1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 SON HONG, Case No. 8:19-cv-00086-RGK-JC 12 Plaintiff, 13 v. ORDER ACCEPTING FINDINGS, CONCLUSIONS, AND 14 MARY READ, et al., RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE 15 Defendants. [DOCKET NOS. 51, 54, 57] 16 17 Pursuant to 28 U.S.C. § 636, the Court has reviewed the operative First 18 Amended Complaint, the three Motions to Dismiss the First Amended Complaint 19 (“Defendants’ Motions”), all documents filed by the parties in connection with 20 Defendants’ Motions, and all of the records herein, including the October 26, 2020 21 Report and Recommendation of United States Magistrate Judge (“Report and 22 Recommendation”) and plaintiff’s objections to the Report and Recommendation 23 (“Objections”). The Court has further made a de novo determination of those 24 portions of the Report and Recommendation to which objection is made. 25 The Objections comprise ninety-eight pages in which plaintiff disputes the 26 Magistrate Judge’s recommendation that leave to amend be denied. Plaintiff 27 contends that he should be permitted to file a Second Amended Complaint in 28 1 which he will, among other things, present additional allegations to support his 2 claims that defendants discriminated against him as a male of Chinese and 3 Vietnamese descent, in violation of the Equal Protection Clause, Title VI of the 4 Civil Rights Act of 1964, 42 U.S.C. § 2000d (“Title VI”), and Title IX of the 5 Education Amendments Act of 1972, 20 U.S.C. § 1681 (“Title IX”). (See 6 Objections at 5-97). Plaintiff explains that he had left such allegations out of the 7 First Amended Complaint in an effort to “keep the facts to a minimum” – even 8 though the First Amended Complaint spans well over four hundred pages. 9 (Objections at 7). However, now having spent nearly one hundred additional pages 10 trying to make his case, plaintiff still fails to identify any plausible basis for a 11 claim. 12 As with the First Amended Complaint, plaintiff’s Objections are riddled 13 with purely speculative inferences and elaborate conjectures that defy all sense and 14 reason. Although the Court accepts as true all factual allegations, it is not 15 “required to accept as true allegations that are merely conclusory, unwarranted 16 deductions of fact, or unreasonable inferences.” Sprewell v. Golden State 17 Warriors, 266 F.3d 979, 988 (9th Cir.), opinion amended on denial of reh’g, 275 18 F.3d 1187 (9th Cir. 2001) (citation omitted). 19 Throughout the Objections, plaintiff continues to claim essentially that high- 20 level California State University (“CSU”) officials – namely, defendant Garcia, the 21 former president of California State University - Fullerton (“CSUF”), and 22 defendant Virjee, the former CSU vice-chancellor and subsequent CSUF president 23 – specifically targeted plaintiff, who was then a student in the counseling Master’s 24 degree program at CSUF, and did so ultimately to have him dismissed from the 25 program because he is a male of Chinese and Vietnamese descent. (See, 26 e.g., Objections at 14-19, 23-26, 29-30, 45, 51-52, 63-65, 84-86). Plaintiff claims 27 that defendants Garcia and Virjee did so by directing others in a variety of ways to 28 undermine plaintiff’s efforts to fulfill the practicum training requirements of the 2 1 counseling program. (See, e.g., Objections at 15-25, 30, 37, 40, 54, 84-86; see 2 also FAC at 24, 48, 67, 98-99, 157, 190, 207, 262, 281). The allegations offered to 3 implicate defendants Garcia and Virjee remain, as the Magistrate Judge 4 determined, “entirely speculative, if not farfetched.” (Report and Recommendation 5 at 36 n.19). For example, plaintiff argues that defendant Garcia forced one 6 counseling program advisor to have plaintiff delay his required practicum training, 7 and forced another program advisor to falsely tell plaintiff that certain suitable 8 practicum opportunities were unavailable, while defendants Garcia and Virjee also 9 conspired with plaintiff’s practicum supervisors (at outside entities) to obstruct his 10 endeavors. (See Objections at 7-8, 13-16, 23-25, 27-30, 37-42). As to why the 11 CSUF president would specifically target plaintiff for dismissal, plaintiff now 12 speculates that defendant Garcia, motivated by CSUF budget concerns, must have 13 thought it was a bad investment to keep a student in the counseling program who 14 was a male of Vietnamese and Chinese descent when, according to plaintiff, people 15 of Vietnamese and Chinese descent tend to have more trouble succeeding as 16 counselors, and two males previously in the CSUF counseling program (who were 17 not of Chinese or Vietnamese descent) had presented some difficulties for the 18 department. (Objections at 13-15; see also FAC at 15-16, 81-82). Plaintiff even 19 speculates, again without any plausible facts, that defendant Garcia left her CSUF 20 position at the end of 2017 (to be replaced by defendant Virjee) because Garcia 21 had forced several faculty members, administrators, and others to “violate 22 plaintiff’s civil rights.” (Objections at 16-17). 23 All of plaintiff’s allegations against Garcia and Virjee are similarly 24 implausible and based on pure conjecture. Therefore, regardless of whether 25 plaintiff could plausibly allege discrimination, plaintiff has failed to demonstrate 26 27 28 3 1 any potential claim against these defendants.1 2 Even so, plaintiff also still fails to plausibly allege discrimination by any 3 individual or entity. Throughout the Objections, plaintiff continues to argue that 4 all the obstacles he confronted in the counseling program and his practicum 5 training were intended to discriminate against him as a male of Chinese and 6 Vietnamese descent, though his only apparent support is that he was allegedly 7 treated differently than any other student in the counseling program, and he was the 8 only counseling Master’s student at the time who was a male of Chinese and 9 Vietnamese descent. (See, e.g., Objections at 5-6, 11-12, 22-23, 27-28, 30-32, 34- 10 37, 40-41, 44-46; FAC at 28-29, 52-53, 71-72). Plaintiff’s Objections additionally 11 offer a few specific examples of different treatment given to counseling students 12 who were female and were not of Chinese and Vietnamese descent. (See 13 Objections at 20-22, 42-47). However, these allegations still fail to support a 14 reasonable inference that plaintiff was treated differently because of his gender or 15 race, particularly because the allegations do not suggest that plaintiff and these 16 other students were otherwise alike in all relevant respects. See Nordlinger v. 17 Hahn, 505 U.S. 1, 10 (1992) (“Similarly situated” persons are those “who are in all 18 relevant respects alike.”); Snoqualmie Indian Tribe v. City of Snoqualmie, 186 F. 19 Supp. 3d 1155, 1163 (W.D. Wash. 2016) (a plaintiff “must plead sufficient detail 20 about the proposed comparator so that the court can reasonably infer that racial 21 animus accounts for the difference in treatment”) (citations omitted). To the 22 contrary, the allegations themselves frequently point to rational, non- 23 discriminatory reasons for the disparate treatment. (See, e.g., Objections at 42-50; 24 FAC at 152-55). 25 26 1The only named CSU defendants other than Garcia and Virjee are CSU Chancellor 27 Timothy White and the CSU Board of Trustees (“Board”). There have been no plausible 28 allegations against defendant White, who is hardly mentioned in the Objections.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 SON HONG, Case No. 8:19-cv-00086-RGK-JC 12 Plaintiff, 13 v. ORDER ACCEPTING FINDINGS, CONCLUSIONS, AND 14 MARY READ, et al., RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE 15 Defendants. [DOCKET NOS. 51, 54, 57] 16 17 Pursuant to 28 U.S.C. § 636, the Court has reviewed the operative First 18 Amended Complaint, the three Motions to Dismiss the First Amended Complaint 19 (“Defendants’ Motions”), all documents filed by the parties in connection with 20 Defendants’ Motions, and all of the records herein, including the October 26, 2020 21 Report and Recommendation of United States Magistrate Judge (“Report and 22 Recommendation”) and plaintiff’s objections to the Report and Recommendation 23 (“Objections”). The Court has further made a de novo determination of those 24 portions of the Report and Recommendation to which objection is made. 25 The Objections comprise ninety-eight pages in which plaintiff disputes the 26 Magistrate Judge’s recommendation that leave to amend be denied. Plaintiff 27 contends that he should be permitted to file a Second Amended Complaint in 28 1 which he will, among other things, present additional allegations to support his 2 claims that defendants discriminated against him as a male of Chinese and 3 Vietnamese descent, in violation of the Equal Protection Clause, Title VI of the 4 Civil Rights Act of 1964, 42 U.S.C. § 2000d (“Title VI”), and Title IX of the 5 Education Amendments Act of 1972, 20 U.S.C. § 1681 (“Title IX”). (See 6 Objections at 5-97). Plaintiff explains that he had left such allegations out of the 7 First Amended Complaint in an effort to “keep the facts to a minimum” – even 8 though the First Amended Complaint spans well over four hundred pages. 9 (Objections at 7). However, now having spent nearly one hundred additional pages 10 trying to make his case, plaintiff still fails to identify any plausible basis for a 11 claim. 12 As with the First Amended Complaint, plaintiff’s Objections are riddled 13 with purely speculative inferences and elaborate conjectures that defy all sense and 14 reason. Although the Court accepts as true all factual allegations, it is not 15 “required to accept as true allegations that are merely conclusory, unwarranted 16 deductions of fact, or unreasonable inferences.” Sprewell v. Golden State 17 Warriors, 266 F.3d 979, 988 (9th Cir.), opinion amended on denial of reh’g, 275 18 F.3d 1187 (9th Cir. 2001) (citation omitted). 19 Throughout the Objections, plaintiff continues to claim essentially that high- 20 level California State University (“CSU”) officials – namely, defendant Garcia, the 21 former president of California State University - Fullerton (“CSUF”), and 22 defendant Virjee, the former CSU vice-chancellor and subsequent CSUF president 23 – specifically targeted plaintiff, who was then a student in the counseling Master’s 24 degree program at CSUF, and did so ultimately to have him dismissed from the 25 program because he is a male of Chinese and Vietnamese descent. (See, 26 e.g., Objections at 14-19, 23-26, 29-30, 45, 51-52, 63-65, 84-86). Plaintiff claims 27 that defendants Garcia and Virjee did so by directing others in a variety of ways to 28 undermine plaintiff’s efforts to fulfill the practicum training requirements of the 2 1 counseling program. (See, e.g., Objections at 15-25, 30, 37, 40, 54, 84-86; see 2 also FAC at 24, 48, 67, 98-99, 157, 190, 207, 262, 281). The allegations offered to 3 implicate defendants Garcia and Virjee remain, as the Magistrate Judge 4 determined, “entirely speculative, if not farfetched.” (Report and Recommendation 5 at 36 n.19). For example, plaintiff argues that defendant Garcia forced one 6 counseling program advisor to have plaintiff delay his required practicum training, 7 and forced another program advisor to falsely tell plaintiff that certain suitable 8 practicum opportunities were unavailable, while defendants Garcia and Virjee also 9 conspired with plaintiff’s practicum supervisors (at outside entities) to obstruct his 10 endeavors. (See Objections at 7-8, 13-16, 23-25, 27-30, 37-42). As to why the 11 CSUF president would specifically target plaintiff for dismissal, plaintiff now 12 speculates that defendant Garcia, motivated by CSUF budget concerns, must have 13 thought it was a bad investment to keep a student in the counseling program who 14 was a male of Vietnamese and Chinese descent when, according to plaintiff, people 15 of Vietnamese and Chinese descent tend to have more trouble succeeding as 16 counselors, and two males previously in the CSUF counseling program (who were 17 not of Chinese or Vietnamese descent) had presented some difficulties for the 18 department. (Objections at 13-15; see also FAC at 15-16, 81-82). Plaintiff even 19 speculates, again without any plausible facts, that defendant Garcia left her CSUF 20 position at the end of 2017 (to be replaced by defendant Virjee) because Garcia 21 had forced several faculty members, administrators, and others to “violate 22 plaintiff’s civil rights.” (Objections at 16-17). 23 All of plaintiff’s allegations against Garcia and Virjee are similarly 24 implausible and based on pure conjecture. Therefore, regardless of whether 25 plaintiff could plausibly allege discrimination, plaintiff has failed to demonstrate 26 27 28 3 1 any potential claim against these defendants.1 2 Even so, plaintiff also still fails to plausibly allege discrimination by any 3 individual or entity. Throughout the Objections, plaintiff continues to argue that 4 all the obstacles he confronted in the counseling program and his practicum 5 training were intended to discriminate against him as a male of Chinese and 6 Vietnamese descent, though his only apparent support is that he was allegedly 7 treated differently than any other student in the counseling program, and he was the 8 only counseling Master’s student at the time who was a male of Chinese and 9 Vietnamese descent. (See, e.g., Objections at 5-6, 11-12, 22-23, 27-28, 30-32, 34- 10 37, 40-41, 44-46; FAC at 28-29, 52-53, 71-72). Plaintiff’s Objections additionally 11 offer a few specific examples of different treatment given to counseling students 12 who were female and were not of Chinese and Vietnamese descent. (See 13 Objections at 20-22, 42-47). However, these allegations still fail to support a 14 reasonable inference that plaintiff was treated differently because of his gender or 15 race, particularly because the allegations do not suggest that plaintiff and these 16 other students were otherwise alike in all relevant respects. See Nordlinger v. 17 Hahn, 505 U.S. 1, 10 (1992) (“Similarly situated” persons are those “who are in all 18 relevant respects alike.”); Snoqualmie Indian Tribe v. City of Snoqualmie, 186 F. 19 Supp. 3d 1155, 1163 (W.D. Wash. 2016) (a plaintiff “must plead sufficient detail 20 about the proposed comparator so that the court can reasonably infer that racial 21 animus accounts for the difference in treatment”) (citations omitted). To the 22 contrary, the allegations themselves frequently point to rational, non- 23 discriminatory reasons for the disparate treatment. (See, e.g., Objections at 42-50; 24 FAC at 152-55). 25 26 1The only named CSU defendants other than Garcia and Virjee are CSU Chancellor 27 Timothy White and the CSU Board of Trustees (“Board”). There have been no plausible 28 allegations against defendant White, who is hardly mentioned in the Objections. The Board is named only in plaintiff’s Title VI and Title IX claims, discussed below. 4 1 As for the Magistrate Judge’s determination that plaintiff’s Title VI and Title 2 IX claims fail because, among other reasons, the CSU Board of Trustees (“Board”) 3 had no alleged notice of discriminatory conduct (see Report and Recommendation 4 at 41), plaintiff now argues for the first time that the Board is liable under Title VI 5 and Title IX based on retaliation, which does not require the funding recipient’s 6 prior notice of the conduct.2 (Objections at 51-56); see Jackson v. Birmingham Bd. 7 of Educ., 544 U.S. 167, 174 (2005) (“[W]hen a funding recipient retaliates against 8 a person because he complains of sex discrimination, this constitutes intentional 9 ‘discrimination’ ‘on the basis of sex,’ in violation of Title IX.”) (internal quotation 10 and citation omitted); Mansourian v. Regents of Univ. of Cal., 602 F.3d 957, 967 11 (9th Cir. 2010) (“[T]he Supreme Court has made clear that no notice requirement is 12 applicable to Title IX claims that rest on an affirmative institutional decision.”) 13 (citing Jackson, 544 U.S. at 182). However, such claims would also clearly fail 14 because plaintiff has not plausibly alleged that he complained of race-based or sex- 15 based discrimination (or any conduct that would reasonably have been construed as 16 such), or that he was dismissed from the counseling program because of such 17 complaints.3 See Jackson, 544 U.S. at 174. In addition, to the extent that plaintiff 18 now claims that the Board retaliated by changing its address, making it more 19 20 2Title VI and Title IX protect against intentional discrimination on the basis of race, color, or national origin, and on the basis of sex, respectively, by entities that receive federal 21 financial assistance. 42 U.S.C. § 2000d (Title VI); 20 U.S.C. § 1681 (Title IX). 22 3Absent any factual allegations that the Board had notice of such conduct or complaints, 23 the only alleged action that could implicate the Board is plaintiff’s dismissal. See Mansourian, 602 F.3d at 967 (absent notice, Title IX claim must “rest on an affirmative institutional 24 decision”) (citing Jackson, 544 U.S. at 182); see also Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 640 (1999) (“[A] recipient of federal funds may be liable in damages under Title IX 25 only for its own misconduct.”). Although plaintiff suggests that the counseling program’s stated 26 reasons for dismissing him were mere pretext because the reasons were never explained to him (Objections at 79-81), several of these reasons are in fact supported by plaintiff’s own 27 allegations, as the Magistrate Judge pointed out (see Report and Recommendation at 35-36). 28 The allegations do not support a reasonable inference that there were discriminatory or retaliatory motives for plaintiff’s dismissal. 5 1 difficult for plaintiff to serve the Board in this action (see Objections at 56-59), his 2 argument defies reason. 3 In the Objections, plaintiff also states for the first time that if given the 4 chance to file an amended pleading, he intends to assert a Title IX claim against 5 defendants Brueck, Volk, and Pacific Hills Treatment Center (“PHTC”).4 6 (Objections at 60-61). Defendants Brueck and Volk were plaintiff’s practicum 7 training supervisors at Covenant Hills Treatment Center (“CHTC”), which is 8 owned by PHTC. According to plaintiff, his Title IX claim would be based on 9 allegations that Brueck and Volk discriminated against plaintiff “many times” by 10 treating him differently than the female CSUF students, along with allegations that 11 Brueck sexually harassed plaintiff “a few times.” (See Objections at 60-78). First, 12 individuals such as Brueck and Volk cannot be sued under Title IX. See Lopez v. 13 Regents of Univ. of Cal., 5 F. Supp. 3d 1106, 1120 (N.D. Cal. 2013) (only 14 institutions, not individuals, may be liable under Title IX). Second, assuming that 15 CHTC/PHTC would even be subject to Title IX,5 plaintiff’s allegations do not 16 17 4Plaintiff also states that he will “withdraw[] all the discrimination based on gender and 18 race claims” against these same defendants – by which he is presumably referring to the Equal 19 Protection claims against them, since his proposed Title IX claims against these defendants would be based on gender discrimination. (Objections at 60). 20 5Title IX applies to “any education program or activity receiving Federal financial 21 assistance.” 20 U.S.C. § 1681(a). Although CSU, as a funding recipient education 22 program/institution, could be held liable under Title IX for sex discrimination against CSU students at CHTC when CSU programs require or facilitate students to participate in activities at 23 CHTC, see 45 C.F.R. § 86.31(d)(1), CHTC/PHTC is not subject to Title IX liability itself unless it qualifies as an “educational program or activity” that receives federal funding. 20 U.S.C. 24 § 1681(a); see also O’Connor v. Davis, 126 F.3d 112, 117 (2nd Cir. 1997) (“[I]n order to 25 implicate Title IX in the first instance, an entity must have features such that one could reasonably consider its mission to be, at least in part, educational.”), cert. denied, 522 U.S. 1114 26 (1998); Doe v. Mercy Catholic Med. Ctr., 850 F.3d 545, 555-56 (3d Cir. 2017) (adopting Second 27 Circuit’s O’Connor holding, and adding that applicable programs should have certain features such as: “(A) a program is incrementally structured through a particular course of study or 28 (continued...) 6 1 plausibly demonstrate that he was ever treated differently because of his gender, or 2 that any such treatment (including alleged sexual harassment) is attributable to the 3 entity (CHTC/PHTC) in any respect.6 4 In sum, plaintiff has failed to identify any error in the Magistrate Judge’s 5 determination that the First Amended Complaint warrants dismissal, and 6 amendment would be futile. Accordingly, the Court overrules the Objections, and 7 agrees with, approves, accepts and adopts the Report and Recommendation. 8 IT IS HEREBY ORDERED that (1) Defendants’ Motions are granted; 9 (2) plaintiff’s requests to amend are denied, the First Amended Complaint is 10 dismissed without leave to amend, and this action is dismissed with prejudice; and 11 12 5(...continued) training, whether full- or part-time; (B) a program allows participants to earn a degree or 13 diploma, qualify for a certification or certification examination, or pursue a specific occupation 14 or trade beyond mere on-the-job training; (C) a program provides instructors, examinations, an evaluation process or grades, or accepts tuition; or (D) the entities offering, accrediting, or 15 otherwise regulating a program hold it out as educational in nature”); Jeldness v. Pearce, 30 F.3d 1220, 1224-25 (9th Cir. 1994) (holding that Title IX applies to educational programs in state 16 prisons). As a drug and alcohol treatment center, CHTC seems unlikely to qualify. 17 6Plaintiff argues that new allegations in the Objections would support a Title IX claim 18 regarding defendant Brueck’s conduct. (See Objections at 71-76). The new allegations include an incident in which Dr. Brueck, discussing how plaintiff was handing his group counseling 19 sessions, described counseling as “fluid” and then made a gesture that plaintiff somehow 20 interprets as intending to communicate to plaintiff that “in order to make it in this field of counseling, Plaintiff will eventually need to participate in hardcore sex with Dr. Brueck and Mr. 21 Volk, standing up, in the water” – or more specifically, “in the San Clemente ocean!” 22 (Objections at 72-73). Plaintiff also explains that a Title IX claim would be based on allegations that, during a different meeting with plaintiff, Dr. Brueck sat on a bed with plaintiff (in a room 23 that contained beds but was used as an office to conduct meetings and counseling sessions) and was wearing a hidden “mechanical device,” so that the CSUF counseling program could listen 24 in, whereas Dr. Brueck allegedly would not sit on the same bed and wear a secret mechanical 25 listening device when meeting with female students. (Objections at 74-76; see also FAC at 230- 31). Plaintiff’s belief in this hidden listening device is wholly speculative and implausible, and 26 he does not allege that he notified anyone of sexual harassment or conduct that could reasonably 27 be construed as such. See Mansourian, 602 F.3d at 967 (“In sexual harassment cases, it is the deliberate failure to curtail known harassment, rather than the harassment itself, that constitutes 28 the intentional Title IX violation.”) (citing Davis, 526 U.S. at 641). 7 1 (3) Judgment is to be entered accordingly. 2 IT IS FURTHER ORDERED that the Clerk serve copies of this Order, the 3 || Report and Recommendation, and the Judgment herein on plaintiff and on counsel 4 || for defendants. 5 IT IS SO ORDERED. 6 | parep: 12/18/2020 i*9 I Rerrregpay 8 HONORABLE R. GARY KLAUSNER 9 UNITED STATES DISTRICT JUDGE
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