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Krain v. Kahn

filed*fn*: June 25, 1991.

LAWRENCE C. KRAIN, M.D., PLAINTIFF-APPELLANT,
v.
ALLEN KAHN, M.D., ET AL., DEFENDANTS, AND HERBERT FORMAN, M.D., SEYMOUR SIEGEL, M.D., HAROLD VISOTSKY, M.D., IRVING KAGEN, M.D., JACK BERGER, M.D., AND LESLIE LEE, DEFENDANTS-APPELLEES



Appeal from the United States District Court for the Central District of California; Laughlin E. Waters, Senior District Judge, Presiding; D.C. No. CV-90-305-LEW.

Fletcher and Canby, Circuit Judges, and Reed,**fn** District Judge.

MEMORANDUM

FACTS

Plaintiff filed a civil rights complaint against many defendants, alleging that all of the defendants, including the United States Government and the FBI, conspired to surround him with "look-alike doubles," who were really FBI agents. The purpose of this conspiracy was allegedly to persecute him because he is Jewish. Appellees are several psychiatrists and one receptionist ("the doctors") who allegedly participated in this conspiracy by permitting the "doubles" to take their place and mistreat plaintiff. This mistreatment allegedly worsened plaintiff's sanity and subjected him to harmful cancer-causing radiation.

All of these defendants moved to dismiss the complaint for failure to state a claim. In two orders, the district court dismissed all of plaintiff's federal claims against these defendants under Fed. R. Civ. P. 12(b) (6), and then dismissed his pendent state claims against these defendants for lack of subject matter jurisdiction. Plaintiff then filed this appeal.

Discussion

MOTION TO DISMISS

As a preliminary matter, plaintiff objects that appellees' motion to dismiss were untimely. However, the time provided by Fed. R. Civ. P. 12(b) for defendants to make a motion to dismiss does not begin to run until valid service has been effected. Kadet-Kruger & Co. v. Celanese Corp. of America, 216 F. Supp. 249, 250 (N.D. Ill. 1963). These defendants were not validly served before they filed their motions to dismiss. Therefore, their motions were timely.

We review de novo the dismissal of a complaint for failure to state a claim upon which relief can be granted. Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988). "[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conely v. Gibson, 355 U.S. 41, 45-46 (1957) (citations omitted). Furthermore, pro se complaints are held to less stringent standards than formal pleadings drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972). Even where a pro se plaintiff fails to state a claim, he or she "must be given leave to amend his or her complaint unless it is 'absolutely clear that the deficiencies of the complaint could not be cured by amendment.'" Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987) (quoting Broughton v. Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980)).

We now review each claim that the district court dismissed. The district court stated the bases for its rulings in its order dismissing the claims against defendants Forman and Siegel. We assume that its rulings regarding defendants Visotsky, Kagen, Berger, and Lee were based on the same reasoning.

I. 42 U.S.C. § 1981

The district court dismissed plaintiff's claim under 42 U.S.C. § 1981, holding that because § 1981 only prohibits discrimination against race, not religion, plaintiff's allegation that he was discriminated against because he is Jewish failed to state a claim. The district court, however, incorrectly concluded that Jews are not a race for purposes of § 1981. The Supreme Court has held that Jewish ancestry is a race for purposes of § 1981. Saint Francis College v. Al-Khazraji, 481 U.S. 604, 612, 613 (1987); see also Shaare Tefila Congregation v. Cobb, 481 U.S. 615 (1987) (Jews are a race for purposes of § 1982); Benigni v. City of Hemet, 879 F.2d 473, 478 (9th Cir. 1988).

However, § 1981 is not a general prohibition against all racial discrimination. Its protection is limited to the rights specifically enumerated in the statute: "to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property. . . ." 42 U.S.C. § 1981; see Patterson v. McLean Credit Union, 491 U.S. 164 (1989). None of these rights is implicated by plaintiff's allegations of the appellees' conduct, nor does plaintiff appear able to allege that the appellees ...


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