Opinion
CIV. NO. 2:15-751 WBS KJN
02-09-2017
JUAN ESPINOZA, Plaintiff, v. CITY OF TRACY, R. LEON CHURCHILL, and DOES 1 through 40 inclusive, Defendants.
ORDER RE: MOTION TO DISMISS
On 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.)
On 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).
While 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.
Section 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, 2011)).
In 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).
Plaintiff 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 upon.
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 conclusion couched as a factual allegation."). --------
Because 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.
IT IS 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.
IT IS 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 are, GRANTED.
Plaintiff has twenty days from the date this Order is signed to file a second amended complaint, if he can do so consistent with this Order. Dated: February 9, 2017
/s/_________
WILLIAM B. SHUBB
UNITED STATES DISTRICT JUDGE