1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

GEORGE SPITTAL,

Plaintiff,

v.

JAY SCHENIRER, et al.,

Defendants.

_____________________________/

CIV S-04-1198-GEB-PAN-PS

ORDER

This matter was referred to United States Magistrate

Judge Peter A. Nowinski pursuant to 28 U.S.C. § 636 and Local

Rule 72-302. On May 9, 2005, Magistrate Judge Nowinski filed

findings and recommendations wherein he recommends that

Plaintiff’s action be dismissed and judgment be entered in favor

of Defendants for their costs of suit and attorney fees. 

Magistrate Judge Nowinski’s findings and recommendations are not

adopted. 

Case 2:04-cv-01198-GEB-DAD Document 24 Filed 06/14/05 Page 1 of 5
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

2

On May 11 and May 23, 2005, Plaintiff filed motions

which do not show his entitlement to relief; therefore, these

motions are denied.

Defendants move to dismiss Plaintiff’s Complaint.

Plaintiff responds contending his Complaint is “predicated on the

violation of state created rights” and “on the use of altered and

falsified statements to deny [Plaintiff] his right to a jury

trial to expose racist[] acts and policies of [the Sacramento

City Unified School District (“SCUSD”)] employees.” (Pl.’s Reply

to Defs.’ Mot. to Dismiss at 2.) 

Plaintiff’s Fourth Claim alleges “The Defendants who

lied in a court proceeding to deny plaintiff his right to a jury

trial and/or to wrongfully obtain a judgment against him based

upon their false version of the facts violated plaintiff’s right

to petition as guaranteed by the First Amendment.” (Pl.’s

Complaint at 8.) Plaintiff’s Sixth and Seventh Claims allege

Defendants who are members of the SCUSD Board of Trustees paid

legal fees to Defendant Michael Pott, “to aid a conspiracy of

SCUSD employees-defendants Young, Kolb, and Richardson and their

attorney, defendant Pott, who each lied to a federal trial court

to deny plaintiff his right to petition . . . and therefore those

defendants who lied to the federal court and the Board members

who aided that conspiracy by providing state funds to pay legal

fees violated 42 U.S.C. § 1985(3).” (Pl.’s Complaint at 9-10.) 

Plaintiff’s Fourth, Sixth, and Seventh claims challenge

the final judgment in Spittal v. Sacramento City Unified School

Case 2:04-cv-01198-GEB-DAD Document 24 Filed 06/14/05 Page 2 of 5
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

1 Additionally, although Plaintiff alleges the Board member

Defendants and Defendants who allegedly lied in a court proceeding

are liable as part of a conspiracy under 42 U.S.C. § 1985, to

establish a § 1985 conspiracy “plaintiff must show ‘invidiously

discriminatory motivation . . . behind the conspirators’ action.’”

Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987)

(citing Griffin v. Breckenridge, 403 U.S. 88, 102 (1971)). “A claim

under [§ 1985] must allege facts to support the allegation that

defendants conspired together. A mere allegation of conspiracy

without factual specificity is insufficient.” Karim-Panahi v. Los

Angeles Police Dep’t, 839 F.2d 621, 626 (9th Cir. 1988). Plaintiff

has not adequately alleged a § 1985 conspiracy against any of the

Defendants. 

3

District, et al. (“Spittal I”), CIV. S-00-1287, in which

Plaintiff sued the SCUSD and certain SCUSD employees. Under

Federal Rule of Civil Procedure 60(b), the time for challenging

the judgment in Spittal I has passed. Rule 60(b) prescribes: “On

motion and upon such terms as are just, the court may relieve a

party or a party's legal representative from a final judgment,

order, or proceeding for . . . fraud . . . , misrepresentation,

or other misconduct of an adverse party. . . . The motion shall

be made . . . not more than one year after the judgment, order,

or proceeding was entered or taken.” Since the judgment in 

Spittal I was entered in September 2002, and the instant action

was filed in June 2004, more than one year later, Plaintiff’s

Fourth, Sixth, and Seventh Claims are late challenges to the

Spittal I judgment which were required to have been timely

brought in Spittal I. These claims are therefore dismissed

without leave to amend.1

Further, Plaintiff asserts in a conclusory manner that

his remaining claims are “predicated on the violation of state

Case 2:04-cv-01198-GEB-DAD Document 24 Filed 06/14/05 Page 3 of 5
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

2 Plaintiff’s Second, Third, and Fifth Claims against the

Board member Defendants are also dismissed because Plaintiff

alleges that these Defendants are exposed to liability for these

claims under a theory of respondeat superior. However, these

Defendants are not liable under 42 U.S.C. § 1983 for the actions of

SCUSD employees under the liability theory of respondeat superior.

Such liability under § 1983 must be predicated upon allegations

that a Board member Defendant participated in or directed the

unconstitutional actions of SCUSD employees. City of Canton, Ohio

v. Harris, 489 U.S. 378, 385 (1989); Ybarra v. Reno Thunderbird

Mobile Home Vill., 723 F.2d 675, 680 (1984). See Lucas v.

Department of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (“Unless it

is absolutely clear that no amendment can cure the defect, a pro se

litigant is entitled to notice of the complaint’s deficiencies and

an opportunity to amend prior to dismissal of the action.” ).

4

created rights.” (Pl.’s Reply to Defs.’ Mot. to Dismiss at 2.) 

“The principle is firmly established that ‘[p]rotected liberty

interests may arise from two sources--the Due Process Clause

itself and the laws of the States.’” Smith v. Sumner, 994 F.2d

1401, 1405 (9th Cir. 1993) (quoting Kentucky Dep’t of Corr. v.

Thompson, 490 U.S. 454, 460 (1989)). “[A] state creates a

liberty interest by both (1) establishing substantive predicates

to govern official decisionmaking, and (2) using explicitly

mandatory language, i.e., specific directives to the

decisionmaker that if the regulations' substantive predicates are

present, a particular outcome must follow.” Smith, 994 F.2d at

1405 (internal quotations omitted). Plaintiff has not set forth

sufficient factual allegations showing that his remaining claims

are predicated on state created rights as required to show the

existence of actionable federal claims. Therefore, Plaintiff’s

remaining claims (the First, Second, Third, and Fifth Claims) are

dismissed with leave to amend.2 Plaintiff may amend his First,

Case 2:04-cv-01198-GEB-DAD Document 24 Filed 06/14/05 Page 4 of 5
1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

5

Second, Third, and Fifth claims within thirty days from the date

on which this Order is filed. 

IT IS HEREBY ORDERED that:

1. Plaintiff’s motions filed after the filing of the

Magistrate Judge’s findings and recommendations are denied;

2. Plaintiff’s Fourth, Sixth, and Seventh Claims are

dismissed without leave to amend; and

3. Plaintiff’s First, Second, Third, and Fifth Claims

are dismissed with leave to amend, provided that Plaintiff files

an Amended Complaint within thirty days from the date on which

this Order is filed.

Dated: June 14, 2005

/s/ Garland E. Burrell, Jr.

GARLAND E. BURRELL, JR.

United States District Judge

Case 2:04-cv-01198-GEB-DAD Document 24 Filed 06/14/05 Page 5 of 5