Robert WILLIAMS, Sr.; Robin Fleming; Lavonia Williams; Payne Care Center; Kingsley Home Care; Robert Williams, II, Plaintiffs-Appellants, v. State of CALIFORNIA; San Gabriel Pomona Regional Center; Claire Matsushita, in her individual and official capacities; R. Keith Penman, in his individual and official capacities; Claudia Hemingway, in her individual and official capacities; Adriane Picazo, in her individual and official capacities; Luciana Galarza, in her individual and official capacities, Defendants-Appellees.
No. 12-55601
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Oct. 10, 2013. Filed Aug. 19, 2014.
763 F.3d 1123
Before: HARRY PREGERSON, KIM McLANE WARDLAW, and RICHARD C. TALLMAN, Circuit Judges.
United States District Court, C.D. California. Case No. CV 11-4809-GHK (AGRx). Signed March 28, 2012.
A defendant seeking to testify after the close of proof is justifying the untimely request to testify and the character of his or her proposed testimony. Doing so enables the government to better assess whether it will seek to introduce rebuttal evidence, and in turn, allows the district court to better assess the potential disruption the proposed testimony will create. Considering each of the Walker factors in light of the record in this case, we cannot say the district court abused its discretion.
AFFIRMED.
Jeffrey Whittington (argued), Nicholas W. Sarris, Kaufman Borgeest & Ryan LLP, Calabasas, CA, for Defendants-Appellees San Gabriel Pomona Regional Center, R. Keith Penman, Claudia Hemingway, Adriane Picazo, and Luciana Galarza.
Donna M. Dean (argued), Deputy Attorney General, Office of the California Attorney General, Los Angeles, CA, for Defendant-Appellee Claire Matsushita.
Synopsis
Background: Residential community care facilities brought action against regional community agency that contracted with state to assist in implementation of
Holdings: The District Court, George H. King, J., held that:
- agency‘s interpretation of Lanterman Act‘s provision governing religious rights was consistent with Act‘s purpose;
- provision governing religious rights was facially neutral;
- provision governing religious rights did not violate Free Exercise Clause of First Amendment;
- provision governing religious rights did not violate Establishment Clause of First Amendment;
- facilities failed to state a claim of First Amendment retaliation;
- facilities failed to state a claim under Title VII; and
- facilities were not entitled to leave to amend complaint a second time.
Motions granted.
OPINION
PER CURIAM:
Plaintiffs—Payne Care Center, Kingsley Home Care Center, and their named employees—appeal from the district court‘s dismissal of their
After carefully reviewing the briefs and record, and reviewing de novo the district court‘s conclusions of law, we affirm: (1) the district court‘s dismissal of Plaintiffs’ complaint against Defendant-Appellee Claire Matsushita because Plaintiffs failed to allege specific facts against Matsushita other than to identify her title; (2) the district court‘s holding that Defendants’ interpretation of the Lanterman Act,
We commend the district court for its thoughtful and legally correct approach to this case. We thus adopt the district court‘s well-reasoned and comprehensive disposition, Williams v. California, 990 F.Supp.2d 1009 (C.D.Cal.2012), and incorporate it here. We attach the disposition as Appendix A.
AFFIRMED.
APPENDIX A
*1012 Leo James Terrell, Law Offices of Leo James Terrell, Los Angeles, CA, for Plaintiff/Petitioner/Appellant.
Nicholas W. Sarris, Peckar & Abramson, P.C., Los Angeles, CA, Donna M. Dean, Office of Attorney General, Los Angeles, *1013 CA, for Defendant/Respondent/Appellee.
Opinion
ORDER RE: MOTIONS TO DISMISS
GEORGE H. KING, District Judge.
This matter is before the Court on (1) Defendants San Gabriel/Pomona Regional Center, R. Keith Penman, Claudia Hemingway, Adriane Picazo, and Lucina Galarza‘s Motion to Dismiss Plaintiffs’ First Amended Complaint Pursuant to F.R.C.P. 12(b)(6), and (2) Defendant Claire Matsushita‘s Motion to Dismiss Plaintiffs’ Complaint (collectively, “Motions“). We have considered the arguments in support of and in opposition to these Motions and deem this matter appropriate for resolution without oral argument. L.R. 7-15. As the Parties are familiar with the facts, we will repeat them only as necessary. Accordingly, we rule as follows.
I. Statutory Framework
California‘s Lanterman Developmental Disabilities Services Act (“Lanterman Act” or “Act“) serves as the backdrop of this case. The Act is a comprehensive statutory scheme enacted by the California legislature to provide services for developmentally disabled persons. Its purpose is “to prevent or minimize the institutionalization of developmentally disabled persons ... and to enable them to approximate the pattern of everyday living of nondisabled persons of the same age and to lead more independent and productive lives in the community.” Ass‘n for Retarded Citizens v. Dep‘t of Dev. Servs., 38 Cal.3d 384, 388, 211 Cal.Rptr. 758, 696 P.2d 150 (1985) (”ARC“).
The Act recognizes that developmentally disabled persons not only “have the same legal rights and responsibilities [as those] guaranteed all other individuals by the United States Constitution and laws of the State of California,” but it also grants them certain statutory rights, including the right to treatment and re-habilitation services at state expense, and—of particular importance in this case—the right to religious freedom and practice, the right to attend religious services or to refuse attendance, and the right to participate in worship or not to participate in worship,
To implement these rights and the corresponding obligations of the State, the Act fashions “a system in which both state agencies and private entities have functions.” ARC, 38 Cal.3d at 389, 211 Cal.Rptr. 758, 696 P.2d 150. The Department of Developmental Services (“DDS“), a state agency, “has jurisdiction over the execution of the laws relating to the care, custody and treatment of developmentally disabled persons,”
Regional centers do not provide developmentally disabled persons with services directly. Instead, after determining the services a patient needs, regional centers
II. Factual Background
On December 2, 2011, Plaintiffs Payne Care Center, Kingsley Home Care, Robert Williams, Sr., Robin Fleming, Robert Williams, II, and Lavonia Williams (collectively, “Plaintiffs“) filed a First Amended Complaint (“FAC“) against Defendants San Gabriel/Pomona Regional Center (“SGP Regional Center“), Claire Matsushita (erroneously sued as Claire Matsushi), R. Keith Penman, Claudia Hemingway, Adriane Picazo, and Lucina Galarza (collectively, “Defendants“).
Plaintiffs Payne Care Center and Kingsley Home Care are six-bed residential community care facilities that are licensed by the California Department of Social Services Community Care Licensing Division, (FAC ¶¶ 10-11, 29), and serve as vendors under the Lanterman Act. Plaintiff Robert Williams, Sr. is the owner of Payne Care Center and Kingsley Home Care. (Id. ¶ 6). Plaintiffs Robin Fleming, Robert Williams, II, and Lavonia Williams are employees of Payne Care Center (collectively, “Payne employees“). (Id. ¶¶ 7-9).
Defendant SGP Regional Center is a “regional center” established pursuant to the Lanterman Act. (Id. ¶ 28). Defendants R. Keith Penman, Claudia Hemingway, Adriane Picazo, and Lucina Galarza are employees of SGP Regional Center (collectively, “Employee Defendants“).1 (Id. ¶¶ 14-17). Defendant Claire Matsushita is the Regional Manager of the Community Care Licensing Division of the California Department of Social Services. (Id. ¶ 13).
Plaintiffs allege that sometime in June 2009, a meeting was held at SGP Regional Center to address behavioral issues with one of Payne Care Center‘s clients, C.W. (Id. ¶ 40). “During the course of this meeting, it came to Plaintiff Payne‘s attention that C.W. had expressed some level of desire to attend ... Jehovah‘s Witness worship services....” (Id.).
Plaintiffs further allege that between July and September 2009, additional “meetings involving Plaintiff Payne, [SGP Regional Center], C.W.‘s parents, and Defendant Adriane Picazo, among others, were held to discuss C.W.‘s request.” (Id. ¶ 41). Due to his disability, C.W. was unable to attend the religious services without assistance. (Id. ¶ 42). During the meetings, Payne Care Center stated that “it would facilitate C.W.‘s request through transportation and introduction to members of the church in the community.” (Id. ¶ 41). However, Plaintiffs allege that “Defendants, and each of them, notified Plaintiffs that C.W. must be given the opportunity to attend the Jehovah‘s Witness services,” and “erroneously indicated that Plaintiffs were required to accompany C.W. to these religious services.” (Id. ¶ 43).
Plaintiffs disagreed and did not believe that they were obligated to “personal[ly] accompan[y]” clients to religious services, but instead were only obligated to provide an opportunity for clients to attend such services. (Id. ¶ 44). During one of the *1015 meetings, Payne Care Center “expressed its concerns with [SGP Regional Center‘s] directive that Payne Care Center employees accompany C.W. to religious services, particularly because of Plaintiff Payne‘s potential exposure to liability under Title VII of the Civil Rights Act of 1964 if it forced its employees ... to attend religious services with C.W.” (Id. ¶ 45). Despite Plaintiffs’ objections, SGP Regional Center insisted that Payne Care Center employees accompany C.W. to religious services. (Id. ¶ 46).
On an unspecified date, Payne Care Center received a letter from Defendant Picazo, SGP Regional Center‘s Client Services Manager, stating that
she had consulted with the California Community Care Licensing Division about whether [Payne Care Center] employees should be required to attend religious services with clients, and ... that the Licensing Division confirmed that, per California Code of Regulations Title 22, section 85079, a licensed Adult Residential Facility is to provide direct staff support and not just the opportunity for a disabled adult to actively participate in worship services. Defendant Picazo further stated ... that because of C.W.‘s behavioral challenges ..., [Payne Care Center] staff was required to accompany C.W. while he attended worship services.
(Id. ¶ 47).
After receiving this letter, Payne Care Center contacted the California Community Care Licensing Division and requested a legal opinion “as to whether Plaintiff Payne would need to force its employees to attend worship services with clients.” (Id. ¶ 49). The Community Care Licensing Division did not provide a legal opinion. (Id.). Plaintiffs did not accompany C.W. to any Jehovah‘s Witness services and, as a result, “the State of California and [SGP Regional Center] cited Plaintiffs for violating their obligations to a client.” (Id. ¶ 49).
Plaintiffs allege that because of the citation Payne Care Center and Kingsley Home Care no longer receive client referrals from the State and SGP Regional Center and, therefore, have received less funding from the State. (Id. ¶¶ 50-51). Payne Care Center and Kingsley Home Care “are now contemplating bankruptcy.” (Id. ¶ 52).
Finally, Plaintiffs allege that “certain employees” of Payne Care Center “have expressed their intentions to refuse to fulfill any order to attend any Jehovah‘s Witness service because attendance of any such service would be in contradiction to those employees’ own religious beliefs and practices.” (Id. ¶ 53). Specifically, Plaintiffs allege that “two [Payne Care Center] employees are Catholic and maintain that their Catholic faith restricts them from attending any other religious service unless that service is a wedding or funeral, and another [Payne Care Center] employee refuses to attend or participate in any religious service.” (Id.).
Based on these allegations, Plaintiffs assert two claims under
To survive dismissal for failure to state a claim, a complaint must set forth “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). It must *1016 contain factual allegations sufficient to “state a claim to relief that is plausible on its face.” Id. at 570, 127 S.Ct. 1955; see also Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). In considering a motion to dismiss, we must accept the allegations of the complaint as true and construe them in the light most favorable to the plaintiff. Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009).
IV. Analysis
The theories underlying Plaintiffs’ claims have suffered from a lack of clarity from the outset of this case. On August 4, 2011, Employee Defendants filed a motion to dismiss (“August 4 Motion“) Plaintiffs’ initial Complaint. In that motion, they argued among other things that Plaintiffs failed to plead facts demonstrating a violation of the First Amendment‘s Free Exercise or Establishment Clauses. On September 20, 2011, we issued an Order noting that Plaintiffs’ Opposition to Employee Defendants’ August 4 Motion “entirely fail[ed] to address” this argument. (Dkt. No. 23). We noted that we could “deem Plaintiffs’ non-opposition [to this argument] as consent to granting the relief sought.” However, we instead “cho[ ]se not to do so ... and ... allow[ed] Plaintiffs one last opportunity to respond to this unaddressed argument.” (Dkt. No. 23, at 1).
On October 4, 2011, Plaintiffs filed a Supplemental Opposition to Employee Defendants’ August 4 Motion (“Supplemental Opposition“), which responded to Employee Defendants’ attack on the sufficiency of Plaintiffs’ claims under the First Amendment. On October 27, 2011, we issued an Order wherein we noted that the theories asserted by Plaintiffs in their Supplemental Opposition were “unclear.” (Dkt. No. 33, at 1). We further noted that Plaintiffs’ Supplemental Opposition appeared to rely on factual allegations that were “entirely absent from the Complaint.” (Id.). Accordingly, we granted Employee Defendants’ August 4 Motion and dismissed the Complaint. We also granted Plaintiffs leave to file a FAC “so they [could] plead their claims clearly and allege facts in support of each claim.” (Id.).
Plaintiffs filed their FAC on December 2, 2011. Defendants subsequently filed the present Motions, which argue—among other things—that the facts alleged in the FAC do not amount to a violation of the First Amendment. Unfortunately, Plaintiffs have not made an earnest effort to respond to these arguments, as they have merely “cut and paste” the arguments from their Supplemental Opposition into their oppositions to the present Motions. As noted above, we had previously indicated to Plaintiffs that we found these theories to be “unclear.”
Needless to say, the theories asserted in the FAC and Plaintiffs’ papers filed in opposition to the present Motions remain unclear and exhibit complete carelessness on behalf of Plaintiffs in litigating this case. For example, Plaintiffs’ Opposition to SGP Defendants’ Motion begins by summarizing the changes Plaintiffs have made in the FAC. Plaintiffs state that “Plaintiffs has [sic] also modified the Caption of the Complaint to omit Defendant San Gabriel/Pomona Regional Center as a named defendant because Plaintiffs do not intend on serving Defendant SG/PRC with [sic]
Additionally, Plaintiffs’ Opposition argues that “Plaintiffs have plead [sic] sufficient facts to establish a claim for violations of Title VII of the Civil Rights Act.” (Dkt. No. 51, at 27). However, we note that Plaintiffs’ FAC asserts only two claims, and neither claim is for a “violation[ ] of Title VII.” Plaintiffs end this portion of their Opposition stating, “Plaintiffs allege the facts included above related to Title VII and ask leave of the Court to amend the complaint to include facts related to Title VII claims.” (Dkt. No. 51, at 29). Plaintiffs previously included this exact sentence in their Supplemental Opposition, which was filed on October 4, 2011. At that time, we granted Plaintiffs’ request for leave to amend the Complaint to assert new theories and claims. The fact that Plaintiffs entirely failed to take advantage of this opportunity to plead their purported Title VII claim is inexcusable, and we see no reason to grant Plaintiffs leave to amend a second time.
Finally, we note that with respect to a number of the Defendants Claire Matsushita,2 R. Keith Penman, and Lucina Galarza Plaintiffs have alleged nothing more than their names and their employment positions. Plaintiffs have made no allegations whatsoever as to how these Defendants were involved in any alleged constitutional violation. Such allegations are insufficient to state a claim against these Defendants under
In the event of dismissal, Plaintiffs have again asked for leave to amend.3 As explained in more detail below, we believe that granting leave to amend the above-mentioned deficiencies would be futile because none of the conduct alleged in the
A. Claim 1: Deprivation of the Right to Freedom of Religion Under the First Amendment
“To make out a cause of action under section 1983, plaintiffs must plead *1018 that (1) the defendants acting under color of state law (2) deprived plaintiffs of rights secured by the Constitution or federal statutes.” Gibson v. United States, 781 F.2d 1334, 1338 (9th Cir. 1986).5
In Plaintiffs’ first claim, they allege that Defendants, acting under color of state law, violated their rights under the Establishment and Free Exercise Clauses of the First Amendment. Defendants move to dismiss Plaintiffs’ claim on the ground that the facts alleged in the FAC do not amount to a violation of the First Amendment under either clause.
Before addressing the sufficiency of Plaintiffs’ claims, we must first address Plaintiffs’ allegation that “Defendants erroneously indicated that Plaintiffs were required to accompany C.W. to ... religious services.” (FAC ¶ 43). Through this allegation, Plaintiffs appear to argue that Defendants erroneously interpreted § 85079 of
1. Plaintiffs’ Obligations Under the Lanterman Act and Its Corresponding Regulations
Plaintiffs allege that Defendant Picazo—who had consulted with the Community Care Licensing Division of the Department of Social Services—erroneously instructed them that, pursuant to § 85079, they were required to provide direct staff support to clients who wished to attend religious services.
Section 85079(c) provides, in relevant part: “The licensee shall ensure that clients are
“The interpretation of a regulation, like the interpretation of a statute, is ... a question of law....” Culligan Water, 17 Cal.3d at 93, 130 Cal.Rptr. 321, 550 P.2d 593 (quoting Carmona v. Div. of Indus. Safety, 13 Cal.3d 303, 310, 118 Cal.Rptr. 473, 530 P.2d 161 (1975)). “[A]n administrative agency‘s interpretation of its own regulation ... deserves great weight, [but] the ultimate resolution of legal questions rests with the courts,” id. (quoting Carmona, 13 Cal.3d at 310, 118 Cal.Rptr. 473, 530 P.2d 161).
Here, Plaintiffs allege that the Community Care Licensing Division of the Department of Social Services has interpreted this provision to require vendors to provide direct staff support. As noted, we may give weight to this interpretation, but it is not conclusive.
Generally, “[i]n construing a statute the court [should] consider the purpose of the law and adopt a construction which will further that purpose.” Robinson v. Fair Emp‘t & Hous. Comm‘n, 2 Cal.4th 226, 234, 5 Cal.Rptr.2d 782, 825 P.2d 767 (1992). We conclude that construing § 85079(c) to require the provision of direct staff support to clients who wish to attend religious services is consistent with the purpose of the Lanterman Act, which is “to enable [developmentally disabled persons] to approximate the pattern of everyday living of nondisabled persons of the same age and to lead more independent and productive lives in the community.” ARC, 38 Cal.3d at 388, 211 Cal.Rptr. 758, 696 P.2d 150. Indeed, interpreting § 85079(c) to require direct staff support at religious services provides persons like C.W., who Plaintiffs themselves allege is “unable to attend ... religious services without assistance,” (FAC ¶ 42), the ability to “approximate the pattern of everyday living of nondisabled persons,” many of whom frequently attend religious services.
Furthermore, it is unclear how vendors, like Payne Care Center and Kingsley Home Care, could provide their clients with “the opportunity to attend and participate in” religious services without providing direct staff support, given that Payne Care Center and Kingsley Home Care are facilities that “provide twenty-four hour services to their patients, who are developmentally disabled and in need of behavioral modification care.” (Id. ¶ 30). The fact that Payne Care Center and Kingsley Home Care “provide twenty-four hour services” suggests that very few of their clients could attend religious services without direct staff support. Thus, the only way for Plaintiffs to provide these clients with a meaningful opportunity to attend religious services would be to accompany them to those services.
Finally, Plaintiffs acknowledge that they are “required to accompany or escort clients to recreational activities,” (Id. ¶ 44), and provide no explanation as to why they believe this requirement does not extend to religious activities. Given that Plaintiffs acknowledge that the Lanterman Act‘s corresponding regulations require vendors to accompany clients to “recreational” activities, it seems illogical that these regulations would not also require vendors to accompany clients to religious services, es-
Accordingly, we conclude that Defendant Picazo‘s alleged instruction that Plaintiffs must provide C.W. with direct staff support at Jehovah‘s Witness services was not based on an “erroneous” interpretation of § 85079(c). Thus, Defendants’ alleged conduct was consistent with the *1020 Lanterman Act, and we construe Plaintiffs’ claim to challenge the constitutionality of the regulations at issue here,6 as opposed to individual action taken in contravention of those regulations.
2. The Merits of Plaintiffs’ Claim
The First Amendment provides that, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof....” The First Amendment is applicable to the states through the Fourteenth Amendment. See Everson v. Bd. of Educ., 330 U.S. 1, 15, 67 S.Ct. 504, 91 L.Ed. 711 (1947). The First Amendment‘s protection of the freedom of religion is considered to be embodied in two clauses: the “Establishment Clause” and the “Free Exercise Clause.” These clauses constitute distinct protections but also embody “correlative and coextensive ideas, representing only different facets of the single great fundamental freedom [of religion].” Id. at 40, 67 S.Ct. 504 (Rutledge, J., dissenting). The Establishment Clause prohibits the Government from compelling an individual to participate in religion or its exercise, or otherwise from taking action that has the purpose or effect of promoting religion or a particular religious faith. See Lee v. Weisman, 505 U.S. 577, 587, 112 S.Ct. 2649, 120 L.Ed.2d 467 (1992). The Free Exercise Clause guards an individual‘s practice of her own religion against restraint or invasion by the Government. See Sch. Dist. of Abington Twp., Pa. v. Schempp, 374 U.S. 203, 222-23, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963). We address Plaintiffs’ claims under each clause in turn.
a. Free Exercise Clause
In order to establish a violation of the Free Exercise Clause, a plaintiff must establish that the challenged conduct resulted in an impairment of the plaintiff‘s free exercise of genuinely held beliefs. See United States v. Lee, 455 U.S. 252, 256-57, 102 S.Ct. 1051, 71 L.Ed.2d 127 (1982). However, in evaluating such a claim, we must be mindful that “every person cannot be shielded from all burdens incident to exercising every aspect of the right to practice religious beliefs.” Id. at 261, 102 S.Ct. 1051. Indeed, “the right of free exercise does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability on the ground that the law proscribes (or
*1021 Here, the relevant portions of the Lanterman Act and its corresponding regulations are neutral because their “object ... is [not] to infringe upon or restrict practices because of their religious motivation.” Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 533, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993). Instead, their object is to allow developmentally disabled persons to approximate the lives of nondisabled persons. Additionally, the laws serve to accommodate the rights of developmentally disabled persons to free exercise of religion, which is a legitimate secular purpose. See Mayweathers v. Newland, 314 F.3d 1062, 1068 (9th Cir.2002) (“[protecting] the exercise of religion” is a legitimate “secular legislative purpose“); cf. Church of Lukumi, 508 U.S. at 533, 113 S.Ct. 2217 (“A law lacks facial neutrality if it refers to a religious practice without a secular meaning discernable from the language or context.“).
Furthermore, the regulations at issue are generally applicable. They apply to all clients and all vendors, irrespective of their religion (or lack thereof). Cf. Church of Lukumi, 508 U.S. at 543, 113 S.Ct. 2217 (holding that a law is not generally applicable when it “impose[s] burdens” “in a selective manner“).
When a law is neutral and generally applicable, it “will be upheld if [it is] rationally related to a legitimate governmental purpose.” Stormans, Inc. v. Selecky, 586 F.3d 1109, 1137 (9th Cir.2009). Here, the regulations at issue, which are neutral and generally applicable, are rationally related to the legitimate governmental purpose of enabling developmentally disabled persons to approximate the daily lives of nondisabled persons. Accordingly, they do not run afoul of the Free Exercise Clause.
Although Plaintiffs have not advanced a coherent and lucid theory tying the conduct alleged in the FAC to a violation of the Free Exercise Clause, we note that Plaintiffs allege that “certain employees” of Payne Care Center “have expressed their intentions to refuse to fulfill any order to attend any Jehovah‘s Witness service because attendance of any such service would be in contradiction to those employees’ own religious beliefs and practices.” (FAC ¶ 53). Specifically, Plaintiffs allege that “two [Payne Care Center] employees are Catholic and maintain that their Catholic faith restricts them from attending any other religious service unless that service is a wedding or funeral, and another [Payne Care Center] employee refuses to attend or participate in any religious service.” (Id.). Plaintiffs do not allege that these “certain employees” are any of the Plaintiffs themselves, but even if they were, Plaintiffs have not demonstrated a violation of the Free Exercise Clause on these facts.
We construe Plaintiffs’ argument to be that the regulations at issue require them to engage in conduct that their religion prohibits: that is, being present at Jehovah‘s Witness services.7 To this end, they
b. Establishment Clause
The Establishment Clause of the First Amendment prohibits the Government from enacting a law “respecting an establishment of religion.”
The “establishment of religion” clause of the first Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can ... force [a person] to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs.... [The Establishment] Clause ... was intended to erect a “wall of separation between Church and State.”
Everson, 330 U.S. at 15-16, 67 S.Ct. 504.
However, subsequent cases have tempered Everson by acknowledging that church and State cannot be separate in all respects, as religion is a deeply embedded part of American life and culture. See, e.g., Lemon v. Kurtzman, 403 U.S. 602, 614, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971). Indeed, “[w]hile this clause forbids [the government] from advancing religion, the Supreme Court has interpreted it to allow, and sometimes require, the accommodation of religious practices; ‘This Court has long recognized that the government may (and sometimes must) accommodate religious practices and that it may do so without violating the Establishment Clause.‘” Mayweathers, 314 F.3d at 1068 (quoting Hobbie v. Unemp‘t Appeals Comm‘n of Fla., 480 U.S. 136, 144-45, 107 S.Ct. 1046, 94 L.Ed.2d 190 (1987)). Thus, “[t]he touchstone for [the Court‘s] analysis is the principle that the ‘First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion.‘” McCreary Cnty., Ky. v. ACLU, 545 U.S. 844, 860, 125 S.Ct. 2722, 162 L.Ed.2d 729 (2005) (quoting Epperson v. Arkansas, 393 U.S. 97, 104, 89 S.Ct. 266, 21 L.Ed.2d 228 (1968)).
Establishment Clause violations are determined according to the three-pronged
i. Secular Purpose
The first prong of the Lemon test inquires into the Government‘s actual motivation underlying the regulation in question *1023 that is, whether it was intended to advance or inhibit religion. See Edwards v. Aguillard, 482 U.S. 578, 585, 107 S.Ct. 2573, 96 L.Ed.2d 510 (1987). A purpose to favor one faith over another, or adherence to religion generally, clashes with the “understanding ... that liberty and social stability demand a ... tolerance that respects the religious views of all citizens.” Zelman v. Simmons-Harris, 536 U.S. 639, 718, 122 S.Ct. 2460, 153 L.Ed.2d 604 (2002).
However, “[t]he secular purpose requirement does not mean that the law‘s purpose must be unrelated to religion—that would amount to a requirement that the government show a callous indifference to religious groups, and the Establishment Clause has never been so interpreted.” Mayweathers, 314 F.3d at 1068 (quoting Corp. of Presiding Bishop v. Amos, 483 U.S. 327, 335, 107 S.Ct. 2862, 97 L.Ed.2d 273 (1987)).
Here, the Lanterman Act and its corresponding regulations were enacted to “enable [developmentally disabled persons] to approximate the pattern of everyday living of nondisabled persons of the same age and to lead more independent and productive lives in the community.” ARC, 38 Cal.3d at 388, 211 Cal.Rptr. 758, 696 P.2d 150. Thus, these provisions were intended to advance a legitimate secular purpose. Indeed, this is confirmed by the Supreme Court‘s decision in Witters v. Washington Department of Services for the Blind, 474 U.S. 481, 106 S.Ct. 748, 88 L.Ed.2d 846 (1986), in which the Court held that a Washington state law that was enacted to “assist visually handicapped persons to ... obtain the maximum degree of self-support and self-care” had an “unmistakably secular purpose,” even though a small “amount of the aid awarded under the program [was] likely to flow to religious education.” Id. at 483, 485-86, 106 S.Ct. 748; see also Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1, 13-14, 113 S.Ct. 2462, 125 L.Ed.2d 1 (1993) (“The IDEA creates a neutral government program dispensing aid not to schools but to individual handicapped children. If a handicapped child chooses to enroll in a sectarian school, we hold that the Establishment Clause does not prevent the school district from furnishing him with a sign-language interpreter there in order to facilitate his education.“).
ii. Primary Effect
The primary effect of the regulations at issue neither advances nor inhibits religion. “[S]tate programs that are wholly neutral in offering ... assistance to a class defined without reference to religion do not violate the second part of the Lemon v. Kurtzman test, because any aid to religion results from the private choices of individual beneficiaries.” Witters, 474 U.S. at 490-91, 106 S.Ct. 748 (Powell, J., concurring) (citing Mueller v. Allen, 463 U.S. 388, 398-99, 103 S.Ct. 3062, 77 L.Ed.2d 721 (1983)); see also Mueller, 463 U.S. at 398-99, 103 S.Ct. 3062 (“[A] program ... that neutrally provides state assistance to a broad spectrum of citizens is
Here, the regulations provide developmentally disabled persons with “the opportunity to attend and participate in ... (1) [worship services and activities of the client‘s choice;] (2) [c]ommunity service activities;] (3) [c]ommunity events, including but not limited to concerts, tours, dances, plays, and celebrations of special events;] (4) [self-help organizations;] [and] (5) [s]enior citizen groups, sports leagues and service clubs.”
It is true that some clients may receive assistance in attending religious services, if they wish to attend such services, but “accommodat[ing] and protect[ing] the free exercise of religion, [is something] the Constitution allows.” Mayweathers, 314 F.3d at 1069 (citing Amos, 483 U.S. at 338, 107 S.Ct. 2862). For example, in Everson, the Supreme Court held that the Establishment Clause did not prohibit “New Jersey from spending tax-raised funds to pay the bus fares of parochial school pupils as part of a general program under which it pays the fares of pupils attending public and other schools.” Everson, 330 U.S. at 17, 67 S.Ct. 504. The statute was held to be valid even though one of its results was that “some children are helped to get to church schools” and “some of the children might not be sent to the church schools if the parents were compelled to pay their children‘s bus fares out of their own pockets.” Id. In ruling the statute valid, the Court observed that the First Amendment “requires the state to be neutral in its relations with groups of religious believers and non-believers; it does not require the state to be their adversary. State power is no more to be used so as to handicap religions, than it is to favor them.” Id. at 18, 67 S.Ct. 504. We conclude that the regulations at issue here are entirely consistent with these principles.
As a final point of consideration, we note that the primary effect of the regulations at issue is not to inhibit religion insofar as Plaintiffs allege that it requires them to engage in conduct in contravention of their own religious beliefs and practices. As noted above, the regulations do not require Plaintiffs to adopt any particular religious beliefs or to worship, engage in prayer, or otherwise participate in any religious services. Insofar as the regulations require Plaintiffs to merely be present at Jehovah‘s Witness services, and thus inhibit their own practice of religion because that is something that their religion allegedly prohibits, we cannot say that this is the “primary effect” of the regulations.
iii. Excessive Entanglement
In determining whether there is an excessive entanglement with religion, we must analyze “the character and purpose of the institutions that are benefitted, the nature of the aid that the State provides, and the resulting relationships between the government and the religious activity.” Lemon, 403 U.S. at 615, 91 S.Ct. 2105. A relationship results in an excessive entanglement with religion if it requires “sus-
The regulations at issue do not foster excessive Government entanglement with religion. Looking to the “character and purposes of the institutions that are benefitted,” we note that the main beneficiaries of the regulations are developmentally disabled persons, not any institutions, religious or otherwise. Some religious groups are perhaps incidentally benefitted by the regulations insofar as the regulations enable *1025 developmentally disabled members of those groups to attend religious services. However, this incidental benefit does not support a violation of the Establishment Clause.
Looking to the nature of the aid the State provides, we note that State funds are not furnished to religious institutions, but instead to private vendors as payment for services provided to developmentally disabled clients. Finally, the regulations at issue do not require any interaction between the church and State for enforcement of statutory or administrative standards, and thus do not result in an unconstitutional relationship between the Government and religious activity. Accordingly, we cannot say that the regulations foster excessive entanglement with religion.
In sum, because the regulations at issue have a secular legislative purpose, their primary effect is neither to advance nor inhibit religion, and they do not foster excessive government entanglement with religion, the regulations do not violate the Establishment Clause. Because Plaintiffs have also not established that the regulations, and the conduct taken by Defendants consistent with those regulations, violated the Free Exercise Clause, Plaintiffs’ first claim is hereby DISMISSED.
B. Claim 2: Unlawful Retaliation For Plaintiffs’ Assertion of Their Right to Freedom of Religion Under the First Amendment
In their second claim, Plaintiffs allege that Defendants’ conduct “constitutes retaliation in violation of Plaintiffs’ rights under the First Amendment.” (FAC ¶ 83). To establish a prima facie claim for unlawful retaliation under the First Amendment, Plaintiffs must prove that their conduct was (1) “constitutionally protected,” and (2) a “substantial factor” or a “motivating factor” in Defendants’ adverse conduct. Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977).
Here, Plaintiffs allege that they “engaged in protected activity by asserting their right to freely exercise their religion and avoid accompanying a client to religious services inconsistent with the practices of Plaintiffs’ religion.” (FAC ¶ 84). They further allege that “[a]s a direct result of ... this protected activity, Defendants retaliated against Plaintiffs by citing Plaintiff Payne and stopping all client referrals to Plaintiff Payne.” (Id. ¶ 85).
Assuming Plaintiffs have sufficiently alleged that they engaged in constitutionally-protected activity,8 they have altogether failed to allege any facts giving rise to a
Additionally, we recognize that a plaintiff pursuing a First Amendment retaliation claim may, where appropriate, rely upon a chronology of events from which retaliation may be plausibly inferred. Pratt v. Rowland, 65 F.3d 802, 808 (9th Cir. 1995). But here, the mere fact that Plaintiffs were cited after they asserted their free exercise rights does not raise a plausible inference of retaliation in light of the mandatory nature of the regulations cited above. Further, the fact that Defendants “notified Plaintiffs that C.W. must be given the opportunity to attend the Jehovah‘s Witness services,” (FAC ¶ 43), before Plaintiffs asserted their free exercise rights further supports the opposite inference that Plaintiffs’ assertion of their rights was not the impetus for Defendants’ conduct. Indeed, this fact shows that Defendants maintained the same position with respect to Plaintiffs’ obligations both before and after they asserted their free exercise rights.
In sum, Plaintiffs’ boilerplate allegation that the assertion of their free exercise rights was a substantial or motivating factor in Defendants’ decision to issue the citation or stop patient referrals does not rise “above the speculative level.” See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); accord Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1952, 173 L.Ed.2d 868 (2009) (“[Plaintiff] would need to allege more by way of factual content to ‘nudge[ ]’ his claim of purposeful discrimination ‘across the line from conceivable to plausible.‘” (alteration in original) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955)). Accordingly, Plaintiffs have failed to state a plausible claim for unlawful retaliation under the First Amendment.
C. Plaintiffs’ Purported Title VII Claim
As noted above, in their Opposition to SGP Defendants’ Motion, Plaintiffs argue that they “have plead [sic] sufficient facts to establish a claim for violations of Title VII of the Civil Rights Act.” (Dkt. No. 51, at 27). However, Plaintiffs have not asserted a Title VII claim anywhere in the FAC. The only reference to Title VII in the FAC is provided in Plaintiffs’ allegation that in a meeting Payne Care Center “expressed its concern with Defendant SGP Regional
Title VII makes it unlawful for an employer to fail to make reasonable accommodations for the religious practices of its employees and to discriminate against its employees on the basis of religion.
*1027 Here, Plaintiffs have failed to allege that they were “employees”9 of any of the Defendants such that they could state a claim against Defendants under Title VII. See Adcock v. Chrysler Corp., 166 F.3d 1290, 1292 (9th Cir.1999) (“[T]here must be some connection with an employment relationship for Title VII protections to apply.” (quoting Lutcher v. Musicians Union Local 47, 633 F.2d 880, 883 (9th Cir.1980))). Moreover, even if Plaintiffs could state a claim against Defendants under Title VII, they have failed to allege that they exhausted their administrative remedies with respect to any such claim. See Sommatino v. United States, 255 F.3d 704, 707 (9th Cir.2001) (“In order to bring a Title VII claim in district court, a plaintiff must first exhaust her administrative remedies.“). Accordingly, Plaintiffs have not pled sufficient facts to establish a claim for violation of Title VII against Defendants and it is entirely unclear how Plaintiffs could assert such a claim if they were granted leave to amend. To the extent Plaintiffs attempt to assert a claim against Defendants based upon the fact that Defendants’ actions have somehow subjected Plaintiffs Payne Care Center and Kingsley Home Care to liability under Title VII, such a claim would not lie under Title VII itself. Because we previously granted Plaintiffs leave to amend their Complaint to assert a claim based upon their Title VII allegations, and they failed to do so, we decline to grant further leave to amend.
D. Leave to Amend
In the event of dismissal, Plaintiffs have requested leave to amend the FAC. (Opp‘n, Dkt. No. 51, at 29). A district court may grant leave to amend when dismissing a case for failure to state a claim, “unless [the court] determines that the pleading could not possibly be cured by the allegations of other facts.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (quoting Doe v. United States, 58 F.3d 494, 497 (9th Cir.1995)). As explained above, we previously granted Plaintiffs leave to amend their initial Complaint after we granted Employee Defendants’ initial motion to dismiss. In doing so, we warned Plaintiffs that the theories they had presented were “unclear.” Nonetheless, Plaintiffs chose to repeat those theories, mostly verbatim, in their FAC and in opposition to Defendants’ motions to dismiss the FAC. The fact that Plaintiffs have already had two chances10 to articulate clear and lucid theories underlying their claims, and they failed to do
V. Conclusion
In light of the foregoing, we conclude that Plaintiffs have failed to state a claim for (1) deprivation of the right to freedom of religion under the First Amendment, and (2) unlawful retaliation for Plaintiffs’ assertion of their right to freedom of religion under the First Amendment. Accordingly, Defendants’ Motions are GRANTED and the FAC is hereby DISMISSED without further leave to amend.
IT IS SO ORDERED.
*1028 JUDGMENT
Pursuant to the Court‘s October 19, 2011, and March 28, 2012 Orders, IT IS HEREBY ADJUDGED that Plaintiffs Robert Williams, Sr.; Robin Fleming; Robert Williams, II; Lavonia Williams; Payne Care Center; and Kingsley Home Care‘s (collectively, “Plaintiffs“) claims against Defendants State of California; San Gabriel Pomona Regional Center; Claire Matsushita, in her individual and official capacity; R. Keith Penman, in his individual and official capacity; Claudia Hemingway, in her individual and official capacity; Adriane Picazo, in her individual and official capacity; and Lucina Galarza, in her individual and official capacity, are DISMISSED with prejudice. Plaintiffs shall take nothing by this Complaint,
IT IS SO ORDERED.