Gauvin v. Trombatore

• Decision Date: 25 March 1988
• Docket Number: No. C-87-4689 SAW.,C-87-4689 SAW.
• Citation: 682 F. Supp. 1067
• Parties: A.B. GAUVIN, Plaintiff, v. Leo TROMBATORE, Individually and in his capacity as Director of California State Department of Transportation; California Department of Transportation, a Governmental Entity; Burt Bachtold, Individually and in his capacity as Division Chief, District Four, California State Department of Transportation; Edmundo Lopez, Individually and in his capacity as Division Chief, Office of Civil Rights, California Department of Transportation, Construction Division; Case-Pomeroy, Jt. Venturers, State Contract No. 04-118714; Ghilotti Brothers, Inc., a California Corporation, Individually as Prime Contractor for State Contract No. 04-118764; Ghilotti Brothers-MCM, Joint Venturers, State Contract No. 04-108744; Fickes Trucking; Sherman Trucking; C.C. Meyers Company, Prime Contractor, State Contracts Nos. 04-108734 and 04-118984; Paki Trucking; Robertson Trucking Service, Inc., a California Corp.; Bay Cities Paving and Grading, Prime Contractor, State Contract No. 04-118754 and Paki Trucking, Defendants.
• Court: U.S. District Court — Northern District of California

682 F. Supp. 1067

A.B. GAUVIN, Plaintiff, v. Leo TROMBATORE, Individually and in his capacity as Director of California State Department of Transportation; California Department of Transportation, a Governmental Entity; Burt Bachtold, Individually and in his capacity as Division Chief, District Four, California State Department of Transportation; Edmundo Lopez, Individually and in his capacity as Division Chief, Office of Civil Rights, California Department of Transportation, Construction Division; Case-Pomeroy, Jt. Venturers, State Contract No. 04-118714; Ghilotti Brothers, Inc., a California Corporation, Individually as Prime Contractor for State Contract No. 04-118764; Ghilotti Brothers-MCM, Joint Venturers, State Contract No. 04-108744; Fickes Trucking; Sherman Trucking; C.C. Meyers Company, Prime Contractor, State Contracts Nos. 04-108734 and 04-118984; Paki Trucking; Robertson Trucking Service, Inc., a California Corp.; Bay Cities Paving and Grading, Prime Contractor, State Contract No. 04-118754 and Paki Trucking, Defendants.

No. C-87-4689 SAW.

United States District Court, N.D. California.

March 25, 1988.

COPYRIGHT MATERIAL OMITTED

Jacqueline Coulter Peebles, Richmond, Cal., for plaintiff.

Nicholas Tinling, Legal Div., Dept. of Transp., Sacramento, Cal., Nina Brooks, Thelen, Marrin, Johnson & Bridges, San Francisco, Cal., Ingo Brauer, San Jose, Cal., Steven Jacobs, Jacobs & Jacobs, San Leandro, Cal., Larry Gallegos, Robertson Trucking Services, Union City, Cal., Robert Lieber, Littler, Mendelson, Fastiff & Tichy, San Francisco, Cal., Carol Sharples, Nageley, O'Hara & Meredith, Sacramento, Cal., Michael London, McInerney & Dillon, Oakland, Cal., Ronald Rubenstein, Richmond, Cal., and James Leonard Crew, Hayward, Cal., for defendants.

MEMORANDUM AND ORDER

WEIGEL, District Judge.

I. Background

This action relates to the award of subcontracting work on the John T. Knox Freeway, which will connect the Richmond-San Rafael Bridge with Interstate 80 in Contra Costa County. Plaintiff, a black American, owns a trucking business in Richmond, California. He sues defendant California Department of Transportation (CalTrans), three of its employees, and nine private defendants for alleged discrimination against business enterprises owned by blacks, including his own. He claims that these unnamed enterprises are all Disadvantaged Business Enterprises (DBEs) under the federal DBE program.¹ The gravamen of plaintiff's complaint is that black-owned DBEs have received less than their fair share of work on the Knox Freeway. The private defendants are the prime contractors and trucking subcontractors on the project.

Plaintiff's trucking company has been certified by the California Department of Transportation as a DBE. Plaintiff alleges that he made inquiry to representatives of CalTrans and of defendant prime and subcontractors as to how he could obtain work on the Knox Freeway project, but that he was given only limited opportunities to participate. Plaintiff claims he has been passed over by defendants and has suffered $200,000 in lost subcontracting business. Seeking monetary, declaratory, and injunctive relief, he claims violations of the federal civil rights acts, the U.S. Constitution, federal transportation assistance statutes, and California's Unruh Act.

Plaintiff's motion for a preliminary injunction was denied on February 26, 1988. Defendants move to dismiss the complaint for failure to state a claim or, alternatively, for summary judgment. Since the Court finds that most of plaintiff's causes of action fail to state a claim upon which relief can be granted, the motions for summary judgment need not be reached.

II. Standards for Rule 12(b)(6) Dismissal

A motion under Federal Rule of Civil Procedure 12(b)(6) tests the formal sufficiency of the claim for relief. Fednav Ltd. v. Sterling International, 572 F.Supp. 1268, 1270 (N.D.Cal.1983). The Court's inquiry is whether the allegations state a sufficient claim under Fed.R.Civ.P. 8(a), which calls for a "short and plain statement of the claim showing that the pleader is entitled to relief." The complaint is to be liberally construed in favor of the plaintiff, and its material allegations taken as true. Fednav, 572 F.Supp. at 1270.

The Court now applies this standard to plaintiff's complaint.

III. Plaintiff's Causes of Action

A. First Cause—42 U.S.C. §§ 1981 and 1983.

Plaintiff's first cause of action charges state defendants CalTrans, Trombatore and Bachtold with violation of the Civil Rights Acts of 1870 and 1871, 42 U.S.C. §§ 1981 & 1983. Further, plaintiff incorporates paragraph 46 of the complaint into all causes of action. Paragraph 46 alleges that the conduct of each of the defendants deprived plaintiff of the opportunity "to secure meaningful and gainful employment" on the Knox Freeway. Therefore, the first cause can be read to allege violation of the civil rights acts against the private defendants as well.

At the outset, it is manifest that the Eleventh Amendment to the United States Constitution bars certain claims against the state defendants. First, the Amendment bars a suit against a state and its agencies unless the state has consented to filing of the suit. Shaw v. Cal. Dept. of Alcoholic Beverage Control, 788 F.2d 600, 603-04 (9th Cir.1986). An action for money damages against a state official is considered a suit against the state and is barred by the Eleventh Amendment, if "the state is the real, substantial party in interest" or if the judgment is sought against the public treasury. Id. at 604. However, the Eleventh Amendment does not bar actions against state officers in their official capacities for injunctive or declaratory relief, or as individuals for monetary damages. Id.; Jackson v. Hayakawa, 682 F.2d 1344, 1350 (9th Cir.1982).

Applying these standards here, defendant California Department of Transportation must be dismissed with prejudice as to all causes of action since it has not consented to suit. To the extent plaintiff's claims for damages are against Trombatore, Bachtold, and Lopez in their official capacities, these claims are also barred by the Eleventh Amendment and must be dismissed with prejudice. Plaintiff may, however, seek injunctive relief against Trombatore, Bachtold, and Lopez in their official capacities, and seek monetary damages against Bachtold and Lopez for their liability as individuals.²

Next, to maintain a cause of action under Sections 1981 and 1983, plaintiff must plead that (1) he has been deprived of a right, privilege or immunity secured by the Constitution, treaty or laws of the United States; (2) that defendants subjected plaintiff to this deprivation, or caused him to be so subjected; and (3) that defendants acted under color of state law.³ Marshall v. Sawyer, 301 F.2d 639 (9th Cir.1962). Pleadings in Section 1983 actions are to be liberally construed to state a claim for relief. See Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 595, 30 L.Ed.2d 652 (1972).

With the exception of state defendants Trombatore and Bachtold, plaintiff has failed to state a claim under Sections 1981 and 1983. Plaintiff has not stated with any specificity how each private defendant allegedly deprived him of a right secured by the Constitution or laws of the United States. Instead, all defendants are lumped together in a single, broad allegation. First Amended Complaint at ¶ 46. Plaintiff must allege the basis of his claim against each defendant to satisfy Federal Rule of Civil Procedure 8(a)(2), which requires a short and plain statement of the claim to put defendants on sufficient notice of the allegations against them.

Moreover, plaintiff has failed to allege that the private defendants acted under color of state law. The relationship between the state and the private actor which establishes state action must be pled in some detail. Glaros v. Perse, 628 F.2d 679, 684-85 (1st Cir.1980). Accordingly, the first cause of action against the private defendants must be dismissed, with leave to amend to state a claim under Sections 1981 and 1983.

B. Second Cause — 42 U.S.C. § 1985(3).

Plaintiff attempts to allege a violation of 42 U.S.C. § 1985(3) by defendants CalTrans, Trombatore, and Bachtold, and, by the incorporation of paragraph 46, all other defendants. Complaint at ¶¶ 55-56. However, there is no violation of the statute as to plaintiff unless there has been a conspiracy to deprive him of equal protection of the laws or of equal privileges and immunities under the laws. Gillespie v. Civiletti, 629 F.2d 637, 641 (9th Cir.1980). Pleading the conspiracy requires at least some specific facts. Unsupported and conclusory allegations are insufficient to state a cause of action under this section. Hoffman v. Halden, 268 F.2d 280, 294 (9th Cir.1959).

Accordingly, the second cause of action will be dismissed as against all defendants, with leave to amend.

C. Third Cause — Fourteenth Amendment.

Plaintiff alleges a violation of the Fourteenth Amendment by defendants CalTrans, Trombatore, Bachtold, and Lopez, and, by the incorporation of paragraph 46, the private defendants. First Amended Complaint at ¶¶ 58, 60. However, since the defendants he wishes to hold liable are all amenable to suit under 42 U.S.C. § 1983, plaintiff may not also sue under the Fourteenth Amendment. Ward v. Caulk, 650 F.2d 1144, 1147 (9th Cir.1981). A constitutionally-based suit may not proceed against state defendants, or private defendants acting under color of state law, where the plaintiff has a statutory remedy under Section 1983. Id. at 1148. This is true even though Section 1983 claims may be barred against some defendants by the Eleventh Amendment. Id. Accordingly, the third cause of action will be dismissed with prejudice as to all defendants.

D. Fourth, Fifth and Eighth Causes — Federal Transportation Acts.

In these three causes of action, plaintiff alleges violations of the Surface Transportation Act of 1982, the Surface...