United States District Court, E.D. California
ORDER RE: MOTION TO DISMISS
WILLIAM B. SHUBB UNITED STATES DISTRICT JUDGE
November 15, 2016, the court dismissed plaintiff's
complaint with leave to amend. (Docket No. 32.) On December
5, 2016, plaintiff filed a First Amended Complaint
(“FAC”), reasserting the original claims under 42
U.S.C. § 1983 with modifications in response to the
courts November 15, 2016 Order, and adding two new claims for
conspiring to violate plaintiff's constitutional rights
in violation of 42 U.S.C. § 1985, and for infringing
upon plaintiff's right to make and enforce contracts in
violation of 42 U.S.C. § 1981. (FAC ¶¶ 49-50,
56-57, 61-62, 65-66.) Defendants now move to dismiss
plaintiff's FAC. (Defs.' Mot.)
plaintiff's section 1983 causes of action, the court
finds that the FAC now alleges sufficient facts to survive a
motion to dismiss under Rule 12(b)(6). With regard to the two
new causes of action, Section 1985 prohibits two or more
persons from conspiring to deprive any person or class of
persons of certain civil rights. 42 U.S.C. § 1985. A
plaintiff must allege that the defendants were motivated by
racial animus. See Sever v. Alaska Pulp Corp., 978 F.2d 1529,
1536 (9th Cir. 1992) (requiring racial animus in section
1985(3) actions); Sanchez v. City of Santa Ana, 936 F.2d
1027, 1039 (9th Cir. 1990) (requiring racial animus in
section 1985(2) actions).
the FAC alleges that defendants were the conspirators, it is
devoid of any factual allegations suggesting there was an
agreement among defendants to violate plaintiff's
constitutional rights. Plaintiff's conspiracy allegations
without factual specificity are insufficient. See Olsen, 363
F.3d at 929 (holding that allegations concerning the
existence of a conspiracy to violate a federal right must be
supported by specific facts). Likewise, there are no factual
allegations that support the conclusion that defendants were
motivated by invidious class-based animus. Accordingly, the
court must dismiss plaintiff's section 1985 claim.
1981 states, in relevant part, “[a]ll persons within
the jurisdiction of the United States shall have the same
right in every State and Territory to make and enforce
contracts.” 42 U.S.C. § 1981(a). “To state a
claim under § 1981, a plaintiff must identify an
impaired ‘contractual relation, ' by showing that
the intentional racial discrimination prevented the creation
of a contractual relationship or impaired an existing
contractual relationship.” Jackson, 2012 WL 5337076, at
*3 (quoting Boyd v. Feather River Cmty. Coll. Dist., Civ. No.
11-0231 JAM EFB, 2011 WL 5024547, at *4 (E.D. Cal. Oct. 20,
California, “public employment is not held by contract
but by statute . . . .” Miller v. California, 18 Cal.3d
808, 813 (1977). Therefore, “insofar as the duration of
such employment is concerned, no employee has a vested
contractual right to continue in employment beyond the time
or contrary to the terms and conditions fixed by law.”
Id.; see, e.g., Fallay v. San Francisco City &
County, No. C 08-2261 CRB, 2016 WL 888901, at *3 (N.D. Cal.
Mar. 8, 2016) (finding a city employee could not bring a
section 1981 claim because the terms and conditions of
employment was determined by California statute).
alleges that he “and Tracy entered a relevant
employment contract at the beginning of Plaintiff's
employment with [the department], which was found in the MOU
and related materials.” (FAC ¶ 65.) However,
plaintiff allegedly “was classified as a peace officer
under Penal Code section 830.1” with rights codified in
the PBRA. (Id. ¶ 3.) As a public employee,
plaintiff is not entitled to section 1981 protection because
his employment is governed by statute. See Woodson v.
California, Civ. No. 2:15-01206 MCE CKD, 2016 WL 6568668, at
*6-7 (E.D. Cal. Nov. 4, 2016) (holding California Department
of Corrections employee could not sue under section 1981);
Zimmerman v. City & County of San Francisco, No. C
93-4045 MJJ, 2000 WL 1071830, at *10 (N.D. Cal. July 27,
2000) (holding city employee could not sue under section
1981); see also Hittle v. City of Stockton, Civ. No.
2:12-00766 TLN KJN, 2016 WL 1267703, at *7 (E.D. Cal. Mar.
31, 2016) (finding a city-employed police officer was a
public employee and thus could not bring a breach of contract
claim against the city). The FAC identifies no other
contractual relationship that defendants allegedly infringed
plaintiff fails to allege a contractual relationship that
defendants impaired, the court must also grant
defendants' motion to dismiss plaintiff's section
1981 cause of action.
THEREFORE ORDERED that defendants' motion to dismiss
plaintiff's first and second causes of action under 42
U.S.C. § 1983 be, and the same hereby are, DENIED.
FURTHER ORDERED that defendants' motion to dismiss
plaintiff's third and fourth causes of action under 42
U.S.C. §§ 1981 and 1985 be, and the same hereby
has twenty days from the date this Order is signed to file a
second amended complaint, if he can do so consistent with
 The court need not accept
plaintiff's legal conclusion that his employment
relationship was contractual. See Papasan v. Allain, 478 U.S.
265, 286 (1986) (“[W]e are not bound to accept as true
a legal ...