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Berry v. Yosemite Community College District

United States District Court, E.D. California

March 6, 2017

DEBRA BARRY, Plaintiff,



         Plaintiff Debra Berry proceeds pro se and in forma pauperis in this civil rights action brought pursuant to 42 U.S.C. § 1983. Her complaint is before the Court for screening.

         I. Screening Requirement

         Pursuant to 28 U.S.C. § 1915(e)(2), the Court must conduct an initial review of the complaint to determine if it states a cognizable claim. The Court must dismiss a complaint or portion thereof if it determines that the action has raised claims that are legally "frivolous or malicious, " "fails to state a claim upon which relief may be granted, " or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C.

         § 1915(e)(2)(B). "Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action or appeal . . . fails to state a claim on which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii).

         II. Pleading Standard

         A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief . . . .” Fed.R.Civ.P. 8(a)(2). Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth “sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Id. Facial plausibility demands more than the mere possibility that a defendant committed misconduct and, while factual allegations are accepted as true, legal conclusions are not. Id. at 677-78.

         III. Plaintiff's Allegations

         At all times relevant to the complaint, Plaintiff was a student or citizen using the Modesto Junior College Library, where the acts giving rise to her complaint arose.

         She names the following Defendants: (1) Yosemite Community College District; (2) Modesto Junior College; (3) Bryan Justin Marks, individually and in his official capacity as an Administrator and Associate Dean of Campus Life and Student Learning; (4) Jackie Jordan, individually and in her official capacity as Administrator Librarian; (5) Ellen Bambrosia, individually and in her official capacity as Administrator Librarian; (6) Iris Carol, individually and in her official capacity as Administrator Librarian, and (7) Granden McCarthy, individually and in her official capacity as an Administrator and College Campus Security Guard.

         Plaintiff states her intent to bring this action as a class action on behalf of herself and others similarly situated. As explained below, Plaintiff may not bring allegations on behalf of others in this pro se action. Accordingly, only those allegations that relate to Plaintiff herself are discussed here. Those allegations may be summarized essentially as follows.

         Modesto Junior College (“MJC”) is a state run university under the authority of the Yosemite Community College District. (“YCCD”) Both entities receive federal funds.

         On September 22, 2015, from 12:00 p.m. to 12:45 p.m., Defendants Jordan, Bambrosia, and Carol took photographs of Plaintiff and other students of color without their consent and sent them to coaches at MJC. The coaches confronted the students about their disruptive behavior.

         On October 5, 2015, a white student worker told Plaintiff she had been sent by Defendants Jordan, Bambrosia, and Carol to watch the African American students. From 12:30 p.m. to 12:35 p.m., Defendants Jordan, Bambrosia, and Carol approached Plaintiff and a group of students of color who were studying quietly. Defendants accused the students of making noise and stated that only five people could sit at the table. Defendants ignored a nearby table of five white students that were talking in the same quiet tone as Plaintiff and her companions.

         Thereafter, Defendant McCarthy issued Plaintiff a verbal citation for being too loud and for having more than five students at the table. The same citation was not issued to the table of white students. McCarthy demanded Plaintiff's “W” number and identification and issued Plaintiff and others false charges of misconduct. These were intended to deter Plaintiff and others from pursuing their education.

         On or about October 6, 2015, Defendant Carol and a non-party employee named Susan moved chairs from the general area where African American students studied. Only two tables and three chairs were left in the area. That same day, Defendant Bambrosia approached a group of African American students sitting quietly in a general studying area and told them that only four students could be at the table. She ignored five white students sitting at an adjacent table. Plaintiff observed this conduct but apparently was not one of the students initially approached. Bambrosia then asked Plaintiff whether she had anything to say. Later that day, Plaintiff observed Bambrosia harassing other African American students. Also that day, Defendant Carol intentionally assaulted Plaintiff by bumping into her chair hard without saying “excuse me” and while looking at Plaintiff with scorn.

         At some point in October, several students, including Plaintiff, lodged complaints regarding this behavior. It is unclear whether Plaintiff was one such student. Defendant Marks responded to the complaints by sending out “false notices” in an attempt to intimidate Plaintiff and others. The notices stated that the students had been reported for Disruptive Behavior and were required to schedule a meeting with Marks. Absent such a meeting, Marks would review the report and consider disciplinary action without the students' input.

         On November 5, 2015, Plaintiff and others complained about a poster of Modesto Library Rules that had been placed on the wall. Plaintiff claims the rules were intended to cover up discrimination toward Plaintiff and other African American students.

         Plaintiff later received a letter from Marks stating that she had been reported for Disruptive Behavior and had failed to schedule a meeting with Marks as requested. The letter stated that Marks had determined that Plaintiff violated the Yosemite Community College District Standards of Conduct and was therefore suspended from use of the MJC Library Learning Center on the MJC East Campus for approximately six weeks. Following the suspension, Plaintiff would be placed on disciplinary probation for one year. The notice outlined steps for Plaintiff to take to resume use of the MJC Library Learning Center following her suspension.

         Plaintiff claims racial discrimination in violation of her right to equal protection under the Fourteenth Amendment. The caption of her complaint also alleges “harassment, sexual harassment, and oppression in education.” Elsewhere in the complaint she references the Eighth Amendment. She also alleges violations of Sexual Harassment Policy 3430.

         She seeks an injunction prohibiting further discrimination, unspecified compensatory and punitive damages, and unspecified declaratory relief.

         IV. Analysis

         A. Putative Class Action

         Plaintiff, proceeding pro se, cannot prosecute the instant action as a class action. See C.E. Pope Equity Trust v. United States, 818 F.2d 696, 697 (9th Cir.1987) (holding that a pro se litigant may not appear as an attorney for others); Welch v. Terhune, 11 F.App'x 747, 747 (9th Cir. 2001) (same); White v. Geren, 310 F.App'x 159, 160 (9th Cir. 2009) (pro se plaintiff is not an adequate class representative under Fed.R.Civ.P. 23(a)(4)). The action will proceed, if at all, solely on behalf of Plaintiff Berry.

         B. Section 1983

          Section 1983 “provides a cause of action for the deprivation of any rights, privileges, or immunities secured by the Constitution and laws of the United States.” Wilder v. Virginia Hosp. Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. ยง 1983). Section 1983 is not itself a source of substantive rights, but merely provides a method ...

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