Steshenko v. Albee

Citation70 F.Supp.3d 1002
Decision Date29 September 2014
Docket NumberCase No.: 13–CV–04948–LHK
PartiesGregory Nicholas Steshenko, Plaintiff, v. Geraldine M. Albee, et al., Defendants.
CourtU.S. District Court — Northern District of California

Gregory Nicholas Steshenko, Aptos, CA, pro se.

Jeffrey Richard Vincent. Office Of The Attorney General, Oakland, CA, for Defendants.

ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS

LUCY H. KOH, United States District Judge

Plaintiff Gregory Nicholas Steshenko (Plaintiff) brings this action for age discrimination based on not being admitted to a graduate program at San Francisco State University. Defendants Geraldine Albee and the Board of Trustees of the California State University (collectively, Defendants) move to dismiss Plaintiff's First Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). ECF No. 33. Having considered the parties' briefs and arguments, the relevant law, and the record in this case, the Court hereby GRANTS IN PART and DENIES IN PART Defendants' motion to dismiss.

I. BACKGROUND

Plaintiff is a 52–year–old unemployed electrical engineer seeking to re-enter the job market through professional re-training. First Am. Compl. (“FAC”), ECF No. 34, ¶ 46. In addition to a Master of Science degree in Electrical Engineering, Plaintiff earned a Bachelor of Science degree in Biochemistry and Molecular Biology from the University of California, Santa Cruz, in 2010. Id .

On October 22, 2012, Plaintiff applied to the Clinical Laboratory Scientist (“CLS”) Training Program at San Francisco State University. Id. ¶ 51. The CLS Training Program is a one-year academic program combining theoretical training with an internship at a participating clinical laboratory. Id. ¶ 47. On March 19, 2013, Plaintiff was notified that his application was denied due to his late submission of his transcript and that he would not be invited for an interview. Id. ¶ 52. On June 12, 2013, Plaintiff subsequently reapplied for the spring semester, to begin coursework in 2014. Id. ¶¶ 52–53. According to Plaintiff, sometime during July 2013 or August 2013, Defendant Albee and other university employees “assembled, communicated and finally decided that Plaintiff [was] not suitable for the CLS program because of his age, and therefore should not be invited to an admissions interview.” Id. ¶ 54. On August 28, 2013, Plaintiff was notified that his application was denied because he did not meet the criteria for selection into the CLS program.” Id. ¶ 55. According to Plaintiff, much younger applicants, in their 20s, with much more inferior academic credentials and work experience, were invited for interviews and subsequently admitted to the program. Id . Accordingly, Plaintiff concluded that he was discriminated on the grounds of age. In making this conclusion, Plaintiff also alleges that [n]o persons of the protected age have ever been admitted to ... this program” and that [t]he age discrimination is rampant.” Id. ¶ 50.

Plaintiff alleges that he filed a timely administrative claim with the California State University Chancellor's Office. Id. ¶ 8. However, Plaintiff's claims were denied. Id . Plaintiff also alleges that he gave timely notices of the instant action to Defendants, the Secretary of Health and Human Services, and the Attorney General of the United States. Id. ¶ 9.

On October 24, 2013, Plaintiff filed an original Complaint against Defendants. ECF No. 1. On March 26, 2014, Defendants filed a motion to dismiss pursuant to Rule 12(b)(6). ECF No. 14. That same day, Defendants amended the motion to dismiss. ECF No. 15. After the Court granted Plaintiff's motion to extend time to file a response to the motion to dismiss, on April 17, 2014, Plaintiff filed an Opposition. ECF No. 20. On April 23, 2014, Defendants filed a Reply. ECF No. 21. The Court held a hearing on May 15, 2014. Plaintiff filed a supplemental letter brief on May 16, 2014. ECF No. 23.

On May 20, 2014, the Court granted Defendant's motion to dismiss. ECF No. 29. In the order, the Court granted Defendants' motion to dismiss all of Plaintiff's claims against the Board of Trustees and Plaintiff's § 1985(3) claim against Albee with leave to amend. (May 20, 2014 Order”), ECF No. 29 at 17. The Court also granted Defendants' motion to dismiss Plaintiff's Fourteenth Amendment due process and equal protection claims against Albee; Plaintiff's Age Discrimination Act claim against Albee; and Plaintiff's Age Discrimination in Employment Act claim against Albee with prejudice. May 20, 2014 Order at 17. Finally, the Court declined to exercise supplemental jurisdiction over Plaintiff's remaining state law claims and thus granted Defendants' motion to dismiss Plaintiff's state law claims—FEHA claim, Bane Act claims, and IIED claim. May 20, 2014 Order at 17.

On May 31, 2014, Plaintiff filed an Amended Complaint against Defendants. ECF No. 31. Plaintiff filed a corrected First Amended Complaint on June 29, 2014. (“FAC”), ECF. No. 34. On June 16, 2014, Defendants filed a motion to dismiss pursuant to Rule 12(b)(6). (“MTD”), ECF No. 33, which Plaintiff opposed on June 29, 2014, (“Opp'n”), ECF No. 35. On July 10, 2014, Defendants filed a Reply. (“Reply”), ECF No. 36.

II. LEGAL STANDARD
A. Motion to Dismiss Under Rule 12(b)(6)

Rule 8(a)(2) of the Federal Rules of Civil Procedure requires a complaint to include “a short and plain statement of the claim showing that the pleader is entitled to relief.” A complaint that fails to meet this standard may be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6). The Supreme Court has held that Rule 8(a) requires a plaintiff to plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. I q bal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). “The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id . (internal quotation marks omitted). For purposes of ruling on a Rule 12(b)(6) motion, a court “accept[s] factual allegations in the complaint as true and construe[s] the pleadings in the light most favorable to the nonmoving party.” Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir.2008). Moreover, pro se pleadings are to be construed liberally. Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir.2000) ([I]n general, courts must construe pro se pleadings liberally.”).

However, a court need not accept as true allegations contradicted by judicially noticeable facts, Shwarz v. United States, 234 F.3d 428, 435 (9th Cir.2000), and the [C]ourt may look beyond the plaintiff's complaint to matters of public record” without converting the Rule 12(b)(6) motion into one for summary judgment, Shaw v. Hahn, 56 F.3d 1128, 1129 n. 1 (9th Cir.1995). Nor is the court required to ‘assume the truth of legal conclusions merely because they are cast in the form of factual allegations.’ Fayer v. Vaughn, 649 F.3d 1061, 1064 (9th Cir.2011) (per curiam) (quoting W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir.1981) ). Mere “conclusory allegations of law and unwarranted inferences are insufficient to defeat a motion to dismiss.” Adams v. Johnson, 355 F.3d 1179, 1183 (9th Cir.2004) ; accord Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. Furthermore, “a plaintiff may plead herself out of court if she “plead[s] facts which establish that [s]he cannot prevail on h[er] ... claim.” Weisbuch v. Cnty. of L.A., 119 F.3d 778, 783 n. 1 (9th Cir.1997) (internal quotation marks omitted).

B. Leave to Amend

If the Court determines that the complaint should be dismissed, it must then decide whether to grant leave to amend. Under Rule 15(a) of the Federal Rules of Civil Procedure, leave to amend “should be freely granted when justice so requires,” bearing in mind that “the underlying purpose of Rule 15... [is] to facilitate decision on the merits, rather than on the pleadings or technicalities.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir.2000)(en banc) (internal quotation marks omitted). When dismissing a complaint for failure to state a claim, “a district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts.” Id . at 1130 (quoting Doe v. United States, 58 F.3d 494, 497 (9th Cir.1995) ). Furthermore, the Court “has a duty to ensure that pro se litigants do not lose their right to a hearing on the merits of their claim due to ignorance of technical procedural requirements.” Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir.1990). Nonetheless, a court “may exercise its discretion to deny leave to amend due to ‘undue delay, bad faith or dilatory motive on part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party ..., [and] futility of amendment.’ Carvalho v. Equifax Info. Servs., LLC, 629 F.3d 876, 892–93 (9th Cir.2010) (alterations in original) (quoting Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962) ).

III. DISCUSSION

Plaintiff's FAC asserts five causes of action against Defendants which can be grouped into the following four categories: (1) age discrimination in violation of the Age Discrimination Act of 1975; (2) denial of due process and equal protection rights under the Fourteenth Amendment pursuant to § 1983; (3) conspiracy to interfere with civil rights pursuant to 42 U.S.C. § 1985(3) ; and (4) intentional infliction of emotional distress (“IIED”). See FAC ¶¶ 57–66.

Defendants move to dismiss Plaintiff's FAC under Rule 12(b)(6) on the ground that Plaintiff fails to state any...

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