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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

GEORGE SPITTAL,

Plaintiff,

v.

JAY SCHENIRER, ROY GRIMES, 

KAREN YOUNG, MANNY HERNANDEZ, 

RICK JENNINGS, DAWN McCOY, 

PAT FONG KUSHIDA, PATRICIA KOLB,

MIKE YOUNG, THEODORE RICHARDSON

and MICHAEL POTT, as individuals,

 Defendants.

CIV. S-04-1198 GEB PAN PS

FINDINGS AND RECOMMENDATIONS

—NFN—

In June 2000 plaintiff George Spittal sued the SCUSD and

three of its employees. The short of it was that plaintiff

taught at Bret Harte Elementary School as a substitute teacher,

thought the school’s student discipline procedures were racist,

complained, was fired and sued. In a thoughtful and patient

memorandum and order filed September 27, 2002, Judge Shubb

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explained that Spittal’s speech wasn’t protected because he

embroiled students in his disputes and disrupted the school’s

fundamental public mission. Judge Shubb explained that Spittal

had no federal due process right to provide students with a nondiscriminatory environment, had no standing to act as private

attorney general to oppose perceived discrimination and had no

federally protected right to suspend white students for

truancy–Spittal’s solution to the problem he alone perceived. 

The court of appeals duly affirmed Judge Shubb’s decision. 

Somehow Spittal regained SCUSD work, was immediately back

at his old ways and back in court claiming damages for violation

of his federal civil rights. Defendants moved to dismiss for

failure to state a claim upon which relief can be granted

pursuant to Fed.R.Civ.P. 12(b)(6). The legal standard for

considering such a motion is well known.

Either Spittal did not read Judge Shubb’s September 2002

decision, didn’t understand it or, more likely, proceeds in

contempt of it. In this case Spittal complains that he was

removed by a non-white administrator for complaining when

Spittal’s attempt to exclude non-white children from his

classroom to redress perceived discrimination was rejected. His

claims are based upon exactly those due process “rights” that

Judge Shubb previously so carefully explained Spittal does not

have. Spittal adds insult to injury by claiming he was removed

pursuant to a SCUSD policy to sponsor discrimination evidenced by

the SCUSD’s successful legal defense of his prior constitutional

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claims. There are a lot of unanswered questions including why

the SCUSD took Spittal back to educate children, why he sought to

return to a workplace he so disapproves of, and why, if he is

sincere, he did not pursue some different, more credible, tack

that divorced his ostensible cause on behalf of others from his

own daily bread and his pupils’ right not to be embroiled in

legal disputes he apparently cannot resist. But his new

complaint raises no legitimate questions about deprivation of

Spittal’s federal civil rights and it should be dismissed and

judgment entered in favor of defendants for their costs of suit

and attorney fees.

These findings and recommendations are submitted to the

Honorable Garland E. Burrell, Jr., the United States District

Judge assigned to this case. 28 U.S.C. § 636(b)(l). Written

objections may be filed within ten days after being served with

these findings and recommendations. The document should be

captioned “Objections to Magistrate Judge’s Findings and

Recommendations.” The failure to file objections within the

specified time may waive the right to appeal the District Court’s

order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 

Dated: April 26, 2005. 

 /s/ Peter A. Nowinski 

 PETER A. NOWINSKI

 Magistrate Judge

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