Marin v. Carroll

• Court: District Court, S.D. California
• Decided: June 11, 2024
• Docket: 3:21-cv-01453
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF CALIFORNIA 11 12 MEL MARIN, Case No.: 21cv1453-JO-DEB

13 Plaintiff,

14 v. ORDER DISMISSING PLAINTIFF’S NEWLY ALLEGED CLAIMS FROM 15 CONSTANCE CARROLL; CARLOS HIS SECOND AMENDED TURNER CORTEZ; CRAIG MILGRIM; 16 COMPLAINT MARY GRAHAM; GEYSIL ARROYO;

17 MARIA NIETO SENOUR; BERNIE RHINERSON; MARSHA GABLE; 18 GREG SMITH; LINDA WOODS;

19 CHERYL BARNARD; WESLEY LUNDBURG; HENRY CEN; RICKY 20 SHABAZZ; ANDREW LOWE, 21 PAMELA LUSTER; BURAK CEBECIOGLU; MARCIANO PEREZ; 22 AND JANE DOE IN THEIR PERSONAL 23 AND INDIVIDUAL CAPACITIES; AND THE SAN DIEGO COMMUNITY 24 COLLEGE, JOINTLY AND 25 SEVERALLY, 26 Defendants. 27 28 1 1. On January 26, 2024, pro se Plaintiff Mel Marin filed a Second Amended 2 Complaint alleging that he faced both discrimination on account of his disability and 3 retaliation for complaining about this discrimination from various college officials while 4 he was a student at different schools in the San Diego Community College District 5 (“SDCCD”). Dkt. 40. After sua sponte screening this amended complaint pursuant to 28 6 U.S.C. § 1915(e)(2), the Court dismisses Plaintiff’s newly added claims. 7 2. Plaintiff’s Second Amended Complaint succeeds his First Amended 8 Complaint, Dkt. 20, which the Court dismissed in part after screening pursuant to 28 U.S.C. 9 § 1915(e)(2), Dkt. 25. There, the Court found that Plaintiff sufficiently pled violations of 10 Title II of the Americans with Disabilities Act (“ADA”) and § 504 of the Rehabilitation 11 Act against SDCCD and a First Amendment retaliation claim against Miramar College 12 Professor Cen. Id. It dismissed all of his other claims. Id. Specifically, the Court 13 dismissed with prejudice Plaintiff’s claims for injunctive relief for lack of standing and his 14 42 U.S.C. § 1983 claims against individual defendants for implementing college policies 15 as barred by the Eleventh Amendment. Id. The Court dismissed his § 1983 First 16 Amendment retaliation claims against individual defendants aside from Professor Cen on 17 the grounds that he did not adequately allege their personal participation but gave Plaintiff 18 leave to amend so that he may clarify their involvement. Id. The Court also dismissed 19 Plaintiff’s state law claims for negligent supervision because he failed to allege that he 20 complied with the California Torts Claim Act but gave him leave to amend to specify 21 whether he had complied with this exhaustion requirement. Id. 22 3. Plaintiff’s Second Amended Complaint1 now alleges eight claims under 23 federal and state law against Defendant SDCCD and the following individual defendants 24 in their personal capacity: (1) Mesa College President Pamela Luster (“Mesa President”); 25 (2) Miramar College Professors Henry Cen and Andrew Lowe (“Miramar Professors”); (3) 26

27 1 The Court grants Plaintiff’s request to amend, Dkt. 39, and, in this order, screens the entirety of 28 1 Miramar College Senior Staff Cheryl Barnard, Linda Woods, and Marsha Gable (“Miramar 2 Senior Staff”); (4) Miramar College President Wesley Lundburg (“Miramar President”); 3 (5) San Diego City College Professor Burak Cebecioglu (“City College Professor”); (6) 4 San Diego City College President Ricky Shabazz (“City College President”); (7) San Diego 5 City College Vice President Marciano Perez (“City College VP”); (8) San Diego City 6 College Financial Aid Director JANE DOE (“City College Aid Director”); (9) SDCCD 7 Officers Constance Carroll and Carlos Turner Cortez (“SDCCD Officers”); (10) SDCCD 8 Trustees Craig Milgrim, Mary Graham, Geysil Arroyo, Maria Nieto Senour, and Bernie 9 Rhinerson (“SDCCD Trustees”); and (11) SDCCD Chancellor Greg Smith (“SDCCD 10 Chancellor”) (collectively, “Individual Defendants”). Dkt. 40. 11 4. Plaintiff’s eight causes of action allege the following: (1) SDCCD violated § 504 12 of the Rehabilitation Act; (2) SDCCD violated Title II of the ADA; (3) all Individual 13 Defendants aside from SDCCD Officer Cortez violated California Civil Code § 5.l(f) (the 14 Unruh Act); (4) SDCCD Trustees and Officer Carroll, and Miramar Senior Staff, Professor 15 Lowe, and President Lundburg committed negligent supervision in violation of California 16 law; (5) SDCCD Trustees and Officer Carroll, and Miramar Senior Staff and Professors 17 violated Plaintiff’s Fourteenth Amendment rights pursuant to § 1983 in retaliating against 18 him for exercising his First Amendment rights; (6) Mesa College President Luster 19 committed intentional and negligent infliction of emotional distress in violation of 20 California law; (7) all Individual Defendants aside from SDCCD Officer Cortez violated 21 Plaintiff’s substantive due process rights in discriminating against him on account of his 22 disability; and (8) all Individual Defendants committed the tort of interference with trade 23 or prospective economic advantage in violation of California law. Id. Plaintiff requests 24 injunctive and monetary relief under § 504 of the Rehabilitation Act and only monetary 25 relief for the rest of his claims. Id. 26 5. Pursuant to its sua sponte screening obligations under 28 U.S.C. § 1915(e)(2), 27 the Court now addresses each of Plaintiff’s newly added claims. As the Court has already 28 1 screened Plaintiff’s first and second claims and fifth claim with respect to Professor Cen, 2 the Court begins by evaluating Plaintiff’s third claim. See Dkt. 25 3 5. Third Claim: Plaintiff’s third claim alleges that Individual Defendants2 4 violated the Unruh Act by discriminating against him for his disability.3 The Court 5 dismisses this claim for failure state a claim pursuant to Federal Rule of Civil 12(b)(6). 6 “The Unruh Act, [California] Civ. Code § 51, is a public accommodations statute 7 that focuses on discriminatory behavior by business establishments.” Stamps v. Superior 8 Ct., 136 Cal. App. 4th 1441, 1452 (2006). To state an Unruh Act claim, plaintiffs must 9 plead that a business establishment denied them its “full and equal accommodations, 10 advantages, facilities, privileges, or services.” Cal. Civ. Code § 51(b); Wilkins-Jones v. 11 County of Alameda, 859 F. Supp. 2d 1039, 1048 (N.D. Cal. 2012) (internal citation 12 omitted). The Unruh Act only protects individuals from discrimination by business 13 establishments, not public schools. Brennon B. v. Superior Ct., 13 Cal. 5th 662, 692 14 (2022), reh’g denied (Aug. 31, 2022) (establishing that public schools are not business 15 establishments for purposes of the Unruh Act). 16 Here, the Court finds that Plaintiff fails to state a claim for relief under the Unruh 17 Act because his grievance focuses on discrimination by a school and school employees 18 rather than a “business establishment.” Plaintiff alleges that school officials and employees 19 within SDCCD failed to accommodate his disability while he was enrolled in their schools. 20 See generally Dkt. 40. Because schools are not “business establishments” within the 21 meaning of the Unruh Act, Plaintiff has no viable claim under this statute. See Brennon, 22 13 Cal. 5th at 692. As Plaintiff’s claims pertain exclusively to the community college 23 context, any leave to amend of this cause of action would be futile. Miller v. Rykoff–Sexton, 24

25 26 2 Plaintiff brings this claim against all Individual Defendants aside from SDCCD Officer Cortez. 3 In addition, Plaintiff cites Cal. Gov. Code § 11135. Dkt. 40 at 52. However, aside from listing 27 the statute, Plaintiff’s allegations are exclusive to the Unruh Act, and thus, do not appear to apply to § 11135. Accordingly, the Court does not address whether Plaintiff has stated a plausible claim for 28 1 Inc., 845 F.2d 209, 214 (9th Cir. 1988) (“[A]mendment is futile . . . if no set of facts can 2 be proved under the amendment to the pleadings that would constitute a valid and sufficient 3 claim or defense.”). The Court therefore dismisses this claim without leave to amend. 4 6. Fourth Claim: Plaintiff’s fourth claim alleges that SDCCD Officer Carroll, 5 SDCCD Trustees, Miramar College Senior Staff, Miramar Professor Lowe, and Miramar 6 President (“Supervisor Defendants”) all committed negligent supervision. Specifically, 7 Plaintiff asserts that when he notified them that Professors Cen and Lowe and Miramar 8 Senior Staff were discriminating against him for his disability, the Supervisor Defendants 9 above them did not intervene and remedy the problem, leaving Plaintiff with no option but 10 to drop his class. Dkt. 40 at 55–58. The Court dismisses this claim for failure to state a 11 claim pursuant to Federal Rule of Civil 12(b)(6). 12 An employer may be held directly liable for the behavior of an unfit employee where 13 the employer was negligent in the hiring, training, supervising, or retaining of that 14 employee. Delfino v. Agilent Techs., Inc., 145 Cal. App. 4th 790, 815 (2006). “Liability 15 for negligent hiring and supervision is based upon the reasoning that if an enterprise hires 16 individuals with characteristics which might pose a danger to customers or other 17 employees, the enterprise should bear the loss caused by the wrongdoing of its incompetent 18 or unfit employees.” Mendoza v. City of Los Angeles, 66 Cal. App. 4th 1333, 1339 (1998). 19 Accordingly, a plaintiff must establish that the employer “hired” the employee before it 20 can prove that the employer negligently supervised the employee. Jackson v. AEG Live, 21 LLC, 233 Cal. App. 4th 1156, 1187–88 (2015). An employer may be liable for negligent 22 supervision only if it knows that the employee is “a person who could not be trusted to act 23 properly without being supervised.” Juarez v. Boy Scouts of Am., 81 Cal. App. 4th 377, 24 395 (2000) (internal citations and quotation marks omitted). Thus, a plaintiff must show 25 that (1) the defendant hired and employed the employee; (2) the defendant was a person in 26 a supervisorial position over the employee; and (3) the defendant had prior knowledge of 27 the employee’s propensity to do the bad act. Delfino, 145 Cal. App. 4th at 815. 28 1 Here, Plaintiff’s negligent supervision claim fails because he has not alleged that any 2 of the Supervisor Defendants employed Professors Cen and Lowe and Miramar Senior 3 Staff. To begin, Plaintiff has not pled that any of the Supervisor Defendants either 4 employed, hired, or had supervisory authority over Professors Cen and Lowe or Senior 5 Staff, which are essential elements of this claim. Moreover, Plaintiff could not cure this 6 error by pleading any differently because as staff at Miramar College, these Defendants are 7 employed by a state entity—not an individual, let alone any of the Supervisor Defendants. 8 See AEG Live, 233 Cal. App. 4th at 1187–88. Without being able to establish that any of 9 these individuals were employers of Professors Cen and Lowe and Miramar Senior Staff, 10 Plaintiff cannot plausibly allege negligent supervision, rendering any leave to amend futile. 11 Miller, 845 F.2d at 214. The Court therefore dismisses this claim without leave to amend. 12 7. Fifth Claim: Plaintiff’s fifth claim alleges that SDCCD Officer Carroll, 13 SDCCD Trustees, Miramar College Senior Staff, and Miramar College Professors Cen and 14 Lowe (“Retaliation Defendants”) retaliated against him in violation of the First 15 Amendment because he complained about Professors Cen’s and Lowe’s refusal to provide 16 accommodations. While the Court has found that Plaintiff stated a plausible claim for relief 17 for Professor Cen, it dismisses Plaintiff’s First Amendment retaliation claims against 18 Individual Defendants SDCCD Officer Carroll, SDCCD Trustees, Miramar College Senior 19 Staff, and Miramar College Professor Lowe for failure state a claim pursuant to Federal 20 Rule of Civil 12(b)(6). 21 “To state a First Amendment retaliation claim, a plaintiff must plausibly allege that 22 (1) he was engaged in a constitutionally protected activity, (2) the defendant’s actions 23 would chill a person of ordinary firmness from continuing to engage in the protected 24 activity and (3) the protected activity was a substantial or motivating factor in the 25 defendant’s conduct.” Capp v. County of San Diego, 940 F.3d 1046, 1053 (9th Cir. 2019) 26 (internal citations and quotation marks omitted). In order to find a defendant directly liable, 27 a plaintiff must demonstrate that the defendant had an “intent to inhibit speech,” 28 Mendocino Env’t Ctr. v. Mendocino County, 192 F.3d 1283, 1302 (9th Cir. 1999), and that 1 there was a “causal connection between the government defendant’s retaliatory animus and 2 the plaintiff’s subsequent injury.” Nieves v. Bartlett, 587 U.S. 391, 398 (2019) (internal 3 citation and quotation marks omitted). In addition, a plaintiff must show that the 4 defendant’s retaliatory animus was “a ‘but-for’ cause, meaning that the adverse action 5 against the plaintiff would not have been taken absent the retaliatory motive.” Id. at 399. 6 “An allegation is not plausible where there is an obvious alternative explanation for alleged 7 [retaliatory] misconduct.” Capp, 940 F.3d at 1055 (internal citations and quotation marks 8 omitted). 9 In addition to suing the retaliating individual, a plaintiff may also bring a First 10 Amendment retaliation claim against that person’s supervisor for acquiescing in the 11 retaliation. In order to establish liability for a supervisor’s acquiescence, a plaintiff must 12 show that the defendant had (1) “supervisory authority” over the retaliating individual; (2) 13 knew of the constitutional violation committed by his subordinate; and (3) acquiesced in 14 the violation by not intervening. Riley’s Am. Heritage Farms v. Elsasser, 32 F.4th 707, 15 724 (9th Cir. 2022); see OSU Student All. v. Ray, 699 F.3d 1053, 1075 (9th Cir. 2012) 16 (“[A]llegations of facts that demonstrate an immediate supervisor knew about the 17 subordinate violating another’s federal constitutional right to free speech, and acquiescence 18 in that violation, suffice to state free speech violations under the First and Fourteenth 19 Amendments.”). 20 Here, Plaintiff’s retaliation claim against Professor Lowe fails because he has not 21 adequately alleged that Professor Lowe acted adversely towards him because of his 22 complaint—the First Amendment protected activity at issue. Plaintiff contends that 23 Professor Lowe initially discriminated against him by (1) denying Plaintiff’s request to 24 receive an “incomplete” in the class instead of poor grades for not timely completing his 25 work; (2) informing him that he was a nuisance; and (3) instructing him that he must 26 complete his assignments on time. Dkt. 40 at 14–16. Plaintiff alleges that when he later 27 complained to Professor Lowe that Professor Cen failed him for not completing his work 28 while his disability request was pending, Professor Lowe again denied Plaintiff’s request 1 for a stay on his assignments and gave him failing grades for not completing his work. Id. 2 at 16, 20–22. Plaintiff asserts that these actions were in retaliation for his comments about 3 Professor Cen, emphasizing that Professor Lowe made these statements right after Plaintiff 4 made his complaint. Id. at 62. According to Plaintiff’s allegations, however, Professor 5 Lowe had communicated this same position—that he must complete his work or get failing 6 grades instead of an “incomplete”— prior to Plaintiff’s complaint, undermining any causal 7 link. See Nieves, 587 U.S. at 398. An “obvious alternative explanation” exists here: 8 Professor Lowe’s denial of a stay on Plaintiff’s coursework could have simply been a 9 reiteration of his earlier determination rather than an attempt to chill his speech. Capp, 940 10 F.3d at 1055. Thus, Plaintiff has not pled that his speech—his complaint about Professor 11 Cen—was a substantial factor in Professor Len’s actions. See id. at 1053. Without this 12 critical element, Plaintiff fails to state a plausible First Amendment retaliation claim against 13 Professor Lowe. 14 Second, the Court dismisses Plaintiff’s First Amendment retaliation claim against 15 Miramar Senior Staff because he has not sufficiently pled that they denied him access to a 16 laptop because of his complaints to them about Professors Cen and Lowe. Plaintiff claims 17 that the Miramar Senior Staff denied his request for a laptop computer to assist with his 18 vision disability because he wrote to them complaining of Professor Cen and Professor 19 Lowe’s conduct. Id. at 16–19, 62. He further alleges that this denial was retaliatory 20 because following his complaints, they immediately denied his request for a laptop when 21 they provide the same accommodation to other students. Id. However, the speed in which 22 the Senior Staff made this decision alone does not establish that they did so with the “intent 23 to inhibit” Plaintiff’s speech. Mendocino, 192 F.3d at 1032. Rather, there are several 24 obvious alternatives. Senior Staff could have refused Plaintiff’s request for a host of other 25 reasons, proper or improper, such as failure to meet the requirements for the loan of a 26 laptop. Because Plaintiff has not pled facts to show that Senior Staff had the intent to 27 punish and chill his speech when they denied him a laptop, he fails to state a plausible First 28 Amendment retaliation claim against Miramar Senior Staff. See, e.g., Gonzalez v. Planned 1 Parenthood of L.A., 759 F.3d 1112, 1116 (9th Cir. 2014) (affirming dismissal where 2 plaintiff’s allegation was only “merely possible rather than plausible” in face of obvious 3 alternative explanation). 4 Finally, Plaintiff fails to state a First Amendment claim against Professor Lowe, 5 Miramar Senior Staff, SDCCD Officer Carroll, and SDCCD Trustees for acquiescing in 6 retaliation. Plaintiff has not pled facts showing that these Defendants knew of but turned 7 a blind eye to other’s alleged retaliatory acts. While Plaintiff claims that he informed these 8 Defendants of Professors Cen’s, Lowe’s, and Senior Staff’s failure to accommodate his 9 disability (i.e., by failing to give him extra time to complete an assignment, refusing to give 10 him an incomplete instead of a low grade, and denying him access to a laptop), he does not 11 allege that he informed the alleged supervisors of any retaliatory acts by the same people. 12 Because Plaintiff does not plead that any of these Defendants had knowledge of any alleged 13 First Amendment constitutional violations, their purported failure to take responsive action 14 does not constitute acquiescence in a free speech violation. OSU, 699 F.3d at 1075. 15 Moreover, Plaintiff has not pled facts alleging that any of these Defendants had supervisory 16 authority over these individuals to intervene and curtail any retaliatory conduct. See 17 Riley’s, 32 F.4th at 724 (9th Cir. 2022). Thus, Plaintiff cannot establish a First Amendment 18 retaliation claim under his acquiescence theory. 19 For the above reasons, the Court dismisses Plaintiff’s First Amendment retaliation 20 claim against Professor Lowe, Miramar Senior Staff, SDCCD Officer Carrol, and SDCCD 21 Trustees. 22 8. Sixth Claim: Plaintiff’s sixth claim alleges that Mesa College President Luster 23 intentionally or negligently inflicted emotional distress against him when Mesa College 24 staff threw away Plaintiff’s lunches and prevented him from accessing free printing. 25 Without opining on whether these claims validly state a claim, the Court declines to 26 exercise supplemental jurisdiction over Plaintiff’s state law claims because they do not 27 arise from the same set of facts as alleged in Plaintiff’s federal claims. Arroyo v. Rosas, 28 19 F.4th 1202, 1209 (9th Cir. 2021); 28 U.S.C. § 1367(c). Plaintiff’s federal claims all 1 revolve around allegations that Miramar College and City College staff denied him 2 disability accommodations. See generally Dkt. 40. There is no overlap between those 3 claims and the alleged actions of Mesa College staff to deny him access to printing services 4 and to dispose of his lunches. Thus, Plaintiff’s claim for intentional and negligent infliction 5 of emotional distress against President Luster do not share a “common nucleus of operative 6 fact[s]” with Plaintiff’s federal claims. Arroyo, 19 F.4th at 1209. Accordingly, the Court 7 cannot exercise supplemental jurisdiction here and thereby, dismisses this claim with no 8 leave to amend but without prejudice to filing in state court. 9 9. Seventh Claim: Plaintiff’s seventh claim alleges that he has a substantive due 10 process right to an education and that Individual Defendants4 denied him this right by 11 discriminating against him on account of his disability. The Court dismisses this claim for 12 failure to state a claim pursuant to Federal Rule of Civil 12(b)(6). 13 “The substantive component of the Due Process Clause forbids the government from 14 depriving a person of life, liberty, or property in such a way that . . . interferes with rights 15 implicit in the concept of ordered liberty.” Engquist v. Oregon Dep’t of Agric., 478 F.3d 16 985, 996 (9th Cir. 2007) (internal citation and quotation marks omitted). The Supreme 17 Court has interpreted this guarantee “to include a substantive component, which forbids 18 the government to infringe certain ‘fundamental’ liberty interests at all, no matter what 19 process is provided, unless the infringement is narrowly tailored to serve a compelling state 20 interest.” Reno v. Flores, 507 U.S. 292, 301–02 (1993). However, it is well established 21 there is no enforceable federal constitutional right to public education. Payne v. Peninsula 22 Sch. Dist., 653 F.3d 863, 880 (9th Cir. 2011); Kadrmas v. Dickinson Pub. Schs., 487 U.S. 23 450, 458 (1988); Plyler v. Doe, 457 U.S. 202, 221 (1982). 24 25 26 27 28 1 Here, Plaintiff cannot plausibly allege a substantive due process claim as education 2 is not recognized as a fundamental liberty interest protected by the Constitution.5 See id. 3 Also, additional allegations could not alter the fact that there is no legal basis upon which 4 Plaintiff can claim a violation of a substantive due process right. The Court dismisses 5 Plaintiff’s claim without leave to amend. 6 10. Eighth Claim: Plaintiff’s eighth claim alleges that all Individual Defendants 7 committed interference with trade or prospective economic advantage against him by 8 interfering with his ability to obtain his necessary educational credits. In doing so they 9 purportedly obstructed his efforts to obtain a patent trade license, attend further graduate 10 programs, and secure high-paying employment. The Court dismisses this state law claim 11 for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). 12 To establish the tort of intentional interference with prospective economic 13 advantage, a plaintiff must show “(1) an economic relationship between the plaintiff and 14 some third party, with the probability of future economic benefit to the plaintiff; (2) the 15 defendant’s knowledge of the relationship; (3) intentional acts on the part of the defendant 16 designed to disrupt the relationship; (4) actual disruption of the relationship; and (5) 17 economic harm to the plaintiff proximately caused by the acts of the defendant.” Westside 18 Ctr. Assocs. v. Safeway Stores 23, Inc., 42 Cal. App. 4th 507, 521–522 (1996) (internal 19 citation and quotation marks omitted). In order to bring such a claim, a plaintiff must allege 20 that there is a “specific existing relationship,” not simply a potential future relationship, 21 that defendant disrupted. Id. at 525. Without a specific existing relationship, a plaintiff’s 22 expectation for the future is at best “a hope for an economic relationship and a desire for 23 24 25 5 Plaintiff also alleges that certain Individual Defendants are supervisory liable for depriving him 26 of an education pursuant to § 1983. However, as Plaintiff has not adequately pled a substantive due process claim to begin with, he cannot establish supervisory liability on this basis. See Starr v. Baca, 27 652 F.3d 1202, 1207 (9th Cir. 2011) (“A defendant may be held liable as a supervisor under § 1983 if there exists either (1) his or her personal involvement in the constitutional deprivation, or (2) a sufficient 28 1 future benefit,” which cannot be acted upon. Id. at 527 (internal citation and quotation 2 marks omitted). 3 Here, Plaintiff fails to state a claim for intentional interference with prospective 4 economic advantage because he has not pled an “existing relationship” with any future 5 employers or educational institutions, let alone any relationships that Individual 6 Defendants intentionally sought to disrupt.6 Id. at 525. Instead, Plaintiff asserts that if he 7 had been able to complete his requisite classes at SDCCD, a series of contingent outcomes 8 would have ensued: he would have (1) passed the patent agent examination; (2) earned 9 enough money as a patent agent to attend a highly esteemed LLM program; (3) had 10 sufficient funds to obtain an engineering degree; and (4) consequently, earned a very high 11 income. Dkt. 40 at 8–10. However, Plaintiff has pled neither that he had an existing 12 relationship with any institution nor alleged a likelihood of such future relationships aside 13 from his hopeful speculations. Westside, 42 Cal. App. 4th at 527. Because Plaintiff’s 14 future plans are far too speculative and attenuated to amount to an “existing relationship,” 15 amendment would be futile here. Miller, 845 F.2d at 214. Accordingly, the Court 16 dismisses Plaintiff’s claims for intentional interference with prospective economic 17 advantage without leave to amend. 18 11. In sum, the Court dismisses all of Plaintiff’s newly alleged claims: his Third 19 Claim (the Unruh Act), Fourth Claim (Negligent Supervision), Fifth Claim (First 20 Amendment Retaliation), Sixth Claim (IIED/NIED), Seventh Claim (Substantive Due 21 Process), and Eighth Claim (Intentional Interference with Prospective Economic 22 Advantage). 23 / / / 24 / / / 25 26

27 6 Moreover, Plaintiff has not alleged that he complied with the California Torts Act as required. 28 1 12. Thus, Plaintiff may proceed with his original claims: his First Claim 2 ||(Rehabilitation Act) and Second Claim (ADA) against SDCCD, and Fifth Claim (First 3 || Amendment Retaliation) against Professor Cen. 4 5 IT IS SO ORDERED. 6

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9 || Dated: June 11, 2024 10 Honorable Jinsook Ohta 1 United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28