Ascarie v. Gavilan College
5:16-cv-02493
N.D. Cal.Apr 24, 2017Background
- Plaintiff Mahmoud Ascarie, a former part‑time chemistry instructor at Gavilan College, alleges he was effectively forced to work unpaid and later denied teaching assignments after he pointed out an error in a lab calculation prepared by Dr. Dale Clark.
- Ascarie sued Dean Fran Lozano and Dr. Clark asserting retaliation and a conspiracy to violate his First Amendment rights and "scientific integrity" under 42 U.S.C. § 1983; Gavilan College is no longer a defendant.
- Procedurally, an earlier complaint was dismissed for lack of federal jurisdiction; Ascarie filed a First Amended Complaint (FAC) in this district and separately filed a state action; defendants moved to dismiss under Rules 12(b)(1) and 12(b)(6).
- The Court construed the FAC as asserting § 1983 claims (First Amendment retaliation and conspiracy), found subject matter jurisdiction adequate for review, but concluded the FAC failed to state plausible § 1983 claims.
- The Court dismissed the FAC for failure to state a claim (statute of limitations issue, failure to plead protected speech/public‑concern and retaliation linkage, and conclusory conspiracy allegations) but granted leave to amend with a May 19, 2017 deadline.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Subject‑matter jurisdiction (federal question) | FAC asserts federal First Amendment/§ 1983 claims so federal jurisdiction exists | FAC lacks short, plain jurisdictional statement under Rule 8(a)(1) | Court: Jurisdiction adequately pleaded when liberally construed; motion denied on this ground |
| Timeliness / statute of limitations | Claims arise from continuing denial of assignments; filed May 9, 2016 | Alleged harms occurred by May 2014; § 1983 borrows California 2‑year rule so likely time‑barred | Court: FAC appears untimely on its face; dismissal granted with leave to amend to allege when plaintiff first knew of claims |
| First Amendment retaliation (protected speech/public concern; employee vs. citizen) | Plaintiff claims speech correcting a lab error and maintaining "scientific integrity" is protected speech | Defendants: Speech was part of job duties and not a matter of public concern; thus not protected by First Amendment | Court: Speech not on matter of public concern and was pursuant to job duties; retaliation claim dismissed with leave to amend |
| § 1983 conspiracy claim pleading adequacy | Plaintiff alleges Lozano and Clark conspired to deny assignments after his criticism | Defendants: Allegations are vague, conclusory, and fail to show an agreement or who did what | Court: Conspiracy claim inadequately pleaded; dismissed with leave to amend |
Key Cases Cited
- Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375 (federal courts are courts of limited jurisdiction)
- Ashcroft v. Iqbal, 556 U.S. 662 (pleading standard: plausible on its face)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (pleading requirement for plausibility)
- Wilson v. Garcia, 471 U.S. 261 (§ 1983 borrows state statute of limitations)
- Maldonado v. Harris, 370 F.3d 945 (California two‑year limitations for § 1983 claims)
- Eng v. Cooley, 552 F.3d 1062 (test for public employee speech claims and burden shifting)
- Coomes v. Edmonds Sch. Dist. No. 15, 816 F.3d 1255 (failure on any Eng factor is fatal)
- Avalos v. Baca, 596 F.3d 583 (elements of § 1983 conspiracy)
- Burns v. Cty. of King, 883 F.2d 819 (conspiracy claims under § 1983 require specific factual allegations)