NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUN 11 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARCOS GAMA, No. 19-15700

Plaintiff-Appellant, D.C. No. 3:18-cv-02552-VC

v.

MEMORANDUM*

BOARD OF TRUSTEES OF THE

CALIFORNIA STATE UNIVERSITY; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Northern District of California Vince Chhabria, District Judge, Presiding

Submitted June 9, 2020** San Francisco, California

Before: MILLER and HUNSAKER, Circuit Judges, and SCHILTZ,*** District Judge.

Marcos Gama is a former employee of Associated Students, Inc., an affiliate

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Patrick J. Schiltz, United States District Judge for the District of Minnesota, sitting by designation. of San Francisco State University (“SFSU”). Gama filed this lawsuit after SFSU

sustained two complaints of sexual harassment against him and banned him from

campus, leading Associated Students, Inc. to terminate his employment. Gama

now appeals the district court’s dismissal of his constitutional claims against

defendant Luoluo Hong, SFSU’s Title IX Coordinator. Gama asserts procedural-

due-process, substantive-due-process, and equal-protection claims against Hong

under 42 U.S.C. §1983. We review a dismissal under Rule 12(b)(6) de novo, and

we may affirm on any ground supported by the record. Thompson v. Paul, 547

F.3d 1055, 1058–59 (9th Cir. 2008). We have jurisdiction under 28 U.S.C. §1291.

We agree with the district court that Gama has failed to plead a plausible

claim against Hong.

As to Gama’s procedural-due-process claim: Even assuming that Gama

plausibly alleged that he was deprived of a constitutionally protected liberty

interest, see Souders v. Lucero, 196 F.3d 1040, 1046 (9th Cir. 1999), nothing in his

allegations support a claim that he was deprived of due process, see Austin v. Univ.

of Or., 925 F.3d 1133, 1139 (9th Cir. 2019) (the “hallmarks of procedural due

process” are “notice and a meaningful opportunity to be heard”) (citation omitted).

It does not matter, though, because even if Gama was not afforded due

process before being deprived of a constitutionally protected interest, Gama has

not pleaded a viable claim for supervisory liability against Hong. See Starr v.

2 Baca, 652 F.3d 1202, 1207–08 (9th Cir. 2011) (explaining that a defendant may

only be held liable as a supervisor under § 1983 where the defendant was

personally involved in the constitutional violation, or where the defendant’s

wrongful acts are causally connected to the violation). Although Gama has alleged

that Hong was aware that the investigation was taking place—and then was

informed of the investigator’s conclusions—Gama has not alleged that Hong

participated in or was even aware of the acts that allegedly violated Gama’s right

to procedural due process. Specifically, Gama does not allege that Hong was

aware of the investigator’s allegedly incomplete description of the sexual-

harassment complaints or that the investigator did not honor a request from Gama

to send the final report to his personal email address instead of his work email

address. According to Gama’s second amended complaint, Hong was first notified

of the alleged constitutional violations in a July 22, 2017 email from Gama—

months after the alleged constitutional deprivations had already occurred. Gama

cannot, on these facts, establish supervisory liability against Hong.

Gama’s substantive-due-process claim fares no better. Gama has not

plausibly alleged that SFSU interfered with a “fundamental right,” nor has he

plausibly alleged “conduct that amounts to an abuse of power lacking any

reasonable justification in the service of a legitimate governmental objective.”

Lone Star Sec. & Video, Inc. v. City of Los Angeles, 584 F.3d 1232, 1236 (9th Cir.

3 2009) (citation and quotation marks omitted). And even if Gama had plausibly

alleged a deprivation of substantive due process, he has not plausibly alleged a

basis for holding Hong liable for that violation.

The district court also did not err in dismissing Gama’s equal-protection

claim. Gama essentially argues that SFSU misunderstood the elements of a

hostile-environment claim. Even if that were true, not every misapplication of a

statute, regulation, or policy violates the Equal Protection Clause. To plead a

viable equal-protection claim, Gama must allege (among other things) that SFSU

treated him differently from a similarly situated person. See Pimentel v. Dreyfus,

670 F.3d 1096, 1106 (9th Cir. 2012) (per curiam). If the decisionmakers in

Gama’s case consistently applied their alleged misinterpretation, then Gama would

have been treated like everyone else, and he would not have been deprived of equal

protection. Gama has not alleged that he was treated differently from any similarly

situated person.

Finally, Gama challenges the district court’s decision to dismiss his Title IX

and §1983 claims with prejudice, instead of giving him another opportunity to try

to plead viable claims. But Gama has had multiple opportunities to plead plausible

claims and, despite receiving specific instructions from the district court regarding

the deficiencies of his pleadings, Gama has failed to do so. The district court’s

dismissal of Gama’s claims with prejudice was not an abuse of discretion. See

4 Okwu v. McKim, 682 F.3d 841, 844 (9th Cir. 2012) (“We review for abuse of

discretion a district court’s decision to dismiss with prejudice.”); Sisseton-

Wahpeton Sioux Tribe v. United States, 90 F.3d 351, 355 (9th Cir. 1996) (per

curiam) (“The district court’s discretion to deny leave to amend is particularly

broad where plaintiff has previously amended the complaint.” (citation omitted)).

AFFIRMED.

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