NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARCOS GAMA, 

Plaintiff-Appellant, 

 v. 

BOARD OF TRUSTEES OF THE 

CALIFORNIA STATE UNIVERSITY; et 

al., 

Defendants-Appellees.

No. 19-15700 

D.C. No. 3:18-cv-02552-VC 

MEMORANDUM*

Appeal from the United States District Court

for the Northern District of California

Vince Chhabria, District Judge, Presiding

Submitted June 9, 2020**

San Francisco, California

Before: MILLER and HUNSAKER, Circuit Judges, and SCHILTZ,*** District 

Judge.

Marcos Gama is a former employee of Associated Students, Inc., an affiliate 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The panel unanimously concludes this case is suitable for decision 

without oral argument. See Fed. R. App. P. 34(a)(2).

*** The Honorable Patrick J. Schiltz, United States District Judge for the 

District of Minnesota, sitting by designation.

FILED

JUN 11 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

of San Francisco State University (“SFSU”). Gama filed this lawsuit after SFSU 

sustained two complaints of sexual harassment against him and banned him from 

campus, leading Associated Students, Inc. to terminate his employment. Gama 

now appeals the district court’s dismissal of his constitutional claims against 

defendant Luoluo Hong, SFSU’s Title IX Coordinator. Gama asserts proceduraldue-process, substantive-due-process, and equal-protection claims against Hong 

under 42 U.S.C. §1983. We review a dismissal under Rule 12(b)(6) de novo, and 

we may affirm on any ground supported by the record. Thompson v. Paul, 547 

F.3d 1055, 1058–59 (9th Cir. 2008). We have jurisdiction under 28 U.S.C. §1291.

We agree with the district court that Gama has failed to plead a plausible 

claim against Hong.

As to Gama’s procedural-due-process claim: Even assuming that Gama 

plausibly alleged that he was deprived of a constitutionally protected liberty 

interest, see Souders v. Lucero, 196 F.3d 1040, 1046 (9th Cir. 1999), nothing in his 

allegations support a claim that he was deprived of due process, see Austin v. Univ. 

of Or., 925 F.3d 1133, 1139 (9th Cir. 2019) (the “hallmarks of procedural due 

process” are “notice and a meaningful opportunity to be heard”) (citation omitted).

It does not matter, though, because even if Gama was not afforded due 

process before being deprived of a constitutionally protected interest, Gama has 

not pleaded a viable claim for supervisory liability against Hong. See Starr v. 
3 

Baca, 652 F.3d 1202, 1207–08 (9th Cir. 2011) (explaining that a defendant may 

only be held liable as a supervisor under § 1983 where the defendant was 

personally involved in the constitutional violation, or where the defendant’s 

wrongful acts are causally connected to the violation). Although Gama has alleged 

that Hong was aware that the investigation was taking place—and then was 

informed of the investigator’s conclusions—Gama has not alleged that Hong 

participated in or was even aware of the acts that allegedly violated Gama’s right 

to procedural due process. Specifically, Gama does not allege that Hong was 

aware of the investigator’s allegedly incomplete description of the sexualharassment complaints or that the investigator did not honor a request from Gama 

to send the final report to his personal email address instead of his work email 

address. According to Gama’s second amended complaint, Hong was first notified 

of the alleged constitutional violations in a July 22, 2017 email from Gama—

months after the alleged constitutional deprivations had already occurred. Gama

cannot, on these facts, establish supervisory liability against Hong. 

Gama’s substantive-due-process claim fares no better. Gama has not 

plausibly alleged that SFSU interfered with a “fundamental right,” nor has he 

plausibly alleged “conduct that amounts to an abuse of power lacking any 

reasonable justification in the service of a legitimate governmental objective.” 

Lone Star Sec. & Video, Inc. v. City of Los Angeles, 584 F.3d 1232, 1236 (9th Cir. 
4 

2009) (citation and quotation marks omitted). And even if Gama had plausibly 

alleged a deprivation of substantive due process, he has not plausibly alleged a 

basis for holding Hong liable for that violation. 

The district court also did not err in dismissing Gama’s equal-protection 

claim. Gama essentially argues that SFSU misunderstood the elements of a 

hostile-environment claim. Even if that were true, not every misapplication of a 

statute, regulation, or policy violates the Equal Protection Clause. To plead a 

viable equal-protection claim, Gama must allege (among other things) that SFSU

treated him differently from a similarly situated person. See Pimentel v. Dreyfus, 

670 F.3d 1096, 1106 (9th Cir. 2012) (per curiam). If the decisionmakers in 

Gama’s case consistently applied their alleged misinterpretation, then Gama would 

have been treated like everyone else, and he would not have been deprived of equal 

protection. Gama has not alleged that he was treated differently from any similarly 

situated person. 

Finally, Gama challenges the district court’s decision to dismiss his Title IX 

and §1983 claims with prejudice, instead of giving him another opportunity to try 

to plead viable claims. But Gama has had multiple opportunities to plead plausible 

claims and, despite receiving specific instructions from the district court regarding 

the deficiencies of his pleadings, Gama has failed to do so. The district court’s 

dismissal of Gama’s claims with prejudice was not an abuse of discretion. See 
5 

Okwu v. McKim, 682 F.3d 841, 844 (9th Cir. 2012) (“We review for abuse of 

discretion a district court’s decision to dismiss with prejudice.”); SissetonWahpeton Sioux Tribe v. United States, 90 F.3d 351, 355 (9th Cir. 1996) (per 

curiam) (“The district court’s discretion to deny leave to amend is particularly 

broad where plaintiff has previously amended the complaint.” (citation omitted)). 

AFFIRMED.