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Brad Lopez v. Fresno City College

March 12, 2012




This is a civil rights action, brought under 42 U.S.C. § 1983, by Plaintiff Brad Lopez ("Plaintiff"), a tenured faculty member at Fresno City College, against State Center Community College District (erroneously sued as Fresno City College) (the "District"); Dr. Cynthia E. Azari ("Azari"); and Dr. Christopher Villa ("Villa") (collectively "Defendants"). The case arises from student complaints regarding statements made by Plaintiff in his Health Sciences class. Following an investigation, Plaintiff received a written disciplinary reprimand. On August 31, 2011, Plaintiff filed a Complaint alleging claims for constitutional violations under the First and Fourteenth Amendments of the U.S. Constitution, and violation of various District administrative policies. Plaintiff seeks declaratory and injunctive relief, along with compensatory and punitive damages. Defendants now move to dismiss the Complaint in its entirety. For the reasons that follow, the motion will be granted in part and denied in part.


Under Federal Rule of Civil Procedure 12(b)(6), a claim may be dismissed because of the plaintiff's "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). A dismissal under Rule 12(b)(6) may be based on the lack of a cognizable legal theory or on the absence of sufficient facts alleged under a cognizable legal theory. Johnson v. Riverside Healthcare Sys., 534 F.3d 1116, 1121 (9th Cir. 2008); Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). In reviewing a complaint under Rule 12(b)(6), all allegations of material fact are taken as true and construed in the light most favorable to the non-moving party. Marceau v. Blackfeet Hous. Auth., 540 F.3d 916, 919 (9th Cir. 2008); Vignolo v. Miller, 120 F.3d 1075, 1077 (9th Cir. 1999). The Court must also assume that general allegations embrace the necessary, specific facts to support the claim. Smith v. Pacific Prop. and Dev. Corp., 358 F.3d 1097, 1106 (9th Cir. 2004); Peloza v. Capistrano Unified Sch. Dist., 37 F.3d 517, 521 (9th Cir. 1994). But, the Court is not required "to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1056-57 (9th Cir. 2008); Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). Although they may provide the framework of a complaint, legal conclusions are not accepted as true and "[t]hreadbare recitals of elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949-50 (2009); see also Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003). Furthermore, Courts will not assume that plaintiffs "can prove facts which [they have] not alleged, or that the defendants have violated . . . laws in ways that have not been alleged." Associated General Contractors of California, Inc. v. California State Council of Carpenters, 459 U.S. 519, 526, 103 S. Ct. 897, 902 (1983). As the Supreme Court has explained:

While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, 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. Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1965-66 (2007). Thus, to "avoid a Rule 12(b)(6) dismissal, "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Iqbal, 129 S.Ct. at 1949; see also Twombly, 550 U.S. at 570, 127 S. Ct. at 1974; see also Weber v. Department of Veterans Affairs, 521 F.3d 1061, 1065 (9th Cir. 2008).

A plaintiff's allegations are taken as true, but courts "are not required to indulge unwarranted inferences." Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation omitted). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S.Ct. at 1949.

The plausibility standard is not akin to a 'probability requirement,' but it asks more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are 'merely consistent with' a defendant's liability, it stops short of the line between possibility and plausibility of 'entitlement to relief.'

Determining whether a complaint states a plausible claim for relief will . . . be a context specific task that requires the reviewing court to draw on its judicial experience and common sense. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged -- but it has not shown -- that the pleader is entitled to relief.

Iqbal, 129 S.Ct. at 1949-50. "In sum, for a complaint to survive a motion to dismiss, the nonconclusory 'factual content,' and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief." Moss v. United States Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). "If a complaint is dismissed for failure to state a claim, leave to amend should be granted unless the court determines that the allegation of other facts consistent with the challenged pleading could not possibly cure the deficiency." Schreiber Distributing Co. v. Serv-Well Furniture Co., Inc., 806 F.2d 1393, 1401 (9th Cir. 1986).


Plaintiff has taught at Fresno City College ("FCC") for thirty-five years. For the last eighteen years, he has been an instructor in traditional Pharmacology, Health Information Technology, and Health Science classes. The complaint alleges Plaintiff has never been disciplined until the instance that is the subject of this lawsuit. On November 4, 2009, Plaintiff lectured on the role of chromosomes and heredity from both a historical and modern perspective in his Health Science 1 class. Plaintiff's lecture also consisted of a discussion on the topic from a moral perspective referencing selected biblical passages. He further assigned homework on the topic: "Was Jesus haploid or diploid? State your answer and explain why." All assigned homework is optional, and failure to complete the homework would not affect students' grades.During the lecture, Plaintiff asked the class why a particular DNA transcription process used groups of three, and not two or four, during the process. A student responded, "The Father, The Son, and the Holy Spirit?" Plaintiff lightheartedly answered, "that's right."No students complained to Plaintiff that they were offended during or after the class.

On November 5, 2009, Plaintiff lectured on human sexuality, based on the course textbook and Plaintiff's own research. The lecture included statistics on the emotional health of human sexuality, sexually transmitted disease as it relates to reproduction, and consumer and environmental health and how it affects homosexuality in males and females. Later that day, Student A,*fn2 who was not enrolled in any of Plaintiff's classes, went to Plaintiff's office. Student A quoted an unidentified female friend, who was enrolled in Plaintiff's Health Science 1 class, as having been upset because Plaintiff was showing slides in class that were "homophobic and anti-gay." She was also upset about the statistics Plaintiff had presented in his human sexuality lecture, and his references to the Bible in the November 4 class. Student A challenged Plaintiff on his class presentation and statistical references regarding homosexuality. Plaintiff willingly answered all of the student's questions, but Student A insisted Plaintiff's information was false and would not listen.

On December 7, 2009, Student A and another student, Student B, simultaneously filed grievances against Plaintiff. Student A's grievance alleged he was approached by an unnamed friend who was a student in Plaintiff's Health Science 1 class and was upset and offended by Plaintiff's classroom slides, which she had perceived as "homophobic and anti-gay." The grievance also alleged that the friend said Plaintiff had shown a list of facts that claimed homosexuality should be "declared a mental illness," and that homosexuals "are in need of counseling . . .[and] are degrading society." Plaintiff denies Student A's contentions as false hearsay allegations. Student A's grievance requested that Plaintiff "ceases all forms of hate speech in his class," and give a written/oral apology to his class, and that staff at FCC should attend a training on diversity. Student B's grievance alleged "blatant disregard for separation of church and state . . . and discriminatory slander toward the homosexual community." Specifically, her grievance alleged upset at the "assignment on Jesus as haploid or diploid," that Plaintiff "read the Bible regarding the creation of a fetus," and that Plaintiff said "that's right" when a student said "The Father, The Son, and the Holy Spirit" in response to one of ...

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