Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 KING COHEN, an individual, Case No.: 3:25-cv-01616-LL-AHG 12 Plaintiff, ORDER GRANTING IN PART AND 13 v. DENYING IN PART DEFENDANT’S MOTION TO DISMISS AND 14 SAN DIEGO STATE UNIVERSITY, et. DENYING PLAINTIFF’S MOTION al., 15 FOR PARTIAL JUDGMENT ON THE Defendants. PLEADINGS 16 17 [ECF Nos. 30, 32] 18 19 Before the Court is Defendant Board of Trustees of the California State University 20 System’s Motion to Dismiss pro se Plaintiff King Cohen’s Second Amended Complaint 21 (“SAC”) pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). ECF No. 30. 22 Specifically, Defendant moves to dismiss Claims One, Two, Three, Four, Five, Six, Nine, 23 and Ten. Id. Also before the Court is Plaintiff’s Motion for Partial Judgement on the 24 Pleadings. ECF No. 32. The motions are fully briefed, and the Court deems them suitable 25 for determination on the papers and without oral argument pursuant to Civil Rule 7.1. For 26 the reasons below, the Court GRANTS IN PART and DENIES IN PART Defendant’s 27 Motion to Dismiss, and DENIES Plaintiff’s Motion for Partial Judgment on the Pleadings. 28 1 I. BACKGROUND 2 Plaintiff King Cohen, a former student at San Diego State University (“SDSU”), 3 brings this action against Defendants Board of Trustees of the California State University 4 System (the “Board”); Dr. Lee Mintz, Director of the Center for Student Rights and 5 Responsibilities (“CSRR”); Briana Brasel, Student Conduct Administer and Coordinator 6 of CSRR; Associate Director of CSRR; President of Student Affairs; Vice President of 7 Student Affairs; Campus President; and Does 1–10. ECF No. 28 at 3. All individual 8 defendants are sued in their official capacities. Id. 9 While at SDSU, Plaintiff was accused of academic misconduct for using artificial 10 intelligence (“AI”) in his final paper even though SDSU had previously authorized 11 Plaintiff’s use of AI as part of his accommodation for his disability. ECF No. 28 at 7–10. 12 Plaintiff subsequently filed a civil rights complaint with the U.S. Department of Education, 13 Office for Civil Rights. Id. at 8. Plaintiff alleges that Defendants began retaliating against 14 him by pursuing academic sanctions after Plaintiff filed his civil rights complaint and even 15 after his professor confirmed that there was no misconduct. Id. at 9–11. 16 Plaintiff alleges ten causes of action (“COA”): 17 • COA 1–4: violations of 42 U.S.C. § 1983 (id. at 16–27); 18 • COA 5: Breach of Implied Contract (id. at 27–29); 19 • COA 6: violation of Title II of the Americans with Disabilities Act (“ADA”) 20 (id. at 29–30); 21 • COA 7–8: violations of Section 504 of the Rehabilitation Act (id. at 31–34); 22 • COA 9: violation of the Unruh Civil Rights Act (id. at 34–35); and 23 • COA 10: violations of Title VI of the Civil Rights Act (CRA) (id. at 35–38). 24 Plaintiff seeks monetary damages as well as declaratory and injunctive reliefs. Id. at 25 19, 22, 25, 27–28, 30, 32, 34–35, 52. 26 In its Motion to Dismiss, the Board argues that Claims One through Six, Nine, and 27 Ten should be dismissed because they are barred by the doctrine of sovereign immunity 28 1 II. LEGAL STANDARDS 2 Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of the 3 complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Dismissal is warranted 4 under Rule 12(b)(6) where the complaint lacks a cognizable legal theory. Robertson v. 5 Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984); see Neitzke v. Williams, 6 490 U.S. 319, 326 (1989) (“Rule 12(b)(6) authorizes a court to dismiss a claim on the basis 7 of a dispositive issue of law.”). Alternatively, a complaint may be dismissed where it 8 presents a cognizable legal theory yet fails to plead essential facts under that 9 theory. Robertson, 749 F.2d at 534. While a plaintiff need not give “detailed factual 10 allegations,” he must plead sufficient facts that, if true, “raise a right to relief above the 11 speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 545 (2007). “To survive 12 a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 13 ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 14 (2009) (quoting Twombly, 550 U.S. at 547). A claim is facially plausible when the factual 15 allegations permit “the court to draw the reasonable inference that the defendant is liable 16 for the misconduct alleged.” Twombly, 550 U.S. at 545. In other words, “the nonconclusory 17 ‘factual content,’ and reasonable inferences from that content, must be plausibly suggestive 18 of a claim entitling the plaintiff to relief.” Moss v. U.S. Secret Service, 572 F.3d 962, 969 19 (9th Cir. 2009). 20 In reviewing the plausibility of a complaint, courts “accept factual allegations in the 21 complaint as true and construe the pleadings in the light most favorable to the nonmoving 22 party.” Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). 23 Nevertheless, courts do not “accept as true allegations that are merely conclusory, 24 unwarranted deductions of fact, or unreasonable inferences.” In re Gilead Scis. Sec. Litig., 25 536 F.3d 1049, 1055 (9th Cir. 2008) (quotation omitted). 26 Moreover, courts “liberally construe[ ]” pleadings filed by pro se litigants. Erickson 27 v. Pardus, 551 U.S. 89, 94 (2007); see also Davis v. Silva, 511 F.3d 1005, 1009 n.4 (9th 28 Cir. 2008) (“[T]he Court has held pro se pleadings to a less stringent standard than briefs 1 by counsel and reads pro se pleadings generously, ‘however inartfully pleaded.’”). 2 II. DISCUSSION 3 A. Defendant’s Motion to Dismiss 4 The Board argues that all challenged claims are barred by the Eleventh Amendment. 5 (ECF No. 30 at 4–5). For the reasons set forth below, the Court GRANTS the Board’s 6 Motion as to Claims One through Five and Nine and DENIES the Board’s Motion as to 7 Claims Six and Ten. 8 1. Sovereign Immunity under the Eleventh Amendment 9 “The Eleventh Amendment bars suits against the State or its agencies for all types 10 of relief, absent unequivocal consent by the state.” Romano v. Bible, 169 F.3d 1182, 1185 11 (9th Cir. 1999). Ordinarily, this protection “extends to state instrumentalities and 12 agencies,” as well as “state officials” sued in their “official 13 capacity.” Krainski v. Nevada ex rel. Bd. of Regents of Nev. Sys. of Higher Educ., 616 F.3 14 d 963, 967 (9th Cir. 2010). In California, state colleges and universities are “dependent 15 instrumentalities of the state.” Jackson v. Hayakawa, 682 F.2d 1344, 1350 (9th Cir. 1982); 16 see also Stanley v. Trst. of the Cal. State Univ., 433 F.3d 1129, 1133 (9th Cir. 2006) (“We 17 have previously held that the Trustees are an arm of the state that can properly lay claim to 18 sovereign immunity.”) Thus, it follows that the Board is an instrumentality of the State of 19 California for Eleventh Amendment purposes. 20 State sovereign immunity under the Eleventh Amendment is not absolute, however, 21 as there are three exceptions to the rule: (1) Congress may abrogate that immunity pursuant 22 to its lawmaking powers conferred by the United States Constitution (Kimel v. Fla. Bd. of 23 Regents, 528 U.S. 62, 73 (2000)); (2) a state may waive its immunity by consenting to suit 24 (Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 670 25 (1999)); and (3) under the Ex parte Young doctrine, immunity does not bar “a suit against 26 a state official when that suit seeks only prospective injunctive relief in order to ‘end a 27 continuing violation of federal law.’” (Seminole Tribe of Fla. v. Fla., 517 U.S. 44, 73 28 (1996) (quoting Green v. Mansour, 474 U.S. 64, 68 (1985)). 1 a. 42 U.S.C. § 1983 Claims (COAs 1–4) 2 The Board argues that Plaintiff’s 42 U.S.C. § 1983 claims must be dismissed based 3 on state’s Eleventh Amendment immunity, and the Court agrees. “One of the requisite 4 elements for stating a claim under § 1983 is that the violation was committed by a ‘person’ 5 acting under color of state law.” Cortez v. Cnty. of Los Angeles, 294 F.3d 1186, 1188 (9th 6 Cir. 2002) (citing Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989)). “[A] state 7 and its officials sued in their official capacity are not considered ‘persons’ within the 8 meaning of § 1983, due to the sovereign immunity generally afforded states by the Eleventh 9 Amendment.” Cortez, 294 F.3d at 1188. 10 Moreover, none of the exceptions to immunity apply here. First, Congress did not 11 abrogate states’ sovereign immunity for § 1983 claims. See Kentucky v. Graham, 473 U.S. 12 159, 169 n. 17 (1985) (“The Court has held that § 1983 was not intended to abrogate a 13 State’s Eleventh Amendment immunity”); see also Brown v. Cal. Dep’t of Corrs., 554 F.3d 14 747, 752 (9th Cir.2009) (same). Second, Plaintiff does not allege that the Board has either 15 waived its sovereign immunity or otherwise consented to this suit. Third, as discussed 16 above, Ex parte Young only applies to a “state official” and does not apply to the 17 Board. Consequently, the Board is entitled to Eleventh Amendment immunity 18 from § 1983 actions. 19 Accordingly, the Court GRANTS Defendant’s Motion to Dismiss Claims One 20 through Four WITHOUT LEAVE TO AMEND. See Quinault Indian Nation v. Pearson 21 for Est. of Comenout, 868 F.3d 1093, 1101 (9th Cir. 2017) (affirming that district court did 22 not abuse its discretion in denying leave to amend where an amendment would not cure 23 the defects in the original pleading). 24 b. State Law Claims (COAs 5, 9) 25 The Eleventh Amendment also bars Plaintiff’s state law claims, breach of implied 26 contract and violation of the Unruh Civil Rights Act. See Pennhurst State Sch. & Hosp. v. 27 Halderman, 465 U.S. 89, 106 (1984) (allowing a federal court to adjudicate state law 28 claims as against the state itself “conflicts directly with the principles of federalism that 1 underlie the Eleventh Amendment.” ); see also Cholla Ready Mix, Inc. v. Civish, 382 F.3d 2 969, 973 (9th Cir. 2004) (“the Eleventh Amendment [] precludes the adjudication of 3 pendent state law claims against nonconsenting state defendants in federal courts.”). 4 It has been well established that absent waiver or congressional abrogation, the 5 Eleventh Amendment bars breach of contract claims against the State and arms of the State. 6 See e.g., Doe v. Lawrence Livermore Nat. Lab’y, 131 F.3d 836, 838–39 (9th Cir. 1997) 7 (finding breach of contract claim barred by sovereign immunity under the Eleventh 8 Amendment); Green v. Shoreline Cmty. Coll., No. C06-465P, 2006 WL 3761366, at *13 9 (W.D. Wash. Dec. 21, 2006), aff’d, 295 F. App’x 126 (9th Cir. 2008) (finding defendant 10 community college immune under the Eleventh Amendment as a state agency from breach 11 of contract claim because of failure to demonstrate congressional abrogation of state law); 12 Robinson v. Green River Cmty. Coll., No. C 10-0112-MAT, 2010 WL 3947493, at *4 13 (W.D. Wash. Oct. 7, 2010) (same). 14 The same is true for the Unruh Civil Rights Act claims. See e.g., Stanley, 433 F.3d 15 at 1133–34 (upholding dismissal of Unruh Act claims because “[t]he Act does not 16 specifically consent to federal court actions”); Mihan v. Regents of the Univ. of California, 17 No. 216CV01390KJMCMK, 2016 WL 6875911, at *4 (E.D. Cal. Nov. 21, 2016) 18 (dismissing plaintiff’s Unruh Act claim because plaintiff failed to demonstrate that 19 California clearly waived its sovereign immunity under the Unruh Act); Crumb v. 20 Orthopedic Surgery Med. Grp., No. CV076114GHKPLAX, 2008 WL 11338170, at *2 21 (C.D. Cal. Apr. 9, 2008) (dismissing plaintiff’s Unruh Act claim against state agencies with 22 prejudice). 23 Therefore, the Board is entitled to Eleventh Amendment immunity against Plaintiff’s 24 state law claims. Accordingly, the Court GRANTS the Board’s Motion to Dismiss Claims 25 Five and Nine WITHOUT LEAVE TO AMEND. See Quinault Indian Nation, 868 F.3d 26 at 1101. 27 c. Title II of the Americans with Disabilities Act (COA 6) 28 Contrary to the Board’s assertion that Plaintiff’s ADA claim is barred by the 1 Eleventh Amendment, the Board is not automatically immune from Plaintiff’s ADA 2 claim. First, the Board incorrectly relies on Board of Trustees of University of Alabama v. 3 Garrett, in which the Supreme Court held that claims arising under Title I of the ADA are 4 barred by the Eleventh Amendment. 531 U.S. 356, 360 (2001). However, Plaintiff alleges 5 violations of Title II of the ADA, not Title I. ECF No. 30 at 29–30. 6 Second, the Supreme Court has held that “insofar as Title II creates a private cause 7 of action for damages against the States for conduct that actually violates the Fourteenth 8 Amendment, Title II validly abrogates state sovereign immunity.” United States v. 9 Georgia, 546 U.S. 151, 159 (2006) (emphasis in original). Therefore, this Court must 10 assess whether Plaintiff “alleges conduct that violates not only of Title II of the ADA but 11 also the Fourteenth Amendment to the United State Constitution.” Viriyapanthu v. State 12 Bar of Cal., No. 817CV02266JVSDFMX, 2018 WL 6136148, at *3 (C.D. Cal. Oct. 26, 13 2018), aff’d sub nom. Viriyapanthu v. State Bar of Cal., 813 F. App’x 312 (9th Cir. 2020). 14 Specifically, the Court must inquire: “(1) which aspects of the State’s alleged 15 conduct violated Title II; (2) to what extent such misconduct also violated the Fourteenth 16 Amendment; and (3) insofar as such misconduct violated Title II but did not violate the 17 Fourteenth Amendment, whether Congress’s purported abrogation of sovereign immunity 18 as to that class of conduct is nevertheless valid.” Georgia, 546 U.S. at 159; Kohn v. State 19 Bar of Cal., 119 F.4th 693, 698 (9th Cir. 2024), cert. denied, 146 S. Ct. 127 (2025). 20 At this juncture, this Court declines to dissect Plaintiff’s 54-page SAC to address 21 this 3-part inquiry. Given that Plaintiff is pro se, the Court will give Plaintiff leave to amend 22 with the caveat that Plaintiff will do so succinctly and sufficiently alleging facts addressing 23 the elements identified above. See Fed. R. Civ. P. 15(a)(2); Lopez v. Smith, 203 F.3d 1122, 24 1130 (9th Cir. 2000). Accordingly, the Court DENIES Defendant’s Motion to Dismiss 25 Claim Six based on Eleventh Amendment’s sovereign immunity. 26 d. Title VI of the Civil Rights Act (COA 10) 27 Congress has explicitly and unequivocally abrogated state sovereign immunity for 28 claims arising under Title VI for damages. See 42 U.S.C. § 2000d-7(a)(1) (“A State shall 1 |}not be immune under the Eleventh Amendment . . . from suit in Federal court for a violation 2 |jof... title VI of the Civil Rights Act of 1964... .”); see also Cholla Ready Mix, Inc. v. 3 || Civish, 382 F.3d 969, 973 (9th Cir. 2004) (“Congress abrogated state immunity from 4 || damages under Title VI.”) (emphasis in original). Thus, the Court finds that Plaintiffs Title 5 || VI claim is not barred by sovereign immunity. See, e.g., Akins v. San Diego Cmty. Coll. 6 || Dist., No. 12CV00576 BTM WVG, 2013 WL 40976, at *3 (S.D. Cal. Jan. 2, 2013) 7 ||(denying motion to dismiss plaintiff's Title VI claim against the defendant community 8 || college district); Students Against Racial Discrimination v. Regents of Univ. of California, 9 ||812 F. Supp. 3d 1046, 1057 (C.D. Cal. 2025) (same). Accordingly, the Court DENIES the 10 || Board’s Motion to Dismiss Claim Ten. 11 B. Plaintiff's Motion for Partial Judgment on the Pleadings 12 A part may move for judgment on the pleadings “[a]fter the pleadings are closed.” 13 ||Fed. R. Civ. Proc. § 12(c). As the Board correctly points out, the pleadings are not closed 14 || yet. ECF No. 33 at 2. Therefore, Plaintiff's Motion for Partial Judgment on the Pleadings 15 DENIED. 16 || TT. CONCLUSION 17 The Court GRANTS Defendant’s Motion to Dismiss Claims One, Two, Three, 18 || Four, Five, and Nine with prejudice and DENIES Defendant’s Motion to Dismiss as to 19 || Claims Six and Ten. The Court further DENIES Plaintiff's Motion for Partial Judgment 20 the Pleadings. Plaintiff is ORDERED to file an amended pleading on or before 21 ||September 11, 2026. 22 ||Dated: August 21, 2026 NO 23 QF 74 Honorable Linda Lopez 35 United States District Judge 26 27 28