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Torres v. Perata

September 16, 2009



This is a civil rights action that, at its core, challenges plaintiff's disbarrment from the practice of law. Although not a model of pleading practice, plaintiff's First Amended Complaint ("FAC") claims that his disbarrment under Cal. Bus. & Prof. Code § 6106, which authorizes disbarrment for acts of moral turpitude, dishonesty or corruption, violates a variety of plaintiff's federally protected rights under the United States Constitution and federal statutes. FAC, at 4-5.

Plaintiff's prior complaint was dismissed for failure to state a claim but he was allowed leave to amend. Defendants Don Perata and Fabian Nunez, both former state legislators, now move to dismiss the amended complaint.*fn1 For the following reasons, the court recommends that defendants' motion be granted, and that plaintiff's complaint be dismissed without further leave to amend.


The court's prior order, Dckt No. 4, analyzed plaintiff's initial complaint and described its deficiencies.*fn2 The only significant difference between plaintiff's initial and amended complaints is that plaintiff has dropped as defendants the State of California and the California Legislature. Thus, the only remaining defendants are the former leaders of their respective legislative houses -- Senator Perata was President Pro Tempore of the Senate, and Assembly Member Nunez was Speaker of the Assembly.*fn3 These defendants are sued in both their individual and official capacities.

The gravamen of plaintiff's amended complaint, like his initial complaint, is that these defendants had a duty to prevent the State Bar, acting through the California Supreme Court, from disbarring plaintiff in December 2007. Plaintiff challenges, on federal constitutional grounds, several provisions of the California Business and Professions Code,*fn4 and contends generally that these defendants did not "perform[] their Constitutional mandate of not allowing the State Supreme Court and it[s] agents from enforcing [these] Business and Professions Codes . . . against Plaintiff because of his race and disability i.e., separation of powers doctrine." FAC, at 1-2. Plaintiff explains that he is Latino and disabled by Myasthenia Gravis, and asserts that he is representative of individuals seeking to practice law who are "of color" and/or disabled.*fn5 Id. at 9. Plaintiff contends generally that defendants' approval of the statutes creating, regulating, and appropriating funds for, the State Bar and its disciplinary process through the California Supreme Court are unconstitutional, and that defendants' failure to intervene in the operation of this allegedly unconstitutional statutory scheme, improperly led to plaintiff's disbarrment and excludes similarly situated individuals from the practice of law.

As in his original complaint, plaintiff's amended complaint sets forth two causes of action, both based on the alleged violation of his civil rights as secured by the First, Fifth, Eighth, and Fourteenth Amendments to the U.S. Constitution. Plaintiff contends that defendants have deprived plaintiff and those similarly situated of their civil entitlements to free speech and association (First Amendment), due process (Fifth and Fourteenth Amendments) and equal protection (Fourteenth Amendment), and imposed upon them the cruel and unusual punishment (Eighth Amendment) of disbarrment and creation of a defacto union of attorneys that excludes individuals who are Hispanic and/or disabled.

Plaintiff's causes of action -- the first brought pursuant to 42 U.S.C. § 1983, the second an amalgam of claims brought pursuant to 42 U.S.C. §§ 1985(3) and 1986 -- assert generally that defendants have acted with "gross negligence, recklessness, or deliberate indifference," and that plaintiff has suffered "pain, discomfort, disability, mental and emotion[al] anguish and fear." FAC, at 12, 14. Plaintiff requests a jury trial, and seeks a declaration that the challenged state statutes are unconstitutional on their face and as applied to plaintiff; declarative and injunctive relief prohibiting defendants from enforcing the challenged statutes against plaintiff; injunctive relief prohibiting any retaliation by defendants against plaintiff for bringing this action; damages and attorney fees.

Defendants' motion to dismiss contends that plaintiff's claims are barred by Eleventh Amendment immunity and legislative immunities.


As a threshold matter, the court is mindful of plaintiff's pro se status. Pro se pleadings are generally held to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). A pro se litigant is entitled to notice and an opportunity to amend his complaint unless it is clear that no amendment can cure its inadequacies. Lopez v. Smith, 203 F.3d 1122, 1127-28 (9th Cir.2000) (en banc); Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir.1987).

In order to survive dismissal for failure to state a claim pursuant to Rule 12(b)(6), a complaint must contain more than a "formulaic recitation of the elements of a cause of action;" it must contain factual allegations sufficient to "raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1965 (2007). "'The pleading must contain something more than a statement of facts that merely creates a suspicion of a legally cognizable right of action.'" Id., quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004) (internal punctuation omitted). Rather, to avoid a Rule 12(b)(6) dismissal, a complaint must plead "enough facts to state a claim to relief that is plausible on its face." Weber v. Department of Veterans Affairs, 521 F.3d 1061, 1065 (9th Cir. 2008) (quoting Bell, at 127 S.Ct. at 1974). Factually unsupported claims framed as legal conclusions, and mere recitations of the legal elements of a claim, do not give rise to a cognizable claim for relief. See Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1951 (May 18, 2009) (citing Twombly, 550 U.S. at 555).



To state a claim under Section 1983,*fn6 a plaintiff must make a prima facie showing that defendant acted under color of state law to deprive plaintiff of a right secured by the Constitution or laws of the United States. West v. Atkins, 487 U.S. 42, 48 (1988). Section 1983 does not create any substantive rights; rather it is a vehicle for redressing illegal conduct by government officials. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002) (citations omitted). Significantly, "[i]n order for a person acting under color of state law to be liable under section 1983 there must be a showing of personal participation in the alleged rights deprivation: there is no respondeat superior liability under section 1983." Id. (citations omitted). The statute requires an actual connection or link between the actions of the defendants and the deprivation of rights alleged to have been suffered by the plaintiff. See Monell v. Department of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362 (1976). "A person 'subjects' another to the deprivation of a constitutional right, ...

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