Herrera v. Giampietro et al, No. 1:2009cv01466 - Document 25 (E.D. Cal. 2010)

Court Description: MEMORANDUM DECISION on Defendant's 18 Motion to Dismiss and Motion to Strike First Amended Complaint signed by Judge Oliver W. Wanger on 5/10/2010. Amended complaint due within 15 days of order. (Esteves, C)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF CALIFORNIA 6 7 8 MARIA G. HERRERA, 9 1:09-cv-01466-OWW-SKO MEMORANDUM DECISION ON DEFENDANTS MOTION TO DISMISS AND MOTION TO STRIKE FIRST AMENDED COMPLAINT (Doc. 18) Plaintiff, 10 11 v. THOMAS GIAMPIETRO,et al., 12 13 Defendants. 14 I. 15 INTRODUCTION 16 On August 19, 2009, Maria G. Herrera ( Plaintiff ) filed this 17 action for damages and injunctive relief against Defendants Thomas 18 Giampetro ( Giampetro ), Rosemary Montemayor ( Montemayor ), and 19 the 20 ( District ). (Doc. 1, Original Complaint). 21 First Amended Complaint ( FAC ) on December 30, 2009. Monso-Sultana Joint Union Elementary School District Plaintiff filed a (Doc. 16). Before the court is Defendants motion to dismiss the FAC 22 23 pursuant to Federal Rule of Civil Procedure 12(b)(6). 24 Plaintiff filed opposition ( Opposition ) to Defendants motion to 25 dismiss on March 1, 2010. 26 ( Reply ) to Plaintiff s opposition on March 8, 2010. (Doc. 22). 27 /// 28 /// (Doc. 20). 1 (Doc 18). Defendants filed a reply II. FACTUAL BACKGROUND 1 2 In 3 kindergarten 4 School ). 5 kindergarten, E.G. s teacher, Michelle Banda ( Banda ), and another 6 employee of the District, Melissa Valdez ( Valdez ), began trying 7 to convince Plaintiff to withdraw E.G. from the Elementary School 8 and to enroll him the following year. 9 Valdez told Plaintiff that E.G. was immature, had difficulty 10 holding a pencil and writing his name, and required more attention 11 than Banda could provide given the number of children in her class. 12 (FAC at 3). 13 was permitted to do so for a few days. 14 August 2003, at (FAC Plaintiff Monson-Sultana at 3). A enrolled Elementary few days her son School after E.G. in ( Elementary E.G. (FAC at 3). commenced Banda and Plaintiff volunteered to help in the classroom, and Sometime after Plaintiff began (FAC at 4). volunteering in E.G. s 15 classroom, Banda reiterated her belief to Plaintiff that she should 16 withdraw E.G. from the class. (FAC at 4). 17 Giampietro 18 School s Principal and Giampietro told Plaintiff he agreed with 19 Banda and Valdez that it would be better for E.G. to stay home for 20 one more year before returning to kindergarten. 21 Plaintiff reluctantly withdrew E.G. from the Elementary School. 22 (FAC at 4). 23 the District s Superintendent Plaintiff met with and the Elementary (FAC at 4). Plaintiff re-enrolled E.G. at the Elementary School in August 24 2004. (FAC at 4). Because Plaintiff began to suspect that E.G. 25 might have autism, she met with Giampietro and told him E.G. needed 26 help. 27 request. 28 /// (FAC at 4). Giampietro failed to act on Plaintiff s (FAC at 4). 2 1 On or about September 2005, with the assistance of E.G. s 2 first-grade teacher, Plaintiff approached Giampietro about 3 obtaining a special education assessment for E.G. 4 Gaimpietro referred Plaintiff to Victor Carillo ( Carillo ), the 5 District s school pyschologist at the time. 6 failed to act promptly. (FAC at 4). 7 repeatedly and requested that he set up an assessment for E.G. 8 (FAC at 5). 9 months after Plaintiff first requested assistance from Carillo, (FAC at 4). (FAC at 4). Carillo Plaintiff met with Carillo On or about February 22, 2006, approximately six 10 Carillo 11 eligibility for special education services. 12 signed the assessment plan the same day she received it. 13 4). 14 presented Plaintiff with a plan to assess E.G. s (FAC at 4). Plaintiff (FAC at Carillo completed his assessment of E.G. on or about March 7, 15 2006. 16 that E.G. was eligible for special education services. (FAC at 5). 17 Although 18 Individualized Educational Plan ( IEP ) team meeting should be 19 convened within sixty days of a parent s signing of an assessment 20 plan, an IEP team meeting for E.G. was not convened until May 19, 21 2009. 22 (FAC at 4). federal Carillo s assessment supported the conclusion and California law each provide that an (FAC at 6). The IEP team found that E.G. was eligible for special 23 education services based on a disability of autism, and an IEP was 24 created for E.G. which called for him to be included in a regular 25 education classroom while receiving certain accommodations. 26 at 5). The accommodations called for in E.G. s IEP took the form of 27 a series of Tips for working with [E.G.]. 28 IEP called for accommodations such as allowing him to take breaks 3 (FAC at 5). (FAC E.G. s 1 during the day to stay regulated and to return to the classroom 2 once he calmed down. 3 same day she received it. 4 delays, E.G. did not receive any special education services while 5 in the first grade. (FAC at 5). Plaintiff signed the IEP on the (FAC at 5). Due to the Defendants (FAC at 5). 6 E.G. commenced second grade at the Elementary School during 7 the 2006-2007 school year. (FAC at 5). School personnel regularly 8 failed to comply with E.G. s IEP, causing E.G. to grow agitated and 9 create classroom disruptions. (FAC at 5). The District imposed 10 detentions and suspensions on E.G. in response to his disruptive 11 actions, prompting Plaintiff to call multiple IEP team meetings to 12 request compliance with E.G. s IEP. 13 requested modification of E.G. s IEP. (FAC at 5). 14 January 2007, a District employee told Petitioner that during a 15 conversation with Montemayor, Montemayor said Mr. [Giampietro] is 16 going to have a hard time with [Plaintiff] because [she] is not 17 stupid. (FAC at 5). Plaintiff also On or about (FAC at 6). 18 On or about February 13, 2007, Plaintiff filed a compliance 19 complaint against the district with the California Department of 20 Education ( CDE ). 21 that the District had failed to timely develop an IEP plan for E.G. 22 and failed to implement the IEP. (FAC at 6). On April 13, 2007, the CDE found (FAC at 6). 23 Sometime in February 2007, E.G. s IEP team developed a new IEP 24 for him which included a Positive Behavioral Intervention Plan 25 ( PBIP ). 26 student exhibits a serious behavior problem that significantly 27 interferes with the implementation of the goals of his IEP. (FAC at 28 6). A PBIP includes an objective and measurable description of the (FAC at 6). A PBIP is a plan that is developed when a 4 1 targeted maladaptive behavior and replacement positive behavior. 2 (FAC 3 behavioral interventions to be used and the circumstances for their 4 use. FAC at 6. Plaintiff signed the IEP & PBIP on March 6, 2007. 5 (FAC at 6). 6 Verbally de-escalate [E.G.]. Do not make physical contact with 7 him, because it will only result in escalation. In an absolute 8 crisis situation when [E.G.] or someone else is in immediate danger 9 then make physical contact as limited as possible. Ex. Grasp his 10 hands and state the expectation for you to release. Abide by what 11 you state. Include having him demonstrate self control via speech 12 and/or breathing before you release. at 6). It also includes a detailed description of the E.G. s PBIP provided in relevant part as follows: (FAC at 6-7). 13 On March 13 and again on March 20, 2007, incidents occurred in 14 which District personnel failed to follow E.G. s IEP and PBIP in 15 response to E.G. s disruptive behavior. (FAC at 7). 16 March 20 incident, E.G. climbed onto a counter with a pair of 17 scissors and ultimately had to be restrained by adults. (FAC at 7). 18 When E.G. became agitated during class On March 21, 2007, District 19 personnel failed to adhere to E.G. s IEP and PBIP once again, 20 causing E.G. to become so upset that he engaged in a violent 21 outburst. 22 and threw chairs and desks in the classroom. 23 adults in the classroom who were untrained in emergency behavioral 24 interventions prone contained E.G. by forcibly restraining him on 25 the 26 intervention that risks asphyxiating the person subjected to it, 27 and applicable guidelines prohibit untrained persons from employing 28 prone containment. (FAC at 7). floor. (FAC at During the E.G. swung a yard stick, overturned a desk, 7). Prone (FAC at 7). 5 containment (FAC at 7). Two is a dangerous District personnel called the 1 county sheriff s department in connection with the incident and 2 suspended E.G. for three days. (FAC at 7). 3 Plaintiff did not return E.G. to the Elementary School as a 4 full-time student for the remainder of the academic year because 5 she feared for E.G. s safety. 6 meeting on April 17, 2007, the IEP team agreed that E.G. would 7 undergo independent study at home for the remainder of the year. 8 (FAC at 7). 9 grandmother s home on days when Plaintiff was working. (FAC at 7). 10 E.G. s grandmother, Maria Barragan ( Barragan ), lives in the town 11 of Cutler, which is in a different school district than the 12 Elementary School. 13 Cutler-Orosi Joint Unified School District to provide E.G. with 14 certain 15 approximately 16 remainder of the school year. (FAC at 8). 17 provided by the District at Plaintiff s home in Sultana, other 18 services were provided by the Cutler-Orosi District at Barragan s 19 home in Cutler. 20 (FAC at 7). Instead, at an IEP Plaintiff requested that E.G. receive services at his (FAC at 7). educational one services. hour of The District arranged for the (FAC home at 7). instruction E.G. per received day for the Some services were (FAC at 8). On or about January 2007, Plaintiff assisted Adriana Alvarez 21 ( Alvarez ) by acting 22 Giampietro and 23 education assessment for Alvarez s niece, A.R.A. 24 Giampietro and Carillo refused to assess A.R.A. on the grounds that 25 Alvarez was not A.R.A s parent and therefore had no right to 26 request an assessment. 27 guardian, Alvarez was lawfully entitled to refer A.R.A. for a 28 special education assessment. Carillo as a in translator which during Alvarez (FAC at 10). meeting requested a with special (FAC at 10). In fact, as A.R.A. s legal (FAC at 10). 6 a On or about February 1 15, 2 complaint with the CDE. 3 District was out of compliance for failing to initiate a special 4 education assessment for A.R.A. (FAC at 10-11). Ultimately, A.R.A 5 was assessed and found eligible for special education services on 6 account of mental retardation and language impairment. 7 11). 8 9 2007, with Plaintiff s help, Alvarez (FAC at 10). filed a compliance The CDE determined that the (FAC at E.G. returned to the Elementary School for the 2007-2008 school year as a full-time student in the third grade. (FAC at 8). 10 On September 17, 2007, another incident occurred in which E.G. s 11 autistic behaviors disrupted the classroom, and District personnel 12 failed to follow the procedures required by E.G. s IEP and PBIP. 13 (FAC at 8). 14 scratches and bruises on E.G. s body. 15 suspended E.G. from school. 16 District agreed to amend the IEP so that E.G. would no longer be a 17 full-time student. 18 hour of on-campus instruction per week and one weekly session with 19 the school psychologist. 20 Barragan picked E.G. up from school and noticed (FAC at 8). (FAC at 8). (FAC at 8). The District Plaintiff and the The amended IEP provided for one (FAC at 8). In mid-November 2007, Plaintiff attempted to enroll E.G. in a 21 day care program in Sultana. 22 Plaintiff s initial contact with the day care s operator, the 23 operator called Plaintiff to inform her that she would not accept 24 E.G. 25 terrible E.G. was. 26 enrolled E.G, in an on-line charter school for the remainder of the 27 academic year. 28 /// because District (FAC at 8). employees (FAC at 8). (FAC at 8). 7 had told A few days after the operator how In February 2008, Plaintiff 1 Plaintiff filed a second compliance complaint against the 2 district with the CDE on February 28, 2008, alleging numerous 3 violations of state and federal law during the period from March 6, 4 2007 through September 18, 2007. 5 in response to Plaintiff s second CDE Complaint, investigators 6 interviewed at least five District employees including Giampietro; 7 the Elementary School s Vice-Principal, Bill Fulmer; E.G. s former 8 third-grade teacher, Denise Bese; the school nurse, Shannon Coats; 9 and E.G. s former classroom (FAC at 8). aide, Eren On April 16, 2008, Ortiz. (FAC at 9). 10 Plaintiff alleges that there is likely...evidentiary support for 11 the notion that Montemayor was aware of the investigation and that 12 it was prompted by Plaintiff s CDE complaint. 13 completing its investigation, the CDE charged the District with 14 seven violations of law and awarded E.G. 36 days of compensatory 15 education. 16 IEP team agreed that the CDE-ordered compensatory education would 17 be satisfied through 180 hours of tutoring services at a cost of 18 sixty dollars per hour. 19 (FAC at 9). (FAC at 9). After At an IEP meeting on June 27, 2008, the (FAC at 9). On or about August 11, 2008, in response to a request by the 20 District, the Housing Authority of Tulare County ( Housing 21 Authority ) sent the District a list of the names and addresses of 22 Housing Authority tenants residing within District boundaries. 23 (FAC at 11). 24 son, D.H. (FAC at 13). 25 Barragan s grandson, and Montemayor was aware of the close family 26 relationship between Plaintiff, Plaintiff s children, Ms. Barragan, 27 and D.H. 28 since the 2006-2007 school year. Absent from this list were Barragan and her adopted (FAC at 11-12). D.H. is Plaintiff s nephew and is also D.H. had attended the Elementary School 8 (FAC at 12). Although he lived 1 outside of the District, D.H. was able to enroll at the Elementary 2 School because Barragan falsely used Plaintiff s address in D.H. s 3 enrollment documents. 4 reason to know that D.H. did not in fact live at Plaintiff s 5 address, because among other indicators known to the District, 6 D.H. s address on all documents submitted to the District in 7 support of his enrollment in the free school lunch program showed 8 Ms. Barragan s home address in Cutler. (FAC at 12-13). However, the District had (FAC at 12). 9 On August 22, 2008, Montemayor called Barragan and asked her 10 to come to the Elementary School for a meeting with Giampietro. 11 (FAC 12 Giampietro on August 22, 2008. 13 a translator for Barragan. (FAC at 13). Giampietro asked Barragan 14 if she lived with Plaintiff in Sultana. 15 D.H. might lose his place in the District and at the Elementary 16 School, Ms. Barragan stated falsely that she lived with Plaintiff 17 from Monday to Friday each week. 18 stated that he could have Plaintiff kicked out of her house because 19 it was illegal for Barragan to live with Plaintiff. 20 Barragan, concerned for Plaintiff, explained that, in fact, she did 21 not 22 children at Plainitff s home from time to time. 23 the conclusion of the August 22 meeting, Giampietro mandated that 24 Barragan take D.H. out of the Elementary school and enroll him in 25 the Cutler-Orosi District. 26 she experienced guilt, hardship, anxiety, and severe mental and 27 emotional anguish over the difficulties D.H. encountered as a 28 result of is forced transfer from the Elementary school. (FAC at at live 11). with Barragan, Plaintiff who but speaks only (FAC at 13). (FAC at 13). took (FAC at 17). met with Montemayor acted as (FAC at 13). simply 9 Spanish, care Fearful that Giampetro then of (FAC at 13). Plaintiff s (FAC at 13). At Plaintiff alleges that 1 17). 2 Sometime after meeting with Barragan, Giampetro wrote a letter 3 to the housing authority alleging that Barragan had told him that 4 she was paying $200 per month to Plaintiff as rent in order to live 5 in Plaintiff s residence. 6 attached to the Giampietro s letter. 7 after Giampietro sent his letter to the Housing Authority, a Housing 8 Authority agent served Plaintiff with an eviction notice which 9 stated: You have violated the terms of your lease by subleasing the 10 home to your relative, Maria Barragan and grandson [D.H.]. (FAC at 11 15; Ex. B). The eviction notice and Petitioner s subsequent efforts 12 to avoid eviction caused Plaintiff to suffer mental anguish and 13 embarrassment in front of co-workers and neighbors. (FAC at 15-16). 14 Ultimately, Plaintiff retained her eligibility for public housing. 15 (FAC at 16). 16 (FAC at 13-14). D.H. s school record was (FAC at 14).1 A few days For most of the 2008-2009 school year, E.G. was enrolled in the 17 Cutler-Orosi District. (FAC at 16). At E.G. s IEP meeting on or 18 about Novermber 2008, an employee of the Cutler-Orosi District told 19 Plaintiff that the District had recommended to a number of parents 20 of disabled students that they transfer to Cutler-Orosi rather than 21 remain in the District. (FAC at 16-17). 22 23 24 25 26 27 28 1 It appears that the FAC contains typographical errors regarding the dates of certain events. Some of the dates provided in the FAC indicate that actions regarding the Housing Authority occurred in 2009 rather than in 2008. For example, the FAC alleges that a secretary from the District called the housing authority on August 22, 2009; that Barragan called Plaintiff to discuss her meeting with Gaimpietro on the night of August 22, 2009; that Plaintiff called the Housing Authority to discuss Giampietro s allegations on August 25, 2009; and that Plaintiff was served with an eviction notice on August 26, 2009. (FAC at 14-15). Defendants have not objected to the ambiguity caused by these errors, and the documentary evidence indicates that the events in question occurred in 2008. (See FAC, Exs. A and B). 10 III. LEGAL STANDARD 1 2 Dismissal under Rule 12(b)(6) is appropriate where the 3 complaint lacks sufficient facts to support a cognizable legal 4 theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th 5 Cir.1990). To sufficiently state a claim to relief and survive a 6 12(b) (6) motion, the pleading does not need detailed factual 7 allegations but the [f]actual allegations must be enough to raise 8 a right to relief above the speculative level. Bell Atl. Corp. v. 9 Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). 10 Mere labels and conclusions or a formulaic recitation of the 11 elements of a cause of action will not do. Id. Rather, there must 12 be enough facts to state a claim to relief that is plausible on its 13 face. Id. at 570. In other words, the complaint must contain 14 sufficient factual matter, accepted as true, to state a claim to 15 relief that is plausible on its face. Ashcroft v. Iqbal, --- U.S. 16 ----, ----, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (internal 17 quotation marks omitted). 18 The Ninth Circuit has summarized the governing standard, in 19 light of Twombly and Iqbal, as follows: In sum, for a complaint to 20 survive a motion to dismiss, the nonconclusory factual content, and 21 reasonable 22 suggestive of a claim entitling the plaintiff to relief. Moss v. 23 U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir.2009) (internal 24 quotation marks omitted). Apart from factual 25 complaint is also subject to dismissal under Rule 12(b)(6) where it 26 lacks a cognizable legal theory, Balistreri, 901 F.2d at 699, or 27 where the allegations on their face show that relief is barred for 28 some legal reason, Jones v. Bock, 549 U.S. 199, 215, 127 S.Ct. 910, inferences from that 11 content, must be plausibly insufficiency, a 1 166 L.Ed.2d 798 (2007). 2 In deciding whether to grant a motion to dismiss, the court 3 must accept as true all well-pleaded factual allegations in the 4 pleading under attack. Iqbal, 129 S.Ct. at 1950. A court is not, 5 however, required to accept as true allegations that are merely 6 conclusory, 7 inferences. Sprewell v. Golden State Warriors, 266 F.3d 979, 988 8 (9th Cir.2001). When ruling on a Rule 12(b)(6) motion to dismiss, 9 if a district court considers evidence outside the pleadings, it 10 must normally convert the 12(b)(6) motion into a Rule 56 motion for 11 summary 12 opportunity to respond. United States v. Ritchie, 342 F.3d 903, 13 907 court 14 materials-documents 15 incorporated by reference in the complaint, or matters of judicial 16 notice-without converting the motion to dismiss into a motion for 17 summary judgment. Id. at 908. 18 19 (9th unwarranted judgment, and Cir.2003). deductions it A must attached IV. of give may, to fact, the unreasonable nonmoving however, the or party consider complaint, an certain documents DISCUSSION A. Plaintiff s Claim Pursuant to 42 U.S.C. § 1985(3) 20 Defendants contend that Plaintiff has failed to plead facts 21 sufficient to state a claim for relief under 42 U.S.C. § 1985(3). 22 Section 1985(3) provides in relevant part: 23 24 25 26 If two or more persons . . . conspire . . . for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws . . . the party so . . . deprived may have an action for the recovery of damages occasioned by such . . . deprivation, against any one or more of the conspirators. 27 42 U.S.C. § 1985(3)(2009). In order to assert a claim for relief 28 under section 1985(3), a plaintiff must allege: (1) a conspiracy; 12 1 (2) for the purpose of depriving, either directly or indirectly, any 2 person or class of persons of the equal protection of the laws, or 3 of equal privileges and immunities under the laws; and (3) an act 4 in furtherance of this conspiracy; (4) whereby a person is either 5 injured in his person or property or deprived of any right or 6 privilege of a citizen of the United States. 7 Pulp Corp., 978 F.2d 1529, 1536 (9th Cir. 1992) (citing United 8 Brotherhood of Carpenters and Joiners of America v. Scott, 463 U.S. 9 825, 828-29 (1983). 10 Defendants argue that Plaintiff has E.g. Sever v. Alaska failed to plead the 11 conspiracy element of a section 1985(3) claim because the facts 12 alleged by Plaintiff do not support a facially plausible inference 13 that Mrs. Montemayor entered into an agreement, made a mutual 14 decision or had a mutual understanding with Mr. Giampietro for the 15 purpose of depriving Plaintiff of her civil rights. 16 Dismiss at 7. 17 which support the notion that two or more individuals conspired 18 together. E.g. Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 19 621, 626 (9th Cir. 1988). 20 burden with respect to section 1985(3) by pleading facts from which 21 the existence of a conspiracy may be inferred. See Scott v. Ross, 22 140 F.3d 1275, 1284 (9th Cir. 1998)(discussing burden of proof for 23 establishing entitlement to relief under section 1985(3)). 24 requirement that a plaintiff plead facts sufficient to create 25 plausible grounds to infer an agreement simply requires a plaintiff 26 to allege enough facts to raise a reasonable expectation that 27 discovery will reveal evidence of a conspiracy. See Bell Atl. Corp. 28 v. Twombly, 550 U.S. 544, 556-57 (2007). Motion to A claim under § 1985 requires allegations of fact A plaintiff may satisfy her pleading 13 The 1 Plaintiff alleges that Giampietro conspired, with at least one 2 other employee of the District, to retaliate against Plaintiff for 3 filing compliance complaints with the CDE. According to the FAC, 4 Giampietro and at least one other individual agreed to report to the 5 Housing Authority that Plaintiff was violating the terms of her 6 lease agreement for Section 8 housing, which in turn lead the 7 Housing Authority to take steps to evict Plaintiff. The FAC also 8 alleges that Giampietro and at least one other individual conspired 9 to force Plaintiff s nephew, D.H., out of the District in order to 10 inflict emotional distress on Plaintiff. 11 plead sufficient facts to permit a reasonable inference that any 12 other 13 Plaintiff. 14 15 16 17 18 person conspired with Giampietro Plaintiff has failed to to retaliate against The FAC contains the following factual allegations concerning Giampietro s alleged coconspirator: 31. On or about January 2007, a District employee recounted to Plaintiff a discussion that she had had with Defendant Montemayor, in which Montemayor said, Mr. G [i.e., Giampietro] is going to have a hard time with her [i.e., Plaintiff] because this one is not stupid. (FAC at 6). 19 20 21 22 23 24 25 48. On April 16, 2008, in response to the Second CDE Complaint, two CDE investigators visited Tulare County to interview Plaintiff s attorney, as well as SELPA and District personnel. The investigators interviewed at least five District employees, including Giampietro; the Elementary School s Vice-Principal, Bill Fulmer; E.G. s former third-grade teacher, Denise Bese; the school nurse, Shannon Coats; and E.G. s former classroom aide, Eren Ortiz. The following allegations are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery: Defendant Montemayor was aware of the nature of these interviews and that they were prompted by the Second CDE Complaint. (FAC at 9). 26 27 28 62. On or (Plaintiff s received a about August 22, 2008, Ms. Barragan mother-in-law and E.G. s grandmother) call from Defendant Montemayor, an 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 Administrative Assistant with the District. Montemayor asked Ms. Barragan to come to the Elementary School that day for a meeting with Giampietro. (FAC at 11). 64. Montemayor was well aware of the close family relationship between Plaintiff, Plaintiff s children, Ms. Barragan, and D.H. (FAC at 11). 67. On August 22, Ms. Barragan met with Giampietro at the Elementary School. At the meeting, Giampietro spoke English and Montemayor translated for Ms. Barragan, who speaks only Spanish. Giampietro asked Ms. Barragan if she lived with Plaintiff in Sultana, California. (FAC at 13). 73. The following allegations are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery: Montemayor or another District employee was the individual who brought to [Giampietro s] attention that some people that are not on the approved families listing are living at 41796#C Rd. 105 in Sultana. (FAC at 14). 75. In addition, according to the Housing Authority, on or about August 22, 2009, a District secretary telephoned the Housing Authority to identify D.H. as a student enrolled in the District who claimed to reside in a Housing Authority unit, but whose name did not appear on the list of Housing Authority tenants living within the District. When it provided this information to Plaintiff, the Housing Authority could not or would not identify the secretary. The following allegations are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery: the secretary was Montemayor. (FAC at 15). 18 Assuming that either Montemayor or an unknown District employee 19 was the individual who (1) brought to Giampietro s attention D.H. s 20 enrollment issue; and (2) later called the the Housing Authority to 21 identify D.H. as a student who claimed to reside in Plaintiff s 22 Housing Authority unit, such actions demonstrate nothing more than 23 the exercise of official duties to ascertain the true residence of 24 a student. With respect to Montemayor s phone call to Barragan and 25 her role as translator during the meeting between Giampietro and 26 Barragan, such actions appear to reflect Montemayor following the 27 lawful directives of her superior. 28 15 Without more, including 1 allegations of animus borne of intent to deprive or interfere with 2 E.G. s right to a free public education, allegations that a District 3 employee acted in the course and scope of her employment do not 4 support an inference of conspiracy to commit an unlawful act or 5 acts. 6 Cir. 2005)( Because the Barstads pleaded only that Onken acted in 7 the course and scope of [her] employment, they fail to demonstrate 8 the existence of a conspiracy ); accord Rabkin v. Dean, 856 F. Supp. 9 543, 551-52 (N.D. Cal 1994) (section 1985 claim unavailable where 10 the conspiratorial conduct challenged is essentially a single act 11 by a single governmental body acting exclusively through its own 12 officers, each acting within the scope of his or her official 13 capacity ); Rivers v. County of Marin, 2010 U.S. Dist. LEXIS 1419* 14 20-23 (N.D. Cal 2010) (section 1985 claim against government agent 15 for 16 defendant acted outside the scope of her official duty for personal 17 gain). 18 See, e.g., Barstad v. Murray County, 420 F.3d 880, 887 (8th acts performed in official capacity available only where The FAC does not allege that Montemayor acted outside the scope 19 of her duties. Unlike the allegations concerning Giampietro, the 20 FAC does not allege that she made any knowingly false statements; 21 nor does the FAC allege facts which support an inference that 22 Montemayor s actions were motivated by an improper purpose. The FAC 23 is insufficient to support a reasonable inference that Montemayor 24 conspired with Giampietro. Plaintiff s claim under section 1985(3) 25 must be dismissed with leave to amend. 26 B. Plaintiff s Claim under 42 U.S.C. § 1986 27 Section 1986 imposes liability on every person who knows of an 28 impending violation of section 1985 but neglects or refuses to 16 1 prevent the violation. 2 predicate to a section 1986 claim: A claim can be stated under 3 section 1986 only if the complaint contains a valid claim under 4 section 1985. Id. (citing Trerice v. Pedersen, 769 F.2d 1398, 1403 5 (9th Cir. 1985)). 6 dismissed, Plaintiff s section 1986 claim is derivative and must be 7 dismissed as well. 8 C. Plaintiff s ADA Retaliation Claim 9 Karim-Panahi, 839 F.2d at 626. There is a Because Plaintiff s conspiracy claim must be See id. Defendants Motion to Dismiss Plaintiff s ADA claim contends 10 Plaintiff is not entitled to relief. Motion to Dismiss at 8. 11 Plaintiff concedes that she does not have standing to seek the 12 injunctive relief prayed for in the FAC. (Opposition at 12, n.2). 13 Accordingly, Plaintiff s claim is only cognizable if the relevant 14 statutes confer on Plaintiff a right to monetary damages. 15 Defendant cites Tannislado Alvardo v. Cajun Operating Co., 588 16 F.3d 1261 (9th Cir. 2009) for the proposition that the ADA does not 17 provide for compensatory or putative damages in a retaliation case. 18 (Motion to Dismiss at 8). 19 concerned the remedies available under 42 U.S.C. § 12117. 20 at 1264-65. The Ninth Circuit s decision in Alvarado 588 F.3d 21 Plaintiff cites Barnes v. Gorman, 536 U.S. 181 (2002) for the 22 proposition that compensatory damages are available against public 23 entities pursuant to Title VI of the Civil Rights Act of 1964. 24 (Opposition at 12). 25 that the rule espoused therein applies to suits against private 26 entities, not public entities such as the District. (Opposition at 27 11-12). the 28 framework which sets forth the remedies for violations of the ADA s Plaintiff distinguishes Alvarado on the basis Plaintiff s distinction 17 is rooted in statutory 1 anti-retaliation provision. 2 12203(c) provides: 3 See 42 U.S.C. § 12203(c). Section The remedies and procedures available under sections 107, 203, and 308 of this Act [42 USCS §§ 12117, 12133, 12188] shall be available to aggrieved persons for violations of subsections (a) and (b), with respect to title I, title II and title III [42 USCS §§ 12111 et seq., 12131 et seq., 12181 et seq.], respectively. 4 5 6 42 U.S.C. § 12203(c)(2009). 7 Unlike the claim at issue in Alvarado, Plaintiff s claim is 8 directed at a public entity, the District. Section 12133 is the 9 applicable statute affording remedies available against public 10 entities. See Barnes, 536 U.S. at 184-85. In Barnes, the High Court 11 held that the remedies available pursuant to section 12133 are 12 coextensive with the remedies available in a private cause of action 13 brought under Title VI of the Civil Rights Act of 1964, which 14 include monetary damages. Id. at 185. Accordingly, Plaintiff may 15 be entitled to monetary damages for her retaliation claim against 16 the district, and therefore Defendants motion to dismiss 17 Plainitff s ADA cause of action is DENIED. 18 D. Plaintiff s Claim Under California Civil Code § 51 19 Defendants sole contention regarding Plaintiff s claim under 20 California Civil Code section 51 is that it must be dismissed due 21 to Plaintiff s failure to state a cognizable claim under the ADA. 22 (Motion to Dismiss at 10). Because Plaintiff has in fact stated a 23 claim under the ADA, Respondent s argument lacks merit. The motion 24 is DENIED. 25 E. Plaintiff s Requests for Declaratory and Injunctive Relief 26 Defendant asks the Court to strike Plaintiff s claims for 27 injunctive and declaratory relief on the basis that Plaintiff 28 18 1 lacks standing to obtain such relief. 2 Plaintiff concedes she lacks standing to obtain injunctive and 3 declaratory relief. 4 to strike Plaintiff s claims for injunctive and declaratory 5 relief is GRANTED. 6 F. Motion to Strike Allegations Regarding D.H. s Forced Transfer 7 (Motion to Dismiss at 10). (Opposition at 12, n.2). Defendants motion Fed. R. Civ. P. 12(f). Defendant contends that Plaintiff s allegations regarding 8 D.H. s forced transfer should be stricken from the complaint 9 because Giampietro had a justified legal reason for requesting 10 [D.H. s] transfer. (Motion to Dismiss at 11). Defendant also 11 contends that Plaintiff does not have standing to bring claims 12 based on D.H. s alleged injuries...her alleged injury is guilt 13 over D.H. s alleged difficulties...feeling guilty does not rise 14 to the level of an actionable injury. (Motion to Dismiss at 11). 15 The fact that a defendant had a lawful basis for taking 16 adverse action against a plaintiff does not insulate the 17 defendant from liability under the ADA if the plaintiff can 18 establish that the adverse action was motivated, even in part, by 19 animus based on a plaintiff's request for an accommodation. 20 Head v. Glacier Northwest, Inc., 413 F.3d 1053, 1065 (9th Cir. 21 2005). 22 requesting that D.H. transfer was a mere pretext for retaliatory 23 action is a question of fact and thus Defendants purported 24 justification for Giampietro s actions is not a basis for 25 dismissal pursuant to Rule 12(b)(6). 26 E.g. Whether Giampietro s justified legal reason for Defendants contention that Plaintiff lacks standing to 27 complain of D.H. s transfer is misguided. 28 that the adverse action taken against D.H. was intended retaliate 19 Plaintiff s claim is 1 against Plaintiff. 2 in the ADA retaliation context, it need not be traumatic. 3 v. City of Plantation, 344 F.3d 1161 , 1182-83 (11th Cir. 2003). 4 As the Eleventh Circuit opined in Shotz: 5 While conduct must be material to be adverse Shotz It is important not to make a federal case out of conduct that is de minimis, causing no objective harm and reflecting a mere chip-on-the-shoulder complaint. However, it is equally important that the threshold for what constitutes an adverse action not be elevated artificially, because, to the extent that it is deemed not to rise to the level of an adverse action, it is removed completely from any scrutiny for discrimination 6 7 8 9 Id. Plaintiff alleges that Defendants took adverse action 10 against D.H. with the intention of causing Plaintiff distress, 11 and D.H. s transfer did in fact cause Plaintiff to suffer 12 significantly. Emotional distress is a cognizable category of 13 injury in discrimination cases. Accordingly, Defendants motion 14 to strike Plaintiff s claims concerning D.H. is DENIED. 15 V. CONCLUSION 16 For the reasons stated, IT IS ORDERED: 17 1) Defendants motion to dismiss Plaintiff s claim under 42 18 U.S.C. § 1985(3) is GRANTED, without prejudice; 19 2) Defendants motion to dismiss Plaintiff s claim under 42 20 U.S.C. § 1986 is GRANTED, without prejudice; 21 3) Defendants motion to dismiss Plaintiff s claim under 42 22 U.S.C. § 12203 is DENIED; 23 4) Defendants motion to dismiss Plaintiff s claim under 24 California Civil Code § 51 is DENIED; 25 5) Defendants motion to strike Plaintiff s request for 26 injunctive and declaratory relief is GRANTED; and 27 6) Defendants motion to strike Plaintiff s allegations 28 20 1 concerning D.H. s forced transfer is DENIED. 2 7) Plaintiff shall lodge a formal order consistent with this 3 decision within five (5) days following electronic service 4 of this decision by the clerk. 5 amended complaint within fifteen (15) days of the filing of 6 the order. 7 (15) days of receipt of the amended complaint. Plaintiff shall file an Defendant shall file a response within fifteen 8 9 10 11 12 13 IT IS SO ORDERED. 14 Dated: hkh80h May 10, 2010 /s/ Oliver W. Wanger UNITED STATES DISTRICT JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 21

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