FINDINGS AND RECOMMENDATIONS
This matter came before the court on February 18, 2011, for hearing of defendants' motion to dismiss and motion to strike. Attorney Laura Marabito appeared for the moving party. Plaintiff, proceeding pro se, appeared on his own behalf. Oral argument was heard, and defendants' motions were taken under submission. For the reasons set forth below, the court will recommend that defendants' motion to dismiss be granted in part.*fn1
Plaintiff initiated this action by filing his complaint on November
24, 2010, naming as defendants the County of Sacramento, Sacramento
County Public Defender Paulino G. Duran, and Assistant Sacramento
County Public Defender Alice Michel. Therein, plaintiff alleges as
follows. On September 23, 2008, plaintiff met with Assistant Public
Defender Alice Michel and requested information regarding a law
student internship, paid or unpaid, with the Sacramento County Public
Defender.*fn2 (Compl. (Doc. No. 1) at 2-3.)*fn3
Michel's response was vague and evasive, but she told
plaintiff to email her a letter of inquiry, a resume, and a writing
sample sometime in November of that year. (Id. at 2.) Michel also told
plaintiff that, in the past, only students from selected law schools
had been consistently chosen for internships and that there was no
criteria for determining who would be selected. (Id. at 2-3.) In this
regard, Michel would not provide plaintiff with any written procedures
for the selection of interns. (Id. at 3.) Michel also did not discuss
with plaintiff what the duties of the internship would entail. (Id.)
Michel did, however, provide plaintiff her business card and her email
Plaintiff emailed his resume to Michel on October 12, 2008. (Id.) Michel did not respond to plaintiff's email and did not return his telephone calls or the telephone calls of Abraham Robles, the Registrar at the Lorenzo Patino School of Law which plaintiff attended. (Id.) On November 15, 2008, Michel notified Robles that plaintiff "was denied" an internship with the Public Defender's Office.*fn4 (Id.) Michel also informed Robles that she did not have a formal process for selecting interns. (Id.)
On February 2, 2009, plaintiff filed a charge with the Equal Employment Opportunity Commission ("EEOC") alleging that the defendants named in this action had discriminated against plaintiff based on his age. (Id. 3-4.) On October 7, 2010 plaintiff received a "Notice to Sue Letter." (Id. at 4.)
On November 24, 2010, plaintiff filed this complaint alleging that the defendants violated the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq., the Equal Protection Clause of the Fourteenth Amendment, the Civil Service Rules for the County of Sacramento, and subjected plaintiff to the intentional infliction of emotional distress. On January 6, 2011, defendants filed the motion to dismiss now pending before the court. (Doc. No. 7.) On February 4, 2011, plaintiff filed an opposition to defendants' motion to dismiss. (Doc. No. 9.) Defendants filed a reply on February 10, 2011. (Doc. No. 10.)
DEFENDANT'S MOTION TO DISMISS PURSUANT TO FED. R. CIV. P. 12(b)(6)
Defendants seeks dismissal of plaintiff's complaint with prejudice. In moving to dismiss defendants argue that: 1) plaintiff's claim under the Age Discrimination in Employment Act fails to state a claim upon which relief can be granted; and 2) plaintiff's equal protection claim under the Fourteenth Amendment fails to state a claim upon which relief can be granted.*fn5
LEGAL STANDARDS APPLICABLE TO DEFENDANT'S MOTION
The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test the legal sufficiency of the complaint. N. Star Int'l v. Ariz. Corp. Comm'n, 720 F.2d 578, 581 (9th Cir. 1983). "Dismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). A plaintiff is required to allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Thus, a defendant's Rule 12(b)(6) motion challenges the court's ability to grant any relief on the plaintiff's claims, even if the plaintiff's allegations are true.
In determining whether a complaint states a claim on which relief may be granted, the court accepts as true the allegations in the complaint and construes the allegations in the light most favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989). In general, pro se complaints are held to less stringent standards than formal pleadings drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). However, the court need not assume the truth of legal conclusions cast in the form of factual allegations. W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). The court is permitted to consider material which is properly submitted as part of the complaint, documents not physically attached to the complaint if their authenticity is not contested and the plaintiff's complaint necessarily relies on them, and matters of public record. Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001).
Although the Federal Rules of Civil Procedure adopt a flexible pleading policy, a complaint must give the defendant fair notice of the plaintiff's claims and must allege facts that state the elements of each claim plainly and succinctly. Fed. R. Civ. P. 8(a)(2); Jones v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). The plaintiff must allege with at least some degree of particularity overt acts which the defendants engaged in that support the plaintiff's claims. Jones, 733 F.2d at 649. A complaint must also contain "a short and plain statement of the grounds for the court's jurisdiction" and "a demand for the relief sought." Fed. R. Civ. P. 8(a)(1) & 8(a)(3).
I. Age Discrimination in ...