), and Regional Supervisor of the CDC, Judy Harris ("Harris") (collectively "Defendants") in the Fresno County Superior Court on May 28, 2008. (Doc. 1 at 5.) On January 30, 2009, Defendants removed the action to this court based on federal question jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1441(b). (Doc. 1 at 2.)
Plaintiff alleges six causes of action against each defendant. Plaintiff alleges Defendants' conduct violated:
(1) the Fair Employment and Housing Act ("FEHA"), California Government Code § 12940(a); (2) his Fourteenth Amendment Equal Protection rights under 42 U.S.C. § 1983; (3) article I, §§ 7, 8, and 31 of the California constitution; and (4) Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2.
Before the court for decision is Defendants' motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. 4.) Defendants challenge Plaintiff's complaint, asserting: (1) that the State and the CDC are immune from Plaintiff's § 1983 claim, and (2) that article I, §§ 7, 8, and 31 of the California constitution do not provide a private right of action for damages. (Id.) Defendants do not challenge Plaintiff's FEHA and Title VII claims. Defendants do not move to dismiss any of the claims against Harris, as they contend she is not a proper defendant in this action because she has not be served with process. (Doc. 1, ¶ 4.) Plaintiff filed no opposition, but counsel appeared on his behalf at oral argument and requested leave to amend the Complaint.
Plaintiff, who is Caucasian, has been employed by the CDC as a Parole Agent I since October 1996. (Compl. ¶ 9.) Plaintiff alleges that on multiple occasions he applied for and was denied promotion to Parole Agent II. (Compl. ¶ 10.) Most recently, in November 2007, Plaintiff was denied promotion to Parole Agent II. (Id.) An application for promotion includes written and oral testing. (Compl. ¶ 12.) Plaintiff alleges that he achieved higher ratings on these tests than others who were promoted above him. (Compl. ¶ 13.) Plaintiff contends that Defendants did not promote him to Parole Agent II, despite being qualified for the position, because of his race. (Compl. ¶ 18.) Plaintiff alleges that Harris, his African-American supervisor, who is also responsible for making selections for promotion, preferred and did promote non-qualified African-American candidates over Plaintiff. (Compl. ¶¶ 15-17.) Plaintiff has yet to be promoted to Parole Agent II, but is seemingly still employed by the CDC. (Compl. ¶ 19.)
III. STANDARD OF DECISION
Federal Rule of Civil Procedure 12(b)(6) provides that a motion to dismiss may be made if the plaintiff fails "to state a claim upon which relief can be granted." In deciding whether to grant a motion to dismiss, the court must "accept all factual allegations of the complaint as true and draw all reasonable inferences" in the light most favorable to the nonmoving party. TwoRivers v. Lewis, 174 F.3d 987, 991 (9th Cir. 1999); see also Rodriguez v. Panayiotou, 314 F.3d 979, 983 (9th Cir. 2002). "To avoid a Rule 12(b)(6) dismissal, a complaint need not contain detailed factual allegations; rather, it must plead 'enough facts to state a claim to relief that is plausible on its face.'" Weber v. Dep't of Veterans Affairs, 521 F.3d 1061 (9th Cir. 2008) (citing Bell Atl. v. Twombly, 550 U.S. 544; 127 S.Ct. 1955 (2007) (rejecting interpretation of Rule 8 that permits dismissal only when the plaintiff can prove "no set of facts" in support of his claim). A court is not "required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). Something "more than labels and conclusions" is needed to provide the grounds for relief. Bell Atl., 127 S.Ct. at 1965 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)).
Pro se complaints are held to less stringent standards than formal pleadings by lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). A court must construe a pro se plaintiff's "inartful pleading" liberally in determining whether a claim has been stated, including pro se motions as well as complaints. Zichko v. Idaho, 247 F.3d 1015, 1020 (9th Cir. 2001); Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987). This is especially true when a plaintiff appears pro se in a civil rights case. Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). "Dismissal of a pro se complaint without leave to amend is proper only if it is absolutely clear that the deficiencies of the complaint could not be cured by amendment." Schucker v. Rockwood, 846 F.2d 1202, 1203-04 (9th Cir. 1988).
Plaintiff alleges violation of his Fourteenth Amendment rights under § 1983, arguing that as a member of a protected class, he was denied equal protection of the laws when he was not promoted to Parole Agent II solely because of ...