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1 Out of an abundance of caution, Patricia Kolb, through the

same counsel as the other defendants, also has moved to dismiss since

her name remains listed in the amended complaint’s caption. However,

the claims against Ms. Kolb already have been dismissed without leave

to amend. (See Order filed June 14, 2005 (dismissing Fourth, Sixth

and Seventh Claims without leave to amend).) Therefore, Ms. Kolb is

no longer a defendant in this action.

1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

GEORGE SPITTAL, No. CIV.S-04-1198 GEB DAD PS

Plaintiff,

v. FINDINGS AND RECOMMENDATIONS

JAY SCHENIRER, et al.,

Defendants.

__________________________/

This matter is before the court on (1) the motion to

dismiss plaintiff’s amended complaint pursuant to Federal Rule of

Civil Procedure 12(b)(6) (Doc. no. 29) filed on behalf of defendants

Jay Schenirer; Roy Grimes; Karen Young; Manny Hernandez; Rick

Jennings; Dawn McCoy; and Pat Fong Kushida;1 and (2) plaintiff’s

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2

motion re contempt (Doc. no. 36). Having considered all written

materials submitted in connection with the motions, for the reasons

explained below, the undersigned will recommend that defendants’

motion to dismiss be granted and plaintiff’s motion be denied. The

undersigned will further recommend that plaintiff’s amended complaint

be dismissed with prejudice and this action be closed.

I. Motion to Dismiss

A. Applicable Legal Standards

A complaint, or portion thereof, should only be dismissed

pursuant to Rule 12(b)(6) for failure to state a claim upon which

relief can be granted if it appears beyond doubt that the plaintiff

can prove no set of facts in support of the claim or claims that

would entitle him to relief. Hishon v. King & Spalding, 467 U.S. 69,

73 (1984) (citing Conley v. Gibson, 355 U.S. 41 (1957)); Palmer v.

Roosevelt Lake Log Owners Ass'n, 651 F.2d 1289, 1294 (9th Cir. 1981). 

In reviewing a complaint under this standard, the court must accept

as true the allegations of the complaint. Hospital Bldg. Co. v. Rex

Hosp. Trustees, 425 U.S. 738, 740 (1976). Furthermore, the court

must construe the pleading in the light most favorable to the

plaintiff, and resolve all doubts in the plaintiff's favor. See

Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). In a case where the

plaintiff is pro se, the court has an obligation to construe the

pleadings liberally. Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th

Cir. 1985) (en banc). However, the court’s liberal interpretation of

a pro se complaint may not supply essential elements of a claim that

are not pled. Pena v. Gardner, 976 F.2d 469, 471 (9th Cir. 1992);

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2 See Spittal v. Shubb, No. CIV.S-05-0749 FCD DAD PS, Findings

and Recommendations filed November 2, 2005.

3 A court may take judicial notice of court records. See MGIC

Indem. Co. v. Weisman, 803 F.2d 500, 505 (9th Cir. 1986); United

States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980). The undersigned

hereby takes judicial notice of these court files. 

3

Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th

Cir. 1982).

B. Analysis

As previously observed by the undersigned in one of

plaintiff’s other lawsuits,2 this is one of eight actions plaintiff

has initiated in this court over the last five years. (See No.

CIV.S-00-1287 WBS PAN PS; No. CIV.S-00-1766 LKK GGH PS; No. CIV.S-01-

00036 GEB JFM PS; No. CIV.S-04-1198 GEB DAD PS; No. CIV.S-05-0112 MCE

DAD PS; No. CIV.S-05-0749 FCD DAD PS; No. CIV.S-05-1157 MCE KJM PS;

No. CIV.S-05-2042 FCD GGH PS.3) All of the actions arise out of

plaintiff’s employment as a substitute teacher with the Sacramento

City Unified School District (“District”). All of the actions

involve allegations that the District and its employees have

retaliated against plaintiff for speaking out against District

policies regarding classroom management, particularly those policies

which plaintiff perceives as being motivated by race, socio-economic

factors, or circumstances related to students’ behavior. Some of the

actions additionally name as defendants the lawyers who have defended

the District and its employees against plaintiff’s numerous legal

actions as well as the judges who have been assigned to preside over

those actions. In this regard, plaintiff typically accuses defense

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4 Such accusations appear to be routine for plaintiff, a former

lawyer whom the Supreme Court of Ohio has permanently disbarred from

the practice of law in that state. In 1990, the Supreme Court of

Ohio found “the flagrant disrespect that [Mr. Spittal] has

demonstrated toward the entire judicial system deserving of the legal

profession’s most severe sanction.” Akron Bar Ass’n v. Spittal, 51

Ohio St. 3d 121, 122, 554 N.E. 2d 1338, 1339 (1990). In disbarring

plaintiff, the Supreme Court of Ohio relied on evidence presented to

a disciplinary panel which

established that [Mr. Spittal] routinely, and

without justification, referred to the decisions

made by federal and Ohio judges as being the

product of dishonesty, partiality, ignorance, and

incompetence. The evidence further established

that [Mr. Spittal] routinely, and without

justification, accused judges and attorneys alike

of lying. Indeed, the record manifests that [Mr.

Spittal] made these remarks simply because he

disagreed with a judge’s decision or an

attorney’s argument.

51 Ohio St. 3d at 122, 554 N.E. 2d at 1339.

4

counsel and the judges of lying, contempt, conspiracy and the like in

connection with the litigation of plaintiff’s claims.4

The named defendants in the instant amended complaint are

District Board of Trustees members Jay Schenirer; Roy Grimes; Karen

Young; Manny Hernandez; Rick Jennings; Dawn McCoy; and Pat Fong

Kushida. In sum, the amended complaint alleges that the Board of

Trustees has permitted the inadequate supply of educational materials

and the improper placement of disruptive students along racial lines

in District classrooms. The amended complaint further alleges that

the Board of Trustees has allowed other District employees to

retaliate against plaintiff for speaking out against these perceived

inequities; failed to establish a meaningful hearing process to

enforce its alleged non-retaliation policy; and refused to honor a

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5 By previous order of the assigned district judge the First,

Second, Third and Fifth Claims of plaintiff’s initial complaint were

dismissed with leave to amend while the rest of the claims were

dismissed with prejudice. See Order filed June 14, 2005. The claims

on which leave to amend was granted are now set forth as the First,

Second, Third and Fourth Claims in the amended complaint. Moreover,

plaintiff has substantively changed the nature of his claims. For

example, the present Second and Third Claims now refer to the First

and Fourteenth Amendments whereas earlier versions of the claims

sought relief only under the Fourteenth Amendment. The amended

complaint also is a hodge-podge of typed passages copied and pasted

from the initial complaint along with handwritten passages and

interlineations by plaintiff. Nonetheless, the court has done its

best to construe the amended complaint. 

5

teacher’s “right” to suspend students as necessary. In this regard

the amended complaint contains several general references to the

First and Fourteenth Amendments. Liberally construed, the amended

complaint alleges violations of plaintiff’s First Amendment right to

free speech and his substantive due process rights.5 The amended

complaint prays for declaratory and injunctive relief and unspecified

compensatory and punitive damages.

As an initial matter, it must be noted that plaintiff’s

amended complaint is unfocussed, full of conclusory allegations and

somewhat difficult to decipher. It does not contain “a short and

plain statement” of a claim showing that plaintiff is entitled to

relief. See Fed. R. Civ. P. 8(a)(2). This alone warrants dismissal. 

See Jones v. Cmty. Redevelopment Agency, 733 F.2d 646, 649 (9th Cir.

1984). Nonetheless, even considering the merits of plaintiff’s

claims, the undersigned concludes that this entire action should be

dismissed with prejudice as to all named defendants for failure to

state a claim.

/////

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6

More specifically, the undersigned will recommend the

motion to dismiss be granted because the moving defendants are

entitled to qualified immunity. Whether a defendant is entitled to

qualified immunity involves a two-step inquiry. Saucier v. Katz, 533

U.S. 194, 200 (2001). The first step is to ask whether the alleged

facts, taken in the light most favorable to the party asserting the

injury, show the officer’s conduct violated a constitutional right. 

Saucier, 533 U.S. at 201. If this question is answered in the

negative, then "there is no necessity for further inquiries

concerning qualified immunity." Id. If the question is answered in

the affirmative, the next step is “to ask whether the right was

clearly established." Id. A constitutional right is clearly

established when "it would be clear to a reasonable officer that his

conduct was unlawful in the situation he confronted." Id. at 202. 

See also Billington v. Smith, 292 F.3d 1177, 1183-84 (9th Cir. 2002).

With respect to plaintiff’s attempt to state claims based

upon the First Amendment, the alleged facts do not demonstrate that

defendants’ conduct violated plaintiff’s right to free speech. This

is because the allegations of the amended complaint indicate that

plaintiff’s speech as a public employee regarding the placement and

management of students and resources within the District does not

amount to speech upon “a matter of public concern." See Connick v.

Myers, 461 U.S. 138, 143-46 (1983); Pickering v. Board of Education,

391 U.S. 563, 568 (1968); Ceballos v. Garcetti, 361 F.3d 1168, 1173

(9th Cir. 2004). Rather, the alleged speech encompassed by the

instant amended complaint is simply part of a larger, ongoing

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internal dispute between plaintiff and the District and its employees

regarding classroom management within the District. That dispute

amounts to an individual personnel dispute that clearly is “of no

relevance to the public’s evaluation of the performance of” the

District. See Ceballos, 361 F.3d at 1173. See also Coszalter v.

City of Salem, 320 F.3d 968, 973-74 (9th Cir. 2003) (“[S]peech that

deals with ‘individual personnel disputes and grievances’ and that

would be of ‘no relevance to the public’s evaluation of the

performance of governmental agencies’ is generally not of ‘public

concern’”). Accordingly, accepting the allegations of the complaint

as true, plaintiff’s speech did not regard a matter of public concern

and defendants did not violate plaintiff’s First Amendment rights.

Even assuming plaintiff has spoken upon a matter of public

concern, as opposed to a matter only of personal interest, the court

further finds that the District’s interest as an employer in

promoting efficiency of the public services it performs through its

employees outweighs plaintiff’s interest in that speech. See

Pickering, 391 U.S. at 568; Gillbrook v. City of Westminster, 177

F.3d 839, 867 (9th Cir. 1999). In weighing whether the government’s

interest in promoting an effective workplace outweighs an employee’s

First Amendment rights, courts may consider “whether the speech (i)

impairs discipline or control by superiors, (ii) disrupts co-worker

relations, (iii) erodes a close working relationship premised on

personal loyalty and confidentiality, (iv) interferes with the

speaker’s performance of her or his duties, or (v) obstructs the

routine operation of the office.” Hyland v. Wonder, 972 F.2d 1129,

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1139 (9th Cir. 1992)(citations omitted). Here, the District’s

interest in maintaining discipline and control in its schools,

promoting co-worker relations and fostering an educational

environment outweighs plaintiff’s interest in speaking out against

what plaintiff may perceive as the disparate treatment of certain

students. See Goss v. Lopez, 419 U.S. 565, 589-90 (1975)(Powell, J.,

dissenting); Tinker v. Des Moines Independent Community School

District, 393 U.S. 503, 507 (1969)(“[T]he Court has repeatedly

emphasized the need for affirming the comprehensive authority of the

States and of school officials, consistent with fundamental

constitutional safeguards, to prescribe and control conduct in the

schools.”). For this reason as well, the undersigned finds that

plaintiff’s speech as alleged in the complaint is not protected by

the First Amendment. 

Accordingly, defendants are entitled to qualified immunity

on plaintiff’s First Amendment claims. The undersigned therefore

will recommend that defendants’ motion to dismiss be granted.

Plaintiff’s substantive due process claims also must be

dismissed. As set forth above, the allegations of the amended

complaint, like the allegations in plaintiff’s other actions, boil

down to the assertion that plaintiff is being retaliated against for

speaking out against perceived inequities within District schools. 

As such, plaintiff’s claims must be addressed under the First

Amendment, not substantive due process. This is because "[w]here a

particular Amendment ‘provides an explicit textual source of

constitutional protection’ against a particular sort of government

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6 This is possibly the case with respect to plaintiff’s First

Claim as well.

9

behavior, ‘that Amendment, not the more generalized notion of

"substantive due process," must be the guide for analyzing these

claims.’" Albright v. Oliver, 510 U.S. 266, 273 (1994) (quoting

Graham v. Connor, 490 U.S. 386, 395 (1989)). As just discussed, the

moving defendants are entitled to qualified immunity on plaintiff’s

First Amendment claims. Therefore, defendants’ motion to dismiss 

must be granted with respect to plaintiff’s substantive due process

claims as well.

Finally, with respect to the Second, Third and Fourth

Claims in the amended complaint, it remains clear that plaintiff is

attempting to hold defendants liable for the actions of others under

a respondeat superior theory of liability.6 However, defendants are

not liable for the actions of District employees under such a theory. 

More specifically, supervisory personnel generally are not liable

under 42 U.S.C. § 1983 for the actions of their employees under a

theory of respondeat superior and, therefore, when a named defendant

holds a supervisory position the causal link between the defendant

and the claimed constitutional violation must be specifically

alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979);

Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). “A supervisor

is only liable for constitutional violations of his subordinates if

the supervisor participated in or directed the violations, or knew of

the violations and failed to act to prevent them.” Taylor v. List,

880 F.2d 1040, 1045 (9th Cir. 1989)(citing Ybarra v. Reno Thunderbird

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Mobile Home Village, 723 F.2d 675, 680-81 (9th Cir. 1984)). Vague

and conclusory allegations such as those set forth in the amended

complaint concerning the involvement of official personnel in civil

rights violations are not sufficient. See Ivey v. Board of Regents,

673 F.2d 266, 268 (9th Cir. 1982). The assigned district judge noted

this deficiency in the order dismissing plaintiff’s complaint with

leave to amend. Plaintiff’s attempt to cure that deficiency simply

by removing the phrase “respondeat superior” from his amended

complaint does not suffice to correct the deficiency. For this

reason as well, the motion to dismiss must be granted.

For all of the reasons set forth above, plaintiff’s amended

complaint is fatally deficient. Moreover, the arguments presented by

plaintiff in the motions pending before the court in this and his

other cases are frivolous. Finally, whatever his intentions, through

the numerous lawsuits filed in this court involving either

essentially the same subject or plaintiff’s displeasure with the

results obtained in prior litigation with respect thereto, plaintiff

has engaged in conduct that has harassed the named defendants. For

all these reasons, it appears clear that plaintiff cannot cure the

defects in his amended complaint. Granting leave to amend under

these circumstances would be futile. See Reddy v. Litton Indus.,

Inc., 912 F.2d 291, 296 (9th Cir. 1990); Rutman Wine Co. v. E. & J.

Gallo Winery, 829 F.2d 729, 738 (9th Cir. 1987); see also Lopez v.

Smith, 203 F.3d 1122, 1127 n.8 (9th Cir. 2000) (“When a case may be

classified as frivolous or malicious, there is, by definition, no

merit to the underlying action and so no reason to grant leave to

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26 7 See fn. 3, infra.

11

amend.”) Accordingly, the undersigned will recommend that this

action be dismissed with prejudice.

II. Plaintiff’s Motion Re Contempt

Plaintiff’s perfunctory and unsupported motion re contempt

seeks an order holding defense counsel Michael Pott and Justin

Telford in contempt for presenting “sham” arguments to the court. 

The level of plaintiff’s argument is exemplified by his comments such

as the following: “Come on boys -- do you really think the members of

the [court] are that stupid/corrupt.” (Doc. no. 36 at 2.)

The baseless and harassing content of plaintiff’s motion re

contempt speaks for itself.7 The undersigned therefore will

recommend that the motion be denied.

CONCLUSION

For the reasons set forth above, IT IS HEREBY RECOMMENDED

that:

1. Defendants’ motion to dismiss (Doc. no. 29) be granted;

2. Plaintiff’s motion re contempt (Doc. no. 36) be denied;

and

3. Plaintiff’s amended complaint be dismissed with

prejudice.

These findings and recommendations are submitted to the

United States District Judge assigned to the case, pursuant to the

provisions of 28 U.S.C. § 636(b)(1). Within ten days after being

served with these findings and recommendations, any party may file

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written objections with the court and serve a copy on all parties. 

Such a document should be captioned “Objections to Magistrate Judge’s

Findings and Recommendations.” Any reply to the objections shall be

served and filed within ten days after service of the objections. 

The parties are advised that failure to file objections within the

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

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

DATED: November 7, 2005.

DAD:th

DDad1\orders.prose\spittal1198.f&r.dism

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