# Marinkovic v. Lee

> District Court, S.D. California · February 12, 2025

URL: https://www.frixlaw.com/law-library/cases/10798837

## Case

- **Court:** District Court, S.D. California
- **Decided:** February 12, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10798837

## How later opinions describe it (automated extraction)

- holding that “a plaintiff cannot 16 bring an action under 42 U.S.C. § 1983 against a state official in her individual capacity to 17 vindicate rights created by Title II of the ADA or section 504 of the Rehabilitation Act.”
- affirming dismissal where plaintiff’s allegation was only 12 “merely possible rather than plausible” in face of obvious alternative explanation

## Opinion text

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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
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11 M. MARINKOVIC, Case No.: 22-CV-998-JO-JLB

12 Plaintiff,
AMENDED ORDER (1) GRANTING
13 v. DEFENDANTS’ MOTION TO
DISMISS PLAINTIFF’S THIRD
14 ADRIANNE LEE, KENDYL
AMENDED COMPLAINT; (2)
MAGNUSON, STAR RIVERA-LACEY,
15 DENYING PLAINTIFF’S MOTION
NORMA MIYAMOTO, ROBERTO
TO AMEND TO ADD OLD PARTIES
16 RODRIGUEZ, KARTIK RAJU, MARK
EVILSIZER, CHRISTIAN GARCIA, IN
17
THEIR PERSONAL AND INDIVIDUAL
18 CAPACITIES AND IN THEIR
OFFICIAL CAPACITIES JOINTLY
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AND SEVERALLY, AND PALOMAR
20 COMMUNITY COLLEGE DISTRICT,
21 Defendants.
22

23 On April 26, 2024, pro se Plaintiff M. Marinkovic filed his Third Amended
24 Complaint alleging he faced discrimination on account of his disability while he was a
25 student at Palomar Community College District (“Palomar”). Dkt. 63 (“TAC”).
26 Defendants filed a motion to dismiss Plaintiff’s Third Amended Complaint pursuant to
27 Fed. R. Civ. P 12(b)(6). Dkt. 49. For the following reasons, the Court grants Defendants’
28 motion and dismisses with prejudice the entirety of Plaintiff’s Third Amended Complaint.
1 1. Plaintiff filed his original complaint on July 7, 2022, but never served it. Dkt.
2 1. On his own accord, he filed a First Amended Complaint alleging (1) various §1983
3 claims; (2) disability discrimination claims under Title II of the Americans with Disabilities
4 Act, 42 U.S.C. § 12132 (“ADA”) and § 504 of the Rehabilitation Act, 29 U.S.C. § 794
5 (“Rehabilitation Act”); and (3) several state causes of actions against Defendants Palomar
6 and various college officials and Board Members who worked at the school district
7 (collectively, “Individual Defendants”).1 Dkt. 3 (“FAC”). In support of his ADA and
8 Rehabilitation Act claims, Plaintiff alleged Defendants discriminated against him when he
9 requested additional test-taking time that would exceed the college’s standard cap for
10 disability accommodations. FAC at ¶¶ 5–6. According to Plaintiff, the Defendants
11 originally denied this request but granted the accommodation approximately three weeks
12 later. FAC ¶¶ 8, 145, 148.
13 2. On July 31, 2023, the Court dismissed Plaintiff’s First Amended Complaint.
14 Dkt. 23. The Court dismissed with prejudice Plaintiff’s § 1983 claims against the
15 Individual Defendants on the grounds that (1) Eleventh Amendment Immunity barred these
16 claims against Palomar’s employees and (2) Plaintiff lacked standing to seek a declaratory
17 judgment. Id. at 5–8. It also declined to exercise supplemental jurisdiction over Plaintiff’s
18 various state law claims and dismissed these claims without prejudice to refiling in state
19 court. Id. at 9–10. As to Plaintiff’s ADA and Rehabilitation Act claims, the Court noted
20 that Plaintiff himself alleged that Defendants granted his accommodation request two or
21 three weeks after he asked for it. Id. at 8–9. On this ground, the Court found that Plaintiff
22 failed to allege that Defendants acted with deliberate indifference and thus failed to
23 sufficiently state a claim under the ADA or Rehabilitation Act. Id. at 8–9. The Court
24 granted him leave to amend these two claims only. Id.
25

26
1 As noted in the Court’s previous order dismissing Plaintiff’s FAC, the Individual Defendants
27 included the following state employees at Palomar: Board Members Norma Miyamoto, Roberto
Rodriguez, Kartik Raju, Mark Evilsizer, and Christian Garcia; College President Star Rivera-Lacy; Senior
28
1 3. Plaintiff then filed a Second Amended Complaint alleging disability
2 discrimination claims under (1) the ADA, (2) the Rehabilitation Act, and (3) California’s
3 Unruh Act, California Civil Code § 51. Dkt. 27 (“SAC”). The Court dismissed with
4 prejudice Plaintiff’s Unruh Act claims because the Unruh Act only protects individuals
5 from discrimination by business establishments, not public schools like Palomar. Dkt. 42
6 at 2; Brennon B. v. Superior Ct., 13 Cal. 5th 662, 692 (2022), reh’g denied (Aug. 31, 2022).
7 4. Regarding these ADA and Rehabilitation Act claims, the Court ruled that
8 Plaintiff’s Second Amended Complaint similarly lacked factual allegations concerning
9 Palomar’s discriminatory intent or deliberate indifference. Dkt. 42. Again, Plaintiff
10 admitted that he received his desired accommodation—giving him more test-taking time
11 than allowed by the school’s cap of double time—approximately three weeks after he
12 requested it. SAC ¶¶ 7, 39. Additionally, Plaintiff failed to plead that he could not access
13 certain services or benefits during those three weeks. See Dkt. 42; SAC. The SAC also
14 failed to plead facts showing that Palomar knew Plaintiff needed accommodations prior to
15 the three-week period and ignored that need. See Dkt. 42.
16 5. At oral argument and through written order, the Court instructed Plaintiff that
17 it would dismiss his ADA and Rehabilitation Act claims but give him another chance to
18 amend. Dkts. 40, 42. The Court explained to Plaintiff that his amended complaint needed
19 to plead facts that (1) he had “a physical or mental impairment that substantially limits one
20 or more of [his] major life activities,” Thompson v. Davis, 295 F.3d 890, 896 (9th Cir.
21 2002); (2) he had been denied services or benefits by Palomar during the three week period
22 he was waiting for his accommodation; and (3) Palomar had been deliberately indifferent
23 to his need for an accommodation during the two or three week period before he received
24 his test-taking accommodation. Dkt. 42 at 2–3.
25 6. Additionally, because it appeared that Plaintiff also sought to file a claim
26 alleging that Palomar retaliated against him for seeking a disability accommodation, the
27 Court instructed Plaintiff that he must plead the following required elements: (1) Plaintiff
28 was engaged in protected activity; (2) Palomar took adverse action against Plaintiff; and
1 (3) there was a causal connection between the protected activity and the adverse action,
2 i.e., that a retaliatory motive played a part in the adverse action. Id. at 3. Plaintiff was
3 given leave to amend his SAC only with regard to his disability discrimination and
4 retaliation claims against Palomar. Id. The Court also denied Plaintiff’s request to revive
5 his previously dismissed § 1983 claims by re-serving the Individual Defendants and
6 conducting discovery. Id.
7 7. In his Third Amended Complaint, Plaintiff realleges his disability
8 discrimination claims based on the Rehabilitation Act and ADA against Defendant
9 Palomar. Dkt. 63 (“TAC”) at 32–42, 45–47. He also alleges a retaliation claim in violation
10 of the First and Fourteenth Amendments against the Individual Defendants. Id. at 42–45.
11 He also filed other causes of action for which he did not have leave to amend. Id. at 47–
12 52; Dkt. 42. The Court addresses each of these claims in turn.
13 8. Disability Discrimination and Retaliation Claims: While the Third Amended
14 Complaint pleads numerous additional facts in an attempt to cure the deficiencies
15 previously identified by the Court, the central allegations regarding Plaintiff’s request for
16 a test-taking accommodation remain largely the same. Cf. Dkts. 3, 27, 63. Once again,
17 Plaintiff alleges that (1) he sought a test-taking accommodation that exceeded the school’s
18 standard allowance of double the test-taking time; (2) the request was denied; (3) he
19 complained to various employees at Palomar; and (4) he received this accommodation four
20 to five weeks later.2 TAC ¶¶ 7–15; 32, 34–35, 73, 99 cf. with SAC ¶¶ 9–14, 39 and FAC
21 ¶¶ 6–8, 145, 148. The Court dismisses these claims for failure state a claim pursuant to
22 Federal Rule of Civil 12(b)(6).
23 Under Title II of the ADA, a disability discrimination claim may be based on “one
24 of three theories of liability: disparate treatment, disparate impact, or failure to make a
25

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2 In his Third Amended Complaint, Plaintiff appears to change his previous allegations that he was
27 granted this accommodation two to three weeks after he made his initial request. See FAC ¶¶ 6–8, 145,
148 (alleging two weeks until accommodation granted); SAC ¶¶ 7, 39 (alleging a three-week timeframe);
28
1 reasonable accommodation.” Payan v. Los Angeles Cmty. Coll. Dist., 11 F.4th 729, 738
2 (9th Cir. 2021) (citing to Davis v. Shah, 821 F.3d 231, 260 (2d Cir. 2016)).
3 Because Plaintiff’s allegations appear to be centered on his claims that Palomar and the
4 Individual Defendants intentionally delayed in granting his test-taking accommodation
5 request, the Court construes Plaintiff’s allegations as a disparate treatment or intentional
6 discrimination claim and addresses the claim accordingly.3
7 To state a prima facie case for an intentional discrimination claim in violation of
8 Title II of the ADA, a plaintiff must show:
9 (1) he is a “qualified individual with a disability”; (2) he was
either excluded from participation in or denied the benefits of a
10
public entity’s services, programs, or activities, or was otherwise
11 discriminated against by the public entity; and (3) such
exclusion, denial of benefits, or discrimination was by reason of
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his disability.
13
Duvall v. County of Kitsap, 260 F.3d 1124, 1135 (9th Cir. 2001), as amended on denial of
14
reh’g (Oct. 11, 2001) (internal citation omitted). The elements of a prima facie Section
15
504 claim are similar, with the additional requirement that the plaintiff prove that “the
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program receives federal financial assistance.” Id. (internal citation omitted). “A plaintiff
17
may satisfy this second requirement by showing that the federally funded program denied
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[him] services that []he needed to enjoy meaningful access to the benefits of a public
19
education and that were available as reasonable accommodations.” A.G. v. Paradise Valley
20
Unified Sch. Dist. No. 69, 815 F.3d 1195, 1204 (9th Cir. 2016) (citing to Mark H. v.
21
Hamamoto, 620 F.3d 1090, 1097–98 (9th Cir. 2010)). Because the elements of Plaintiff’s
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§ 504 Rehabilitation Act claim and ADA claim do not differ in respect to the relevant
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3 Because disparate impact claims require a showing that a specific policy caused significant
26 adverse or disparate effect on a protected group and failure to make reasonable accommodation claims are
premised on the defendant’s failure to provide an individualized need, the Court finds neither theory to be
27 applicable here considering Plaintiff’s TAC focuses on an individual test-taking accommodation that he
did receive. Payan, 11 F.4th at 738 (explaining that the difference between the two legal theories focuses
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1 resolution of this motion, the Court addresses these claims together. See Zukle v. Regents
2 of Univ. of California, 166 F.3d 1041, 1045 n.11 (9th Cir. 1999).
3 Here, Plaintiff fails to adequately allege the second element of a disability
4 discrimination claim—that he was denied meaningful access to a service or benefit
5 normally provided by Palomar because of the delay in his accommodation. Plaintiff’s
6 Third Amended Complaint appears to allege that he was denied the ability to register for
7 upper-level science classes because of this delay. TAC ¶¶ 34–55. However, Plaintiff’s
8 contention that he could not sign up for biology classes because he had not yet been granted
9 a test-taking accommodation is unsupported by any factual allegations. While he alleges
10 that he anticipated needing the accommodation once the class started because the course
11 syllabus showed that graded assignments were due in the early weeks of the class, id. ¶ 50,
12 he does not allege that he was barred from registering from the biology class because he
13 needed full accommodation approval prior to signing up. Further, by his own allegations,
14 it appears that his inability to sign up for this particular biology class was due to the
15 school’s need to verify that he had taken the appropriate prerequisites for the upper-level
16 biology class, id. ¶ 45, not because he could not register before receiving accommodation
17 approval. Id. ¶¶ 45–55. He therefore fails to allege that he was denied any services or
18 benefits because of the four or five-week delay in processing his accommodation request.
19 Aside from alleging that he was not granted his accommodation in time to register for an
20 upper-level biology class, id. ¶¶ 45–47, Plaintiff fails to identify any other services or
21 benefits that Palomar denied him during the four or five-week time frame he was waiting
22 to hear about this test-taking accommodation. Plaintiff therefore fails to plausibly allege
23 he was excluded from participating in or denied the benefits of a public entity’s services,
24 programs, or activities.
25 Additionally, Plaintiff fails to plead that Palomar4 acted with deliberate indifference
26

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4 While Plaintiff’s Fourth Claim pleads a separate claim for “reckless or deliberate indifference”
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1 toward his disability needs in delaying their grant of his accommodation request by four or
2 five weeks. To establish that a defendant has been “deliberatively indifferent” in violation
3 of the ADA and Rehabilitation Act, the plaintiff must prove (1) the defendant was on notice
4 that the accommodation was required; (2) his failure to act was a result of conduct that was
5 more than negligent; and (3) the conduct involved an element of deliberateness. Updike v.
6 Multnomah Cnty., 870 F.3d 939, 950–51 (9th Cir. 2017) (citing to Duvall, 260 F.3d at
7 1139) (“[D]eliberate indifference does not occur where a duty to act may simply have been
8 overlooked, or a complaint may reasonably have been deemed to result from events taking
9 their normal course.”)) This “failure to act must be a result of conduct that is more than
10 negligent[,]” and it requires both knowledge that a protected right is substantially likely to
11 be infringed upon, and a failure to act upon that knowledge. Duval, 260 F.3d at 1139.
12 Here, Plaintiff fails to allege that Palomar withheld the test-taking accommodations
13 for four or five weeks knowing that Plaintiff’s rights would be infringed in the meantime.
14 Instead, his allegations show that the school promptly responded to his complaints rather
15 than ignore them. See TAC ¶¶ 35, 40–42, 61–74. When he protested the school’s denial
16 of his initial request for an accommodation, he was informed that his complaints would be
17 conveyed to the office director. Id. ¶¶ 61, 63. Plaintiff was able to speak with the disability
18 office director, Dr. Moriarty just one week after the initial denial. Id. Additionally, after
19 he complained, Palomar then fully granted his request for extra test-taking time—
20 exceeding the school’s usual policy of a maximum of double the test-taking time—
21 approximately four or five weeks after he made his original request. See id. ¶¶ 61–74.
22 Beyond conclusory allegations, Plaintiff alleges no facts that indicate that Palomar
23 employees acted in knowing disregard of his needs. Moreover, he alleges no facts that
24
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but a specific pleading requirement for a plaintiff to obtain compensatory damages under the ADA or §
26 504 Rehabilitation Act. Lovell v. Chandler, 303 F.3d 1039, 1056 (9th Cir. 2002) (“[C]ompensatory
damages are not available under Title II or § 504 absent a showing of discriminatory intent.”(quoting
27 Ferguson v. City of Phoenix, 157 F.3d 668, 674 (9th Cir. 1998))). Thus, the Court will construe the facts
alleged in Plaintiff’s Fourth Claim as additional support for Plaintiff’s ADA and Rehabilitation Act claims
28
1 demonstrate that he suffered any prejudice as a result of this delay—as discussed above he
2 was unable to register for upper-level biology courses due to his lack of prerequisites, not
3 because he did not receive the accommodation—much less that Palomar knew about the
4 harmful impact on him and failed to act. See id. ¶ 45.
5 In an attempt to cure the pleading deficiencies previously noted by the Court,
6 Plaintiff added new factual allegations about several new discriminatory policies in his
7 Third Amended Complaint. Id. ¶¶ 34, 37, 44, 57–60. These additional allegations,
8 however, do not address how Palomar’s approximately four-week delay in granting test-
9 taking accommodations deprived him of services or constituted deliberate indifference to
10 his needs during this time period. To the extent Plaintiff sought to plead other theories of
11 deliberate indifference against the Individual Defendants or Palomar, Plaintiff was neither
12 given leave to amend to assert these new claims, nor has he pled facts to make the nature
13 of these claims intelligible—violating Rule 8’s requirement for “a short and plain statement
14 of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2); Ashcroft
15 v. Iqbal, 556 U.S. 662, 687 (2009).
16 Because Plaintiff fails to plead that Palomar denied him a service or benefit and that
17 the Individual Defendants were deliberately indifferent to his disability needs when they
18 delayed in granting his test-taking accommodation request, the Court dismisses with
19 prejudice Plaintiff’s First, Second, and Fourth Claims for disability discrimination under
20 the ADA and Rehabilitation Act.
21 9. Plaintiff’s Retaliation Claim: Although the Court granted Plaintiff leave to
22 amend his retaliation claim under the ADA or Rehabilitation Act, Plaintiff’s Third Claim
23 instead alleges a retaliation claim based on the First and Fourteenth Amendment. Dkts. 42
24 at 2–3; 63 at 42–45. Plaintiff alleges that the Individual Defendants retaliated against him
25 for seeking a test-taking accommodation by denying his tuition discount requests and not
26 allowing him to drop his philosophy class. TAC ¶¶ 86–158, 212–227. For the below
27 reasons, the Court dismisses Plaintiff’s First and Fourteenth Amendment retaliation claim
28
1 for failure state a claim pursuant to Federal Rule of Civil 12(b)(6).
2 To state a First Amendment retaliation claim, “a plaintiff must plausibly allege that
3 (1) he was engaged in a constitutionally protected activity, (2) the defendant’s actions
4 would chill a person of ordinary firmness from continuing to engage in the protected
5 activity[,] and (3) the protected activity was a substantial or motivating factor in the
6 defendant’s conduct.” Capp v. County of San Diego, 940 F.3d 1046, 1053 (9th Cir. 2019)
7 (internal citations and quotation marks omitted). In order to find a defendant directly liable,
8 a plaintiff must demonstrate that the defendant had an “intent to inhibit speech,”
9 Mendocino Env’t Ctr. v. Mendocino County, 192 F.3d 1283, 1302 (9th Cir. 1999), and that
10 there was a “causal connection between the government defendant’s retaliatory animus and
11 the plaintiff’s subsequent injury.” Nieves v. Bartlett, 587 U.S. 391, 398 (2019) (internal
12 citation and quotation marks omitted). Additionally, a plaintiff must show that the
13 defendant’s retaliatory animus was “a ‘but-for’ cause, meaning that the adverse action
14 against the plaintiff would not have been taken absent the retaliatory motive.” Id. at 399.
15 “An allegation is not plausible where there is an obvious alternative explanation for alleged
16 [retaliatory] misconduct.” Capp, 940 F.3d at 1055 (internal citations and quotation marks
17 omitted).
18 Here, Plaintiff’s retaliation claim fails because he has not pled any facts to establish
19 that the Individual Defendants denied his tuition discount request in order to punish
20 Plaintiff for requesting a disability accommodation and complaining about the initial denial
21 or to deter such actions. Mendocino, 192 F.3d at 1032. He makes conclusory allegations
22 that the delays in processing his tuition discount request were pretextual because “the
23 Palomar TRUSTEES swung into action to cover up the illegality of their custom and
24

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26 5 The Court focuses its analysis on Plaintiff’s First Amendment retaliation claim although his Third
Claim states he is asserting a cause of action “For Retaliation In Violation of the 1st and 14th
27 Amendments,” because the essence of his claim against the Individual Defendants centers on allegations
that he faced retaliation after requesting his test-taking accommodation, not that his due process or equal
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1 practice,” TAC ¶ 76, but offers no facts to support a causal connection between any
2 retaliatory animus and the denial of the tuition discount requests. In fact, Plaintiff’s own
3 pleadings establish that the college’s employees denied the tuition discount requests for a
4 host of reasons, including Plaintiff’s refusal to comply with the standard application
5 process and provide a Social Security number, a government ID, a home address, and a
6 phone number. Id. ¶¶ 88, 93, 102–103, 109–110, 112, 115. Given the obvious alternative
7 explanation for the denial of the tuition discount requests and the absence of any facts
8 showing an intent by the Individual Defendants to discourage protected activities like
9 requesting disability accommodations, Plaintiff fails to state a plausible First Amendment
10 retaliation claim on this ground. See, e.g., Gonzalez v. Planned Parenthood of L.A., 759
11 F.3d 1112, 1116 (9th Cir. 2014) (affirming dismissal where plaintiff’s allegation was only
12 “merely possible rather than plausible” in face of obvious alternative explanation).
13 Plaintiff’s retaliation claim also fails because he has not sufficiently pled any facts
14 to support a causal link between his inability to drop out of his last philosophy class and
15 his test-taking accommodation requests. See TAC ¶¶ 117–125. While he makes
16 conclusory allegations that the “TRUSTEES themselves also prevented plaintiff from
17 dropping classes” in order to “intentionally hurt plaintiff and destroy his career,” id. ¶ 121,
18 he alleges no facts to support a causal connection between this action and any retaliatory
19 animus stemming from his accommodation requests. In fact, his complaint demonstrates
20 that all students, not just Plaintiff, were subject to the same mandatory deadline to drop
21 classes without the penalty of a negative grade. Id. ¶¶ 121, 123. Moreover, his pleadings
22 appear to indicate that he may not have been able to drop the last philosophy class because
23 of outstanding fees owed to Palomar, as he alleges “he was not allowed to reach the page
24 to drop classes unless he (1) acknowledged through the computer that he owed the college
25 $500 and (2) paid it and (3) agreed to obey all other college rules whether legal or not.”
26 Id. ¶ 118. Given the obvious alternative explanations for Plaintiff’s inability to drop his
27 last philosophy class and the absence of any facts showing an intent to deter speech,
28 Plaintiff fails to state a plausible First Amendment and Fourteenth Amended retaliation
1 claim on this ground. See, e.g., Gonzalez, 759 F.3d at 1116. Because Plaintiff fails to
2 plausibly plead a claim for First and Fourteenth Amendment retaliation, the Court
3 dismisses these claims with prejudice.
4 10. Section 1983 Claims: Plaintiff’s Fifth Claim alleges a new theory of § 1983
5 violation against the Individual Defendants in their individual capacities. TAC at 47–51.
6 Although the Court previously dismissed Plaintiff’s § 1983 claims against the Individual
7 Defendants with prejudice on the grounds that Plaintiff’s tuition discount claims were
8 barred by the Eleventh Amendment, Plaintiff now asserts this claim based on his
9 dissatisfaction with the length of time the Individual Defendants took to process his test-
10 taking accommodation request. Id. ¶¶ 236–248. First, Plaintiff was neither given leave to
11 amend his prior § 1983 claims nor was he given leave to add new claims. See Dkts. 23,
12 42. Second, because Plaintiff’s new § 1983 claim appears to seek to hold the Individual
13 Defendants liable for violations of the ADA and Rehabilitation Act based on their actions
14 when processing his accommodation request, Plaintiff cannot proceed on this claim.
15 Vinson v. Thomas, 288 F.3d 1145, 1156 (9th Cir. 2002) (holding that “a plaintiff cannot
16 bring an action under 42 U.S.C. § 1983 against a state official in her individual capacity to
17 vindicate rights created by Title II of the ADA or section 504 of the Rehabilitation Act.”).
18 Because Plaintiff fails to sufficiently plead a viable § 1983 claim pursuant to Federal
19 Rule of Civil 12(b)(6), the Court dismisses this claim with prejudice.
20 11. State Claim: Plaintiff’s Sixth Claim alleges what appears to be a state law
21 claim for intentional interference with prospective economic advantage against the
22 Individual Defendants in their individual capacities. TAC at 51–52.6 Plaintiff contends
23 that the Individual Defendants committed interference his prospective economic advantage
24 when they interfered with his ability to obtain his necessary courses at Palomar College,
25
26
27 6 Plaintiff asserted a Sixth Claim titled “Common Law Interference with Prospective Economic
Advantage and Career” which the Court construes as a claim for the tort of intentional interference with
28
1 obstructing his efforts to obtain a patent license, attend further graduate programs, secure
2 high-paying employment, and pursue a romantic partner. Id. For the below reasons, the
3 Court dismisses Plaintiff’s Sixth Claim for failure state a claim pursuant to Federal Rule
4 of Civil 12(b)(6).
5 To establish the tort of intentional interference with prospective economic
6 advantage, a plaintiff must show “(1) an economic relationship between the plaintiff and
7 some third party, with the probability of future economic benefit to the plaintiff; (2) the
8 defendant’s knowledge of the relationship; (3) intentional acts on the part of the defendant
9 designed to disrupt the relationship; (4) actual disruption of the relationship; and (5)
10 economic harm to the plaintiff proximately caused by the acts of the defendant.” Westside
11 Ctr. Assocs. v. Safeway Stores 23, Inc., 42 Cal. App. 4th 507, 521–522 (1996) (internal
12 citation and quotation marks omitted). To bring such a claim, a plaintiff must allege that
13 there is a “specific existing relationship,” not simply a potential future relationship, that
14 defendant disrupted. Id. at 525. Without a specific existing relationship, a plaintiff’s
15 expectation for the future is at best “a hope for an economic relationship and a desire for
16 future benefit,” which cannot be acted upon. Id. at 527 (internal citation and quotation
17 marks omitted).
18 Here, Plaintiff failed to state a claim for intentional interference with prospective
19 economic advantage because he did not plead an “existing relationship” with any future
20 employers or educational institutions, let alone any relationships that Individual
21 Defendants intentionally sought to disrupt. See FAC. Instead, Plaintiff asserted that if he
22 had been able to complete the upper division science classes he sought to take at Palomar,
23 a series of outcomes would have ensued: he would have (1) passed the patent agent
24 examination; (2) simultaneously worked as a patent agent at a law firm while completing
25 engineering courses at Columbia University; (3) obtained attorney admission to the New
26 York state bar; (4) passed the patent bar exam; (5) obtained a career as a patent attorney at
27 a law firm; and (5) consequently, earn a very high income. Id. at 6–9, 20, 35–38, 51–52.
28 However, aside from his hopeful speculations, Plaintiff has neither pled that he had an
1 existing relationship with any institution nor alleged a likelihood of such future
2 relationships. Westside, 42 Cal. App. 4th at 527. Moreover, because Plaintiff clearly bases
3 his claim on these speculative and attenuated possibilities rather than any actual “existing
4 relationship,” it appears that amendment would be futile here. Chaset v. Fleer/Skybox Int’l,
5 LP, 300 F.3d 1083, 1088 (9th Cir. 2002) (finding leave to amend futile where “plaintiffs
6 cannot cure the basic flaw in their pleading”).
7 Because Plaintiff’s claim for intentional interference with prospective economic
8 advantage fails to state a claim under Federal Rule of Civil Procedure 12(b)(6), the Court
9 dismisses this claim without leave to amend.
10 12. Motion to Amend: Finally, the Court denies Plaintiff’s motion to “Amend to
11 Add Old Parties,” Dkt. 54, to the extent Plaintiff is attempting to revive his previous §1983
12 claims against the Individual Defendants in their official capacity. These claims were
13 previously dismissed with prejudice from Plaintiff’s FAC on the grounds that the Eleventh
14 Amendment bars such claims, and any further amendment would have been futile. See
15 Dkt. 23. The Court will not authorize Plaintiff to reallege the same previously dismissed
16 claims.
17 13. Leave to Amend: Federal Rule of Civil Procedure 15 states that courts
18 “should freely give leave [to amend] when justice so requires.” Moreover, “[t]he Ninth
19 Circuit has instructed that the policy favoring amendments ‘is to be applied with extreme
20 liberality.’” Abels v. JBC Legal Grp., P.C., 229 F.R.D. 152, 155 (N.D. Cal. 2005) (quoting
21 Morongo Band of Mission Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir.1990)). “But a
22 district court need not grant leave to amend where the amendment: (1) prejudices the
23 opposing party; (2) is sought in bad faith; (3) produces an undue delay in litigation; or (4)
24 is futile.” AmerisourceBergen Corp. v. Dialysist W., Inc., 465 F.3d 946, 951 (9th Cir.
25 2006). “[W]hen the district court has already afforded a plaintiff an opportunity to amend
26 the complaint, it has ‘wide discretion in granting or refusing leave to amend after the first
27 amendment, and only upon gross abuse will [its] rulings be disturbed.’” Rich v. Shrader,
28 823 F.3d 1205, 1209 (9th Cir. 2016) (quoting Heay v. Phillips, 201 F.2d 220, 222 (9th Cir.
1 1952)).
2 Here, the Court has afforded Plaintiff multiple opportunities to amend the complaint
3 |}and address his discrimination claims under the ADA and Rehabilitation Act. See Dkts.
4 ||23, 42. Despite the opportunities afforded to Plaintiff, he has repeatedly failed to state a
5 claim for discrimination under the ADA or Rehabilitation Act. See id. Additionally, even
6 ||though Plaintiff failed to properly assert a retaliation claim under the ADA or
7 Rehabilitation Act in his Second Amended Complaint, the Court afforded Plaintiff an
8 opportunity to reframe and sufficiently plead his retaliation claim. Dkt. 42. Despite this
9 || opportunity, Plaintiff continues to fail to properly assert a retaliation claim. Accordingly,
10 Court, exercising its “wide discretion,” finds that further leave to amend □□□□□□□□□□□
11 |/claims would be futile. Allen v. Diaz, No. 20-CV-1389 JLS (LR), 2023 WL 4728794, at
12 }}/*10(S.D. Cal. July 24, 2023) (dismissing third amended complaint without leave to amend
13 |/after plaintiff failed to cure pleading defects despite three opportunities to amend)
14 || reconsideration denied, No. 20-CV-1389 JLS (MDD), 2023 WL 6593834 (S.D. Cal. Sept.
15 }|5, 2023); see also Zucco Partners, LLC v. Digimarc Corp., 552 F.3d 981, 1007 (9th Cir.
16 }}2009) (“[W]here the plaintiff has previously been granted leave to amend and has
17 ||subsequently failed to add the requisite particularity to its claims, [t]he district court’s
18 |/discretion to deny leave to amend 1s particularly broad.”) (internal quotation marks
19 || omitted) (second alteration in original).
20 In sum, the Court GRANTS Defendants’ motion to dismiss Plaintiff's Third
21 |}Amended Complaint. Dkt. 49. The Court dismisses with prejudice Plaintiffs First,
22 Second, Third, Fourth, Fifth and Sixth claims. The Court also DENIES Plaintiffs request
23 revive his previously dismissed § 1983 claims. Dkt. 54. The Clerk of Court is directed
24 CLOSE the case.
25 IT IS SO ORDERED. Qe
26 || Dated: February 12, 2025
27 Honorable Jinsook Ohta
28 United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10798837. Public record. Not legal advice.