(PS) McGuire v. Roseville Joint Union High School District

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8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

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11 DESIREE MCGUIRE, et al., Case No. 2:22-cv-00125-TLN-JDP (PS)

12 Plaintiffs, FINDINGS AND RECOMMENDATIONS

THAT DEFENDANTS’ MOTION TO

13 v. DISMISS BE GRANTED

14 ROSEVILLE JOINT UNION HIGH ECF No. 6

SCHOOL DISTRICT, et al.,

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Defendants.

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18 Plaintiff Cadence DeVault was a student in the Roseville Joint Union High School District

19 during the events in question; she and her mother, Desiree McGuire, proceed without counsel in

20 this action under 42 U.S.C. § 1983. They claim that defendants violated their rights under the

21 Fourteenth Amendment Due Process Clause and several California state laws by implementing

22 and enforcing a regulation that required students to wear protective face coverings at school

23 during certain portions of the COVID-19 pandemic. ECF No. 1. Defendants move to dismiss the

24 complaint for failure to state a claim. ECF No. 6. I recommend that their motion be granted and

25 that plaintiffs’ complaint be dismissed with leave to amend.

26 Legal Standard

27 A complaint may be dismissed for “failure to state a claim upon which relief may be

28 granted.” Fed. R. Civ. P. 12(b)(6). To survive a motion to dismiss for failure to state a claim, a

1 plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl.

2 Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim has “facial plausibility when the plaintiff

3 pleads factual content that allows the court to draw the reasonable inference that the defendant is

4 liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly,

5 550 U.S. at 556). The plausibility standard is not akin to a “probability requirement,” but it

6 requires more than a sheer possibility that a defendant has acted unlawfully. Iqbal, 556 U.S. at

7 678.

8 For purposes of dismissal under Rule 12(b)(6), the court generally considers only

9 allegations contained in the pleadings, exhibits attached to the complaint, and matters properly

10 subject to judicial notice, and construes all well-pleaded material factual allegations in the light

11 most favorable to the nonmoving party. Chubb Custom Ins. Co. v. Space Sys./Loral, Inc., 710

12 F.3d 946, 956 (9th Cir. 2013); Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012). Dismissal

13 under Rule 12(b)(6) can be based on either: (1) lack of a cognizable legal theory, or

14 (2) insufficient facts under a cognizable legal theory. Chubb Custom Ins. Co., 710 F.3d at 956.

15 Dismissal also is appropriate if the complaint alleges a fact that necessarily defeats the claim.

16 Franklin v. Murphy, 745 F.2d 1221, 1228-29 (9th Cir. 1984).

17 Background

18 During the events in question, plaintiff Cadence DeVault was a student at Antelope High

19 School, a school in the Roseville Joint Union High School District (“RJUHSD”); plaintiff Desiree

20 McGuire is her mother. ECF No. 1.1 Defendants include RJUHSD, several of its board

21 members, and at least two school administrators. Id. Plaintiffs allege that on March 13, 2020, the

22 RJUHSD school board suspended on-campus activities, and that on March 23, 2020, it suspended

23 in-person meetings, instead providing a telephonic participation option to district residents. Id. at

24 12. They allege that prior to taking these actions, defendants failed to provide either adequate

25 notice or an opportunity to be heard. Id. RJUHSD resumed on-campus classes on January 5,

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27 1 All facts are drawn from plaintiffs’ complaint. Because I find it unnecessary to consider

the additional materials submitted by defendants, I decline their request for judicial notice. ECF

28 No. 6-2.

1 2021, and required that students wear protective face masks as a condition of on-campus

2 attendance. Id. at 12 & 220. The mask requirement was implemented pursuant to a directive of

3 the California Department of Public Health (“CDPH”) that applied to every school in California.

4 See id. at 217-20, 251, & 253-57. It exempted any student who provided a physician’s note

5 documenting “a medical condition, mental health condition, [or] disability that prevents wearing a

6 mask.” Id. at 255.

7 On at least three occasions in January 2021, DeVault’s teachers or her assistant principal,

8 defendant Gayle, instructed her to wear a mask that complied with the district’s mask policy. Id.

9 at 13-15. In one instance, DeVault explained to her teacher that the mask “made her feel anxious,

10 dizzy to the point of passing out, and . . . trapped, as if a panic attack were about to start.” Id. at

11 13. After the second incident, Gayle emailed plaintiff McGuire to explain that DeVault was

12 required to wear a compliant mask to attend on-campus school. Id. McGuire responded on

13 January 19, informing Gayle that DeVault “will wear the mask they feel most comfortable

14 wearing” and provided reports that purported to show “the ineffectiveness of masks and the

15 health concerns related to prolonged wearing of masks.” Id. The following day, Gayle entered

16 DeVault’s classroom, “smacked his hand on DeVault’s desk, and said, ‘I need you to come with

17 me.’” Id. at 14. In the assistant principal’s office, Gayle’s secretary confiscated DeVault’s phone

18 and instructed her to complete a form entitled “Sworn Statement of Witness in Lieu of Testimony

19 at Hearing”; the secretary requested an explanation of why DeVault refused to wear an

20 appropriate mask. Id. That day, Gayle contacted McGuire and informed her that DeVault would

21 be required to attend school remotely if she did not comply with the on-campus mask policy. Id.

22 After McGuire had picked DeVault up from school, Gayle sent an email to McGuire and to

23 DeVault’s teachers informing them that DeVault “will be working from home for the rest of the

24 semester, or until she decides to comply with the CDPH guidelines.” Id.

25 The following summer, after parents asked that RJUHSD suspend mask rules, the school

26 board sent a letter to the California Health and Human Services Agency requesting authority to

27 “adjust or relax future regulations and mandates based upon local conditions and transmission

28 rates.” Id. at 16. Nevertheless, in August 2021, the district superintendent John Becker

1 communicated that RJUHSD “will be enforcing mask mandates for the 2021-22 school year.” Id.

2 Plaintiffs appear to allege that this decision was influenced by American Rescue Plan Act funds,

3 the provision of which is alleged to have been conditioned on enforcement of mask mandates. Id.

4 at 17.

5 Plaintiffs supply an affidavit by “an expert in the field of Industrial Hygiene” that purports

6 to dispute the efficacy of face coverings as a means of preventing the transmission of COVID-19.

7 See id. at 4-7. They also claim that “the mask is an experimental requirement violating the

8 Nuremberg Code, requiring full disclosure of risks and benefits of wearing the mask.” Id. at 13.

9 They do not provide documentation of a medical condition that would exempt plaintiff DeVault

10 from the school mask requirement or allege that they provided such documentation to defendants.

11 Plaintiffs allege that defendants’ actions violated their substantive and procedural due

12 process rights as well as various California laws. Defendants move to dismiss all claims for

13 failure to state a claim and on the basis of qualified immunity. ECF No. 6. I agree that the

14 complaint fails to state either a substantive or procedural due process claim. I recommend that

15 those claims be dismissed and that the court decline to exercise supplemental jurisdiction over

16 plaintiffs’ state law claims.

17 Discussion

18 A. Claims Against RJUHSD and Official-Capacity Defendants

19 Plaintiffs’ Fourteenth Amendment Due Process Clause claims are brought under 42

20 U.S.C. § 1983 against the RJUHSD and against all defendants in both their official and personal

21 capacities. See ECF No. 1 at 30, 41, & 43. The RJUHSD and its board of trustees are state

22 agencies immune from suits for damages under the Eleventh Amendment. Belanger v. Madera

23 Unified Sch. Dist., 963 F.2d 248, 254 (9th Cir. 1992) (holding that § 1983 damages claims against

24 a California public school district are barred by the Eleventh Amendment). Because the

25 individual defendants are RJUHSD school board members or school administrators, they are

26 similarly immune from suit for damages in their official capacities. See Pena v. Gardner, 976

27 F.2d 469, 472 (9th Cir. 1992) (“[T]he Eleventh Amendment[] bar[s] . . . claims in federal court

28 against the state officials in their official capacities.”) (emphasis in original); see also Everett H.

1 v. Dry Creek Joint Elementary Sch. Dist., 5 F. Supp. 3d 1167, 1179 (E.D. Cal. 2014) (holding that

2 damages claims against public school district administrators are barred by Eleventh Amendment

3 immunity).

4 Such claims cannot be saved by plaintiffs’ request for prospective relief because plaintiffs

5 fail to allege that they remain subject to the complained-of policies. The complaint states that

6 plaintiff DeVault is an adult individual who resides within RJUHSD, but it is silent as to whether

7 DeVault will be attending a school in the district for 2022-2023 school year, and it alleges that

8 she was caused to miss the “2022 Senior Ball,” suggesting that she might have graduated and so

9 might no longer be attending high school. ECF No. 1 at 20. The complaint also fails to allege

10 that the masking policy remains in effect for the 2022-2023 school year. See Brach v. Newsom,

11 38 F.4th 6, 9 (9th Cir. 2022) (holding that “the mere possibility that California might again

12 suspend in-person instruction is too remote” for injunctive-relief claims to avoid being dismissed

13 as moot). Plaintiffs’ claims for equitable relief are therefore moot, and plaintiffs can proceed only

14 on their claims for damages against the individual defendants in the defendants’ personal

15 capacities. I address those claims next.

16 B. Individual-Capacity Substantive Due Process Claims

17 Plaintiffs claim that defendants’ implementation of the mask requirement at Antelope

18 High School violated their substantive due process rights under the Fourteenth Amendment. ECF

19 No. 1 at 43.2 The “substantive component” of the “Fourteenth Amendment’s guarantee of ‘due

20 process of law’ . . . forbids the government to infringe certain ‘fundamental’ liberty interests at

21 all, no matter what process is provided, unless the infringement is narrowly tailored to serve a

22 compelling state interest.” Reno v. Flores, 507 U.S. 292, 302 (1993). Thus, a “[s]ubstantive due

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24 2 Plaintiffs also allege violations of the Fifth Amendment Due Process clause. See ECF

No. 1 at 30 & 41. Since that clause does not restrain state and local officials, I will construe such

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claims as alleging Fourteenth Amendment violations. See Bingue v. Prunchak, 512 F.3d 1169,

1174 (9th Cir. 2008) (“[T]he Fifth Amendment’s due process clause only applies to the federal

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government.”); Castillo v. McFadden, 399 F.3d 993, 1002 n.5 (9th Cir. 2005) (“The Fifth

27 Amendment prohibits the federal government from depriving persons of due process, while the

Fourteenth Amendment explicitly prohibits deprivations without due process by the several

28 States.”).

1 process analysis must begin with a careful description of the asserted right.” Id.

2 Plaintiffs argue that DeVault possesses a “fundamental right to a public education . . . in a

3 safe and healthy environment” that defendants infringed by requiring her to wear a mask that

4 made it harder to breathe. ECF No. 1 at 43. They imply that this right extends to McGuire,

5 insofar as her role as DeVault’s parent or guardian accords her a fundamental right to direct her

6 daughter’s education. Id.

7 Neither plaintiff has such a fundamental right. “Public education is not a ‘right’ granted

8 to individuals by the Constitution.” Plyler v. Doe, 457 U.S. 202, 221 (1982); see also Payne v.

9 Peninsula Sch. Dist., 653 F.3d 863, 880 (9th Cir. 2011) (en banc) (noting that there is “no

10 enforceable federal constitutional right to a public education”). “While parents may have a

11 fundamental right to decide whether to send their child to a public school, they do not have a

12 fundamental right generally to direct how a public school teaches their child.” Fields v. Palmdale

13 Sch. Dist., 427 F.3d 1197, 1207 (9th Cir. 2005) (quoting Blau v. Fort Thomas Pub. Sch. Dist., 401

14 F.3d 381, 395-96 (6th Cir. 2005)) (emphasis in original). “Due process does not give parents the

15 right to interfere with a public school’s operations because issues such as school discipline, the

16 content of examinations, and dress code are issues of public education generally committed to the

17 control of state and local authorities.” McNeil v. Sherwood Sch. Dist. 88J, 918 F.3d 700, 711 (9th

18 Cir. 2019) (internal citations and quotation marks omitted).

19 In light of these precedents, courts have consistently held that neither parents nor students

20 possess a fundamental right against the various actions taken by states and public-school

21 administrators to mitigate the spread of COVID-19, such as temporary remote-learning

22 arrangements and mask requirements for in-person learning. See Branch-Noto v. Sisolak, 576 F.

23 Supp. 3d 790, 799 (D. Nev. 2021) (“[T]he right to parent as one sees fit does not entitle parents to

24 undermine local public-health efforts during a global pandemic by refusing to have their children

25 comply with a school mask requirement, particularly when they’ve affirmatively chosen that

26 option over the maskless, distance-learning alternative that [the district] also made available.”);

27 Gunter v. N. Wasco Cnty. Sch. Dist. Bd. of Educ., 577 F. Supp. 3d 1141, 1155-56 (D. Or. 2021);

28 Guilfoyle v. Beutner, No. 2:21-CV-05009-VAP (MRWx), 2021 WL 4594780, at *17 n.8 (C.D.

1 Cal. Sept. 14, 2021).3

2 Since plaintiffs fail to allege a violation of a fundamental right, the RJUHSD mask

3 requirement is analyzed under rational basis review. See Gunter, 577 F. Supp. 3d at 1155-56.

4 Under rational basis review, courts ask only whether defendants’ action “bears a rational relation

5 to a legitimate government objective.” Kadrmas v. Dickinson Pub. Schs., 487 U.S. 450, 461-62

6 (1988). Laws reviewed under this standard, including rules passed by a school board, are

7 presumed valid. Harrah Indep. Sch. Dist. v. Martin, 440 U.S. 194, 198 (1979).

8 Federal courts have consistently held that both distance learning and mask requirements

9 implemented in response to the COVID-19 pandemic satisfy this deferential standard, particularly

10 where, as here, the requirements were implemented pursuant to public health directives of state

11 and national authorities. See Guilfoyle, 2021 WL 4594780, at *14 (finding “a legitimate interest

12 in abating the COVID-19 pandemic” and that “LAUSD’s COVID-19 mitigation measures are

13 related rationally to that legitimate interest because they are consistent with local, state, and

14 national public health orders”); Branch-Noto, 576 F. Supp. 3d at 802 (“[I]t cannot be said that the

15 masking policies are not rationally related to the legitimate government interest of slowing the

16 spread of COVID-19.”). Plaintiffs’ assertions that masks are ineffective against the virus and

17 cause harmful side effects, including by inhibiting breathing, are insufficient to demonstrate that

18 defendants lacked a rational basis for the requirement’s implementation. See Forbes v. Cnty. of

19 San Diego, No. 20-CV-00998-BAS-JLB, 2021 WL 843175, at *5 (S.D. Cal. Mar. 4, 2021)

20 (explaining that plaintiff’s “contentions disputing the scientific basis for the Mask Rules are

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3 According to plaintiffs’ allegations, the mask requirement was not an absolute mandate,

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but rather a condition of attending school in-person; DeVault was given a choice either to wear a

23 compliant mask while at school or to attend school remotely, in which case she would not be

required to wear a mask. ECF No. 1 at 16. But even if I were to construe the right at issue more

24 broadly—for instance, as an invasion of plaintiff DeVault’s right to breathe freely or, as plaintiffs

suggest, as a “violati[on of] the Nuremburg Code,” ECF No. 1 at 13—plaintiffs’ claims would

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still be without merit. See Denis v. Ige, 538 F. Supp. 3d 1063, 1080-81 (D. Haw. 2021)

(dismissing a substantive due process challenge to a state-wide mask mandate, since “‘the right to

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breathe oxygen without restriction’ is not a fundamental right”); Ward v. Schaefer, No. CV 16-

27 12543-FDS, 2021 WL 1178291, at *27 (D. Mass. Mar. 29, 2021) (dismissing a claimed violation

of “due process rights as set forth in the Nuremburg Code,” since “there is no private right of

28 action for violations of the Nuremberg Code”).

1 simply not enough to state a plausible clam that the rules are not rationally related to a legitimate

2 government interest”).

3 C. Procedural Due Process

4 Plaintiffs allege that defendants violated their procedural due process rights insofar as they

5 (1) disciplined DeVault “without notice and an opportunity for a fair hearing,” (2) refused to let

6 DeVault “communicate to [McGuire] before signing a legally binding document,” and

7 (3) implemented the mask policy because of a “financial incentive” and without providing the

8 public “notice or meaningful opportunity to be heard.” ECF No. 1 at 31, 42, & 44.

9 “The Fourteenth Amendment’s Due Process Clause protects persons against deprivations

10 of life, liberty, or property; and those who seek to invoke its procedural protection must establish

11 that one of these interests is at stake.” Wilkinson v. Austin, 545 U.S. 209, 221 (2005). To state a

12 procedural due process claim, a plaintiff must show: “(1) a deprivation of a constitutionally

13 protected liberty or property interest, and (2) a denial of adequate procedural protections.” Tutor-

14 Saliba Corp. v. City of Hailey, 452 F.3d 1055, 1061 (9th Cir. 2006) (citations omitted).

15 “Protected interests in property are normally ‘not created by the Constitution. Rather, they are

16 created and their dimensions are defined’ by an independent source such as state statutes or rules

17 entitling the citizen to certain benefits.” Goss v. Lopez, 419 U.S. 565, 572-73 (1975) (quoting

18 Board of Regents v. Roth, 408 U.S. 564, 577 (1972)).

19 Students have a “property interest . . . protected by the Due Process Clause” when, “on the

20 basis of state law, . . . [they have] legitimate claims of entitlement to a public education.” Goss,

21 419 U.S. at 574. However, other than being required to attend school remotely, plaintiff DeVault

22 does not allege that she was deprived of her entitlement to public school in any way. Plaintiffs do

23 not identify a state-law entitlement to in-person attendance or offer any authority showing that

24 mandatory remote learning entails a deprivation of a property interest. Cf. id (holding that a ten-

25 day suspension is a Constitutionally protected deprivation); W.D. v. Rockland Cnty., 521 F. Supp.

26 3d 358, 386, 395 (S.D.N.Y. 2021) (explaining that because “property rights are created by state

27 law,” state regulations deprived plaintiffs of “any legitimate claim of entitlement to send their

28 children to school without being vaccinated” against COVID-19).

1 Even if requiring DeVault to attend school remotely amounted to a deprivation of a

2 property interest, plaintiffs’ allegations do not establish that defendants deprived them of

3 adequate procedural safeguards. “Due process is flexible and calls for such procedural

4 protections as the particular situation demands.” Wynar v. Douglas Cnty. Sch. Dist., 728 F.3d

5 1062, 1073 (9th Cir. 2013) (quoting Mathews v. Eldridge, 424 U.S. 319, 334 (1976)). For short-

6 term suspensions from grade school, informal notice and hearing procedures are sufficient to

7 satisfy due process, even when such procedures fail to adhere to state or local regulations. See

8 Wynar, 728 F.3d at 1073 (dismissing procedural due process claim where school administrators

9 met informally with student-plaintiff before issuing a ten-day suspension, despite a lack of

10 compliance with district’s procedural regulations).4 Moreover, “summary administrative action

11 may be justified ‘where, as here, it responds to situations in which swift action is necessary to

12 protect the public health and safety.’” Page v. Cuomo, 478 F. Supp. 3d 355, 371 (N.D.N.Y.

13 2020) (quoting Hodel v. Va. Surface Mining & Reclamation Ass’n, Inc., 452 U.S. 264, 299-00

14 (1981)).

15 Here, defendant Gayle notified McGuire—and solicited a response—twice by email and

16 once by phone before barring DeVault from in-person attendance, ECF No. 1 at 14-15 & 241-42;

17 and both Gayle and an instructor directly notified DeVault at least three times that her mask was

18 inappropriate for on-campus attendance, id. at 13-15. In a January 2015 email to both DeVault

19 and McGuire, Gayle warned that if DeVault “fail[s] to wear a proper mask at school . . . again,

20 [she] will have to Zoom into class from home.” Id. at 239. On January 20, before defendant

21 Gayle removed DeVault from campus, he provided DeVault a blank form to make a statement “in

22 lieu of testimony at a hearing” regarding her unwillingness to comply with the school mask

23 requirement. Id. at 244. Thus, plaintiffs were accorded notice and an opportunity to be heard—

24 however informally—before defendants took any adverse action, and plaintiffs provide no

25 support for their claim that such process was Constitutionally inadequate.5

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4 Requiring plaintiff to work remotely might not rise to the level of a short-term

27 suspension. But in the absence of direct authority, cases discussing the procedures required for a

short-term suspension are useful analogues.

28 5 Plaintiffs also fail to explain why the Constitution required that DeVault be granted an

1 Plaintiffs’ argument that defendants failed to provide either adequate notice, an

2 opportunity to be heard, or an opportunity for public discussion before implementing the mask

3 requirement is similarly meritless. Defendants implemented the requirement pursuant to a

4 directive issued by the California Department of Public Health (“CDPH”), which applied to every

5 school in California. See ECF No. 1 at 219, 251, & 253-57. “[G]overnmental decisions which

6 affect large areas and are not directed at one or a few individuals do not give rise to the

7 constitutional procedural due process requirements of individual notice and hearing; general

8 notice as provided by law is sufficient.” Halverson v. Skagit Cnty., 42 F.3d 1257, 1261 (9th Cir.

9 1994). In the context of school-board decisions, even a failure to comply with procedural

10 regulations in setting policy does not give rise to a due process violation. See Jacobs v. Clark

11 Cnty. Sch. Dist., 526 F.3d 419, 441 (9th Cir. 2008) (“[A]lthough it might be preferable for schools

12 to seek parental approval before instituting controversial school policies, and it might be a

13 violation of state law for schools not to do so if a local statute or regulation so dictates, the Due

14 Process Clause in no way requires this.”). Thus, courts have widely rejected procedural due

15 process challenges to school mask policies like the one at issue here. See, e.g., Gunter, 577 F.

16 Supp. 3d at 1160-61; Branch-Noto, 576 F. Supp. 3d at 803. Accordingly, plaintiffs’ procedural

17 due process claims should be dismissed.6

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opportunity to contact McGuire prior to giving her statement. See ECF No. 1 at 31 & 42. They

20 allege that defendants violated their rights by confiscating DeVault’s cell phone and by refusing

to grant her request to speak with McGuire before completing the witness statement form on

21 January 20, 2021. Plaintiffs may be attempting to make out a claim for interference with familial

association under the Fourteenth and Fourth Amendments. See Wallis v. Spencer, 202 F.3d 1126,

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1137 n.8 (9th Cir. 2000) (“[T]he same legal standard applies in evaluating Fourth and Fourteenth

23 Amendment claims for the removal of children.”); Mabe v. San Bernardino Cnty., Dep’t of Pub.

Soc. Servs., 237 F.3d 1101, 1106 (9th Cir. 2001). Those precedents “establish procedural

24 guarantees for ‘intruding on a parent’s custody of her child,’” such as when Child Protective

Services or the police forcibly remove children from a parent’s custody. Branch-Noto, 576 F.

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Supp. 3d at 802 (quoting Mabe, 237 F.3d at 1106 (9th Cir. 2001)). Where, as here, a minor is

voluntarily placed in the custody of the school, the familial-association doctrine “ha[s] no

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application.” Id. (dismissing a claim alleging that the enforcement of a school’s mask mandate

27 interfered with the plaintiff’s right to familial association).

6 Because I find that plaintiffs fail to state a claim under § 1983, I need not address

28 defendants’ qualified immunity defense.

1 D. State Law Claims

2 Plaintiffs’ ten remaining claims arise under state law. See ECF No. 1. The complaint

3 does not establish diversity of citizenship, and, as discussed above, plaintiffs have yet to allege a

4 cognizable federal claim. See 28 U.S.C. §§ 1331, 1332; see also Bautista v. Pan Am. World

5 Airlines, Inc., 828 F.2d 546, 552 (9th Cir. 1987) (holding that the complaint must specifically

6 allege diverse citizenship of all parties to invoke diversity jurisdiction). Consequently, there is no

7 reason to exercise supplemental jurisdiction over plaintiffs’ state law claim, and those claims

8 should also be dismissed. See Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988)

9 (“[I]n the usual case in which all federal-law claims are eliminated before trial, the balance of

10 factors to be considered under the pendent jurisdiction doctrine—judicial economy, convenience,

11 fairness, and comity—will point toward declining to exercise jurisdiction over the remaining

12 state-law claims.”); United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966) (“Needless

13 decisions of state law should be avoided both as a matter of comity and to promote justice

14 between the parties, by procuring for them a surer-footed reading of the applicable law.”).

15 Conclusion

16 For the reasons above, I recommend that defendants’ motion to dismiss be granted. Since

17 plaintiffs might be able to cure the complaint’s deficiencies through amendment, I recommend

18 that the court grant leave to amend. Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000) (en

19 banc) (holding that district courts must afford pro se litigants an opportunity to amend if it

20 appears possible that they can correct the deficiencies in their complaints).

21 Accordingly, it is hereby recommended that defendants’ motion to dismiss, ECF No. 6, be

22 granted and the complaint, ECF No. 1, be dismissed with leave to amend.

23 I submit these findings and recommendations to the district judge under 28 U.S.C.

24 § 636(b)(1)(B) and Rule 304 of the Local Rules of Practice for the United States District Court,

25 Eastern District of California. The parties may, within 14 days of the service of the findings and

26 recommendations, file written objections to the findings and recommendations with the court.

27 Such objections should be captioned “Objections to Magistrate Judge’s Findings and

28 Recommendations.” The district judge will review the findings and recommendations under 28

1 | US.C. § 636(b)(1)(C).

2

3 IT IS SO ORDERED.

4 ( | {

Dated: _ September 7, 2022 Q_——.

5 JEREMY D. PETERSON

6 UNITED STATES MAGISTRATE JUDGE

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