The opinion of the court was delivered by: Hon. Michael M. Anello United States District Judge
ORDER RE: DEFENDANTS' MOTIONS TO DISMISS SECOND AMENDED COMPLAINT; [Doc. No. 36, 50]
PLAINTIFF'S MOTION FOR RECONSIDERATION OF COURT'S JUNE 17, 2011 ORDER, AND MOTION TO FILE THIRD AMENDED COMPLAINT [Doc. No. 49]
PLAINTIFF'S MOTION TO STRIKE [Doc. No. 55]
Currently pending before the Court are four motions including: two motions to dismiss Plaintiff's Second Amended Complaint [Doc. Nos. 36, 50]; Plaintiff's motion for reconsideration of the Court's June 17, 2011 order and leave to file a third amended complaint [Doc. No. 49]; and Plaintiff's motion to strike Defendants' opposition to his motion to amend [Doc. No. 55]. The Court in its discretion found each of these motions suitable for decision on the papers and without oral argument pursuant to Civil Local Rule 7.1(d)(1). [Doc. Nos. 42, 52, 54, 57.]
I. FACTUAL BACKGROUND*fn1
Plaintiff Mel Marin initiated this civil rights action on September 9, 2010, alleging numerous causes of action against eleven named defendants. [Doc. No. 1.] Plaintiff filed the operative Second Amended Complaint ("SAC") on July 18, 2011, in which he generally avers that he is a student enrolled with the San Diego Community College District. [Doc. No. 33, SAC at ¶3.] In August and September 2010, students in one of Plaintiff's classes allegedly harassed and assaulted him because he is older than the other students. [Id. ¶¶4, 6.] When Plaintiff reported the conduct to the professor, Defendant Candice Klingbeil, she refused to intervene to correct the situation. [Id. ¶5, 7-9.] Plaintiff informed Klingbeil he intended to "formally complain" about her refusal to protect Plaintiff's right to participate in the class without being harassed by the other students. [Id. ¶10.] In response, Klingbeil allegedly punished Plaintiff by preventing him from taking two exams, causing him two failing grades, and barring Plaintiff from attending class for two weeks . [Id. ¶11.]
Plaintiff asserts he informed Department Chair, Ann Geller, and the Dean, Saeid Eidgahy, about Klingbeil's refusal to control the other students in her class, but both individuals failed to remedy the situation. [Id. ¶¶12-14.] Plaintiff then complained to the college's President, Elizabeth Armstrong, but Plaintiff's grievances were again ignored. [Id. ¶20.] Next, Plaintiff met with Vice-President, Tim McGrath, and asked to be transferred to a different class on a different campus because Klingbeil refused to control the students in her classroom. [Id. ¶21.] Plaintiff alleges Defendant McGrath knew that if he refused to transfer Plaintiff or intervene on his behalf, it would impede Plaintiff's ability to apply for a physician assistant program. [Id. ¶22.]
Thereafter, Plaintiff wrote and hand-delivered a letter to the San Diego Community College District ("District"), the Board of Trustees of the San Diego Community College District ("Board of Trustees"), and Constance Carroll requesting an investigation into Professor Klingbeil's wrongful conduct, and permission to transfer to another class. [Id. ¶28.] Plaintiff's letter went unanswered. [Id. ¶31.] According to Plaintiff, the retaliation continued into the Spring 2011 semester when Professor Gardner "surprisingly" changed the course syllabus, thereby creating significant extra work for Plaintiff. [Id. ¶33-37.] Plaintiff alleges he asked Gardner if he could continue to use the old schedule set forth in the original syllabus because the new requirements in the revised syllabus would prevent him from being able to complete the work assigned in other classes, force him to drop three other classes, and terminate his employment. [Id. ¶¶34-35.] Professor Gardner denied Plaintiff's request one day before the deadline to drop classes, forcing him to choose between dropping Gardner's class to save three others, or petitioning the college administrators to allow him to continue working under the old syllabus. [Id. ¶¶36-37.]
Accordingly, Plaintiff filed the present action against Defendants Saeid Eidgahy, Candice Klingbeil, Ann Geller, Elizabeth Armstrong, Constance M. Carroll, Peter Z. Schiesche, Maria Nieto Senour, Rich Grosch, the San Diego Community College District, the Board of Trustees of the San Diego Community College District, Tim McGrath, Peter White, and Mary Schwandt.*fn2
The operative SAC alleges multiple causes of action for violations of his civil rights, the First and Fourteenth Amendments of the United States Constitution, and negligence. Plaintiff seeks millions of dollars in damages from each Defendant on the ground that Defendants' conduct caused him to lose a year of schooling, and thereby denied him the opportunity to apply to physician assistant programs and begin a planned twenty-year career in the medical field. [Id. ¶¶66, 86, 96, 112, 128, 134.]
On June 17, 2011, the Court granted Defendants' motion to dismiss Plaintiff's First Amended Complaint. [Doc. No. 31.] Plaintiff was granted leave to amend several of his claims and filed his SAC on July 15, 2011. [Doc. No. 33.] Plaintiff's SAC alleges six causes of action premised on Defendants' alleged negligence, violations of his civil rights under 42 U.S.C. §1983, and violation of his Constitutional rights under the First and Fourteenth Amendments.
On August 8, 2011, Defendants Saeid Eidgahy, Candice Klingbeil, Ann Geller, Elizabeth Armstrong, Constance M. Carroll, Peter Z. Schiesche, Maria Nieto Senour, and Rich Grosch moved to dismiss the SAC under Federal Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction and 12(b)(6) for failure to state a claim upon which relief can be granted. [Doc. No. 36.] Plaintiff filed an opposition and Defendants submitted a reply. [Doc. Nos. 38, 41.]
Approximately one month later on September 29, 2011, Plaintiff filed a motion for reconsideration of the Court's June 17 order dismissing his FAC, and requesting leave to file a third amended complaint to add a claim for injunctive relief. [Doc. No. 49.] Defendants opposed Plaintiff's motion, but Plaintiff did not submit a reply. [Doc. No. 51.]
On October 6, 2011, Defendants the District, the Board of Trustees, Tim McGrath, and Peter White filed a motion to dismiss the SAC under Rule 12(b)(1) for lack of subject matter jurisdiction and 12(b)(6) for failure to state a claim upon which relief can be granted. [Doc. No. 50.] Plaintiff did not file an opposition.
Lastly, Plaintiff filed a motion to strike Defendants' opposition to his motion for reconsideration and for leave to file a third amended complaint (Doc. No. 51) on the ground that Defendants failed to timely serve Plaintiff with copies of the documents. [Doc. No. 55.] Plaintiff has not filed a reply. [Doc. No. 56.] For the reasons set forth below, the Court GRANTS IN PART and DENIES IN PART Defendants' motions to dismiss; DENIES Plaintiff's motion for reconsideration; DENIES Plaintiff's motion to strike; and GRANTS Plaintiff's request to file a third amended complaint.
A complaint survives a motion to dismiss if it contains "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). The court reviews the content of the complaint, accepting all factual allegations as true, and drawing all reasonable inferences in favor of the nonmoving party. Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005). Notwithstanding this deference, the reviewing court need not accept "legal conclusions" as true. Ashcroft v. Iqbal, -- U.S. -- , 129 S. Ct. 1937, 1949 (2009). Moreover, it is improper for a court to assume "the [plaintiff] can prove facts that [he] has not alleged." Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983). Accordingly, a reviewing court may begin "by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Ashcroft, 129 S. Ct. at 1950.
"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." Id. A claim has "facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 1949. "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. "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.'" Id. (citing Twombly, 550 U.S. at 557). In addition, the Court has a duty to liberally construe a pro se's pleadings. Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000). In giving liberal interpretation to a pro se complaint, however, the court may not "supply essential elements of claims that were not initially pled." Ivey v. Board of Regents of the University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).
When a cause of action is dismissed for failure to state a claim, leave to amend should be granted "unless the court determines the allegation of other facts consistent with the challenged pleadings could not possibly cure the deficiency." DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992) (quoting Schrieber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986)). In other words, a court may grant a motion to dismiss and dismiss the claim with prejudice where amendment would be futile. Reddy v. Litton Indus., 912 F.2d 291, 296 (9th Cir. 1990).
As a preliminary matter, the Court notes Plaintiff did not file an opposition to the motion to dismiss filed by the District, the Board, Tim McGrath and Peter White. The Ninth Circuit has held a district court may properly grant an unopposed motion to dismiss pursuant to a local rule where the local rule permits, but does not require, the granting of a motion for failure to respond. See generally, Ghazali v. Moran, 46 F.3d 52, 53 (9th Cir. 1995). Local Civil Rule 7.1(f)(3)(c) provides that "[i]f an opposing party fails to file papers in the manner required by Local Rule 7.1(e)(2), that failure may constitute a consent to the granting of that motion or other ruling by the court." As such, the Court has the option of granting this motion to dismiss on the basis of Plaintiff's failure to respond. The Court, however, declines to do so, as public policy favors disposition of cases on their merits. See, e.g., Hernandez v. City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998). In addition, Plaintiff filed an opposition to the other Defendants' motion to dismiss, which the Court will construe to oppose both motions. Consequently, the Court finds it unnecessary and inefficient to consider Defendants' motions separately. Because the issues largely overlap and Defendants are similarly situated, the Court addresses Defendants' motions simultaneously.*fn3
I. DEFENDANTS'MOTIONS TO DISMISS
Defendants move to dismiss Plaintiff's entire SAC on two primary grounds. First, all Defendants assert they are entitled to immunity against each of Plaintiff's claims. The individual Defendants argue they are entitled to qualified immunity against Plaintiff's first through fourth causes of action, and that the District and the Board of Trustees are entitled to immunity under the Eleventh Amendment as to Plaintiff's fifth and sixth causes of action. Second, all Defendants assert ...