The opinion of the court was delivered by: Anthony W. Ishii Chief United States District Judge
ORDER ON DEFENDANTS' MOTION TO DISMISS AND RELATED ORDERS Documents Nos. 8, 10 and 14
This is a civil rights action for damages by pro se plaintiff James M. Lanier ("Plaintiff") against defendants Clovis Unified School District ("Clovis Unified"), the Clovis Unified School District Board of Education ("School Board") and a number of individual defendants (collectively, "Defendants"). This action arises out of Plaintiff's repeated attempts to obtain a contract from Clovis Unified for sports officiating that Plaintiff alleges were unsuccessful because of racially discriminatory practices by individual defendant, Dennis Lindsay ("Lindsay"), an employee of Clovis Unified with authority to approve contracts for sports officiating. This action was commenced in Fresno County Superior Court on October 14, 2009, and was removed to this court on November 30, 2009. Plaintiff filed a prior action in this court on October 8, 2009, in Case Number 09cv1780. On November 17, 2009, an order relating Case Number 09cv1780 to the instant case was filed by Judge Oliver Wanger and that case was transferred to the docket of Judge Anthony W. Ishii. In the instant motion, Defendants seek to dismiss all claims for relief set forth in Case Number 09cv2084. Federal question jurisdiction exists pursuant to 28 U.S.C. § 1331. Venue is proper in this court.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The complaint in this case alleges three claims for relief that are titled "Discrimination," "Civil Rights Violation," and "Conspiracy." All claims are alleged against Clovis Unified and against each of the individual members of the School Board as well as against four individual employees. So far as the court can determine both the complaint in the instant case and the complaint in 09cv1780 allege the same three claims against the same Defendants. There appears to be some minor variations as to wording between the two complaints but the essence of the claims alleged is the same.
The legal basis for Plaintiffs first claim for relief for discrimination is uncertain. In paragraph 10 of the complaint in Case Number 09cv1780, Plaintiff mentions California's Fair Employment and Housing Act, California Government Code § 12900 et seq. ("FEHA"), although only in the context of Clovis Unified being an employer that comes under the Act. Plaintiff's claim for discrimination in both cases alleges no discernable legal basis for the claim. Defendants appear to presume that Plaintiff's first claim for relief is alleged pursuant to 42 U.S.C. § 1983. The court can find no basis in the text of either complaint that would support that presumption.
Factually, Plaintiff's claim for discrimination alleges that in March of 2007 Plaintiff presented a proposal for contract to Defendant Lindsay for the fourth time. Plaintiff's proposal for contract was turned down and Plaintiff alleges that, as he left Lindsay's office, he heard Lindsay comment that Plaintiff was "'an uppity nigger'" and that "'no niggers would be allowed to obtain any contract work' and that [Plaintiff] would be better off seeking contract work outside of Clovis Unified School District." Doc. # 1 at 5: 18 - 21. Plaintiff further alleges that Defendants Lindsay and Johnston repeatedly "questioned if the Plaintiff had adequate staff to be able to satisfy the contracted work" and that these questions were a constant feature of Plaintiff's attempts to obtain a contract between 2004 and 2008. Doc. # 1 at 5:24 - 25.
Plaintiff's second claim for relief for "Civil Rights Violation" is alleged pursuant to 42 U.S.C. § 1983. Basically, Plaintiff's second claim incorporates the factual basis of the first claim for relief and alleges in summary fashion that Lindsay's and Johnston's actions in violation of Plaintiff's civil rights were knowing, wilful and malicious.
Plaintiff's third claim for relief for conspiracy, like Plaintiff's first claim, neither suggests nor alleges any legal basis for relief. The factual basis for Plaintiff's third claim is a long and somewhat confusing narrative that describes what appears to have been an agreement between Lindsay, an unnamed "favored Caucasian contractor," another unnamed African-American contractor and Plaintiff. It appears that the "conspiracy" was somehow driven in part by Plaintiff's prior unsuccessful efforts to secure an officiating contract. Oddly, it also appears that to some extent Plaintiff was an operational part of the "conspiracy" of which he complains. The gist of the "conspiracy" so far as the court can discern, was that Lindsay conspired with the "favored Caucasian contractor" to enlist Plaintiff and the other African American to join as a "management team" whose purpose was help the favored Caucasian contractor obtain a state license. Plaintiff alleges that it was understood by the conspirators that the favored Caucasian contractor would be awarded the officiating contracts for both Clovis Unified and Fresno Unified School Districts and that Plaintiff and the other African-American contractor would have access to income from sports officiating as a part of the "management team."
The complaint alleges that Plaintiff did not submit an application for the officiating contract and informed Clovis Unified that the reason he did not submit a proposal for contract was because Plaintiff believed any further efforts to deal with Lindsay would be futile because of Lindsay's race-based animus. Plaintiff alleges that Plaintiff was in charge of seeing to it that the favored Caucasian contractor got his license from the state. Plaintiff also alleges that it was understood that once the favored Caucasian contractor received his license, Clovis Unified would be awarded the officiating contract upon the recommendation and approval of defendant Lindsay, the alleged friend of the favored Caucasian contractor.
Plaintiff alleges that the favored Caucasian contractor was awarded the officiating contract after he obtained the license, and soon thereafter began a pattern of discriminatory practices aimed at Plaintiff and the other African-American contractor. On January 20, 2009, Plaintiff was terminated by the favored Caucasian contractor; an act Plaintiff alleges was contrary to Clovis Unified policy. The court infers that in 2008, and during the course of the alleged conduct of the conspiracy, Plaintiff did not apply to Clovis West for employment or submit a proposal for contract and was not hired or fired by Clovis West.
Defendants' motion to dismiss was filed on December 7, 2009. Plaintiff filed motions to continue the deadline for submission of opposition on December 29, 2009, and on January 6, 2009. On January 8, 2010, the court vacated the scheduled hearing date of January 11, 2010, and took the matter under submission as of that date. Plaintiff's opposition to Defendants' motion to dismiss was filed on April 2, 2010.
Rule 8(a) of the Federal Rules of Civil Procedure requires "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). The purpose of the complaint is to provide the opposing party with fair notice of the claim against it. Lynn v. Sheet Metal Workers' Intern. Ass'n, 804 F.2d 1472, 1482 (9th Cir. 1986). The Federal Rules have rejected the approach that pleading is a game in which one misstep by a party may be decisive to the outcome, and the Federal Rules require the court to construe pleadings liberally. Id. Although the Federal Rules have adopted this flexible pleading policy, a complaint must still give fair notice and state the elements of the claim plainly and succinctly. Jones v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984) (quoting 2A James W. Moore et al., Moore's Federal Practice ¶ 8.13 at 8-111 (2d ed. 1983)). The plaintiff must allege, with at least some degree of particularity, overt acts which the defendants engaged in that support the plaintiff's claim. Id.
A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure can be based on the failure to allege a cognizable legal theory or the failure to allege sufficient facts under a cognizable legal theory. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 533-34 (9th Cir.1984). To withstand a motion to dismiss pursuant to Rule 12(b)(6), a complaint must set forth factual allegations sufficient "to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) ("Twombly"). While a court considering a motion to dismiss must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740 (1976), and must construe the pleading in the light most favorable to the party opposing the motion, and resolve factual disputes in the pleader's favor, Jenkins v. McKeithen, 395 U.S. 411, 421, reh'g denied, 396 U.S. 869 (1969), the allegations must be factual in nature. See Twombly, 550 U.S. at 555 ("a plaintiff's obligation to provide the 'grounds' of his 'entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a ...