MEMORANDUM OPINION AND ORDER ON DEFENDANTS' MOTION TO DISMISS
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 Lindsey ("Lindsey"), an employee of Clovis Unified with authority to approve contracts for sports officiating. 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.
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 April 21, 2010, the court issued an order granting Defendants' motions to dismiss all claims in the original complaint and issued an order to show cause why the action filed in Case Number 09cv1780 should not be dismissed as duplicative of the instant action and administratively closed (the "April 21 Order"). Plaintiff filed his First Amended Complaint ("FAC") on May 24, 2010, in Case Number 09cv2084. There have been no further filings in Case Number 09cv1780 and on August 25, 2010, judgment was entered in that case in favor of Defendants and the case was closed. Hereinafter, the "instant motion" refers to Defendants' motion to dismiss case Plaintiff's FAC in case number 09cv2084. Defendants filed the instant motion on June 3, 2010. Plaintiff filed his opposition on June 22, 2010, and Defendants filed their reply on July 12, 2010. The court vacated the date for hearing on Defendants' motion to dismiss and took the matter under submission as of July 19, 2010.
The following facts are drawn from Plaintiff's FAC are not contested for purposes of the instant motion. Plaintiff is an African-American male who owns and operates a sports officiating service known as "SportsTime Officials Association" ("SOA"). Plaintiff has, since 2004, been attempting without success to obtain an officiating contract with defendant Clovis Unified School District ("CUSD"). In 2005 Plaintiff applied for and received accreditation from the California Interscholastic Federation allowing him to submit business proposals to CUSD for consideration. The individual responsible for review of the submitted business proposals and allegedly responsible for the selection of successful bidders was defendant Lindsey.
The FAC details a series of contacts between Plaintiff and Lindsey that occurred between 2005 and 2007. In each of these years Plaintiff submitted proposals and in each year his proposal was not accepted.*fn1 In 2006, Plaintiff alleges he began to question the validity of the reasons given by Lindsey for non-selection of Plaintiff's proposals for officiating. Particularly, Plaintiff alleges Lindsey commented that Plaintiff lacked sufficient personnel to fully perform the officiating duties proposed when Lindsey knew that Plaintiff drew his officiating personnel from the same pool of qualified officials as every other officiating contractor. In 2007 a number of messages were exchanged between Plaintiff and defendant Michael Johnston, a person who had administrative oversight of the letting of contracts for officiating services. Among other things, Plaintiff advised Johnston that Plaintiff's company was certified to perform officiating in 7 sports and was seeking officiating in 5 of its strongest sports, notwithstanding Lindsey's representations to the contrary. Plaintiff also informed Johnston that Plaintiff's chief rival San Joaquin Valley Officials Association ("SJVOA") had, as a member of its board Ron Haroldsen who was CUSD's paymaster for officiating services. Plaintiff alleges that officiating Haroldsen's association with Lindsey resulting in a strong bias in favor of SJVOA at the expense of equal access to contracting opportunities for Plaintiff and other African-American contractors.
On August 22, 2007, Plaintiff wrote to Johnston expressing Plaintiff's opinion that the fact that no sports officiating contracts were made available from 2005 through 2007 constituted a violation of CUSD's policy of nondiscrimination. Significantly, Plaintiff alleges that in February 2008 Plaintiff interviewed again with Lindsey to review Plaintiff's proposal for the school year 2008 - 2009. In response to Plaintiff's proposal, Lindsay responded that the contracts Plaintiff sought were not available. While leaving the meeting and out of eyesight of Lindsey, Plaintiff "overheard Lindsey mumble to himself, 'That uppity nigger. He won't be getting any contracts around here.'" Doc. # 21 at ¶ j.
Plaintiff alleges that beginning in 2008, Defendant CUSD began soliciting formal requests for proposal ("RFP's") for 2-year officiating contracts. Prior to that time the proposal process was informal, consisting only of the presentation of a proposal to CUSD administrative personnel. Plaintiff also alleges that the outcome of the RFP process in 2008 evinces unlawful race discrimination because Haroldsen, the person who was awarded the contract, was white, an insider associated with Lindsey, and less qualified than SOA to execute the officiating called for. The RFP that was sent to Plaintiff in 2008 contained a clause that required the all applicants to waive "'all rights to appeal or [to] seek any legal remedy whatsoever regarding any aspect of the RFP, the selection process, the District's review of the proposal, and any agreement that the District may enter into as a result of the proposal submitted.'" Doc. # 21 at ¶10. Plaintiff alleges he felt the selection process would be racially biased with regard to the RFP selection process just as it had been in the past. Plaintiff declined to submit a response to the RFP out of a concern that he would be waiving any legal right to seek redress.
Plaintiff's FAC alleges four claims for relief based on federal civil rights law. Plaintiff's first claim for relief alleges violation of 42 U.S.C. § 1981, which applies Fourteenth Amendment equal protection rights protections to contracting by governmental agencies, against all Defendants. Plaintiff's second claim for relief is also alleged against all Defendants and alleges Defendants' acts constitute infringement of Plaintiff's Fourteenth Amendment equal protection rights in violation of 42 U.S.C. § 1983. Plaintiff's third claim for relief alleges Defendants CUSD, Lindsey and Johnson engaged in a conspiracy to deprive Plaintiff of his rights under the Equal Protection Clause of the Fourteenth Amendment in violation of 42 U.S.C. § 1985. Plaintiff's fourth claim for relief alleges that Defendants School Board Members and CUSD failed to prevent the conspiracy to violate Plaintiff's civil rights in violation of 42 U.S.C. § 1986. Plaintiff's fifth claim for relief is a collection of "pendant state claims" that are alleged against Defendants school board members and CUSD. The state claims include violation of California Education Code § 220, violation of the California Contract Code §§ 100 - 102, and violation of California Business & Professions Code §§ 17200, et seq.
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 cause of action will not do"). The pleading standard set by Rule 8 of the Federal Rules of Civil Procedure "does not require 'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) ("Iqbal").
The Ninth Circuit follows the methodological approach set forth in Iqbal for the assessment of a plaintiff's complaint:
"[A] court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief."
Moss v. U.S. Secret Service, 572 F.3d 962, 970 (9th Cir. 2009) (quoting Iqbal, 129 S.Ct. at 1950).
I. Statutes of Limitations
The court's April 21 Order granted Defendants' motion to dismiss Plaintiff's claim pursuant to 42 U.S.C. § 1983 on the ground the claim was barred by the applicable statute of limitations. Plaintiff's FAC adds three additional federal civil rights claims and adds a number of facts not alleged in the original complaint. As Defendants note, Plaintiff also revised the date when he alleges he overheard Lindsey's "uppity nigger" comment from March 2007 in the original complaint to February 2008 in the FAC. Given that the number of federal civil rights claims has multiplied in the FAC and that the factual basis for Plaintiff's claims has been substantially revised and expanded, the court first revisits the issue of statute of limitations with respect to Plaintiff's federal claims.
Because 42 U.S.C. § contains no specific statute of limitations, federal courts borrow state statutes of limitations for personal injury actions in section 1983 suits. See Wilson v. Garcia, 471 U.S. 261, 276 (1985); Torres v. City of Santa Ana, 108 F.3d 224, 226 (9th Cir. 1997). The Ninth Circuit has consistently held that the limitations period for an action pursuant to section 1983 is contained in California's general personal injury statute. See McDougal v. County of Imperial, 942 F.3d 668, 672 (9th Cir. 1991). Effective January 1, 2003, California's general personal injury statute, which provides for a one-year statute of limitations and had been set forth at Cal. Civ. Proc. Code § 340(3) was shifted to California Code of Civil Procedure, section 335.1, and now provides a limitations period of 2 years. See Blanas v. Jones, 393 F.3d 918, 927 (9th Cir. 2004); Thompson v. City of Shasta Lake, 314 F.Supp.2d 1017, 1023-1024 (E.D. Cal. 2004) (discussing applicability of California's general residual statute of limitations to actions pursuant to section 1983); Green v. Bloom, 2008 WL 1882800 (E.D. Cal. 2008) at *8 (discussing applicability of limitations period in § 335.1 to federal civil rights claims in light of McDougal v. County of Imperial, 942 F.2d 668 (9th Cir. 1991), which previously applied § 340(3)). The two-year statute of limitations period applies to claims alleging violation of Fourteenth Amendment Equal Protection rights whether alleged pursuant to 42 U.S.C. §§ 1981, 1983 or 1985. McDugal, 942 F.2d 668 at 673-674; Wilson v. City of Fresno, 2009 WL 3233879 (E.D. Cal. 2009) at *11. Unlike claims brought pursuant to section 1981, 1983, or 1985, the statute of limitations applicable to a § 1986 claim is one year. 42 U.S.C. § 1986; RK Ventures, Inc. V. City of Seattle, 307 F.3d 1045, 1058 (9th Cir. 2002).
Although state law determines the limitations period, federal law governs when a civil rights claim accrues. Wallace v. Kato, 549 U.S. 384, 388 (2007). Under federal law, a claim accrues when the plaintiff knows or has reason to know of the injury which is the basis of the action. Tworivers v. Lewis, 174 F.3d 987, 991 (9th Cir.1999); Kimes v. Stone, 84 F.3d 1121, 1128 (9th Cir.1996). "Generally, the statute of limitations begins to run when a potential plaintiff knows or has reason to know of the asserted ...