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Steshenko v. Albee

United States District Court, N.D. California, San Jose Division

February 25, 2015

GREGORY NICHOLAS STESHENKO, Plaintiff,
v.
GERALDINE M. ALBEE, et al., Defendants.

ORDER GRANTING MOTION TO DISMISS WITH PREJUDICE Re: Dkt. No. 46

LUCY H. KOH, District Judge.

Plaintiff Gregory Nicholas Steshenko ("Plaintiff") brings this action for age discrimination based on not being admitted to a graduate program at San Francisco State University. Defendant Geraldine Albee ("Defendant" or "Albee") moves to dismiss Plaintiff's due process claim pursuant to Federal Rule of Civil Procedure 12(b)(6). ECF No. 33. Having considered the parties' briefs, the relevant law, and the record in this case, the Court hereby GRANTS Defendant's motion to dismiss.

I. BACKGROUND

Plaintiff is a 52-year-old unemployed electrical engineer seeking to re-enter the job market through professional re-training. Second Am. Compl. ("SAC"), ECF No. 45, ¶ 17. In addition to a Master of Science degree in Electrical Engineering, Plaintiff earned a Bachelor of Science degree in Biochemistry and Molecular Biology from the University of California, Santa Cruz, in 2010. Id.

On October 22, 2012, Plaintiff applied to the Clinical Laboratory Scientist ("CLS") Training Program at San Francisco State University. Id. ¶ 22. The CLS Training Program is a one-year academic program combining theoretical training with an internship at a participating clinical laboratory. Id. ¶ 18. On March 19, 2013, Plaintiff was notified that his application was denied due to his late submission of his transcript and that he would not be invited for an interview. Id. ¶ 23. On June 12, 2013, Plaintiff subsequently reapplied for the spring semester, to begin coursework in 2014. Id. ¶¶ 23-24. According to Plaintiff, sometime during July 2013 or August 2013, Defendant Albee and other university employees "assembled, communicated and finally decided that Plaintiff [was] not suitable for the CLS program because of his age, and therefore should not be invited to an admissions interview." Id. ¶ 25 On August 28, 2013, Plaintiff was notified that his application was denied because "he did not meet the criteria for selection into the CLS program." Id. ¶ 26. According to Plaintiff, much younger applicants, in their 20s, with much more inferior academic credentials and work experience, were invited for interviews and subsequently admitted to the program. Id. Accordingly, Plaintiff concluded that he was discriminated on the grounds of age. In making this conclusion, Plaintiff also alleges that "[n]o persons of the protected age have ever been admitted to... this program" and that "[t]he age discrimination is rampant." Id. ¶ 21.

Plaintiff alleges that he filed a timely administrative claim with the California State University Chancellor's Office. Id. ¶ 8. However, Plaintiff's claims were denied. Id. Plaintiff also alleges that he gave timely notices of the instant action to Defendants, the Secretary of Health and Human Services, and the Attorney General of the United States. Id. ¶ 9.

On October 24, 2013, Plaintiff filed an original Complaint against Defendants. ECF No. 1. On March 26, 2014, Defendants filed a motion to dismiss pursuant to Rule 12(b)(6). ECF No. 14. That same day, Defendants amended the motion to dismiss. ECF No. 15. After the Court granted Plaintiff's motion to extend time to file a response to the motion to dismiss, on April 17, 2014, Plaintiff filed an opposition. ECF No. 20. On April 23, 2014, Defendants filed a reply. ECF No. 21. The Court held a hearing on May 15, 2014. Plaintiff filed a supplemental letter brief on May 16, 2014. ECF No. 23.

On May 20, 2014, the Court granted Defendant's motion to dismiss. ECF No. 29. In the order, the Court granted Defendants' motion to dismiss all of Plaintiff's claims against the Board of Trustees and Plaintiff's § 1985(3) claim against Albee with leave to amend. ("May 20, 2014 Order"), ECF No. 29 at 17. The Court also granted Defendants' motion to dismiss Plaintiff's Fourteenth Amendment due process and equal protection claims against Albee; Plaintiff's Age Discrimination Act claim against Albee; and Plaintiff's Age Discrimination in Employment Act claim against Albee with prejudice. May 20, 2014 Order at 17. Finally, the Court declined to exercise supplemental jurisdiction over Plaintiff's remaining state law claims and thus granted Defendants' motion to dismiss Plaintiff's state law claims-FEHA claim, Bane Act claims, and IIED claim. May 20, 2014 Order at 17.

On May 31, 2014, Plaintiff filed an Amended Complaint against Defendants. ECF No. 31. Plaintiff filed a corrected First Amended Complaint on June 29, 2014. ("FAC"), ECF. No. 34. On June 16, 2014, Defendants filed a motion to dismiss pursuant to Rule 12(b)(6). ("MTD"), ECF No. 33, which Plaintiff opposed on June 29, 2014, ("Opp'n"), ECF No. 35. On July 10, 2014, Defendants filed a reply. ("Reply"), ECF No. 36.

On September 29, 2014, the Court granted in part and denied in part Defendants' motion to dismiss. ECF No. 41. The Court dismissed with prejudice all of Plaintiff's claims against Defendant Board of Trustees with the exception of Plaintiff's Age Discrimination Act claim. The Court granted leave to amend only with respect to Plaintiff's due process claim against Defendant Albee. The Court dismissed with prejudice the remainder of Plaintiff's claims against Defendant Albee.

On October 14, 2014, Plaintiff filed his SAC. ECF No. 45. Defendant Board of Trustees filed its answer on October 27, 2014. ECF No. 47. That same day, Defendant Albee filed the instant motion to dismiss. ECF No. 46. Plaintiff filed an opposition on November 11, 2014, ECF No. 48, and Albee filed a reply on November 18, 2014, ECF No. 49.

II. LEGAL STANDARD

A. Motion to Dismiss Under Rule 12(b)(6)

Rule 8(a)(2) of the Federal Rules of Civil Procedure requires a complaint to include "a short and plain statement of the claim showing that the pleader is entitled to relief." A complaint that fails to meet this standard may be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6). The Supreme Court has held that Rule 8(a) requires a plaintiff to plead "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). "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." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "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. (internal quotation marks omitted). For purposes of ruling on a Rule 12(b)(6) motion, a court "accept[s] factual allegations in the complaint as true and construe[s] the pleadings in the light most favorable to the nonmoving party." Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). Moreover, pro se pleadings are to be construed liberally. Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000) ("[I]n general, courts must construe pro se pleadings liberally.").

However, a court need not accept as true allegations contradicted by judicially noticeable facts, Shwarz v. United States, 234 F.3d 428, 435 (9th Cir. 2000), and the "[C]ourt may look beyond the plaintiff's complaint to matters of public record" without converting the Rule 12(b)(6) motion into one for summary judgment, Shaw v. Hahn, 56 F.3d 1128, 1129 n.1 (9th Cir. 1995). Nor is the court required to "assume the truth of legal conclusions merely because they are cast in the form of factual allegations.'" Fayer v. Vaughn, 649 F.3d 1061, 1064 (9th Cir. 2011) (per curiam) (quoting W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981)). Mere "conclusory allegations of law and unwarranted inferences are insufficient to defeat a motion to dismiss." Adams v. Johnson, 355 F.3d 1179, 1183 (9th Cir. 2004); accord Iqbal, 556 U.S. at 678. Furthermore, "a plaintiff may plead herself out of court" if she "plead[s] facts which establish that [s]he cannot prevail on h[er]... claim." Weisbuch v. Cnty. of L.A., 119 F.3d 778, 783 n.1 (9th Cir. 1997) (internal quotation marks omitted).

B. Leave to Amend

If the Court determines that the complaint should be dismissed, it must then decide whether to grant leave to amend. Under Rule 15(a) of the Federal Rules of Civil Procedure, leave to amend "should be freely granted when justice so requires, " bearing in mind that "the underlying purpose of Rule 15... [is] to facilitate decision on the merits, rather than on the pleadings or technicalities." Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (internal quotation marks omitted). When dismissing a complaint for failure to state a claim, "a district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts." Id. at 1130 (quoting Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995)). Furthermore, the Court "has a duty to ensure that pro se litigants do not lose their right to a hearing on the merits of their claim due to ignorance of technical procedural requirements." Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). Nonetheless, a court "may exercise its discretion to deny leave to amend due to undue delay, bad faith or dilatory motive on part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party..., [and] futility of amendment.'" Carvalho v. Equifax Info. Servs., LLC, 629 F.3d 876, 892-93 (9th Cir. 2010) (alterations in original) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)).

III. DISCUSSION

In the instant motion, Albee argues that Plaintiff has failed to adequately allege facts showing a protected property or liberty interest, and that Defendant is entitled to qualified immunity. The Court concludes that Plaintiff has once again failed to allege the existence of a protected property interest. As such, the Court does not reach Albee's qualified immunity defense.

In the Court's September 29, 2014 order granting in part and denying in part Defendants' motion to dismiss, the Court dismissed without prejudice Plaintiff's due process claim against Defendant Albee. Plaintiff alleged that his denial of admission to the CLS program constituted a deprivation of a property interest. FAC ¶ 62. More specifically, the Court found that Plaintiff pled "no facts showing that University regulations, state law, or any other independent source created a legitimate claim of entitlement to admission to the program." ECF No. 41, at 14. While the Court found that Plaintiff had failed to allege a protected property interest, the Court granted leave to amend as amendment would not necessarily be futile. Id..

The procedural guarantees of the Due Process Clause of the Fourteenth Amendment apply only when a constitutionally protected liberty or property interest is at stake. See Johnson v. Rancho Santiago Comm. Coll. Dist., 623 F.3d 1011, 1029 (9th Cir. 2010) ("To succeed on a substantive or procedural due process claim, the plaintiffs must first establish that they were deprived of an interest protected by the Due Process Clause."); Neal v. Shimoda, 131 F.3d 818, 827-28 (9th Cir. 1997). In determining whether an interest triggers constitutional protection, the Court must "look not to the weight' but to the nature of the interest at state." Bd. of Regents of St. Colls. v. Roth, 408 U.S. 564, 570-71 (1972). "To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it." Id. at 577; see also Merritt v. Mackey, 827 F.2d 1368, 1370-71 (9th Cir. 1987). "Protected property interests are not created by the Constitution[, but r]ather... they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law." Johnson, 623 F.3d at 1030 (9th Cir. 2010) (internal quotation marks omitted). Once a court determines a protected interest is at stake, it applies the three-factor balancing test outlined in Mathews v. Eldridge, 424 U.S. 319 (1976): (1) the private interest at stake; (2) the "risk of erroneous deprivation of such interest through the procedures used, and probable value, if any, of... substitute procedural safeguards"; and (3) the government's interest. Id. at 335.

Here, the Court finds that Plaintiff has once more failed to allege facts showing that he has a protected property or liberty interest in admission to the CLS program. In his SAC, Plaintiff again alleges that Albee violated Plaintiff's due process rights under the Fourteenth Amendment. Plaintiff pleads that as a "long-term unemployed" individual, "professional retraining and re-entry of the workforce is a quest for his constitutionally guaranteed rights to [l]ife, [l]iberty and the pursuit of [h]appiness.'" SAC ¶ 35. Plaintiff further alleges that California State University ("CSU") received $5 billion dollars in funding from the American Recovery and Reinvestment Act, Workforce Investment Act, and Workforce Innovation and Opportunities Act. Id. ¶ 37. According to Plaintiff, "access to the professional retraining funded by these acts constitutes Plaintiff's right and property." SAC ¶ 38. As Defendant notes, none of these statutes creates an entitlement to admission to the CLS program. See Motion at 5; see also Johnson, 623 F.3d at 1030; Stretten v. Wadsworth Veterans Hosp., 537 F.2d 361, 366-67 (9th Cir. 1976) ("[T]here must exist rules or understandings which allow the claimant's expectations to be characterized as a legitimate claim of entitlement to (the benefit).") (internal quotation marks omitted).

Other than Plaintiff's allegation that CSU received federal funding, Plaintiff does not allege that the funding statutes imposed conditions or otherwise created any specific entitlement for Plaintiff to be admitted to the CLS program. Plaintiff identifies no specific provision of the American Recovery and Reinvestment Act, Workforce Investment Act, or Workforce Innovation and Opportunities Act[1] that supports his argument that he has a protected property or liberty interest. The claim that Congress "enacted the... acts that intend to retrain the unemployed, " is insufficient to show that Plaintiff has a legal entitlement to admission to the CLS program. Contrary to Plaintiff's assertions, the mere existence of federal funding does not create a protected property interest.

In opposition to Defendant's motion to dismiss, Plaintiff cites California Education Code § 66201. See Opp. at 2. Section 66201 provides:

It is the intent of the Legislature that each resident of California who has the capacity and motivation to benefit from higher education should have the opportunity to enroll in an institution of higher education. Once enrolled, each individual should have the opportunity to continue as long and as far as his or her capacity and motivation, as indicated by academic performance and commitment to educational advancement, will lead him or her to meet academic standards and institutional requirements.
The Legislature hereby reaffirms the commitment of the State of California to provide an appropriate place in California public higher education for every student who is willing and able to benefit from attendance.

According to Plaintiff, this statement of legislative intent is sufficient to create a legal entitlement to admission to the CLS program. As Defendant argues, however, § 66201, a provision of the Donahoe Higher Education Act, describes only the general policy goals related to higher education in California. That the state legislature intended that all residents "should have the opportunity to enroll in an institution of higher education, " does not create a legal entitlement to admission. "A reasonable expectation of entitlement is determined largely by the language of the statute and the extent to which the entitlement is couched in mandatory terms." Wedges/Ledges of Cal., Inc. v. Phoenix, 24 F.3d 56, 62 (9th Cir. 1994) (internal quotation marks omitted). A statement of legislative intent stating residents should have the opportunity to enroll in programs like CLS does not involve "the use of the imperative, " or otherwise provide a "significant substantive restriction on the [Defendant's] discretion." Id. The Court therefore concludes that § 66201 does not create a property interest in admission to graduate studies programs.

This conclusion is supported by § 66001 of the Donahoe Act, which provides that:

It is the intent of the Legislature to outline in statute the broad policy and programmatic goals of the master plan and clear, concise statewide goals and outcomes for effective implementation of the master plan, attuned to the public interest of the people and State of California, and to expect the system as a whole and the higher education segments to be accountable for attaining those goals. However, consistent with the spirit of the original master plan and the subsequent updates, it is the intent of the Legislature that the governing boards be given ample discretion in implementing policies and programs necessary to attain those goals.

Cal. Educ. Code § 66001 (emphasis added). Plaintiff may be correct that a "goal" of the Donahoe Act is to ensure that all residents of California have the opportunity to enroll in programs such as CLS. The existence of a "goal, " however, especially in light of the "ample discretion" left to the program, is insufficient to create a property interest. See Wedges/Ledges, 24 F.3d at 62; see also Doyle v. City of Medford, 606 F.3d 667, 672-73 (9th Cir. 2010) ("A regulation granting broad discretion to a decision-maker does not create a property interest."). As Defendant notes, no court has interpreted § 66201 to impose a substantive restriction on the discretion of admissions bodies in making admissions decisions. At bottom, Plaintiff's argument appears to be that every resident of California has a property interest in admission to graduate studies programs, but the Court finds no support for that claim in § 66201 or any other authority Plaintiff cites.

The Court concludes that Plaintiff has once again failed to allege facts showing a protected property interest in admission to the CLS program. As showing a protected interest is a "necessary precondition" to a procedural due process claim, Plaintiff has failed to allege a due process claim. See Roth, 408 U.S. at 570-71; Rhee v. City of Los Angeles, 130 F.Appx. 920, 921 (9th Cir. 2005). Furthermore, as the Court finds that Plaintiff has failed to state a procedural due process claim, the Court does not reach Defendant's qualified immunity defense.

Here, Plaintiff has been unable to identify any protected liberty or property interest in admission to the CLS program despite multiple opportunities to amend his complaint. Consequently, the Court concludes that amendment would be futile. See Carvalho, 629 F.3d at 892-93. The Court therefore dismisses Plaintiff's procedural due process claim with prejudice.

IV. CONCLUSION

For the reasons stated above, the Court GRANTS with prejudice Defendant's motion to dismiss Plaintiff's due process claim.

IT IS SO ORDERED.


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