MEMORANDUM OPINION AND ORDER ON DEFENDANTS' MOTION TO DISMISS FRESNO UNIFIED SCHOOL DISTRICT Document # 23
This is a civil rights action for damages by pro se plaintiff James M. Lanier ("Plaintiff") against defendants Fresno Unified School District ("Fresno Unified"), the Fresno 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 Fresno Unified for sports officiating that Plaintiff alleges were unsuccessful because of racially discriminatory practices by a number of individual Defendants that were allegedly known to, and went uncorrected by, responsible school board members. In the instant motion, Defendants seek to dismiss Plaintiff's complaint in its entirety because Plaintiff failed to serve the complaint within the time limits set by Rule 4(m) of the Federal Rules of Civil Procedure.*fn1 Federal question jurisdiction exists pursuant to 28 U.S.C. § 1331. Venue is proper in this court.
PROCEDURAL HISTORY AND FACTUAL ALLEGATIONS
This is the third action by Plaintiff in this court that alleges racially discriminatory attitudes and conduct by school officials prevented him from equal access to sports officiating contracts over a period of several years. In cases numbered 09cv2084 and 09cv1780, Plaintiff alleged essentially the same claims that are alleged here against Clovis Unified School District ("Clovis Unified") and against individuals employed by that district who occupy essentially parallel positions to the individual Defendants in this case. Plaintiff's complaint in this case alleges three claims; each very similar to the claims initially alleged in Plaintiff's action against Clovis Unified. The first claim is for "Discrimination" and is pled without reference to any specific law or constitutional provision. The second claim is for "Civil Rights Violation," which purports to allege Defendants violated Plaintiff's rights under the Equal Protection Clause of the Fourteenth Amendment in violation of 42 U.S.C. § 1983. The last claim for relief alleges "Conspiracy," again without reference to any specific constitutional or statutory provision.
Of significance to Defendants' motion to dismiss, Plaintiff filed his complaint in this court on October 8, 2009. On June 22, 2010, the Magistrate Judge noted that Defendants in this case had not been served with summons or complain and ordered that Plaintiff file same within twenty days of the minute order that was issued on June 22, 2010. On January 26, 2011, a minute order issued by this court noted the lack of activity in this case and set a hearing for dismissal for lack of prosecution for February 28, 2011. On February 11, 2011, Plaintiff filed an opposition to the proposed dismissal. On February 24, 2011, the court vacated the scheduled hearing in the interests of justice and ordered Plaintiff to file proof of service of summons and complaint on all Defendants within twenty days of that date. On March 1, 2011, the Clerk's Office issued summonses for each of the Defendants to Plaintiff along with instructions and forms for service. On March 9, 2011, a Clerk's Notice was sent to Plaintiff informing him that service of summonses and copies of the complaint on all Defendants was his responsibility. On March 15, 2011, Plaintiff filed a document titled "Response to Judge Ishii's Order of February 11, 2011," which essentially states that Plaintiff accomplished service of summons and complaint on Defendant Fresno Unified on March 15, 2011. So far as the court can determine, there has been no proof of service filed as to any other Defendant.
As will be discussed infra, Plaintiff's complaint is an assemblage of conclusory allegations of discriminatory policies, practices and attitudes that caused him and other non-specified African-American sports officiating contractors to be prejudicially excluded from consideration for sports officiating contracts at District schools from about 2004 to the present. Plaintiff also alleges administrative and school board officials had knowledge of discriminatory acts and practices and failed to take corrective action. The factual basis for Plaintiff's first claim for "Discrimination" consists of the allegation that in September 2007, individual Defendant Carter "made a disparaging comment/remark to the Plaintiff that he would be better off seeking contract work outside of Fresno Unified School District." Plaintiff also alleges that he was repeatedly questioned as to his ability to take on the work and whether Plaintiff had the necessary staff to do the work.
Plaintiff's second claim for relief alleges "that the administrators of the Fresno Unified School District violated Plaintiff's right to fair and equal access of [sic] the public school contract under the law and violated the civil rights of the Plaintiff by not allowing the public school contract to be bid upon in violation of the Fourteenth Amendment to the United States Constitution as made actionable pursuant to 42 U.S.C. § 1983." Doc. #1 at 6:16-20. Beyond that, there are no factual allegations set forth in Plaintiff's second claim for relief that could be construed as supportive of his claim under section 1983.
Plaintiff's conspiracy claim consists of a long narrative that attempts to describe a period beginning in March 2008 in which Plaintiff and "another African American contractor" were approached by the District's Athletic Director to help the "favored Caucasian contractor" obtain a license in exchange for which Plaintiff and the other African American contractor would be part of a "management team" and thereby have access to sports officiating contracts. As was the case in Plaintiff's action against Clovis Unified School District, the conspiracy claim appears to allege that all of the events pertaining to the alleged "favored Caucasian contractor" were a part of the conspiracy.
Defendants' motion to dismiss was filed on March 4, 2011; that is, after the court's February 24 Order but before the time granted for the filing of proofs of service by Plaintiff had run. Plaintiff's opposition was filed on March 21, 2011 and Defendants' reply was filed on April 4, 2011. The court vacated the hearing date and took the matter under submission as of April 11, 2011.
Defendants' primary ground for dismissal of Plaintiff's complaint is that the court lacks personal jurisdiction due to defects in the summons that was served on Fresno Unified. "A federal court does not have jurisdiction over a defendant unless the defendant has been served properly under Fed.R.Civ.P.4." Direct Mail Specialists v. Eclat Computerized Techs., Inc., 840 F.2d 685, 688 (9th Cir.1988). While Rule 4 is a flexible rule that should be liberally construed so long as a party receives sufficient notice of the complaint, United Food & Commercial Workers Union v. Alpha Beta Co., 736 F.2d 1371, 1382 (9th Cir.1984), "neither actual notice nor simply naming the defendant in the complaint will provide personal jurisdiction" absent substantial compliance with its requirements. Benny v. Pipes, 799 F.2d 489, 492 (9th Cir.1986). Rule 12(b)(4) of the Federal Rules of Civil Procedure allows a motion to dismiss for insufficiency of process. Rule 12(b)(4) was designed to challenge irregularities in the contents of a summons. Chilicky v. Schweiker, 796 F.2d 1131, 1136 (1986), reversed on other grounds by 487 U.S. 412 (1988). Rule 12(b)(5) of the Federal Rules of Civil Procedure permits a defendant to challenge the method of service attempted by plaintiff.
As will be discussed below, the court will also examine the substantive allegations of Plaintiff's complaint to determine, at least preliminary, whether Plaintiff has alleged any claim upon which relief can be granted, notwithstanding any of the due process shortcomings.
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 ...