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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 Plaintiff's questions. Plaintiff denied and continues to deny the allegations of "blatant disregard of church and state . . . and discriminatory slander towards the homosexual community." Plaintiff alleges neither Student A nor Student B followed FCC's grievance petition procedure, but he responded directly to both grievances.

On December 10, 2009, Defendant Villa, FCC's Vice President of Student Services, wrote to Student A "acknowledging receipt of 'your claim of sexual harassment'" and informed Student A that his office would investigate the complaint.Plaintiff alleges Villa was the first person to mention sexual harassment, and that the grievance filed by Student A was not a complaint on the basis of sexual harassment. Student A later submitted a formal sexual harassment complaint form to FCC on February 16, 2010. Plaintiff denies all allegations of sexual harassment.

On February 8, 2010, the American Civil Liberties Union ("ACLU") wrote to Defendant Azari, President of FCC, regarding Plaintiff's Health Science 1 class, and asked her to "act expeditiously and take whatever steps are necessary" to address a perceived violation of the First Amendment. That same day, Villa requested a meeting with Plaintiff on February 10, 2010. Plaintiff alleges Villa denied Plaintiff's request to review the documentation supporting any of the allegations against him before the meeting, but told Plaintiff he could review them at the meeting. Plaintiff alleges he requested more time before the meeting to respond and seek counsel, but was denied. On February 10, 2010, Plaintiff and Villa met. Plaintiff alleges he again requested an extension of time to seek counsel, but Villa denied the request. Villa then asked Plaintiff to submit information regarding the student complaint he received. Plaintiff asked Villa for documentation about the student complaints, but Plaintiff alleges Villa replied Plaintiff was not entitled to information as a condition for cooperation with the investigation.

On February 17, 2010, FCC received a letter from Student C who had taken Health Science 1 with Plaintiff in the spring semester of 2007-2008, and alleged that on many days he felt "hurt, intimidated, and angry" regarding what he heard in class about Jesus, creation, and homosexuality. Student C also alleged Plaintiff had said "homosexuals are an abomination," "faggots," and "homosexuality is a sin." Plaintiff denies these allegations and alleges Student C did not follow the grievance procedure required by policy.

On February 18, 2010, Plaintiff and Villa met again. Villa gave Plaintiff the district policies on grievances, indoctrination, and prohibition of harassment, but failed to provide FCC and District policies on Academic Freedom and the statewide Academic Senate guide on critical thinking adopted by FCC and the District. On February 23, 2010, Plaintiff responded to Villa's request for information during the February 18, 2010 meeting and reiterated his denial of Student B's allegations.

On March 18, 2010, Villa sent a letter to the complaining students indicating that FCC concluded that Plaintiff had violated Administrative Regulation 3430 because he had insulted homosexuals by describing them as having a "mental disorder" and by suggesting psychological counseling as a remedy. Villa conceded that the District's academic freedom policy allowed an instructor to interpret personal findings and communicate them "even when at variance with those of other persons [and] even if at odds with other professionals in his field," but that academic freedom prohibited indoctrination and the presentation of irrelevant material and that, in any event, the harassment policy always prevailed over the academic freedom policy. Villa also concluded in his letter that Plaintiff had violated District Policy because teaching religious material neither attained course objectives nor engaged educational principles. Villa therefore concluded that Plaintiff had engaged in religious indoctrination. Villa was concerned that reading the Bible in Health Science 1 class or assigning readings from the Bible "could subject the District to legal threat for violation of the Establishment Clause and jeopardize transfers of student credits to other institutions."

On March 24, 2010, Azari sent a certified letter to Plaintiff reprimanding him pursuant to California Education Codesections 87732 and 87734 and gave him formal notice that he had ninety days to correct deficiencies or face formal disciplinary proceedings. Azari described the following events:

"1) In front of your class you insulted gays and lesbians as 'abnormal' and in need of psychological counseling.

2) In class and in taped lectures you required the students to purchase, you taught religious principles from the Bible in place of established curriculum for the health course. You persisted despite student complaints, admonishments from your dean and comments of concern in a teaching evaluation attached hereto."

The reprimand ordered Plaintiff to cease teaching religious materials and assigning readings from the Bible or other religious texts in class.

On April 29, 2010, Plaintiff responded to the written reprimand and refuted that he had violated Education Codesections 87732 and 87734, District Administrative Regulations 3430 and 4030, and FCC Board Policy 4030. Plaintiff alleges he never directed abusive statements toward any individual, and denied saying in any class that gays and lesbians were "abnormal" or "in need of psychological counseling." Rather, his statement was "because over 95% of the population is not homosexual, for those who are 'one alternative is psychological counseling.'" Plaintiff alleges he has occasionally used the Bible, the Koran, and the Talmud because they are among the oldest manuscripts in existence and provide valuable historical support for safe health practices. Plaintiff alleges that relevant portions of those texts were also used to supplement and enhance curriculum content and stimulate critical thinking as required by District academic standards. Plaintiff alleges he was on the Health Committee that wrote the current Health Science 1 curriculum which was approved by the curriculum committee at FCC. Plaintiff alleges he limits terms relating to homosexuality to those found in medical and scientific literature and textbooks. Plaintiff alleges Villa repeatedly refused to provide Plaintiff copies of meeting notes, and Villa did not make a reasonable attempt to resolve the grievances directly between the students and Plaintiff. Plaintiff alleges Villa completely disregarded all statements and documents provided by Plaintiff, including favorable feedback in a December 2009 anonymous student survey. Plaintiff alleges Villa neither provided, nor did he ask the aggrieved students to provide, documentation disputing facts provided by Plaintiff. Finally, Plaintiff alleges Azari and Villa disregarded the twenty-nine e-mails and letters from students and other people who had learned of the complaints and wanted to vouch for Plaintiff.


A. Eleventh Amendment Immunity

Eleventh Amendment sovereign immunity limits the jurisdiction of the federal courts.

California v. Deep Sea Research, Inc., 523 U.S. 491, 502, 118 S. Ct. 1464, 1470 (1998); Edelman v. Jordan, 415 U.S. 651, 677-78, 94 S. Ct. 1347, 1362 (1974); Cook v. AVI Casino Enterprises, Inc., 548 F.3d 718, 724 (9th Cir. 2008); In re Jackson, 184 F.3d 1046, 1048 (9th Cir. 1999). "The Eleventh Amendment prohibits federal courts from hearing suits brought against an unconsenting state." Brooks v. Sulphur Springs Valley Elec. Co., 951 F.2d 1050, 1053 (9th Cir. 1991); see also Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54, 116965-66 (2iff alleges that relevant portions of tholain1text inaeges tho Sts weriforurisardee Dia Re om the Bpeditiously and take cbominania ude2010. Plaintiff deni

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