Marin v. Carroll

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8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

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11 MEL MARIN, Case No.: 21-CV-1453 JLS (DEB)

12 Plaintiff,

ORDER (1) GRANTING

13 v. PLAINTIFF’S MOTION TO

PROCEED IN FORMA PAUPERIS;

14 CONSTANCE CARROLL; CARLOS O.

(2) SCREENING AND DISMISSING

TURNER CORTEZ; CRAIG MILGRIM;

15 PLAINTIFF’S COMPLAINT

MARY GRAHAM; GEYSIL ARROYO;

PURSUANT TO 28 U.S.C.

16 MARIA NIETO SENOUR; BERNIE

§ 1915(e)(2); AND (3) DENYING

RHINERSON; MARSHA GABLE;

17 WITHOUT PREJUDICE

LINDA WOODS; CHERYL BARNARD;

PLAINTIFF’S MOTION FOR

18 WESLEY LUNDBURG; PAMELA

TEMPORARY RESTRAINING

LUSTER; HENRY GEN; ANDREW

19 ORDER AND PRELIMINARY

LOWE; and BURAK CEBECIOGLU, in

INJUNCTION

20 their official and personal capacities; and

SAN DIEGO COMMUNITY COLLEGE

21 (ECF Nos. 1–3)

DISTRICT,

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Defendants.

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25 Presently before the Court are Plaintiff Mel Marin’s Complaint (“Compl.,” ECF No.

26 1); Motion to Proceed in Forma Pauperis (“IFP Mot.,” ECF No. 2); and Motion for

27 Temporary Restraining Order and Preliminary Injunction (“TRO Mot.,” ECF No. 3).

28 Having carefully considered Plaintiff’s filings and the applicable law, the Court GRANTS

1 Plaintiff’s IFP Motion, DISMISSES Plaintiff’s Complaint WITH LEAVE TO AMEND,

2 and DENIES WITHOUT PREJUDICE Plaintiff’s TRO Motion.

3 IN FORMA PAUPERIS MOTION

4 All parties instituting any civil action, suit, or proceeding in a district court of the

5 United States, except an application for writ of habeas corpus, must pay a filing fee of

6 $402.1 See 28 U.S.C. § 1914(a). An action may proceed despite a plaintiff’s failure to

7 prepay the entire fee only if he is granted leave to proceed in forma pauperis (“IFP”)

8 pursuant to 28 U.S.C. § 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir.

9 2007); Rodriguez v. Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). Although the statute does

10 not specify the qualifications for proceeding IFP, the plaintiff’s affidavit must allege

11 poverty with some particularity. Escobeda v. Applebees, 787 F.3d 1226, 1234 (2015).

12 Granting a plaintiff leave to proceed IFP may be proper, for example, when the affidavit

13 demonstrates that paying court costs will result in a plaintiff’s inability to afford the

14 “necessities of life.” Id. The affidavit, however, need not demonstrate that the plaintiff is

15 destitute. Id.

16 Here, Plaintiff’s IFP Motion establishes that he has an income of “about $750 a

17 month in the nature of a pension based on prior military duty.” IFP Mot. at 2; see also

18 Affirmation in Support of Motion to Proceed In Forma Pauperis (“Affidavit,” ECF No. 2)

19 at 6. Plaintiff reports having $165.00 in cash and owning a motor vehicle worth

20 approximately $600. See IFP Mot. at 2–3. Plaintiff further indicates that he has two

21 checking accounts and a savings account, although he does not provide balance information

22 for those accounts. See id. at 2. Plaintiff’s monthly expenses of $895.00 exceed his

23 monthly income. See id. at 4–5. The Court therefore concludes that Plaintiff adequately

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1 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $52.

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See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14

28 (eff. Dec. 1, 2020)). The additional $52 administrative fee does not apply to persons granted leave to

1 has demonstrated that paying the $402 filing fee would result in his inability to afford the

2 necessities of life. Accordingly, the Court GRANTS Plaintiff’s IFP Motion.

3 SCREENING PURSUANT TO 28 U.S.C. § 1915(e)(2)

4 I. Standard of Review

5 Because Plaintiff is proceeding IFP, his Complaint requires a pre-answer screening

6 pursuant to 28 U.S.C. § 1915(e)(2). See, e.g., Calhoun v. Stahl, 254 F.3d 845, 845 (9th

7 Cir. 2002) (per curiam) (holding 28 U.S.C. § 1915(e)(2) screening applies to non-prisoners

8 proceeding IFP); see also Lopez v. Smith, 203 F.3d 1122, 1126–27 (9th Cir. 2000) (en banc)

9 (discussing 28 U.S.C. § 1915(e)(2)). Under this statute, the Court sua sponte must dismiss

10 a complaint, or any portion of it, that is frivolous, malicious, fails to state a claim, or seeks

11 damages from defendants who are immune. See Lopez, 203 F.3d at 1126–27. “The

12 purpose of [screening] is ‘to ensure that the targets of frivolous or malicious suits need not

13 bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir.

14 2014) (citations omitted).

15 “The standard for determining whether a plaintiff has failed to state a claim upon

16 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of

17 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d

18 1108, 1112 (9th Cir. 2012). Rule 12(b)(6) requires a complaint “contain sufficient factual

19 matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v.

20 Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at

21 1121. Detailed factual allegations are not required, but “[t]hreadbare recitals of the

22 elements of a cause of action, supported by mere conclusory statements, do not suffice.”

23 Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for relief

24 [is] . . . a context-specific task that requires the reviewing court to draw on its judicial

25 experience and common sense.” Id. The “mere possibility of misconduct” or “unadorned,

26 the defendant-unlawfully-harmed me accusation[s]” fall short of meeting this plausibility

27 standard. Id.; see also Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009).

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1 Further, “[w]hile factual allegations are accepted as true, legal conclusions are not.”

2 Hoagland v. Astrue, No. 1:12-cv-00973-SMS, 2012 WL 2521753, at *3 (E.D. Cal. June

3 28, 2012) (citing Iqbal, 556 U.S. at 678). Courts cannot accept legal conclusions set forth

4 in a complaint if the plaintiff has not supported his contentions with facts. Id. (citing Iqbal,

5 556 U.S. at 679).

6 “Generally, district courts may not consider material outside the pleadings when

7 assessing the sufficiency of a complaint under Rule 12(b)(6) of the Federal Rules of Civil

8 Procedure.” Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 998 (9th Cir. 2018)

9 (citing Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001)). “There are two

10 exceptions to this rule: the incorporation-by-reference doctrine, and judicial notice

11 under Federal Rule of Evidence 201.” Id.

12 Pursuant to Federal Rule of Evidence 201(b), “[t]he court may judicially notice a

13 fact that is not subject to reasonable dispute because it: (1) is generally known within the

14 trial court’s territorial jurisdiction; or (2) can be accurately and readily determined from

15 sources whose accuracy cannot reasonably be questioned.” “Accordingly, ‘[a] court may

16 take judicial notice of matters of public record without converting a motion to dismiss into

17 a motion for summary judgment.’” Khoja, 899 F.3d at 999 (quoting Lee, 250 F.3d at 689).

18 “But a court cannot take judicial notice of disputed facts contained in such public

19 records.” Id. (citing Lee, 250 F.3d at 689).

20 “Even if a document is not attached to a complaint, it may be incorporated by

21 reference into a complaint if the plaintiff refers extensively to the document or the

22 document forms the basis of the plaintiff’s claim.” United States v. Ritchie, 342 F.3d 903,

23 908 (9th Cir. 2003) (citing Van Buskirk v. Cable News Network, Inc., 284 F.3d 977, 980

24 (9th Cir. 2002); Branch v. Tunnell, 14 F.3d 449, 453–54 (9th Cir. 1994), overruled on other

25 grounds by Galbraith v. Cnty. of Santa Clara, 307 F.3d 1119 (9th Cir. 2002); Venture

26 Assoc. Corp. v. Zenith Data Sys. Corp., 987 F.2d 429, 431(7th Cir. 1993)). “‘[T]he mere

27 mention of the existence of a document is insufficient to incorporate the contents of a

28 document’ under Ritchie.” Khoja, 899 F.3d at 1002 (quoting Coto Settlement v. Eisenberg,

1 593 F.3d 1031, 1038 (9th Cir. 2010)). Nonetheless, a document may still form the basis of

2 the plaintiff’s claim where “the claim necessarily depended on the[ document].” Id. (citing

3 Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005)). “However, if the document merely

4 creates a defense to the well-pled allegations in the complaint, then that document did not

5 necessarily form the basis of the complaint.” Id. When a document is incorporated by

6 reference, “the district court may treat such a document as part of the complaint, and thus

7 may assume that its contents are true for purposes of a motion to dismiss under Rule

8 12(b)(6).” Ritchie, 342 F.3d at 908; see also Marder v. Lopez, 450 F.3d 445, 448 (9th Cir.

9 2006) (“The court may treat . . . a document [incorporated by reference] as ‘part of the

10 complaint, and thus may assume that its contents are true for purposes of a motion to

11 dismiss under Rule 12(b)(6).’”) (citing Ritchie, 342 F.3d at 908). Nonetheless, “it is

12 improper to assume the truth of an incorporated document if such assumptions only serve

13 to dispute facts stated in a well-pleaded complaint.” Khoja, 899 F.3d at 1003.

14 Courts have a duty to construe a pro se litigant’s pleadings liberally. See Karim-

15 Panahi v. L.A. Police Dep’t, 839 F.2d 621, 623 (9th Cir. 1988). The district court should

16 grant leave to amend if it appears “at all possible that the plaintiff can correct the defect,”

17 unless the court determines that “the pleading could not possibly be cured by the allegation

18 of other facts.” Lopez v. Smith, 203 F.3d 1122, 1130–31 (9th Cir. 2000) (en banc) (citing

19 Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995); Balistreri v. Pacifica Police Dep’t,

20 901 F.2d 696, 701 (9th Cir. 1990)).

21 II. Plaintiff’s Factual Allegations

22 Plaintiff alleges that he is a student in the San Diego Community College District

23 (“SDCCD”). Compl. ¶ 1. Plaintiff claims that on “March 16, 2020 library access was

24 stopped by the college because of the threat of spread of the COVID virus, in order to keep

25 students separated.” Id. ¶ 4. He claims that “[a]ll students were informed that they had a

26 duty to continue the class only ‘online’ but were denied access to computers for this

27 purpose although the college had the financial and physical ability to loan computers to

28 students.” Id. ¶ 5. Plaintiff alleges he had a laptop computer, but it had “no internet access

1 built-in and [he] had to go to a ‘wifi’ location to reach course material and watch lectures

2 and to take tests[.]” Id. ¶ 6. Plaintiff alleges that because of his indigency, he could not

3 afford to pay for wifi service. Id. ¶ 8. Plaintiff claims he would “go to those establishments

4 [with wifi] and sit outside on the concrete with his laptop until restaurant management or

5 security or police told him to get out, or the establishment wifi signal randomly stopped.”

6 Id. ¶ 7. This situation made him “violate state COVID ‘stay at home’ orders from Governor

7 Newsom[.]” Id.

8 Further, Plaintiff is “a disabled Army veteran with injuries resulting from explosions

9 near his head while on active duty.” Id. ¶ 36. Plaintiff claims that his “eye disability . . .

10 prevented him from seeing computer screen images clearly, and . . . made screen navigation

11 so slow because he kept getting lost because of his eye injuries that he needed 5 hours on

12 computer to do the homework that healthy students could do in 1 hour.” Id. ¶ 10. Due to

13 these circumstances, Plaintiff “was given F grades from missing material in the next few

14 weeks.” Id. ¶ 11. Plaintiff sought and received an accommodation from the SDCCD

15 disability office; however, plaintiff claims this was “only ‘token’ to give an impression that

16 something was being done.” Id. ¶ 12. The college granted Plaintiff “2 ½ more hours to do

17 tests for each hour others get[.]” Id. Plaintiff’s professor granted Plaintiff an opportunity

18 to make up the work Plaintiff was not able to complete before the accommodation;

19 however, “he gave [Plaintiff] 5 days to make up 8 tests and lab reports that he gave the

20 healthy students two weeks to finish.” Id. ¶ 13. Plaintiff claims “the teacher’s offer was

21 fake or ‘pretextual’, because he knew petitioner had no physical ability to make-up that

22 work in 5 days with [Plaintiff]’s medical problems and without buying the latest computer

23 technology.” Id. ¶ 15. Plaintiff claims that, for these reasons, he “was forced to drop the

24 class by the May 8 deadline to avoid a grade, although he had a clear ‘A’ average in his

25 tests and labs before the crisis started.” Id. ¶ 16.

26 In addition, Plaintiff takes issue with Defendants’ rule that “bars students from in-

27 person instruction hereafter if the student cannot show proof of COVID vaccination even

28 if the unvaccinated student wears a mask.” Id. ¶ 132. He claims that this “rule allows only

1 students who are otherwise healthy . . . [and] bars students with medical conditions that

2 caution against a vaccine[.]” Id. ¶ 134 (emphasis in original). Plaintiff is a disabled veteran

3 with medical issues who, as a result, allegedly is barred from attending classes. Id. ¶¶ 135,

4 137. Plaintiff further claims that the decision whether to get the vaccine is protected First

5 Amendment expression, see id. ¶ 136, and that the policy is counter to AB-86, which “bars

6 any school from denying in-person instruction to students who fail to provide proof of

7 vaccination,” id. ¶ 140.

8 Plaintiff asserts eight claims: (1) declaratory judgment, injunction, and damages; (2)

9 breach of the implied covenant of good faith and fair dealing; (3) intentional infliction of

10 emotional distress; (4) negligent infliction of emotional distress; (5) declaratory judgment,

11 injunction, and damages; (6) declaratory judgment, injunction, and damages; (7)

12 declaratory judgment, injunction, and damages; and (8) damages. See generally Compl.

13 Plaintiff brings his claims against SDCCD; Miramar College biology professor Henry Cen,

14 Department Chair Andrew Lowe, Dean of Science Linda Woods, Dean of Students Cheryl

15 Barnard, President Marsha Gable, and Chancellors Constance Carroll and Carlos O. Turner

16 Cortez; Mesa College President Pamela Luster; City College professor Burak Cebecioglu;

17 SDCCD Trustees Craig Milgrim, Mary Graham, Geysil Arroyo, Maria Nieto Senour, and

18 Bernie Rhinerson; and Wesley Lundberg. See Compl. at 1; id. ¶¶ 6, 13, 66, 79, 89, 115,

19 130.

20 III. Analysis

21 A. Federal Claims

22 1. Eleventh Amendment Immunity

23 As an initial matter, “the Eleventh Amendment bars suits against a state brought by

24 its own citizens, whether the relief sought is money damages or an injunction.” Seater v.

25 Cal. State Univ., Fullerton, 48 F.3d 1228 (9th Cir. 1995) (citing Atascadero State Hosp. v.

26 Scanlon, 473 U.S. 234, 241 (1985); Shaw v. Cal. Dep’t of Alcoholic Beverage Control, 788

27 F.2d 600, 603 (9th Cir. 1986)). “Moreover, agencies of the state, such as California state

28 colleges and universities, are similarly immune from private damage actions or suits for

1 injunctive relief brought in federal court pursuant to 42 U.S.C. § 1983.” Id. (citing Mitchell

2 v. L.A. Cmty. Coll. Dist., 861 F.2d 198, 201 (9th Cir. 1988)). The Ninth Circuit explicitly

3 has held that Eleventh Amendment immunity applies to California community college

4 school districts. Cerrato v. S.F. Cmty. Coll. Dist., 26 F.3d 968, 972 (9th Cir. 1994) (holding

5 community college districts are entitled to Eleventh Amendment immunity as dependent

6 instrumentalities of the state of California) (citing Pennhurst State Sch. & Hosp. v.

7 Halderman, 465 U.S. 89 (1984)); Belanger v. Madera Unified Sch. Dist., 963 F.2d 248,

8 254 (9th Cir. 1992) (holding school districts in California are considered agents of the state

9 to which Eleventh Amendment immunity extends).

10 Further, a state official sued in his or her official capacity for damages is not a

11 “person” for the purposes of 42 U.S.C. § 1983. Arizonans for Official English v. Arizona,

12 520 U.S. 43, 69 n.24 (1997); Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989);

13 Doe v. Lawrence Livermore Nat’l Lab., 131 F.3d 836, 839 (9th Cir. 1997). The Supreme

14 Court has determined that official-capacity suits filed against state officials are merely an

15 alternative way of pleading an action against the entity of which the defendant is an officer.

16 Hafer v. Melo, 502 U.S. 21, 27 (1991); Kentucky v. Graham, 473 U.S. 159, 165 (1985).

17 Thus, a defendant sued in his or her official capacity possesses the same sovereign

18 immunity as that governmental entity, and the Eleventh Amendment prohibits damages

19 actions against him or her. See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 n.10

20 (1989).

21 Here, Plaintiff sues SDCCD, as well as SDCCD faculty and administrators and

22 members of the SDCCD board of trustees in their official capacities. Section 1983 does

23 not express the requisite unequivocal intent to abrogate states’ Eleventh Amendment

24 immunity from suit, Quern v. Jordan, 440 U.S. 332, 342 (1979), and California has not

25 waived its Eleventh Amendment immunity as to such claims. However, “[Ninth Circuit]

26 precedent is clear that the State waived its Eleventh Amendment immunity under Section

27 504 of the Rehabilitation Act by accepting federal funds.” Phiffer v. Columbia River Corr.

28 Inst., 384 F.3d 791, 793 (9th Cir. 2004) (citations omitted). Accordingly, SDCCD is

1 immune from suit as to all of Plaintiff’s federal claims save the first; thus, to the extent

2 Plaintiff seeks to assert those claims against SDCCD directly, they are frivolous and must

3 be dismissed. Seater, 48 F.3d 1228 (citing Atascadero State Hospital, 473 U.S. at 241;

4 Mitchell, 861 F.2d at 201; Shaw, 788 F.2d at 603–04; Neitzke v. Williams, 490 U.S. 319,

5 325 (1989)). Further, the SDCCD faculty, administrators, and board members Plaintiff

6 seeks to sue in their official capacities are immune to the extent Plaintiff seeks damages

7 from them.

8 2. Claims 1, 5, 6, 7, & 8: Remedies Versus Claims

9 Moreover, all Plaintiff’s federal claims are for declaratory judgment, injunctions,

10 damages, or a combination thereof. See Compl. at 2, 28, 34, 42, 47. However, declaratory

11 relief, injunctive relief, and damages are remedies rather than standalone claims. See

12 Kimball v. Flagstar Bank F.S.B., 881 F. Supp. 2d 1209, 1219–20 (S.D. Cal. 2012)

13 (dismissing with prejudice claim for declaratory relief because “[d]eclaratory relief is not

14 an independent cause of action, but instead a form of equitable relief”) (citation omitted);

15 Jones v. ABN AMRO Mortg. Grp., Inc., 551 F. Supp. 2d 400, 406 (E.D. Pa. 2008)

16 (similar), aff’d, 606 F.3d 119 (3d Cir. 2010); Mehta v. Wells Fargo Bank, N.A., 737 F.

17 Supp. 2d 1185, 1205 (S.D. Cal. 2010) (“Injunctive relief, like damages, is

18 a remedy requested by the parties, not a separate cause of action.’” (quoting Cox Commc’n

19 PCS, L.P. v. City of San Marcos, 204 F. Supp. 2d 1272, 1283 (S.D. Cal. 2002)). This alone

20 merits dismissal of Plaintiff’s first, fifth, sixth, seventh, and eighth claims.

21 3. Claim 1: Declaratory Judgment and Injunction

22 As noted supra in Section III.A.2, Plaintiff’s first claim is subject to dismissal as

23 asserting forms of relief rather than causes of action. Even construing Plaintiff’s first claim

24 liberally, however, as attempting to bring a claim alleging that Defendants violated section

25 504 of the Rehabilitation Act of 1973 (29 U.S.C. § 794) and 34 C.F.R. part 104, see Compl.

26 ¶ 26, Plaintiff’s claim fails. Essentially, Plaintiff claims that he was discriminated against

27 by Professor Cen when Professor Cen required Plaintiff to complete eight exams and lab

28 work within five days, and that the remaining Defendants are liable “because they did not

1 stop it.” Id. ¶ 27. He also argues that all Defendants discriminated against him when they

2 refused to award him an “incomplete” grade in April 2020, refused to provide him with a

3 laptop computer and wifi to complete the schoolwork they assigned, and offered him a

4 “take it or leave it” choice of completing his coursework online only without providing

5 him extra time to complete the work. Id. ¶¶ 28–30.

6 However, Plaintiff fails to plead basic elements of his claims. First, to the extent

7 Plaintiff premises his claim on the failure to provide him a laptop and wifi, his claim seems

8 to be based on indigency. See id. ¶ 8. However, 34 C.F.R. § 104.4(a) provides that “[n]o

9 qualified handicapped person shall, on the basis of handicap, be excluded from

10 participation in, be denied the benefits of, or otherwise be subjected to discrimination under

11 any program or activity which receives Federal financial assistance.” Under 34 C.F.R.

12 § 104.3(j)(1), “[h]andicapped persons means any person who (i) has a physical or mental

13 impairment which substantially limits one or more major life activities, (ii) has a record of

14 such an impairment, or (iii) is regarded as having such an impairment.” Plaintiff’s poverty

15 or indigence does not make him a “qualified handicapped person” under this regulation.

16 Even were indigence a handicap, however, Plaintiff also fails to allege that any Defendant

17 discriminated against him on the basis of his indigence.

18 “A plaintiff bringing suit under § 504 must show (1) he is an individual with a

19 disability; (2) he is otherwise qualified to receive the benefit; (3) he was denied the benefits

20 of the program solely by reason of his disability; and (4) the program receives federal

21 financial assistance.” Duvall v. Cty. of Kitsap, 260 F.3d 1124, 1135 (9th Cir. 2001), as

22 amended on denial of reh’g (Oct. 11, 2001) (citation omitted). Although Plaintiff alleges

23 that he is disabled under the Rehabilitation Act or a handicapped person under 34 C.F.R.

24 part 104 on account of his eye problems, Compl. ¶ 10, he fails to allege, much less allege

25 facts that plausibly support, that he was denied benefits “solely by reason of his disability”

26 or “on the basis of [his] handicap.” See, e.g., M.K. ex rel. Mrs. K. v. Sergi, 554 F. Supp.

27 2d 201, 230 (D. Conn. 2008) (finding Rehabilitation Act claim not viable because

28 “plaintiffs are attempting to invoke the anti-discrimination provisions of the ADA and the

1 Rehabilitation Act to challenge the adequacy of the services provided by the Putnam

2 defendants, not illegal disability discrimination”). Plaintiff does not claim that Professor

3 Cen set a supposedly impossible accommodation or that Defendants refused to award him

4 an “incomplete” grade because of his eye disability. Rather, Plaintiff later claims that he

5 was denied these accommodations because of his First Amendment-protected speech. See

6 Compl. ¶ 126. Accordingly, Plaintiff has not alleged adequately his first claim.

7 2. Claim 5: Declaratory Judgment, Injunction, and Damages

8 As noted supra in Section III.A.2, Plaintiff’s fifth claim is subject to dismissal as

9 asserting forms of relief rather than causes of action; however, construing the claim

10 liberally as one claiming that “the SDCCD rules for review of grade up-grades” is

11 unconstitutionally vague, see Compl. ¶¶ 96–103, 107, the claim nonetheless fails on the

12 merits.

13 Plaintiff claims that he received a poor grade in an organic chemistry class from

14 SDCCD in or around 2011 and that he petitioned in the spring of 2020 to replace that grade

15 with an “A” he received from another institution in a comparable class. Id. ¶ 51. He alleges

16 that he submitted the transcript from the other institution to SDCCD at Mesa College, but

17 that Defendants refused to process his upgrade request because Plaintiff did not submit

18 transcripts for all courses he had taken at all institutions he had previously attended. Id.

19 Plaintiff claims the rule does not require transcripts from the other institutions, but rather

20 only proof that a student took one equivalent course and acquired a different grade. Id.

21 ¶ 52. Elsewhere, however, Plaintiff instead claims that the rule “affirmatively requires

22 students to give up their 1st Amendment privacy rights over their college transcripts in

23 other places as a condition to review of their submissions,” id. ¶ 103 (emphasis in original),

24 and “mandates that the student give up his privacy and hand over to SDCCD whatever the

25 college demands,” id. ¶ 104 (emphasis in original). Plaintiff also insists that “the words of

26 the SDCCD upgrade college regulation is actually kept secret to prevent students from

27 having ‘fair warning’ on what an upgrade petition should look like or say.” Id. ¶ 101.

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1 In light of these contradictory allegations, the Court is unable to find that Plaintiff

2 plausibly has alleged that the rule in question is unconstitutionally vague. See Anderson v.

3 Virga, No. 215CV1148KJMEFBP, 2017 WL 1179142, at *3 (E.D. Cal. Mar. 29, 2017)

4 (noting that “Plaintiff’s factual allegations must be taken as true in evaluating his complaint

5 under Rule 12(b)(6), but where the allegations contradict each other, very little can be

6 inferred factually to supply the essential elements of his claim,” and finding that, “[w]hen

7 the contradictory allegations are set aside,” Plaintiff failed to state a claim), report and

8 recommendation adopted, No. 215CV1148KJMEFBP, 2017 WL 2546496 (E.D. Cal. June

9 13, 2017). Not only does Plaintiff admit that he actually does not know the exact terms of

10 the rule in question, he then claims that the rule has two opposing requirements (no

11 transcripts from other institutions required versus transcripts from other institutions

12 required as a condition to review). These inconsistent allegations make it impossible for

13 the Court to find that Plaintiff plausibly has alleged an unconstitutionally vague policy.

14 See Slack v. Woodbury, No. C19-159-RSM, 2019 WL 1957935, at *1 (W.D. Wash. May

15 2, 2019) (finding contradictory complaint “fails to afford defendants sufficient notice of

16 the nature of plaintiff’s claims to allow them to properly respond”) (citation omitted);

17 Chand v. Experian Info. Sols., Inc., No. 16-CV-6311-YGR, 2017 WL 1046971, at *2 (N.D.

18 Cal. Mar. 20, 2017) (in ruling on motion for sanctions, finding complaint containing

19 “contradictory and false allegations” frivolous).

20 Further, Plaintiff’s inability to supply the text of the rule makes it impossible for the

21 Court to assess, at this time or in the future, whether the rule is vague. “Vagueness

22 challenges made under the Due Process Clause ‘rest on the lack of notice.’ A statute or

23 regulation is unconstitutionally vague ‘if it fails to give adequate notice to people of

24 ordinary intelligence concerning the conduct it proscribes, or if it invites arbitrary and

25 discriminatory enforcement.’” Lopez v. Ayers, No. C 08-05341 JW (PR), 2010 WL

26 1526476, at *7 (N.D. Cal. Apr. 14, 2010) (citing Maynard v. Cartwright, 486 U.S. 356,

27 361 (1988); United States v. Doremus, 888 F.2d 630, 634 (9th Cir. 1989)). “In a vagueness

28 challenge, the federal court must look to the plain language of the statute, as well as

1 construe the statute as it has been interpreted by the state courts.” Id. (citing Nunez v. City

2 of San Diego, 114 F.3d 935, 941–42 (9th Cir. 1997)). Here, without being able to refer to

3 and parse the language of the rule in question, the Court is incapable of determining

4 whether it is, in fact, vague.

5 For the foregoing reasons, the Court finds Plaintiff has not alleged a plausible claim

6 for unconstitutional vagueness of the SDCCD rule.

7 3. Claim 6: Declaratory Judgment, Injunction, and Damages

8 As noted supra in Section III.A.2, Plaintiff’s sixth claim is subject to dismissal as

9 asserting forms of relief rather than causes of action; but, construing the claim liberally as

10 one for First Amendment retaliation, see Compl. ¶ 120, it is nonetheless deficient.

11 “Title 42 U.S.C. § 1983 ‘authorizes a remedy against state actors for constitutional

12 violations.’” Seater, 48 F.3d 1228 (citing Cerrato v. S.F. Cmty. Coll. Dist., 26 F.3d 968,

13 971 n.5 (9th Cir. 1994)). “To state a First Amendment retaliation claim, a plaintiff must

14 plausibly allege ‘that (1) he was engaged in a constitutionally protected activity, (2) the

15 defendant’s actions would chill a person of ordinary firmness from continuing to engage

16 in the protected activity and (3) the protected activity was a substantial or motivating factor

17 in the defendant’s conduct.’” Capp v. Cty. of San Diego, 940 F.3d 1046, 1053 (9th Cir.

18 2019) (quoting O’Brien v. Welty, 818 F.3d 920, 932 (9th Cir. 2016)).

19 Plaintiff appears to assert this claim against Miramar College’s Cen, Lowe, Woods,

20 Barnard, and Gable; Chancellors Carroll and Cortez; Mesa College President Luster; and

21 SDCCD. See Compl. ¶ 130. For the reasons provided supra at Section III.A.1, however,

22 SDCCD is immune, as are the individuals to the extent sued for damages in their official

23 capacities. Accordingly, the claim can only survive to the extent it seeks injunctive and

24 declaratory relief against the individually identified Defendants and damages against them

25 in their personal capacities.

26 As relevant to this claim, Plaintiff alleges that Defendants “attempt[ed] to hijack and

27 amend a statute called the California Promise Grant.” Compl. ¶ 109. Plaintiff asserts that

28 Defendants list the California Promise Grant online as one of the types of financial aid

1 offered by SDCCD, but that “they denied access to that Grant by refusing to provide a link

2 to the Board of Governor’s program.” Id. ¶ 110. Plaintiff further claims that Defendants

3 “st[ole] the name of the Board of Governor’s program” and created a program called the

4 San Diego Promise Grant that has “onerous student duties that the Legislature of California

5 was never told about and did not approve.” Id. ¶ 111. Plaintiff claims that, in early 2021,

6 he became aware of “this campaign” when he could not find the waiver form for the

7 “original” program, and that, although disability office personnel gave him the form in

8 April 2021 and he completed it and mailed it to the college, the Defendants, “in the

9 continuing campaign . . . to punish [Plaintiff], . . . refused to process his BOG waiver.” Id.

10 ¶¶ 114–15. Plaintiff claims he then was forced to drop one of his spring 2021 classes

11 because he could not afford it, but that he was billed for the tuition anyway and a “hold”

12 was placed to prevent him from taking any classes in retaliation for Plaintiff’s prior

13 complaints “and for ‘blowing the whistle’ on their PROMISE fraud.” Id. ¶ 116. Plaintiff

14 claims to have sought help from many SDCCD personnel to get his waiver form processed

15 so the hold could be removed, but that “[a]ll of them refused to process the old form for

16 [Plaintiff] . . . because they are all under actual or implied orders from the SDCCD

17 TRUSTEES and CHANCELLORS to keep the hold in place to retaliate against [Plaintiff]

18 and make 100% certain he will not register for any class again at SDCCD.” Id. ¶ 118.

19 Plaintiff claims that his protected activity consists of his complaints about: 2011

20 harassment by Mesa College for complaining about a teacher’s conduct, id. ¶¶ 125, 62; the

21 veteran’s lounge throwing away his lunches in the fall of 2019, id. ¶¶ 125, 59–63, 66;

22 Professor Cen’s and SDCCD’s refusal to provide him with accommodations, made to the

23 Department of Education in May 2020, id. ¶¶ 125, 17; Mesa College and its president,

24 Luster, refusing to process his spring 2020 grade upgrade request, id. ¶¶ 125, 51; SDCCD

25 allegedly hiding the California Promise Grant forms to steer students to its own grant

26 program, id. ¶ 125; and SDCCD refusing to remove the hold placed against him, id. It does

27 not appear, however, based on the allegations in the Complaint, that Plaintiff ever made

28 any sort of complaint, informal or otherwise, to anyone about the grade upgrade request,

1 the grant program, or the hold on his record. See generally Compl. As to the grant program

2 and the hold, Plaintiff indicates he requested assistance, see id. ¶¶ 114, 117, but not that he

3 complained about these issues.

4 As to the allegedly retaliatory acts, Plaintiff claims these consisted of throwing away

5 his food, barring him from making prints in the veteran’s lounge at Mesa College, refusing

6 his accommodation requests at Miramar College, refusing to process his tuition waiver,

7 and placing and refusing to remove a fake hold on his SDCCD account. Id. ¶ 126.

8 However, the only Defendants Plaintiff alleges engaged in this retaliation, in the form of

9 refusing the accommodation requests, are Cen, Lowe, Woods, Barnard, Gable, and Carroll.

10 See id. ¶¶ 6, 13. Because Plaintiff fails to allege any retaliatory activity by Luster or Cortez,

11 the claim must fail as to them. As to the remaining Defendants, Plaintiff has failed to allege

12 facts that, taken as true, would establish that a person of ordinary firmness would be

13 deterred from engaging in the alleged constitutionally protected conduct because of their

14 refusal to provide him with a laptop and wifi and/or more extra time to complete lab work

15 and exams, or would show that Plaintiff’s exercise of his free speech rights was the “but

16 for” cause of these actions. Accordingly, Plaintiff fails to state a plausible retaliation claim

17 as to any Defendant.

18 4. Claim 7: Declaratory Judgment and Injunction; Claim 8: Damages

19 As noted supra in Section III.A.2, Plaintiff’s seventh and eighth claims are subject

20 to dismissal as asserting forms of relief rather than causes of action. Nonetheless,

21 construing the claims liberally as attempting to bring a cause of action alleging that

22 Defendants’ Covid-19 policy violates various rights protected by the U.S. Constitution, see

23 Compl. ¶¶ 131–58, the Court finds that Plaintiff fails to state a claim.

24 The crux of Plaintiff’s claims is that the Covid-19 policy absolutely bars Plaintiff

25 and others from attending classes in-person at SDCCD campuses absent proof of

26 vaccination. Id. ¶¶ 134, 137. However, this fundamental premise is false. Given that

27 Plaintiff submits as an exhibit to his Complaint a screenshot of an announcement on

28 SDCCD’s website declaring “Planning for a Safe Return to Campus,” see Compl. Ex. A,

1 and that the existence and terms of such a policy form the basis of Plaintiff’s claims, see

2 id. ¶¶ 131–47, the Court considers the policy to be incorporated by reference. The San

3 Diego Community College District COVID-19 Vaccination Policy (the “Policy”) clearly

4 provides, however, that students who “cannot take the COVID-19 vaccination due to

5 medical or religious reasons” “may request an exemption from the COVID-19 vaccination

6 requirement for medical or religious reasons.” See Policy at COVID-19 Vaccination

7 Requirements, available at https://www.sdccd.edu/students/covid19/. Because the Policy

8 does have exemptions potentially applicable to Plaintiff, Plaintiff fails to state a claim on

9 the basis that he is necessarily harmed because he will not provide proof of vaccination.

10 Plaintiff’s claim also seems to rely on the fact that the Policy is illegal and conflicts

11 with state law, namely AB-86. Compl. ¶¶ 139–41. Again, however, this is untrue. Once

12 more, Plaintiff quotes from AB-86 and provides a citation to the bill, so the Court considers

13 AB-86 incorporated by reference into the Complaint. By its plain language, AB-86, which

14 added Article 8 to Chapter 1 of Part 19 of Division 1 of Title 1 of the California Education

15 Code (titled “COVID-19 Reporting and Public Health Requirements”) applies to public

16 and private schools “maintaining kindergarten or any of grades 1 to 12, inclusive.” See

17 Cal. Educ. Code § 32090(a)(1). Thus, on its face, AB-86 does not apply to postsecondary

18 institutions like SDCCD. See, e.g., Karasek v. Regents of the Univ. of Cal., No. 15-CV-

19 03717-WHO, 2015 WL 8527338, at *18–19 (N.D. Cal. Dec. 11, 2015) (rejecting argument

20 that provision applied to postsecondary institution when definition of included institutions

21 included “public or private preschool[s], elementary, or secondary school[s] or

22 institution[s]”). While Plaintiff cites to Brown v. Li for the proposition that “laws

23 protecting students in elementary schools apply to state colleges as well,” Compl. ¶ 143

24 (citing 308 F.3d 939, 949 (9th Cir. 2002), Brown is inapposite. Here, Plaintiff raises a

25 straightforward issue of statutory construction, while Brown dealt with an issue of first

26 impression concerning First Amendment jurisprudence. Even assuming AB-86 applied to

27 SDCCD, the fact that “section [32092] shall not be construed as inferring that vaccination

28 of school staff or pupils is a prerequisite for providing in-person instruction” is not a bar to

1 the implementation of such prerequisites, despite Plaintiff’s allegations to the contrary.

2 Cal. Educ. Code § 32092(d); see Compl. ¶ 140. Thus, to the extent Plaintiff contends that

3 the Policy is illegal due to its alleged conflict with AB-86, Plaintiff’s claim lacks merit.

4 Accordingly, the Court finds that Plaintiff fails to state plausible claims for declaratory and

5 injunctive relief and damages on multiple grounds.

6 B. State Law Claims

7 “In any civil action of which the district courts have original jurisdiction, the district

8 courts shall have supplemental jurisdiction over all other claims that are so related to

9 claims in the action within such original jurisdiction that they form part of the same case

10 or controversy under Article III of the United States Constitution.” 28 U.S.C. § 1367(a).

11 However, “once judicial power exists under § 1367(a), retention of supplemental

12 jurisdiction over state law claims under 1367(c) is discretionary.” Acri v. Varian Assoc.,

13 Inc., 114 F.3d 999, 1000 (9th Cir. 1997).

14 Plaintiff also seeks to bring various California state law claims against

15 Defendants. See generally Compl. Because Plaintiff has failed to allege a violation of

16 federal law, however, the Court exercises its discretion to dismiss his pendent state law

17 claims without prejudice. 28 U.S.C. § 1367(c)(3) (“The district court may decline to

18 exercise supplemental jurisdiction over a claim under subsection (a) if . . . [it] has

19 dismissed all claims over which it has original jurisdiction.”); United Mine Workers of Am.

20 v. Gibbs, 383 U.S. 715, 726 (1966) (“[I]f the federal claims are dismissed before trial, . . .

21 the state claims should be dismissed as well.”); Acri, 114 F.3d at 1000.

22 C. Leave to Amend

23 For the above-mentioned reasons, the Court finds Plaintiff’s Complaint fails to state

24 any claim upon which relief can be granted and that the Complaint must be dismissed sua

25 sponte and in its entirety pursuant to 28 U.S.C. § 1915A(b)(1). Because Plaintiff is

26 proceeding pro se, the Court, having now provided him with “notice of the deficiencies in

27 his complaint,” will also grant him an opportunity to fix them. See Akhtar v. Mesa, 698

28 / / /

1 F.3d 1202, 1212 (9th Cir. 2012) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir.

2 1992)).

3 MOTION FOR TEMPORARY RESTRAINING ORDER

4 Federal Rule of Civil Procedure 65(b) governs the issuance of a temporary

5 restraining order (“TRO”). The standard for a TRO is identical to the standard for a

6 preliminary injunction. Frontline Med. Assocs., Inc. v. Coventry Healthcare Worker’s

7 Comp., Inc., 620 F. Supp. 2d 1109, 1110 (C.D. Cal. 2009). A plaintiff seeking preliminary

8 relief must establish “[1] that he is likely to succeed on the merits, [2] that he is likely to

9 suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities

10 tips in his favor, and [4] that an injunction is in the public interest.” Winter v. Nat. Res.

11 Def. Council, Inc., 555 U.S. 7, 20 (2008). Injunctive relief is “an extraordinary remedy

12 that may only be awarded upon a clear showing that the plaintiff is entitled to such relief”

13 and is “never awarded as a matter of right.” Id. at 22, 24. “Because it is a threshold inquiry,

14 when a plaintiff has failed to show the likelihood of success on the merits, [the court] need

15 not consider the remaining three [Winter elements].” Garcia v. Google, Inc., 786 F.3d 733,

16 740 (9th Cir. 2015) (en banc) (citing Ass’n des Eleveurs de Canards et d’Oies du Quebec

17 v. Harris, 729 F.3d 937, 944 (9th Cir. 2013) (internal quotation marks omitted).

18 When a plaintiff has not provided notice of his application to the defendant, Federal

19 Rule of Civil Procedure 65(b)(1) imposes specific requirements prior to the issuance of a

20 TRO. Namely:

21 The court may issue a temporary restraining order without

written or oral notice to the adverse party or its attorney only if:

22

(A) specific facts in an affidavit or a verified complaint clearly

23 show that immediate and irreparable injury, loss, or damage will

result to the movant before the adverse party can be heard in

24

opposition; and (B) the movant’s attorney certifies in writing any

25 efforts made to give notice and the reasons why it should not be

required.

26

27 Fed. R. Civ. P. 65(b)(1). “The stringent restrictions imposed . . . by Rule 65[ ] on the

28 availability of ex parte temporary restraining orders reflect the fact that our entire

1 jurisprudence runs counter to the notion of court action taken before reasonable notice and

2 an opportunity to be heard has been granted both sides of a dispute.” Granny Goose Foods,

3 Inc. v. Bhd. of Teamsters, 415 U.S. 423, 438–39 (1974) (footnote omitted).

4 Accordingly, “courts have recognized very few circumstances justifying the

5 issuance of an ex parte TRO.” Reno Air Racing Ass’n v. McCord, 452 F.3d 1126, 1131

6 (9th Cir. 2006). “For example, an ex parte TRO may be appropriate ‘where notice to the

7 adverse party is impossible either because the identity of the adverse party is unknown or

8 because a known party cannot be located in time for a hearing.’” Id. (quoting Am. Can Co.

9 v. Mansukhani, 742 F.2d 314, 322 (7th Cir. 1984)). Alternatively, “[i]n cases where notice

10 could have been given to the adverse party, courts have recognized a very narrow band of

11 cases in which ex parte orders are proper because notice to the defendant would render

12 fruitless the further prosecution of the action.’” Id. (quoting Am. Can Co., 742 F.3d at

13 322).

14 Here, because Plaintiff’s Complaint has not survived screening, Plaintiff has failed

15 to establish a likelihood of success on the merits. Keavney v. O’Brien, No. 3:20CV1443-

16 MMA-MSB, 2020 WL 7318120, at *5 (S.D. Cal. Dec. 11, 2020) (“[B]ecause the Court

17 found that Plaintiff’s Complaint failed to state a claim upon which Section 1983 relief may

18 be granted, he has failed to demonstrate for purposes of preliminary injunctive relief a

19 likelihood of success on the merits.”) (citing Thomas v. Chu, No. 3:20-cv-00245-GPC-

20 BGS, 2020 WL 5408944, at *10 (S.D. Cal. Sept. 9, 2020)). Nor does it appear that Plaintiff

21 has complied with the stringent notice requirements of Federal Rule of Civil Procedure

22 65(b)(1) for issuance of an ex parte TRO. Accordingly, the Court DENIES WITHOUT

23 PREJUDICE Plaintiff’s TRO Motion.

24 CONCLUSION

25 In light of the foregoing, the Court GRANTS Plaintiff’s IFP Motion (ECF No. 2),

26 DISMISSES Plaintiff’s Complaint in its entirety pursuant to 28 U.S.C. § 1915(e)(2)

27 WITH LEAVE TO AMEND (ECF No. 1), and DENIES WITHOUT PREJUDICE

28 Plaintiff’s TRO Motion (ECF No. 3). The Court grants Plaintiff forty-five (45) days from

1 ||the date on which this Order is electronically docketed in which to file an amended

2 ||complaint curing the deficiencies of pleading noted herein. Should Plaintiff fail to file an

3 |}amended complaint in accordance with this Order, the Court will enter a final order

4 || dismissing this civil action without prejudice based on Plaintiff's failure to prosecute in

5 || compliance with a court order requiring amendment. See Lira v. Herrera, 427 F.3d 1164,

6 || 1169 (9th Cir. 2005) (“If a plaintiff does not take advantage of the opportunity to fix his

7 || complaint, a district court may convert the dismissal of the complaint into dismissal of the

8 || entire action.”).

9 IT IS SO ORDERED.

10 || Dated: August 23, 2021 tt

11 ja Janis L. Sammartino

D United States District Judge

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