ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS
Plaintiff Gregory Nicholas Steshenko (“Plaintiff’) brings this action for age discrimination and retaliation based on not being admitted to three graduate programs at San Jose State University. Defendants Suzanne Gayrard, Tzvina Abram-son, and the Board of Trustees of the California State University (collectively, “Defendants”) move to dismiss Plaintiffs First Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). ECF No. 46. Having considered the parties’ briefs and arguments, the relevant law, and the record in this case, the Court hereby GRANTS 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. FAC ¶ 5 1. 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. See id.
On November 23, 2012, Plaintiff applied to the Clinical Laboratory Scientist (“CLS”) Training Program at San Jose State University. Id. ¶ 57. The CLS Training Program is a one-year academic program combining theoretical training with an internship at a participating clinical laboratory. Id. ¶ 52. On January 25, 2013, Plaintiff was notified that his application was denied and that he would not be invited for an interview. Id. ¶ 59. 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. Plaintiff alleges that he personally knew some of these applicants and observed how they “struggled” while taking the prerequisites for the program. Id. Plaintiff later raised these issues with the
On February 3, 2013, Defendant Tzvia Abramson, the head of the Stem Cell Internships in Laboratory Based Learning (“SCILL”) Program, invited Plaintiff to apply to the SCILL Program. Id. ¶ 61. The SCILL Program is a two-year Master of Science program with a year of theoretical training and a year of an internship at a participating research laboratory. Id. ¶ 53. On February 28, 2013, Plaintiff applied to the SCILL Program. Id. ¶ 61.
According to Plaintiff, after Abramson contacted Gayrard and learned about Plaintiffs complaint to the USDOE, Defendants Abramson, Gayrard, and other university employees
On June 10, 2013, Plaintiff notified Gay-rard that Plaintiff would file a lawsuit agаinst Gayrard. Id. ¶ 64. According to Plaintiff, “Defendants decided to retaliate further” by denying Plaintiffs admission to graduate studies at San Jose State University’s Department of Biological Sciences. Id.
Plaintiff alleges that the CLS Training Program, the SCILL Program, and the participating laboratories “heavily discriminate on the grounds of age.” Id. ¶ 56. Plaintiff further alleges: “No persons of the protected age have ever been admitted to either of [the CLS Training or the SCILL] programs. The age discrimination is rampant.” Id.
Plaintiff alleges that he exhausted his administrative remedies with the USDOE on June 29, 2013. Id. ¶ 7. Plaintiff also alleges that he filed “several timely administrative claims with California State University Chancellor’s Office.” ECF No. 46 at 3. However, Plaintiffs claims were denied. Id. ¶ 8.
On July 22, 2013, Plaintiff filed his original Complaint against Defendants. ECF No. 1. On October 22, 2013, Defendants
On May 20, 2014, the Court granted Defendants’ motion to dismiss. (“May 20, 2014 Order”), ECF No. 42. In the order, the Court granted Defendants’ motion to dismiss Plaintiffs claims against the Board of Trustees; Plaintiffs § 1983 retaliation claim against Gayrard and Abramson; and Plaintiffs § 1985(3) claim against Gayrard and Abramson with leave to amend. May 20, 2014 Order at 20. The Court also granted Defendants’ motion to dismiss Plaintiffs § 1983 claim based on due process and equal protection violations against Gayrard and Abramson; Plaintiffs Age Discrimination Act claim against Gayrard and Abramson; and Plaintiffs Age Discrimination in Employment Act claim against Gayrard and Abramson with prejudice. Id. Finally, the Court declined to exercise supplemental jurisdiction over Plaintiffs remaining state law claims and thus granted Defendants’ motion to dismiss Plaintiffs state law claims — FEHA claim, Bane Act claims, and IIED claim. Id. at 18-20.
On May 31, 2014, Plaintiff filed a First Amended Complaint (“FAC”) against Defendants. ECF No. 45. On June 1, 2014, Defendants filed a motion to dismiss pursuant to Rule 12(b)(6). (“MTD”), ECF No. 49. On June 29, 2014, Plaintiff filed a Response. ECF No. 51. On July 10, 2014, Defendants filed a Reply. ECF No. 53.
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,
However, a court need not acceрt as true allegations contradicted by judicially noticeable facts, Shwarz v. United States,
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 Ciyil 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,
III. DISCUSSION
Plaintiffs FAC asserts six causes of action against Defendants which can be grouped into the following five categories: (1) age discrimination in violation of the Age Discrimination Act of 1975; (2) retaliation for speech in violation of the First Amendment to the U.S. Constitution pursuant to 42 U.S.C. § 1983; (3) denial of due process and equal protection rights under the Fourteenth Amendment pursuant to § 1983; (4) conspiracy to interfere with civil rights pursuant to 42 U.S.C. § 1985(3); and (5) intentional infliction of emotional distress (“IIED”). See FAC ¶¶ 67-79.
Defendants move to dismiss Plaintiffs FAC under Rule 12(b)(6) on the ground that Plaintiffs Amended Complaint fails to state any claims upon which relief can be granted. See MTD at 10-26. Specifically, Defendants contend that: (1) the Eleventh Amendment to the United States Constitution is a complete bar to all of Plaintiffs claims against Defendant Board of Trustees of the California State University, Id. at 13-19;
A. Defendant Board of Trustees of the California State University
Defendants argue that the Eleventh Amendment to the United States Constitution is a complete bar to all claims against Defendant Board of Trustees of the California State University (“Board of Trustees”).
The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.
U.S. Const. Amend. XI.
Essentially, the Eleventh Amendment erects a general bar against federal lawsuits brought against a state. Porter v. Jones,
State immunity under the Eleventh Amendment is not absolute, however, as there are three exceptions to the rule: (1) Congress may abrogate that immunity pursuant to its lawmaking powers conferred by the United States Constitution, Kimel v. Fla. Bd. of Regents,
Here, Plaintiff attempts to avoid the bar of the Eleventh Amendment in two ways. First, Plaintiff attempts to invoke the Ex parte Young doctrine exception against the Board of Trustees. Second, Plaintiff asserts that the Board of Trustees waived its sovereign immunity as to Age Discrimination Act suits by accepting conditional federal funds.
In this Court’s previous order granting Defendants’ motion to dismiss, the Court decided that the Ex parte Young doctrine does not apply to state' law claims and federal claims against a board of trustees. See May 20, 2014 Order at 7-9. The Court again concludes that the Board ,of Trustees is not a “state official” under Ex parte Young and is therefore not subject to suit under that doctrine. See, e.g., Eubank v. Leslie,
For the reasons set forth below, the Court finds that Plaintiff sufficiently alleges facts supporting the claim that the Board of Trustees waived its sovereign immunity under the Age Discrimination Act of 1975 by accepting federal educational funds. The Court therefore DENIES Defendants’ motion to dismiss Plaintiffs Age Discrimination Act claim аgainst the Board of Trustees.
1. Age Discrimination Act
While the Eleventh Amendment erects a general bar against federal lawsuits brought against a state, a state may affirmatively choose to waive that immunity. See Atascadero St. Hosp. v. Scanlon,
A State shall not be immune under the Eleventh Amendment of the Constitution of the United States from suit in Federal court for a violation of section 504 of the Rehabilitation Act of 1973 [29 U.S.C. 794], title IX of the Education Amendments of 1972 [20 U.S.C. 1681 et seq.], the Age Discrimination Act of 1975 [42 U.S.C. 6101 et seq.], title VI of the Civil Rights Act of 1964 [42 U.S.C.2000d et seq.], or the provisions of any other Federal statute prohibiting discrimination by recipients of Federal financial assistance.
By voluntarily accepting federal funds covered by this explicit “equalization” provision, a state waives its sovereign immunity. See Douglas v. Cal. Dep’t of Youth Auth.,
Plaintiff correctly notes that § 2000d-7 is an unambiguous waiver of a state’s sovereign immunity. Lane,
Defendants rely on Douglas v. California Department of Youth Authority and Lovell v. Chandler,
First, nothing in the plain language of § 2000d-7 distinguishes between actions brought under § 504 of the Rehabilitation Act, Title IX of the Education Amendments (“Title IX”), Title VI of the Civil Rights Act (“Title VI”), and the Age Discrimination Act. Defendants cite no statutory support for their conclusion that a claim arising under one of these four acts defeats a state’s sovereign immunity defense only if the individual act provides federal funding to implement the act itself. It is true that the Rehabilitation Act does specifically provide federal funding for designated programs and activities. See 29 U.S.C. §§ 794b, 794e. While Defendants correctly note that the Age Discrimination Act does not specifically fund designated programs and activities, they fail to note that neither Title IX nor Title VI specifically fund designated programs or activities. Rather, the three acts forbid discrimination on the basis of an identified characteristic in any program or activity receiving federal financial assistance. See 42 U.S.C. § 2000d (“No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.”); 20 U.S.C. § 1681(a) (“No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.... ”); 42 U.S.C. § 6102 (“Pursuant to regulations ... and except as [otherwise] provided ... no person in the United States shall, on the basis of age, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under, any program or activity receiving Federal financial assistance.”). Congress unequivocally expressed its intent to condition receipt of federal assistance on a waiver of sovereign immunity under the Rehabilitation Act, Title IX, Title VI, and the Age Discrimination Act. See Clark,
Second, the Court finds that the Age Discrimination Act itself, like Title IX and Title VI, explicitly conditions the receipt of federal educational funding upon a waiver of sovereign immunity. In addressing § 2000d-7 in the Title IX context, the Fourth Circuit held that the defendant, George Mason University, voluntarily and knowingly waived its sovereign immunity defense by applying for Title IX funding from the Department of Education. See Litman,
Taking Plaintiffs allegation that Defendants receive federal education funding as true, the Court concludes that he has sufficiently pled faсts supporting the claim that the Board of Trustees waived its sovereign immunity defense as to his claims under the Age Discrimination Act. The Court therefore DENIES Defendant’s motion to dismiss this claim against the Board of Trustees.
2. Section 1983 Claims
In the FAC, Plaintiff brings two claims pursuant to § 1983. FAC ¶¶ 69-72. First, Plaintiff brings a claim alleging retaliation for speech in violation of the First Amendment to the U.S. Constitution. Id. ¶ 70. Second, Plaintiff brings a claim alleging denial of due process and equal protection rights under the Fourteenth Amendment. Id. ¶ 72. However, Plaintiff fails to allege an exception to Defendant Board of Trustees’ sovereign immunity.
First, Congress- did not abrogate states’ sovereign immunity for § 1983 claims. See Kentucky v. Graham,
3. Section 1985(3) Claim
Plaintiff also brings a claim under § 1985(3), alleging that the Board of Trustees engaged in a conspiracy to interfere with his civil rights. FAC ¶ 76. Like the § 1983 claims dismissed above, Plaintiffs § 1985(3) claim also remains barred by the
B. Defendants Gayrard and Abram-son
Plaintiff asserts several federal and state law claims against Defendants Gay-rard and Abramson (the “individual Defendants”).
1. Age Discrimination Act of 1975 Claim
In both Plaintiffs original Complaint and FAC, Plaintiff alleges that the individual Defendants violated the Age Discrimination Act of 1975 by denying Plaintiff admission to the CLS Training Program and SCILL Program because of Plaintiffs age. See ECF No. 1 at 7; FAC ¶ 16.
In this Court’s previous order granting Defendants’ motion to dismiss, the Court held that Plaintiff may not sue the individual Defendants under the Age Discrimination Act and dismissed Plaintiffs claims against the individual Defendants with prejudice. May 20, 2014 Order at 9-11. This holding still stands, and thus Plaintiffs claim is dismissed again with prejudice. Plaintiff may not assert this claim in a second amended complaint.
2. First Amendment and Fourteenth Amendment Claims Pursuant to 42 U.S.C. § 1983
Plaintiff alleges that the individual Defendants violated the First Amendment by retaliating against him after Plaintiff exercised his speech rights. FAC ¶¶ 62-64. Plaintiff also alleges that the individual Defendants “violat[ed] Plaintiffs rights to equal protection of the laws and to due process of law under the Fourteenth Amendment” by denying Plaintiff access to “professional retraining,” “the job bridge programs,” and “graduate education.” FAC ¶ 72. The Court discusses each alleged violation in turn, a. Retaliation for Protected Activity
In the Court’s previous order, the Court granted Defendant’s motion to dismiss with respect to Plaintiffs retaliation claim. See May 20, 2014 Order at 13-14. In making this determination, the Court found that because Plaintiff “failed to allege a causal nexus between Plaintiffs speech and Gayrard and Abramson’s adverse action,” the Court had “sufficient grounds to dismiss a Section 1983 retaliation claim.” Id. at 14. The Court, however, dismissed the claim with leave to amend to allow Plaintiff the opportunity to allege additional facts-to cure the deficiency identified above. Id. at 14.
As a general matter, a plaintiff asserting a First Amendment violation “must provide evidence showing that ‘by
Contrary to Defendants’ contention, Plaintiff has sufficiently alleged he engaged in protected speech. Plaintiff alleges he “exercised his First Amendment rights ... ‘to petition the Government for a redress of grievances’ when he filed complaints and lawsuits.” MTD at 11; FAC ¶ 38. Petitioning a government agency or the courts for redress of grievances is an activity protected by the First Amendment. See Soranno’s Gasco, Inc. v. Morgan,
1. SCILL Program
The Court concludes that Plaintiff has sufficiently alleged facts supporting a casual nexus between his protected activity and his denial of admission to the SCILL program. In January of 2013, Plaintiff filed complaints and notified Gayrard, the head of the CLS program, of his intent to sue after his rejection from the CLS program. FAC ¶ 5, 59-60. On February 3, 2013, Defendant Abrahamson, the head of the SCILL program, invited Plaintiff to apply to the SCILL program. FAC ¶ 61. Plaintiff requested that Abramson contact the CLS office to obtain his recommendations, which Abramson agreed to do. Id. Then, “[s]ometime in March of 2013, Abramson contacted Gayrard and learned from Gayrard about Plaintiffs complaint, his expressed intent to sue and his prior lawsuit. Sometime during March-April, 2013 period, Defendants ... communicated and agreed that Plaintiff should not be invited for the SCILL admission interview because of his complaints and his expressed intention to sue.” FAC ¶ 62. Plaintiff alleges that he “was deemed to be ‘litigious,’ [and] thus a potential legal threat to their department and their programs.” FAC ¶ 62 n.7. Upon his rejection from SCILL, Plaintiff further alleges that Abramson notified Plaintiff in May of 2014 that he was on a “waiting list.” FAC ¶ 53. Plaintiff contends that SCILL has
These facts are sufficient to allege a temporal and causal relationship between when Abramson first learned of Plaintiffs previous protected activity from Gayrard and Abramson’s subsequent decision to reject Plaintiffs application for admission to the SCILL program. See, e.g., Padgett,
Defendants argue that Plaintiff has failed to show a “but-for” causal nexus between the alleged retaliation and Plaintiffs protected activity. However, as discussed above, Plaintiff has sufficiently alleged facts supporting his claim that Defendants knowingly and intentionally denied him admission to the SCILL program based on his protected activity. The procedural posture of this case requires only, that Plaintiff “plead a short and plain statement showing a plausible basis for relief.” See, e.g., Maa v. Ostroff, No. 12-cv-00200,
Accordingly, the Court DENIES Defendants’ motion to dismiss Plaintiffs retaliation claim against the individual Defendants with regards to the SCILL program.
2. Graduate Studies at San Jose State University
The Court finds that Plaintiff has failed to allege sufficient facts showing a causal nexus between his protected activity and his rejection from the graduate studies program at San Jose State University. Plaintiff alleges that he received “an invitation from Gayrard to connect with'her on Linkedln, a professional social network.” FAC ¶ 63. Plaintiff dеclined and notified Gayrard that he was about to name her in a lawsuit. Id. “Later that night, Plaintiff
Accordingly, the Court GRANTS Defendants’ motion to dismiss Plaintiffs retaliation claim against the individual Defendants with regard to the graduate studies program. In addition, because Plaintiff “fail[ed] to cure deficiencies by amendments previously allowed,” the Court finds that further amendment would be futile and dismisses the claim with prejudice. Carvalho,
b. Denial of Equal Protection and Due Process
In this Court’s previous order granting Defendant’s motion to dismiss, the Court dismissed with prejudice Plaintiffs § 1983 claim alleging that Defendants Gayrard and Abramson “violated] Plaintiffs rights to equal protection of the laws and to due process of law- under the Fourteenth Amendment” by denying Plaintiff “professional re-training,” “access to employment,” and “graduate education.” May 20, 2014 Order at 17. The Court dismissed the claim with prejudice because the Court found that the Age Discrimination Act’s remedial scheme is sufficiently comprehensive to foreclose § 1983 claims alleging age discrimination in violation of the Fourteenth Amendment by a program or activity receiving federal financial assistance. Plaintiff realleges his equal protection and due process ' claims. Insofar as those claims rely оn age discrimination, the May 20, 2014 Order dismissed those claims with prejudice and Plaintiffs claims are dismissed again with prejudice. Plaintiff may not reassert these claims in a second amended complaint.
However, Plaintiff contends that the May 20, 2014 Order did not address his due process claim. FAC ¶ 46. The Court did not address Plaintiffs claim that Defendants deprived Plaintiff of his alleged property interest in “professional retraining” without due process because Plaintiff did not make that allegation in his original Complaint. In his original Complaint, Plaintiff made the bare allegation that Defendants violated his Fourteenth Amendment right to due process without any further explanation. While Plaintiff could not add new claims without leave of Court, the Court declines to treat Plaintiffs newly articulated due process claim as wholly separate from his prior invocation of the Due Process Clause of the Fourteenth Amendment. The Court is mindful of Plaintiffs pro se status and construes his pleadings and briefing liberally. See Balistreri,
While Plaintiffs newly artiсulated due process claim may well be covered by the
As a threshold matter, the procedural guarantees of the Due Process Clause of the Fourteenth Amendment apply only when a constitutionally protected liberty or property interest is at stake. See Johnson v. Rancho Santiago Comm. Coll. Dist.,
The Court finds that Plaintiff has failed to allege a protected property interest. Plaintiff alleges that “[a]n admission to the taxpayer-funded CSU and professional retraining was the Plaintiffs property that he was deprived of.” FAC ¶ 47. However, Plaintiff pleads no facts showing that University regulations, state law, or any other independent source created a legitimate claim of entitlement to admission to the programs. See Johnson,
While Plaintiff pleads insufficient facts to show any legitimate entitlement to admission to the SCILL, CLS, or graduate studies programs, the Court finds that amendment would not necessarily be futile. The Court therefore dismisses Plaintiffs due process claim without prejudice.
In this Court’s previous order, the Court granted Defendant’s motion to dismiss with respect to Plaintiffs § 1985(3) civil, conspiracy claim. See May 20, 2014 Order at 17-18. In making that determination, the Court found that because Plaintiff failed to “allege additional facts from which a conspiracy can be plausibly inferred under Section 1985(3),” the Court had sufficient grounds to dismiss the Section 1985(3) civil cоnspiracy claim.” Id. at 18. The Court, however, dismissed the claim with leave to amend to allow Plaintiff the opportunity to allege additional facts to cure the deficiency identified above. Id. Despite that opportunity, Plaintiff fails to allege any additional facts from which a conspiracy can be plausibly inferred under § 1985(3).
In the FAC, Plaintiff alleges that Gay-rard, Abramson, and other university employees conspired to interfere with Plaintiffs civil rights pursuant to 42 U.S.C. § 1985(3). FAC ¶ 76. In effect, Plaintiff alleges three separate conspiracies. First, Plaintiff alleges that sometime during December 2012 and January 2013, Gayrard and other university employees “communicated and decided that Plaintiff [was] not suitable for the CLS program because of his age.” Id. ¶ 58. Second, Plaintiff alleges that Abramson and other university employees also “agreed that Plaintiff [was] not suitable for- an acceptance to SCILL program because of his age.” Id. ¶ 62. Third, Plaintiff alleges that sometime during March or April 2013, defendants Gay-rard, Abramson, and other university employees “communicated and agreed that Plaintiff should not be invited for the SCILL admission interview because of his complaints and his expressed intention to sue.” Id. Defendants argue that each conspiracy claim should be dismissed because Plaintiff has not pled specific facts from which a conspiracy can be plausibly inferred under § 1985(3). MTD at 12. The Court will address each conspiracy in turn.
Section 1985(3) prohibits conspiracies “for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws.” See 42 U.S.C. § 1985(3); Griffin v. Breckenridge,
A mere allegation of conspiracy is insufficient to state a claim. Holgate,
As to Plaintiffs first and second alleged conspiracies, Plaintiffs allegations that Gayrard and other university employees decided that Plaintiff was not suitable for acceptance to the CLS program because of his age and that Abramson and other university employees agreed to reject Plaintiffs application to SCILL because of his age are insufficient. See Twombly,
Moreover, even if Plaintiff had sufficiently pled facts showing the existence of these two conspiracies, his claims are not cognizable under § 1985 because the Age Discrimination Act has its own comprehensive remedial structure. See Great Am. Fed. Sav. & Loan Ass’n v. Novotny,
As to the Plaintiffs third alleged conspiracy, Plaintiffs allegation that Gayrard, Abramson, and other university employees communicated and agreed that Plaintiff should not be invited for a SCILL interview because of his complaints and his expressed intention to sue is insufficient to allege that a conspiracy existed. See Twombly,
Because Plaintiff fails to allege additional facts from which a conspiracy can be plausibly inferred under § 1985(3), the Court GRANTS Defendants’ motion to dismiss Plaintiffs § 1985(3) claims. In addition, because Plaintiff “failfed] to cure deficiencies by amendments previously allowed” and amendment would be futile, the Court dismisses the claims with prejudice. Carvalho,
4. IIED Claim
The Court previously declined to exercise supplemental jurisdiction over Plaintiffs state law IIED claim because the Court dismissed all of the federal bases for jurisdiction.
To allege a claim of intentional infliction of emotional distress under California law, a plaintiff must show “(1) extreme аnd outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiffs suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct.... Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community. The defendant must have engaged in conduct intended to inflict injury or engaged in with the realization that injury will result.” Potter v. Firestone Tire & Rubber Co.,
Simply put, Plaintiff alleges insufficient facts to support his IIED claim against Defendants Gayrard and Abram-son. Plaintiff does not allege facts showing his severe mental or emotional distress. The conclusory allegation that Plaintiff suffered emotional distress is insufficient. See Steel v. City of San Diego,
Accordingly, Plaintiffs IIED claim against the individual Defendants is dismissed with prejudice.
IV. CONCLUSION
For the foregoing reasons, the . Court GRANTS IN PART and DENIES IN PART Defendants’ motion to dismiss as follows:
(1) The Court DENIES Defendants’ motion to dismiss Plaintiffs Age Discrimination Act claim against the Board of Trustees;
(2) The Court GRANTS Defendants’ motion to dismiss Plaintiffs retaliation, and Fourteenth Amendment equal protection and due process claims against the Board of Trustees with prejudice;
(3) The Court GRANTS Defendants’ motion to dismiss Plaintiffs § 1985 claim against the Board of Trustees with prejudice;
(4) The Court GRANTS Defendants’ motion to dismiss Plaintiffs Age Discrimination Act claim against the individual Defendants with prejudice;
(5) The Court DENIES Defendants’ motion to dismiss Plaintiffs § 1983 retaliation claim against Defendants Abramson and Gayrard as related to the SCILL Program but GRANTS the motion to dismiss with prejudice as to the graduate studies program;
(6) The Court GRANTS Defendants’ motion to dismiss Plaintiffs Fourteenth Amendment equal protection and due process claims agаinst the Board of Trustees with prejudice;
(7) The Court GRANTS Defendants’ motion to dismiss Plaintiffs Fourteenth Amendment due process claim against Defendant Abramson and Gayrard with leave to amend;
(8) The Court GRANTS Defendants’ motion to dismiss Plaintiffs § 1985 claims against Defendants Abramson and Gay-rard with prejudice;
(9) The Court GRANTS Defendants’ motion to dismiss Plaintiffs IIED claims against the Defendants Abramson and Gayrard with prejudice.
As noted in footnotes 1, 3, and 6, the Court also dismisses the following new, unauthorized parties from Plaintiffs FAC: Sabine Rech, Michael Sneary, John Booth-by, Katherine Wilkinson, and California State University.
Should Plaintiff elect to file a second amended complaint addressing the deficiencies with his due process claim against Defendants Gayrard and Abramson, Plaintiff shall do so within 14 days of the date of
Plaintiff may not add new claims or parties without leave of the Court or stipulation by the рarties pursuant to Federal Rule of Civil Procedure 15. Plaintiff should not include any claims dismissed with prejudice in a second amended complaint. Plaintiff may include Plaintiffs surviving Age Discrimination Act claim against Defendant Board of Trustees and Plaintiffs § 1983 retaliation claim against Defendants Gayrard and Abramson.
IT IS SO ORDERED.
Notes
. In the First Amended Complaint, Plaintiff names “other university employees” including CLS Admissions Committee members Sabine Rech and Michael Sneary and SCILL Admissions Committee members John Booth-by and Katherine Wilkinson as additional defendants. ECF No. 26 at 1. In the Court's previous order granting Defendant’s motion to dismiss with leave to amend, Plaintiff was cautioned that Plaintiff may not add new parties without leave of the Court or a stipulation by the parties pursuant to Federal Rule of Civil Procedure 15(a). ECF No. 42 at 20. The Court had thus far not granted leave nor have the parties stipulated to the addition of any new defendants. The new defendants are therefore dismissed from this action.
. Ninth Circuit cases have held that dismissal based on Eleventh Amendment immunity should be analyzed under Rule 12(b)(6) and
. In the FAC, Plaintiff names California State University as an additional defendant. FAC ¶ 4. In the Court's previous order granting Defendant's motion to dismiss with leave to amend, Plaintiff was .cautioned that Plaintiff may not add new parties without leave of the Court or a stipulation by the parties pursuant to Federal Rule of Civil Procedure 15. May 20, 2014 Order at 18. The Court had thus far not granted leave nor have the parties stipulated to the addition of any new defendants. The Court therefore dismisses California State University from this action. Furthermore, even if the Court were to grant leave to add new parties, the addition of this party would not alter the Court’s decision in this matter as California State University is a state agency. See Mitchell v. Los Angeles Comm. Coll. Dist.,
. Plaintiff again argues that the California State University requires him to name the Board of Trustees, and only the Board of Trustees, as a defendant. See May 20, 2014 Order at 7-8; Opp’n at 8; FAC ¶ 4. In support of this proposition, he attaches a printout of the University General Counsel’s web-page. However, the webpage notes only that ‘'[¡Individual campuses are not separate legal entities ...” and otherwise provides that “[t]he Office of General Counsel is authorized to accept service of process on behalf of the Board of Trustees, individually named Trustees, the Chancellor, and/or the campus Presi-dents_” The Court rejects Plaintiffs argument.
. While Defendants do not raise this argument, the Court acknowledges that Plaintiffs allegations could have been more specific. However, the Court also liberally construes Plaintiffs pro se pleadings and finds that they adequately notify Defendants of the factual basis for his legal allegations against Defendants. See Resnick,
. As discussed in footnote 1, Plaintiff also added CLS Admissions Committee members Sabine Rech and Michael Sneary and SCILL Admissions Committee members John Booth-by and Katherine Wilkinson as additional defendants to his FAC without leave of Court in contravention of the Court's May 20, 2014 Order. Those new parties are not proper under Federal Rule of Civil Procedure 15(a) and are therefore dismissed from this action.
. Defendants assume that Plaintiff's due process claim is based on the Age Discrimination Act. However, because Plaintiff has claimed a protected property interest in admission to the SCILL, CLS, and graduate studies program, Plaintiff’s due process claim appears to be analytically distinct from his age discrimination claim.
. The Court also declined to exercise supplemental jurisdiction over Plaintiff's Bane Act and FEHA claims. As Plaintiff did not in-elude those claims in the FAC, the Court does not reach those state law claims.