United States District Court, E.D. California
ANDY E. CASTRO, Plaintiff,
CITY OF CLOVIS; et al., Defendants.
ORDER GRANTING IN PART DEFENDANTS' MOTIONS TO
DISMISS AND GRANTING PLAINTIFF LEAVE TO AMEND (DOC. NOS. 8,
matter is before the court on the motions to dismiss filed on
behalf of defendant City of Clovis (the “City”)
and defendants Clovis Unified School District
(“CUSD”), Andrew Bolls, and Stephanie Hanks
(collectively, the “CSUD defendants”). (Doc. Nos.
8, 9.) A hearing on the motions was held on October 1, 2019.
Plaintiff Andy E. Castro appeared pro se, attorney
Gregory Myers appeared telephonically on behalf of the City
of Clovis, and attorney Ryan Porte appeared on behalf of
defendants CUSD, Bolls, and Hanks. The court has considered
the parties' briefing and heard from the parties, and for
the reasons set forth below, will grant the City's motion
in its entirety and grant the CUSD defendants' motion in
13, 2019, plaintiff filed this action, alleging violations of
his rights to free speech and due process. (Doc. No. 1
(“Compl.”).) According to the complaint,
plaintiff is a former Clovis High School student who recently
turned 18 and finished high school. (Id. at ¶
8.) Plaintiff was scheduled to attend his graduation ceremony
on May 30, 2019, when his school “revok[ed] his VIP
sitting privilege in the graduation ceremony, remov[ed] him
off the school premises, and enjoin[ed] him from
participating in his long-awaited graduation ceremony that
was by then only 3 hours away, ” allegedly as
punishment for a tweet that he had posted on Twitter.
(Id.) In that tweet, sent to a Nigerian friend on an
unidentified date before his graduation, plaintiff used the
words “nigga” and “nigger, ”
apparently with his friend's consent and as a form of
“intercultural communication.” (Id.).
Another Twitter user saw the tweet and reported it to the
school, which, in addition to barring plaintiff from
attending his graduation, “order[ed] him to delete the
alleged offensive message from his [T]witter
on these allegations, plaintiff asserts four causes of action
seeking general and punitive damages: (1) violation of his
First Amendment right to free speech; (2) violation of his
Fifth Amendment right to due process; (3) violation of his
right to free speech under Article I, § 2 of the
California Constitution; and (4) violation of his right to
free speech under California Education Code § 48950(a).
(Doc. No. 1.) Construing the complaint “liberally
because it was drafted by a pro se plaintiff, ”
Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir.
2004), the court observes that plaintiff appears to have
brought his federal constitutional claims pursuant to 42
U.S.C. § 1983. (Id. at 1.)
15, 2019, the City filed a Rule 12(b)(6) motion to dismiss on
the basis that plaintiff did not plead a single substantive
allegation against it. (Doc. No. 8-1 at 2.) Plaintiff filed
his opposition to the motion on August 6, 2019, and requested
leave to amend to add the State of California as a defendant.
(Doc. No. 15.) The City filed its reply on August 8, 2019.
(Doc. No. 16.)
defendants CUSD, Bolls, and Hanks moved to dismiss on July
16, 2019, for failure to state a claim and for failure to
comply with California's Government Claims Act
(“CGCA”)). (Doc. No. 9.) Plaintiff filed his
opposition to that motion September 3, 2019, and CUSD, Hanks,
and Bolls replied on September 9, 2019. (Doc. Nos. 17, 19.)
Motion to Dismiss
purpose of a motion to dismiss pursuant to Rule 12(b)(6) is
to test the legal sufficiency of the complaint. Navarro
v. Block, 250 F.3d 729, 732 (9th Cir. 2001).
“Dismissal can be based on the lack of a cognizable
legal theory or the absence of sufficient facts alleged under
a cognizable legal theory.” Balistreri v. Pacifica
Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). A
plaintiff is required to allege “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).
determining whether a complaint states a claim on which
relief may be granted, the court accepts as true the
allegations in the complaint and construes the allegations in
the light most favorable to the plaintiff. Hishon v. King
& Spalding, 467 U.S. 69, 73 (1984); Love v.
United States, 915 F.2d 1242, 1245 (9th Cir. 1989).
However, the court need not assume the truth of legal
conclusions cast in the form of factual allegations. U.S.
ex rel. Chunie v. Ringrose, 788 F.2d 638, 643 n.2 (9th
Cir. 1986). While Rule 8(a) does not require detailed factual
allegations, “it demands more than an unadorned, the
Iqbal, 556 U.S. at 678. A pleading is insufficient
if it offers mere “labels and conclusions” or
“a formulaic recitation of the elements of a cause of
action.” Twombly, 550 U.S. at 555; see
also Iqbal, 556 U.S. at 676 (“Threadbare recitals
of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.”). Moreover, it
is inappropriate to assume that the plaintiff “can
prove facts which it has not alleged or that the defendants
have violated the . . . laws in ways that have not been
alleged.” Associated Gen. Contractors of Cal., Inc.
v. Cal. State Council of Carpenters, 459 U.S. 519, 526
The City's Motion to Dismiss
City argues that it should be dismissed from this case
because “[t]here is not a single substantive allegation
or reference to the City throughout the
complaint.” It notes:
[a]ll allegations in the Complaint are asserted against the
Clovis Unified School District (“CUSD”) or Clovis
High School, where the Plaintiff was allegedly a student. The
City and CUSD are separate entities and “City”
has no authority, control or involvement in the operations of
CUSD or Clovis High School and CUSD are completely separate,
and there are no allegations to the contrary within the
(Doc. No. 8-1 at 2.)
than asserting that Clovis is a city located in Fresno
County, the complaint does not allege that the City itself
engaged in any conduct that violated plaintiff's rights
and does not explain how or why the City is responsible for
plaintiff not being allowed to attend his high school
graduation. (Compl. at ¶ 4.) Although plaintiff argued
in his opposition to the pending motion to dismiss that the
City is liable because defendants Bolls and Hanks are
“[e]mployees of City of Clovis and/or Clovis Unified
School District” and “CUSD is . . . partially
funded by City of Clovis tax money, ” the City flatly
denies that Hanks and Bolls are its employees and that it
funds CUSD with its tax dollars. (Doc. Nos. 15 at 2; 16 at
2.) After the court questioned plaintiff at the hearing on
the pending motion, plaintiff conceded that he could not
allege any facts to support his claim that the City employs
Bolls and Hanks and funds CUSD with tax revenue or any other
facts that would support his suit against the City. Hr'g
Tr. at 4:16-22, Castro v. City of Clovis, et al.,
No. 1:19-cv-00821-DAD-SKO (E.D. Cal. Oct. 1, 2019).
Accordingly, the City will be dismissed from this action with
The CUSD ...