The opinion of the court was delivered by: Hon. Michael M. Anello United States District Judge
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS PLAINTIFF'S THIRD AMENDED COMPLAINT [Doc. No. 60]
Currently pending before the Court is Defendants' Motion to Dismiss Plaintiff Mel Marin's Third Amended Complaint under Federal Rule of Civil Procedure 12(b)(6). [Doc. No. 60.] Plaintiff, proceeding pro se, opposed the motion [Doc. No. 61], and Defendants filed a reply [Doc. No. 62]. The Court in its discretion found the motion suitable for decision on the papers and without oral argument pursuant to Civil Local Rule 7.1(d)(1). [Doc. No. 63.] For the reasons set forth below, the Court GRANTS Defendants' motion to dismiss and DISMISSES Plaintiff's complaint with prejudice.
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 Third Amended Complaint ("TAC") on April 12, 2012, in which he generally avers that he was a student enrolled with the San Diego Community College District. [Doc. No. 59, TAC at ¶ 3.] In August and September 2010, students in one of Plaintiff's classes allegedly harassed and assaulted him because was male and 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. ¶ 17.] 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. ¶ 18.] Plaintiff alleges Klingbeil did this to punish Plaintiff for complaining and to guarantee that Plaintiff would have several failing test grades so as to damage his grade average sufficiently to prevent him from entering the medical school of his choice. [Id. ¶ 19.]
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. ¶¶ 23-25.] Plaintiff then complained to the college's President, Elizabeth Armstrong, but Plaintiff's grievances were again ignored. [Id. ¶ 34.] 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. ¶ 35.] 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. ¶ 36.]
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. ¶ 45.]
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. The operative TAC alleges a First Amendment violation and two negligence claims based on negligent training and negligent supervision. 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. ¶¶ 68, 74, 99, 124.]
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, 556 U.S. 662, 678 (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, 556 U.S. at 679.
"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 678. "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).
I. DEFENDANTS'MOTION TO DISMISS
Defendants assert that Plaintiff's complaint should be dismissed in its entirety because Plaintiff has failed to state a claim upon which relief can be granted. Unsurprisingly, Plaintiff argues that he has met his burden of alleging facts sufficient to support a cause of action against ...