# Grimes v. Board of Trustees for Northcentral University

> District Court, S.D. California · April 17, 2023

URL: https://www.frixlaw.com/law-library/cases/10087501

## Case

- **Court:** District Court, S.D. California
- **Decided:** April 17, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10087501

## How later opinions describe it (automated extraction)

- finding a state university cannot be sued as 6 a “person” under Section 1983

## Opinion text

1
2
3
4
5
6
7
8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
10
11 JEROME L. GRIMES, Case No.: 22-CV-1321 TWR (JLB)

12 Plaintiff,
ORDER (1) DISCHARGING ORDER
13 v. TO SHOW CAUSE, (2) DIRECTING
CLERK OF COURT TO UPDATE
14 BOARD OF TRUSTEES FOR
PLAINTIFF’S ADDRESS,
NORTHCENTRAL UNIVERSITY;
15 (3) GRANTING MOTION TO
(NCU) NORTHCENTRAL
PROCEED IN FORMA PAUPERIS,
16 UNIVERSITY, official capacity;
(4) DENYING MOTION FOR LEAVE
ASHLEY FORREST, individual and
17 TO FILE ELECTRONICALLY,
official capacity; BRANDON ROMERO,
(5) SCREENING COMPLAINT
18 individual and official capacity; JIMMY
PURSUANT TO 28 U.S.C. 1915(e),
BROWN, individual and official capacity,
19 AND (6) DISMISSING COMPLAINT
Defendants. FOR FAILURE TO STATE A CLAIM
20

21 (ECF Nos. 2, 3, 6, 12, 13)

22
23 Plaintiff Jerome L. Grimes, proceeding pro se, initiated this action on September 2,
24 2022, filing a Complaint1 (ECF No. 1), Motion for Leave to Proceed in Forma Pauperis
25
26
27 1 The only named Defendant in the initial complaint was the Board of Trustees for Northcentral
University, but Plaintiff subsequently filed a First Amended Complaint which added Northcentral
28
1 (“IFP”) (ECF No. 2), and Motion for Leave to File Electronically, (ECF No. 3). In the
2 ensuing months, the Court served Plaintiff with several filings via U.S. Mail Service, (see
3 ECF No. 4, 5, 10), and each was returned by the Post Service as undeliverable, (see ECF
4 Nos. 7, 8, 11). On March 16, 2023, Plaintiff filed a Notice of Change of Address, which
5 the Clerk of Court designated as “incomplete.” (See ECF No. 12.) Consequently, on
6 March 20, 2023, the Court ordered Plaintiff to file a complete Notice of Change of Address
7 or to show cause why this action should not be dismissed within fourteen days.2 (See ECF
8 No. 13.)
9 I. Order to Show Cause and Notice of Change of Address
10 Upon further inspection, the Court finds Plaintiff’s Notice of Change of Address
11 sufficient. The Notice designates Plaintiff’s current address as: “GENERAL DELIVERY,
12 Montclair, CA 91763-9999.” (See ECF No. 12.) “General delivery service permits a
13 person to receive mail addressed merely to his or her name, with the designation ‘General
14 Delivery, [City Name]’” and “is intended primarily to serve as a temporary means of
15 delivery, although homeless persons may use the service indefinitely.” Currier v. Potter,
16 379 F.3d 716, 722 (9th Cir. 2004) (citations omitted); see also Domestic Mail Manual
17 § 508.6.1 (“General delivery is intended primarily as a temporary means of delivery: a. For
18 transients and customers not permanently located. b. For customers who want Post Office
19 box service when boxes are unavailable.”) Accordingly, the Court DISCHARGES its
20 Order to Show Cause and DIRECTS the Clerk of Court to update the Docket to reflect
21 Plaintiff’s current address.
22 II. Motion to Proceed in Forma Pauperis
23 The Court now turns to Plaintiff’s pending IFP Motion. All parties instituting any
24 civil action, suit, or proceeding in a district court of the United States, except an application
25 / / /
26
27
28
1 for writ of habeas corpus, must pay a filing fee of $402. See 28 U.S.C. § 1914(a). An
2 action may proceed despite a plaintiff’s failure to prepay the entire fee only if they are
3 granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See Rodriguez v. Cook, 169
4 F.3d 1176, 1177 (9th Cir. 1999). “All persons, not just prisoners, may seek IFP status.”
5 Moore v. Maricopa Cnty. Sheriff’s Off., 657 F.3d 890, 892 (9th Cir. 2011). A plaintiff
6 seeking IFP status must allege poverty “with some particularity, definiteness and
7 certainty.” Escobedo v. Applebees, 787 F.3d 1226, 1234 (9th Cir. 2015) (citing McQuade,
8 647 F.3d at 940). “An affidavit in support of an IFP application is sufficient where it
9 alleges that the affiant cannot pay the court costs and still afford the necessities of life.” Id.
10 While the IFP statute does not itself define what constitutes insufficient assets, a party need
11 not “be absolutely destitute” to proceed IFP. Adkins v. E.I. DuPont de Nemours & Co.,
12 335 U.S. 331, 339 (1948).
13 Here, Plaintiff sufficiently demonstrates that paying court costs would hinder his
14 ability to afford the necessities of life. Plaintiff has submitted an affidavit demonstrating
15 that he is unemployed (“Ph.D. Student temporarily on leave”) and does not have an
16 income-earning spouse. (See ECF No. 2 at 2.) Plaintiff has not claimed any assets and his
17 bank account has a balance of $0.54. (Id. at 2–3.) Moreover, Plaintiff has a monthly
18 income of $871.00 and monthly expenses of $895.00. (Id. at 2, 5.) If a filing fee represents
19 “roughly forty percent [of the movant]’s monthly income before expenses,” the Court
20 should grant IFP status. See Escobedo, 787 F.3d at 1235 (emphasis in original). Here, the
21 filing fee of $402 represents roughly 46% of Plaintiff’s monthly income before expenses.
22 Accordingly, the Court GRANTS Plaintiff’s IFP Motion.
23 / / /
24 / / /
25

26
3 In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of
27 $52. See 28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule,
§ 14 (eff. Dec. 1, 2020)). The additional $52 administrative fee does not apply to persons granted leave
28
1 III. Motion for Leave to File Electronically
2 The Court now turns to Plaintiff’s Motion for Leave to File Electronically. In this
3 District, “[a] pro se party seeking leave to electronically file documents must file a motion
4 and demonstrate the means to do so properly by stating their equipment and software
5 capabilities in addition to agreeing to follow all rules and policies in the CM/ECF
6 Administrative Policies and Procedures Manual.” Office of the Clerk, United States
7 District Court for the Southern District of California, Electronic Case Filing Administrative
8 Policies and Procedures Manual, § 2(b) (Jan. 30, 2023), available at https://www.casd.
9 uscourts.gov/_assets/pdf/cmecf/Electronic%20Case%20Filing%20Procedures%20Manua
10 l.pdf. Plaintiff’s Motion for Leave to File Electronically asserts that he has a PACER.gov
11 account but does not address his equipment and software capabilities nor agree to follow
12 the rules in the Electronic Case Filing Administrative Policies and Procedures Manual.
13 (See ECF No. 3.) Accordingly, the Court DENIES WITHOUT PREJUDICE Plaintiff’s
14 Motion for Leave to File Documents Electronically.
15 IV. Screening Pursuant to 28 U.S.C. § 1915(e)(2)(B)
16 Because the Court has granted Plaintiff leave to proceed IFP, it must screen
17 Plaintiff’s Complaint pursuant to 28 U.S.C. § 1915(e)(2)(B). Under this statute, courts
18 shall review and sua sponte dismiss any complaint that is frivolous, malicious, fails to state
19 a claim on which relief may be granted, or seeks damages from defendants who are
20 immune. See Lopez v. Smith, 203 F.3d 1122, 1126‒27 (9th Cir. 2000) (en banc). “The
21 purpose of [screening] is ‘to ensure that the targets of frivolous or malicious suits need not
22 bear the expense of responding.’” Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir.
23 2014) (quoting Wheeler v. Wexford Health Sources, Inc., 689 F.3d 680, 681 (7th Cir.
24 2012)).
25 “The standard for determining whether a plaintiff has failed to state a claim upon
26 which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of
27 Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668 F.3d
28 1108, 1112 (9th Cir. 2012). Rule 12(b)(6) requires that complaints “contain sufficient
1 factual matter, accepted as true, to state a claim to relief that is plausible on its face.”
2 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted). Detailed
3 factual allegations are not required, but “[t]hreadbare recitals of the elements of a cause of
4 action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.
5 And the “mere possibility of misconduct” or “unadorned, the defendant-unlawfully-
6 harmed me accusation[s]” will not suffice. Id.; see also Moss v. U.S. Secret Serv., 572 F.3d
7 962, 969 (9th Cir. 2009).
8 Plaintiff’s First Amended Complaint (“FAC”) alleges Defendants Northcentral
9 University and Board of Trustees for Northcentral University (collectively, “Northcentral”)
10 violated Title IX. (See generally ECF No. 6, “FAC” at 17–22.) Additionally, the FAC
11 briefly states that this action is also brought pursuant to 42 U.S.C. § 1983 and California
12 law, (see FAC ¶ 9), claiming Northcentral’s “failure to properly supervise [Defendant]
13 Jimmy Brown and his enablers . . . and [its] negligence in retaining Jimmy Brown and his
14 enablers was in violation of California common law,” (id. ¶ 56; see also id. ¶ 55 (claiming
15 Northcentral violated “42 U.S.C. § 1983, as well as other Federal and State laws”). It
16 appears, therefore, that in addition to the Title IX claim, Plaintiff has brought a Section
17 1983 claim, (see id. ¶ 14), and a claim of negligence under California common law, (see
18 id. ¶ 56).4 The Court addresses each claim in turn.
19 A. Title IX Claim (Title VI Claim)
20 Plaintiff claims that Title IX protects against racial discrimination. (See FAC ¶¶ 73–
21 73.) Title IX states that “[n]o person in the United States shall, on the basis of sex, be
22 excluded from participation in, be denied the benefits of, or be subjected to discrimination
23 under any education program or activity receiving Federal financial assistance.” 20 U.S.C
24 § 1681. Based on the substance of Plaintiff’s FAC, it appears that he is in fact attempting
25

26
4 The FAC also states that Northcentral engaged in fraud, which will be “a subject for Plaintiff’s
27 projected future 2nd Amended Complaint through leave from the Court.” (Id. ¶ 51.) Plaintiff has not
sought leave to file a Second Amended Complaint and therefore no fraud claims are currently pending
28
1 to bring a Title VI claim, not a Title IX claim. Title VI states that “[n]o person in the
2 United States shall, on the ground of race, color, or national origin, be excluded from
3 participation in, be denied the benefits of, or be subjected to discrimination under any
4 program or activity receiving Federal financial assistance.” 42 U.S.C. § 2000d.
5 Accordingly, the Court will analyze Plaintiff’s claim under the pleading requirements of
6 Title VI.
7 “To state a claim under [Title VI], a plaintiff must allege that (1) the entity involved
8 is engaging in racial discrimination; and (2) the entity involved is receiving federal
9 financial assistance.” Fobbs v. Holy Cross Health Sys. Corp., 29 F.3d 1439, 1447 (9th
10 Cir.1994), overruled on other grounds, Daviton v. Columbia/HCA Healthcare Corp., 241
11 F.3d 1131 (9th Cir. 2001). For the Title VI claim, the only named Defendant is
12 Northcentral. (See FAC at 17 “Count I – Violations of Title IX [Title VI], 20 U.S.C 1681(a)
13 et seq. (Defendants NCU and NCU Trustees)”.) Plaintiff clearly alleges that Northcentral
14 receives federal financial assistance. (See FAC ¶ 76.) Thus, the only remaining issue is
15 whether Plaintiff sufficiently alleges that Northcentral engaged in racial discrimination.
16 Plaintiff alleges that two sets of Northcentral employees engaged in racial
17 discrimination in violation of Title VI: (1) Professor Jimmy Brown and (2) Ashley Forrest
18 and Brandon Romero. (See id. ¶¶ 79–80.) According to the FAC, Northcentral knew of
19 this discrimination but “failed to carry out their duties to investigate and take corrective
20 action,” (id. ¶ 82), and “failed to supervise,” the perpetrators (id. ¶ 86). Moreover, Plaintiff
21 alleges Northcentral “showed a deliberate indifference by rejecting evidence of racial
22 discrimination,” “concluding that the victim had only experienced appropriate academic
23 instruction,” and “dismissing Plaintiff’s complaint and grievances.” (Id. ¶ 85.)
24 As for the alleged racial discrimination, Plaintiff claims that Professor Brown’s use
25 of a 12-week curriculum for an 8-week course constituted “racially motivated
26 discrimination” and a “sabotage set-up.” (Id. ¶ 68; see also id. ¶¶ 19, 22–30.) To survive
27 screening, Plaintiff’s claim of racial discrimination must have facial plausibility, meaning
28 the “factual content [must] allow[] the court to draw the reasonable inference that the
1 defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 663 (citing Twombly,
2 550 U.S. at 556). Here, the underlying factual content—that Brown used a 12-week
3 curriculum for an 8-week course—does not reasonably allow the Court to draw the
4 inference that Brown discriminated against Plaintiff. To state a claim for discrimination,
5 Plaintiff must allege that he “is being subjected to differential treatment.” See Jackson v.
6 Birmingham Bd. of Educ., 544 U.S. 167, 174 (2005) (first citing Olmstead v. L. C., 527
7 U.S. 581, 614 (1999) (Kennedy, J., concurring in judgment) (the “normal definition of
8 discrimination” is “differential treatment”); and then citing Newport News Shipbuilding &
9 Dry Dock Co. v. EEOC, 462 U.S. 669, 682, n. 22 (1983) (discrimination means “less
10 favorable” treatment)). The FAC does not claim that Plaintiff was treated differently or
11 less favorably than the other students in Brown’s course. Thus, even taking Plaintiff’s
12 factual allegations as true, the Court is unable to draw the reasonable inference that Brown
13 discriminated.
14 Next, the Court analyzes the sufficiency of Plaintiff’s discrimination claims as to
15 Defendants Forrest and Romero. According to the FAC, Forrest is a supervisor in
16 Northcentral’s academic advising and financial aid department (the “Department”), and
17 Romero is her subordinate. (FAC ¶ 40; see also id. ¶ 7 (stating that Forrest and Romero
18 are also professors).) Plaintiff allegedly reported his concerns about Brown’s course length
19 to Forrest and Romero, (id. ¶ 40), but the Department failed to adequately respond, (id. ¶
20 45). Because Plaintiff has not adequately alleged that Brown discriminated against him,
21 Forrest and Romero’s allegedly inadequate response cannot by itself state a claim for
22 discrimination.
23 Plaintiff also claims that Forrest and Romero failed to provide Plaintiff with his
24 GradPlus Federal Backed Graduate Student Financial Aid Loans (the “GradPlus funds”)
25 and delayed in returning those GradPlus funds to the U.S. Department of Education. (See
26 id. ¶¶ 45, 57, 69). Plaintiff claims this inaction and delay was due to the Department’s
27 “racially motivated prejudice.” (Id. ¶ 90.) But aside from this conclusory allegation,
28 Plaintiff does not provide any factual support for a connection between the Department’s
1 conduct and the alleged racial discrimination. As Courts have repeatedly held, merely
2 reciting the elements of a cause of action does not sufficiently state a claim. See, e.g.,
3 Twombly, 550 U.S. at 555. Based on the allegations in the FAC, the Court is unable to
4 reasonably infer that Defendants Forrest and Romero discriminated on the ground of race.5
5 For the foregoing reasons, the Court finds that Plaintiff has failed to state a Title VI
6 claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). The Court therefore DISMISSES
7 Plaintiff’s Title VI cause of action.
8 B. 42 U.S.C. § 1983 Claim
9 Plaintiff claims that “[Northcentral’s] deliberate indifference before, during, and
10 after the racially motivated assault, abuse of authority, and psychological molestation of
11 Plaintiff was in violation of . . . 42 U.S.C. § 1983.” (FAC ¶ 55.) To state a claim under
12 Section 1983, a plaintiff must allege (1) “that a right secured by the Constitution or laws
13 of the United States was violated” and (2) “that the alleged violation was committed by a
14 person acting under the color of State law.” Long v. Cty. of Los Angeles, 442 F.3d 1178,
15 1185 (9th Cir. 2006) (citing West v. Atkins, 487 U.S. 42, 48 (1988)).
16 As for the first element, Plaintiff claims that Northcentral professor “Jimmy Brown
17 racially discriminated against Plaintiff’s constitutionally protected civil rights to a fair
18 opportunity to further his education.” (FAC ¶ 22.) Based on this assertion, the Court
19 assumes Plaintiff’s Section 1983 claim is premised upon a violation of the Equal Protection
20 Clause of the Fourteenth Amendment. See Washington v. Davis, 426 U.S. 229, 239 (1976)
21 (“The central purpose of the Equal Protection Clause of the Fourteenth Amendment is the
22 prevention of official conduct discriminating on the basis of race.”). Although education
23 itself is not a fundamental right protected by the Equal Protection Clause, see San Antonio
24 School District v. Rodriguez, 411 U.S. 1, 18 (1973); see also Plyler v. Doe, 457 U.S. 202,
25

26
5 Plaintiff’s claim against Northcentral is premised only upon the university’s alleged failure to
27 appropriately respond to Brown, Forrest, and Romero’s actions. (See generally FAC.) Because Plaintiff
has failed to allege that these employees discriminated against him on the basis of race, his Title VI claim
28
1 221 (1982), an individual may assert that racial discrimination within education violates
2 the Equal Protection Clause, see Brown v. Board, 347 U.S. 483, 495 (1954); Regents of the
3 Univ. of Cal. v. Bakke, 438 U.S. 265, 287–88 (1978) (collecting cases). Here, Plaintiff
4 claims Defendant Brown’s use of a 12-week curriculum for an 8-week course was “racially
5 motivated discrimination” and a “sabotage set-up.” (FAC ¶ 68; see also id. ¶¶ 19, 22–30.)
6 As discussed in Section IV.A, this conclusory allegation, without more, does not
7 allow the Court to reasonably infer that Brown discriminated against Plaintiff or treated
8 him differently than other students in Brown’s course. See Jackson, 544 U.S. at 174.
9 Moreover, Plaintiff provides no factual support for a connection between Brown’s conduct
10 and any alleged racial discrimination. Thus, even assuming the veracity of Plaintiff’s
11 factual allegations, the Court is unable to draw the reasonable inference that Defendant
12 Brown violated the Fourteenth Amendment.
13 Even assuming “that a right secured by the Constitution or laws of the United States
14 was violated,” Plaintiff still has not alleged that the “violation was committed by a person
15 acting under the color of State law.” Long v. Cty. of Los Angeles, 442 F.3d 1178, 1185
16 (9th Cir. 2006) (citing West v. Atkins, 487 U.S. 42, 48 (1988)). Because the FAC only
17 names Northcentral as a Defendant to the Section 1983 claim, the Court will only analyze
18 the potential liability of the university and its board.6 (See FAC ¶ 55.) Plaintiff claims
19 Northcentral is a “public university,” (see id. ¶ 3), but the Court takes judicial notice of the
20 fact that, according to the United States Department of Education,7 Northcentral is a
21 “private not-for-profit” university, see Lee v. Los Angeles, 250 F.3d 668, 669 (9th Cir.
22
23

24
25 6 Although Plaintiff alleges Brown engaged in discrimination, he does not allege that Brown
violated Section 1983. When analyzing the sufficiency of a pro se complaint, a court may not “supply
26 essential elements of claims that were not initially pled,” much less add Defendants to a claim. See Ivey
v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).
27 7 U.S. Department of Education, National Center for Education Statistics, College Navigator:
Northcentral University, https://nces.ed.gov/collegenavigator/?q=northcentral&s=all&id=444130.
28
1 2001) (“a court may take judicial notice of ‘matters of public record’” (citations omitted)).
2 If the Court assumed Northcentral was public as the FAC states, Plaintiff would certainly
3 be precluded from bringing this claim because states and arms of states—including public
4 universities and their governing bodies—cannot be sued under Section 1983. See Flint v.
5 Dennison, 488 F.3d 816, 825 (9th Cir. 2007) (finding a state university cannot be sued as
6 a “person” under Section 1983); see also Hong v. Grant, 403 F. App’x 236, 237 (9th Cir.
7 2010); Jackson v. Hayakawa, 682 F.2d 1344, 1350 (9th Cir. 1982).
8 A plaintiff may only bring a Section 1983 claim against a private actor if the plaintiff
9 can allege that the defendant acted “under color of state law.” See Long, 442 F.3d at 1185.
10 This requirement ensures that “liability attaches only to those wrongdoers ‘who carry a
11 badge of authority of a State and represent it in some capacity, whether they act in
12 accordance with their authority or misuse it.’” Nat’l Collegiate Athletic Ass’n v.
13 Tarkanian, 488 U.S. 179, 191 (1988) (quoting Monroe v. Pape, 365 U.S. 167, 172 (1961)).
14 To plausibly allege that a defendant acted “under color of state law” a plaintiff must, at
15 minimum, plead facts that demonstrate the defendant acted “with the knowledge of and
16 pursuant to” state law or custom.9 Lugar v. Edmonson Oil Co., 457 U.S. 922, 935 n.18
17 (1982) (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 162 n.23 (1970)). Here,
18 Plaintiff claims that “[a]t all relevant times, [Northcentral] and Jimmy Brown were acting
19 under color of law, specifically under color of statutes, ordinances, regulations, policies,
20 customs and usages of the State of California or [Northcentral].” (FAC ¶ 14.) Yet, the
21

22
8 Under Neitzke v. Williams, 490 U.S. 319, 327 (1989), a court analyzing a complaint pursuant to
23 Section 1915 may “pierce the veil of the complaint’s factual allegations” to determine if a factual
contention is baseless. Here, Plaintiff’s contention that Northcentral is a public university is at odds with
24
the public record indicating that it is a private university.
25 9 Courts commonly construe the “color of state law” requirement of Section 1983 similar to the
“state action” requirement of the Fourteenth Amendment. See Nat’l Collegiate Athletic Ass’n v.
26 Tarkanian, 488 U.S. 179, 182 & n.4 (1988). Typically, state action requires that (1) a private actor
performs a traditional public function, see Marsh v. State of Ala., 326 U.S. 501, 507 (1946); (2) the
27 government facilitates the private action, see Shelly v. Kraemer, 334 U.S. 1, 13 (1948); or (3) there is
entanglement between the actions of the government and of the private actor, see Burton v. Wilmington
28
1 FAC fails to identify any state law or custom that these Defendants acted pursuant to, and
2 a “formulaic recitation of the elements of a cause of action will not do.” See Twombly, 550
3 U.S. at 555.
4 For the foregoing reasons, the Court finds that Plaintiff has failed to state a Section
5 1983 claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). The Court therefore DISMISSES
6 Plaintiff’s 42 U.S.C. § 1983 cause of action.
7 C. Negligence Claim
8 Plaintiff claims that Northcentral’s “failure to properly supervise Jimmy Brown and
9 his enablers ([Forrest and Romero]) and their negligence in retaining Jimmy Brown and
10 his enablers was in violation of California common law.” (FAC ¶ 56.) The essential
11 elements of negligence under California common law are (1) a legal duty to use reasonable
12 care and (2) a breach of that duty (3) which actually and proximately causes (4) damages
13 to a person or property. See, e.g., Mendoza v. City of L.A., 66 Cal. App. 4th 1333, 1339
14 (1998) (citing Wattenbarger v. Cincinnati Reds, Inc., 28 Cal. App. 4th 746, 751 (1994)).
15 Here, the FAC is void of any factual allegations related to the elements of common
16 law negligence. Plaintiff has not alleged that the Parties had a contractual relationship or
17 any other type of special relationship that legally entitled him to a certain duty of care. See
18 Biakanja v. Irving, 49 Cal. 2d 647, 650 (1958); Beacon Residential Cmty. Ass’n v.
19 Skidmore, Owings & Merril LLP, 59 Cal. App. 4th 568, 573 (2014). Even assuming
20 Northcentral had a general duty of care to act as a reasonably prudent university and board
21 of trustees, Plaintiff has still failed to allege how Northcentral’s conduct constituted a
22 breach of that duty. Finally, the Complaint does not allege how such a breach actually and
23 proximately caused Plaintiff damages.
24 For the foregoing reasons, the Court finds that Plaintiff has failed to state a claim for
25 common law negligence pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). The Court therefore
26 DISMISSES Plaintiff’s negligence cause of action.
27 / / /
28 / / /
1 D. Leave to Amend
2 Although Plaintiff has failed to state a Title VI claim, Section 1983 claim, or a claim
3 for common law negligence, the Court grants Plaintiff leave to amend. See Rosati v.
4 Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (“A district court should not dismiss a pro
5 se complaint without leave to amend [pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)] unless ‘it
6 is absolutely clear that the deficiencies of the complaint could not be cured by
7 amendment.’” (quoting Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012))).
8 Accordingly, the Court DISMISSES WITHOUT PREJUDICE Plaintiff’s First
9 Amended Complaint.
10 / / /
11 / / /
12 / / /
13 / / /
14 / / /
15 / / /
16 / / /
17 / / /
18 / / /
19 / / /
20 / / /
21 / / /
22 / / /
23 / / /
24 / / /
25 / / /
26 / / /
27 / / /
28 / / /
I CONCLUSION
2 In light of the foregoing, the Court:
3 (1) DISCHARGES its Order to Show Cause (ECF No. 13);
4 (2) DIRECTS the Clerk of Court to update the Docket to reflect □□□□□□□□□□□
5 current address consistent with his Notice of Change of Address (ECF No. 12);
6 (3) GRANTS Plaintiff's Motion to Proceed in Forma Pauperis (ECF No. 2)
7 || pursuant to 28 U.S.C. § 1915(a);
8 (4) DENIES WITHOUT PREJUDICE Plaintiff's Motion for Leave to File
9 || Documents Electronically (ECF No. 3); and
10 (4) DISMISSES WITHOUT PREJUDICE Plaintiff's First Amended
11 |}Complaint (ECF No. 6) sua sponte for failing to state a claim upon which relief may be
12 granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(~i). Plaintiff MAY FILE an amended
13 complaint curing the above-identified deficiencies within sixty (60) days of the date of this
14 || Order. Jf Plaintiff fails to file an amended complaint within the time provided, this action
15 || shall be closed without further Order of the Court.
16 IT IS SO ORDERED.
17 || Dated: April 17, 2023 —_——
18 | od (2 re
19 Honorable Todd W. Robinson
United States District Judge
21
22
23
24
25
26
27
28

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10087501. Public record. Not legal advice.