ORDER RE: MOTION TO DISMISS
WILLIAM B. SHUBB, District Judge.
On November 15, 2016, the court dismissed plaintiff's complaint with leave to amend. (Docket No. 32.) On December 5, 2016, plaintiff filed a First Amended Complaint ("FAC"), reasserting the original claims under 42 U.S.C. § 1983 with modifications in response to the courts November 15, 2016 Order, and adding two new claims for conspiring to vioolate plaintiff's constitutional rights in violation of 42 U.S.C. § 1985, and for infringing upon plaintiff's right to make and enforce contracts in violation of 42 U.S.C. § 1981. (FAC ¶¶ 49-50, 56-57, 61-62, 65-66.) Defendants now move to dismiss plaintiff's FAC. (Defs.' Mot.)
On plaintiff's section 1983 causes of action, the court finds that the FAC now alleges sufficient facts to survive a motion to dismiss under Rule 12(b)(6). With regard to the two new causes of action, Section 1985 prohibits two or more persons from conspiring to deprive any person or class of persons of certain civil rights. 42 U.S.C. § 1985. A plaintiff must allege that the defendants were motivated by racial animus.
While the FAC alleges that defendants were the conspirators, it is devoid of any factual allegations suggesting there was an agreement among defendants to violate plaintiff's constitutional rights. Plaintiff's conspiracy allegations without factual specificity are insufficient.
Section 1981 states, in relevant part, "[a]ll persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts." 42 U.S.C. § 1981(a). "To state a claim under § 1981, a plaintiff must identify an impaired `contractual relation,' by showing that the intentional racial discrimination prevented the creation of a contractual relationship or impaired an existing contractual relationship."
In California, "public employment is not held by contract but by statute . . . ."
Plaintiff alleges that he "and Tracy entered a relevant employment contract at the beginning of Plaintiff's employment with [the department], which was found in the MOU and related materials."
Because plaintiff fails to allege a contractual relationship that defendants impaired, the court must also grant defendants' motion to dismiss plaintiff's section 1981 cause of action.
IT IS THEREFORE ORDERED that defendants' motion to dismiss plaintiff's first and second causes of action under 42 U.S.C. § 1983 be, and the same hereby are, DENIED.
IT IS FURTHER ORDERED that defendants' motion to dismiss plaintiff's third and fourth causes of action under 42 U.S.C. §§ 1981 and 1985 be, and the same hereby are, GRANTED.
Plaintiff has twenty days from the date this Order is signed to file a second amended complaint, if he can do so consistent with this Order.