Clemes v. Del Norte County Unified School Dist., C-93-1912 MHP (ENE).

• Citation: 843 F. Supp. 583
• Decision Date: 25 January 1994
• Docket Number: No. C-93-1912 MHP (ENE).,C-93-1912 MHP (ENE).
• Court: U.S. District Court — Northern District of California
• Parties: Jack C. CLEMES, Plaintiff, v. DEL NORTE COUNTY UNIFIED SCHOOL DISTRICT; Gene Edinger; Paul H. McCarthy; Debi Balzarini; Darlene Fosdick; and Karen Marcum, Defendants, and Commission On Professional Competence, Respondent, and Del Norte County Unified School District, Real Party in Interest.

843 F. Supp. 583

Jack C. CLEMES, Plaintiff, v. DEL NORTE COUNTY UNIFIED SCHOOL DISTRICT; Gene Edinger; Paul H. McCarthy; Debi Balzarini; Darlene Fosdick; and Karen Marcum, Defendants, and Commission On Professional Competence, Respondent,

and

Del Norte County Unified School District, Real Party in Interest.

No. C-93-1912 MHP (ENE).

United States District Court, N.D. California.

January 25, 1994.

COPYRIGHT MATERIAL OMITTED

Christopher W. Katzenbach, Katzenbach & Khtikian, San Francisco, CA, for plaintiff.

Dorothy S. Landsberg, Kronick Moskovitz Tiedemann & Girard, John M. Laplante, Edson & Laplante, Sacramento, CA, for defendants.

OPINION

PATEL, District Judge.

On July 12, 1993, plaintiff Jack Clemes brought suit against defendants Del Norte County Unified School District, Gene Edinger, Paul H. McCarthy, Debi Balzarini, Darlene Fosdick and Karen Marcum, alleging injuries arising from plaintiff's attempts to rectify certain improprieties that he witnessed on the part of the school district and its employees. Mr. Clemes sued under a host of statutes, including 42 U.S.C. §§ 1981, 1982, 1983, 1985, and 1986; 42 U.S.C. § 2000d et seq. ("Title VI"); 20 U.S.C. § 1681 ("Title IX"); and 31 U.S.C. § 3730(h) ("False Claims Act"). Mr. Clemes also petitioned the court for a writ of mandamus to review an administrative hearing at which his employment was terminated.

Defendants have now moved pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure to dismiss plaintiff's complaint on the following grounds: 1) Mr. Clemes has no standing to bring an action based upon violations of Title VI or Title IX because he is not a member of a class protected by those statutes; 2) Mr. Clemes fails to state a claim under 42 U.S.C. §§ 1981, 1982, and 1985 because he is not a member of a class protected by those statutes; 3) Mr. Clemes' claims under 42 U.S.C. §§ 1983, 1985 and 1985 are barred by the Eleventh Amendment to the Constitution; 4) Mr. Clemes has not stated facts sufficient to establish a claim under the False Claims Act; and 5) Mr. Clemes' claims under 42 U.S.C. §§ 1983, 1985 and 1986 are barred by the statute of limitations.

Defendants have also moved pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure to dismiss Mr. Clemes' claim for a writ of mandamus for lack of subject matter jurisdiction.

Having read and considered the arguments and submissions of the parties, and for the reasons set forth below, the court issues the following memorandum and order.

BACKGROUND¹

Mr. Clemes was a teacher in the Del Norte County Unified School District ("District") for approximately 25 years. In 1989 he was assigned as teacher, and at various times designated Coordinator, for the Independent Studies Program. The Independent Studies Program was established by the District to provide educational services to students outside of the formal educational structure of the schools maintained by the District. A substantial number of the students enrolled in the program were Native Americans. The students were also predominantly female. The program was funded with both federal and state education monies.

Mr. Clemes alleges that around September 1990 he learned from the parents of some of the Independent Studies students that the other teacher for the Program, defendant Debbie Balzarini, was not teaching the students assigned to her. Upon investigation Mr. Clemes alleges that he discovered that defendant Balzarini was making false entries in student records and forging the signatures of students and parents on Independent Studies Program documents, including records of teaching sessions for students and contracts for the Independent Studies Program teaching services. Mr. Clemes reported this activity to defendant Paul McCarthy, principal in charge of the Independent Studies Program, and to defendant Gene Edinger, superintendent of the Del Norte School District.²

Mr. Clemes alleges in essence that Mr. McCarthy and Mr. Edinger told him to mind his own business and stop reporting on illegal activities of his colleagues. After that, according to Mr. Clemes, both Mr. McCarthy and Mr. Edinger aided and assisted Ms. Balzarini's fraud with the intent of allowing the District to collect state and federal financial assistance for educational services under false pretenses.

Mr. Clemes subsequently took his complaints about defendant Balzarini, as well as defendants McCarthy and Edinger, to the office of the District Attorney for Del Norte County and to the Department of Justice. This led to Mr. Clemes' testimony before a Del Norte County grand jury about the forgeries and fraud, apparently to consider issuing indictments against some of the defendants now before this court. From the facts presented to this court it appears that no indictments issued. Mr. Clemes maintains that the District Attorney withheld the majority of Mr. Clemes' documentation from the tribunal, such that the grand jury failed to appreciate the true scope of the fraud involved.

Mr. Clemes also advised the Governing Board of the District of the alleged misconduct. Mr. Clemes maintains that the Governing Board has refused to review or consider the evidence of the fraud.

Finally, in January 1993 Mr. Clemes filed a complaint with the Office of Civil Rights, United States Department of Education, alleging discrimination by the District against Native Americans, minorities and females in educational programs.

From August 31, 1992 through November 4, 1992, the District, through the Commission on Professional Competence, held adversary administrative hearings before a three-person panel to consider whether to terminate Mr. Clemes' employment. Mr. Clemes maintains that the hearings failed to provide him with due process. On April 23, 1993 Mr. Clemes was terminated from employment with the District.

Mr. Clemes alleges that some or all of the defendants improperly attempted to influence the investigations conducted by the above administrative and judicial bodies. Briefly, Mr. Clemes alleges that the District concealed evidence from the State Controller's office during an audit of the District and the Independent Studies Program; that defendant McCarthy improperly met in private with members of the grand jury; that defendant Edinger instructed or advised the members of the District's Governing Board not to review Mr. Clemes' evidence and to destroy the documents he provided; that agents of the District had ex parte communications with the chair of the Commission panel; and that the assistant to the chair of the Commission panel had improper conversations with the Office of Civil Rights and the investigator in charge of the investigation concerning Mr. Clemes' allegations. Mr. Clemes also alleges that certain defendants improperly attempted to influence him to remain silent about the fraud, threatening among other things termination from his job.

As a result of Mr. Clemes' actions, some or all of the defendants allegedly subjected Mr. Clemes to discrimination and retaliation. These acts included: three charges of unprofessional conduct, pursuant to section 44938 of the California Education Code; placement on administrative leave, beginning January 1992; termination from employment; insertion of additional language on Mr. Clemes' application for house refinancing to the effect that his termination was "likely," thus resulting in denial of the loan; alteration of employment verification documents such that Mr. Clemes is unable to obtain a teaching credential in another state; and physical and verbal assaults. In addition, Mr. Clemes maintains that defendants caused the wrongful denial of ninety-six days of disability; caused injury to his property; interfered with the delivery of his mail; monitored his activities, mail and communications; encouraged others to make baseless complaints against him; and warned students that contact with Mr. Clemes would jeopardize receipt of their degrees.

As a consequence of the various acts allegedly taken against him, Mr. Clemes seeks damages to remedy the loss of wages and benefits, both past and future, and to remedy the damage to his reputation and standing in the community. He also seeks recompense for the humiliation, anxiety, mental suffering and distress that he has suffered; for his inability to refinance his home; and to cover the cost of litigation. In addition to damages, Mr. Clemes seeks the following equitable relief: 1) restoration of his employment as a teacher and restoration of any certificates or licenses lost as result of the defendants' action; 2) preliminary and permanent injunctions enjoining defendants from taking retaliatory or discriminatory actions against him; 3) other and further equitable relief to restore his reputation and to undo the harm and damage to his career, reputation and standing.

LEGAL STANDARD

A motion to dismiss for failure to state a claim will be denied unless it appears that the plaintiff can prove no set of facts which would entitle him or her to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957); Fidelity Fin. Corp. v. Fed. Home Loan Bank of San Francisco, 792 F.2d 1432, 1435 (9th Cir. 1986), cert. denied, 479 U.S. 1064, 107 S.Ct. 949, 93 L.Ed.2d 998 (1987). All material allegations in the complaint will be taken as true and construed in the light most favorable to the plaintiff. NL Ind., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir.1986). Although the court is generally confined to consideration of the allegations in the pleadings, when the complaint is accompanied by attached documents, such documents are deemed part of the complaint and may be considered in evaluating the merits of a Rule 12(b)(6) motion. Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir.), cert. denied sub nom. Wyo. Community Dev. Auth. v. Durning, 484 U.S. 944, 108 S.Ct. 330, 98 L.Ed.2d 358 (1987).

On any other motion to dismiss under Rule 12(b), the court may...