McCue et al v. South Fork Union School District et al, No. 1:2010cv00233 - Document 51 (E.D. Cal. 2011)
Court Description: MEMORANDUM DECISION GRANTING defendants' Motion to Dismiss, document 42 , and DIRECTING plaintiff to lodge a formal order consistent with this decision within five (5) days following electronic service of this decision. Plaintiff shall file an amended complaint within ten (10) days of the filing of the order with defendant filing a response within fifteen (15) days of receipt of the amended complaint; order signed by Judge Oliver W. Wanger on 2/7/2011. (Rooney, M)
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McCue et al v. South Fork Union School District et al Doc. 51 1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF CALIFORNIA 6 7 8 McCUE et al., Plaintiffs, 9 10 1:10-cv-00233-OWW-MJS MEMORANDUM DECISION REGARDING DEFENDANTS’ MOTION TO DISMISS PLAINTIFF’S THIRD AMENDED COMPLAINT (Doc. 25). v. 11 12 SOUTH FORK UNION ELEMENTARY SCHOOL, et al., 13 Defendants. 14 I. INTRODUCTION. 15 16 Plaintiffs proceed with this civil rights action pursuant to 17 42 U.S.C. § 1983 against various Defendants. Plaintiffs filed a 18 third amended complaint (“TAC”) on October 29, 2010. (Doc. 41). 19 Defendants filed a motion to dismiss the TAC on November 12, 2010. 20 (Doc. 42). Plaintiffs filed opposition to the motion to dismiss on 21 January 17, 2011. 22 24, 2011. (Doc. 48). Defendants filed a reply on January II. RELEVANT FACTUAL BACKGROUND. 23 24 (Doc. 47). Plaintiff P.M. was a student at South Fork Elementary School 25 (“the School”) at all times relevant to this action. The School is 26 part of the South Fork Union School District (“the District”). 27 Plaintiffs Lawrence and Darlene McCue are P.M.’s parents (“the 28 McCues”). Moving Defendants Shannon Damron, Sabine Mixion, Robin 1 Dockets.Justia.com 1 Shive, and Karen Zurin were teachers and administrators at the 2 School all times relevant to this action. 3 P.M. is allergic to nuts. On December 12, 2006, the McCues met 4 with the School’s Principal, Robin Shive (“Shive”), to request 5 accommodations for P.M.’s nut allergy from the School. 6 advised the McCues that the only accommodation the School could 7 provide was for P.M. to sit at a nut free table in the cafeteria 8 for lunch. 9 there were several additional meetings between the McCues and the 10 District in which the McCues requested that the School stop serving 11 nuts or products containing nuts. 12 neither the District nor the School would stop serving nuts. 13 Plaintiffs contend the refusal to ban nuts and nut products from 14 the District constituted a failure to make reasonable accommodation 15 for P.M. as required by the Individuals with Disabilities Education 16 Act. 17 Shive During the remainder of the 2006-2007 school year, Shive repeatedly stated that At the beginning of the 2007-2008 school year, the McCues 18 again met with Shive to request accommodations for P.M. 19 advised the McCues that the School could no longer have a “nut 20 free” table, but that P.M. could eat his lunch in the office to 21 keep 22 proposition and continued to request further accommodation.1 23 him safe. The McCues were dissatisfied with Shive Shive’s On February 28, 2008, the School held an event at which all of 24 the schools students were present on the play ground at one time. 25 During this event, P.M. was served a cookie containing peanut 26 1 27 28 Paragraphs 26-31, which span approximately two pages, contain allegations regarding P.M.’s health and medical treatment during the period from September 2007 through January 2008. These allegations are immaterial to the instant motion to dismiss. 2 1 butter by “South Fork Elementary School.” The complaint does not 2 allege who gave P.M. the cookie. 3 the cookie and required medical treatment. Plaintiffs subsequently 4 contacted the State Board of Education to report the February 28, 5 2008 incident. The State Board of Education reprimanded Defendants 6 Shive, Damron, Zurin, Mixion, and the School District. P.M. had an allergic reaction to 7 According to the complaint, Shive and Zurin retaliated against 8 Plaintiffs by refusing to make accommodations for P.M. and by 9 attempting to remove P.M. from the District. Plaintiffs further 10 allege that Defendants engaged in conduct that they knew or should 11 have known would result in P.M. being wrongfully taken from the 12 McCues. 13 statements to doctors at Mattel Children’s Hospital to encourage 14 filing of a report with Child Protective Services. 15 further allege that Defendants had knowledge that the County had a 16 well 17 constitutional rights under the First, Fourth, and Fourteenth 18 Amendments of the United States Constitution. Plaintiffs allege that Defendants made knowingly false established pattern, practice, and custom of Plaintiffs violating 19 After receiving a referral for potential child endangerment 20 from a doctor at Mattel Children’s Hospital, the Kern County 21 Sheriff’s Department initiated an investigation into P.M.’s medical 22 condition. Before the investigation was complete, Child Protective 23 Services (“CPS”) and James D. Stratton (“Stratton”) made the 24 decision to remove P.M. from the McCue’s parents. 25 On or about March 6, 2008, CPS, the Kern County Sheriff’s 26 Department, and Stratton arrived at the School and removed P.M., 27 without providing notice to the McCues. That evening, Stratton 28 informed the McCues that P.M. was removed from their custody 3 1 because “Darlene took too good a [sic] care of P.M. and was at the 2 school with P.M. too much.” 3 warrant or court order authorizing P.M.’s removal. (TAC at 11). No Defendant sought a 4 After P.M.’s removal from the McCues’ custody, P.M. was 5 transferred out of the District to a school located in Bakersfield, 6 California. 7 to Mattel Children’s Hospital. Shive continued to disclose confidential information 8 The morning after P.M. was removed from the McCue’s custody, 9 Shive called Plaintiff an intimated that she had caused P.M.’s 10 removal in order to retaliate against the McCue’s for reporting the 11 cookie incident to the State Board of Education. 12 On March 10, 2008, Damron, P.M.s teacher, told her entire 13 class that P.M. had been taken by Child Protective Services, would 14 not be returning to school, and was safe. 15 receiving letters from children and their families describing 16 Damron’s statements.2 The McCue’s began III. LEGAL STANDARD. 17 18 Dismissal under Rule 12(b)(6) is appropriate where the 19 complaint lacks sufficient facts to support a cognizable legal 20 theory. 21 (9th Cir.1990). 22 survive a 12(b) (6) motion, the pleading “does not need detailed 23 factual allegations” but the “[f]actual allegations must be enough 24 to raise a right to relief above the speculative level.” Bell Atl. 25 Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 26 929 Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (2007). Mere To sufficiently state a claim to relief and “labels and conclusions” or a “formulaic 27 28 2 The complaint includes additional allegations regarding events surrounding P.M.’s removal that are not relevant to the instant motion. 4 1 recitation of the elements of a cause of action will not do.” Id. 2 Rather, there must be “enough facts to state a claim to relief that 3 is plausible on its face.” Id. at 570. In other words, the 4 “complaint must contain sufficient factual matter, accepted as 5 true, to state a claim to relief that is plausible on its face.” 6 Ashcroft v. Iqbal, --- U.S. ----, ----, 129 S.Ct. 1937, 1949, 173 7 L.Ed.2d 868 (2009) (internal quotation marks omitted). 8 The Ninth Circuit has summarized the governing standard, in 9 light of Twombly and Iqbal, as follows: “In sum, for a complaint to 10 survive a motion to dismiss, the nonconclusory factual content, and 11 reasonable 12 suggestive of a claim entitling the plaintiff to relief.” Moss v. 13 U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir.2009) (internal 14 quotation marks omitted). Apart from factual insufficiency, a 15 complaint is also subject to dismissal under Rule 12(b)(6) where it 16 lacks a cognizable legal theory, Balistreri, 901 F.2d at 699, or 17 where the allegations on their face “show that relief is barred” 18 for some legal reason, Jones v. Bock, 549 U.S. 199, 215, 127 S.Ct. 19 910, 166 L.Ed.2d 798 (2007). inferences from that content, must be plausibly 20 In deciding whether to grant a motion to dismiss, the court 21 must accept as true all “well-pleaded factual allegations” in the 22 pleading under attack. Iqbal, 129 S.Ct. at 1950. A court is not, 23 however, “required to accept as true allegations that are merely 24 conclusory, 25 inferences.” Sprewell v. Golden State Warriors, 266 F.3d 979, 988 26 (9th Cir.2001). “When ruling on a Rule 12(b)(6) motion to dismiss, 27 if a district court considers evidence outside the pleadings, it 28 must normally convert the 12(b)(6) motion into a Rule 56 motion for unwarranted deductions 5 of fact, or unreasonable 1 summary judgment, and it must give the nonmoving party an 2 opportunity to respond.” 3 907 (9th Cir. 2003). “A court may, however, consider certain 4 materials-documents 5 incorporated by reference in the complaint, or matters of judicial 6 notice-without converting the motion to dismiss into a motion for 7 summary judgment.” Id. at 908. United States v. Ritchie, 342 F.3d 903, attached to the complaint, documents IV. DISCUSSION. 8 9 Defendants seek dismissal of count three of Plaintiff’s 10 seventh cause of action and count one of Plaintiff’s eleventh cause 11 of action. 12 A. Plaintiffs’ Seventh Cause of Action 13 1. Plaintiffs’ Theory of Liability 14 Count three of the TAC’s seventh cause of action advances an 15 an unspecified claim under 42 U.S.C. § 1983 against Damron, Shive, 16 and Zurin. 17 Shive, and Zurin made false statements calculated to cause P.M. to 18 be removed from the McCues’ custody. 19 have properly alleged section 1983 liability under Gini v. Las 20 Vegas Metro. Police Dep't, 40 F.3d 1041, 1044-1045 (9th Cir. 1994). 21 (Doc. 47, Opposition at 2). 22 The gravamen of Plaintiff’s claim is that Damron, Plaintiffs aver that they To properly allege that Damron, Shive, and Zurin set in motion 23 a series of acts that they reasonably 24 constitutional 25 allege that Defendants knew or had reason to know that the relevant 26 actors would remove P.M. from the McCues’ custody in violation of 27 due process. See Gini, 40 F.2d at 1044 (“because Mahony did not 28 terminate Gini's employment without due process, and did not know injury Plaintiffs 6 knew complain of, would cause Plaintiffs the must 1 and should not reasonably have known that her federal employer 2 would terminate her employment without due process, Gini has failed 3 to state a claim under § 1983.”); accord Crowe v. County of San 4 Diego, 593 F.3d 841, 879 (9th Cir. 2010) (there are two ways to 5 state 6 statements: (1) allege that the injury to reputation was inflicted 7 in connection with a federally protected right; or (2) allege that 8 the injury to reputation caused the denial of a federally protected 9 right) (citing Herb Hallman Chevrolet v. Nash-Holmes, 169 F.3d 636, a cognizable constitutional claim based on defamatory 10 645 (9th Cir. 1999)). Although the TAC alleges a constitutional 11 injury at the hands of the entities that removed P.M., it does not 12 properly allege that Defendants Damron, Shive, and Zurin had the 13 requisite knowledge to render their alleged defamatory statements 14 constitutionally violative. 15 2. Alleged Constitutional Injury Relevant to P.M.’s Removal3 16 Due process requires observance of procedural protections 17 before the state may interfere with the family relationship. E.g. 18 Woodrum v. Woodward County, 866 F.2d 1121, 1125 (9th Cir. 1989); 19 Baker v. Racansky, 887 F.2d 183, 187 (9th Cir. 1989); Rogers v. 20 Cnty. of San Joaquin, 487 F.3d 1288, 1294 (9th Cir. 2007). 21 However, the constitutional liberty interest in the maintenance of 22 the familial relationship is not absolute. Woodrum, 866 F.2d at 23 24 25 26 27 28 3 The SAC attempted to advance a first amendment retaliation claim based on the same facts alleged in count three of the TAC’s seventh cause of action; this claim was dismissed for failure to state a claim. (Doc. 36, Memorandum Decision at 5-6) (citing Gini, 40 F.3d 1045 other authorities for the proposition that alleging defamation by a public official in retaliation for the exercise of a First Amendment right fails to state a claim under section 1983). To the extent Plaintiffs persist with their First Amendment retaliation claim in the TAC, it is dismissed with prejudice for the reasons stated in the Memorandum Decision dismissing the SAC. 7 1 1125. “The interest of the parents must be balanced against the 2 interests of the state and, when conflicting, against the interests 3 of the children.” Id. (citations omitted). 4 Officials who remove a child from the home without a warrant 5 must have reasonable cause to believe that the child is likely to 6 experience serious bodily harm in the time that would be required 7 to obtain a warrant. 8 1288, 1294 (9th Cir. 2007). Serious allegations of abuse that have 9 been investigated Rogers v. Cnty. of San Joaquin, 487 F.3d and corroborated usually give rise to a 10 "reasonable inference of imminent danger sufficient to justify 11 taking children into temporary custody" if they might again be 12 beaten or molested during the time it would take to get a warrant. 13 Id. (citing Ram v. Rubin, 118 F.3d 1306, 1311 (9th Cir. 1997)). 14 Due process also prevents unwarranted interference with the 15 familial relationship, regardless of what procedures are employed. 16 See, e.g., Crowe v. County of San Diego, 608 F.3d 406, 441 n.23 17 (9th 18 relationship between parent and child violates substantive due 19 process”) (citing Smith v. City of Fontana, 818 F.2d 1411, 1419- 20 1420 21 Hodgers-Durgin v. De La Vina, 199 F.3d 1037, 1041 n.1 (9th Cir. 22 1999)).4 23 “unwarranted” when it is effected for the purposes of oppression. 24 Fontana, 818 F.2d at 1420 (citing Daniels v. Williams, 106 S. Ct. 25 662, Cir. (9th 665 2010) Cir. ("‘unwarranted 1987) overruled Interference (1986) with state in the (substantive due interference’ part on familial process other with grounds relationship prevents use the by is of 26 27 28 4 In Crowe, the Ninth Circuit cited Fontana as authority for the proposition that the substantive due process standard is “unwarranted interference,” not the “shocks the conscience” standard. 608 F.2d at 441 n. 23. 8 1 governmental power for purposes of oppression regardless of the 2 fairness of the procedures used)). 3 The allegations of the TAC suggest that Plaintiffs claim of 4 constitutional injury is predicated on an alleged procedural due 5 process violation. 6 hearing, warrant, or court order preceded P.M.’s removal). 7 extent Plaintiffs’ claim is based on an alleged substantive due 8 process violation, the TAC is deficient. 9 officials in the conduct of their duties resulting in temporary 10 interference with familial rights does not trigger the substantive 11 due process protections of the Fourteenth Amendment. E.g. Woodrum, 12 866 F.2d at 1126. 13 actors did not constitute “unwarranted state interference” effected 14 “for the purpose of oppression.” No substantive due process claim 15 is alleged.5 16 n.23. (See TAC at 11) (alleging that no notice, To the Mere negligence by state As alleged, the removal of P.M. by the relevant Fontana, 818 F.2d at 1420; Crowe, 608 F.3d at 441 17 According to the TAC, P.M. was removed from the McCues’ 18 custody without a warrant in the absence of exigent circumstances 19 or imminent danger of serious bodily injury. 20 Accepting these allegations as true, the TAC alleges a (TAC at 11). 21 22 23 24 25 26 27 28 5 Although the TAC is sufficient to allege that certain school administrators acted with oppressive intent, it does not allege facts sufficient to establish that the persons responsible for removing P.M. from the McCues’ custody acted with oppressive intent. The TAC’s conclusory allegation that CPS and the Sheriff’s Department “acted with malice and with the intent to cause injury to P.M.” is unsupported by any factual allegation sufficient to give rise to an inference that the actions of CPS and the Sheriff’s Department were anything more than negligent, at worst. (See TAC at 18-23). In order to properly state a derivative substantive due process claim against school administrators based on the theory of liability expressed in the TAC, Plaintiffs must allege facts sufficient to support an inference that the school administrators knew that the CPS and the Sheriff’s Department would interfere with Plaintiffs’ familial rights for oppressive purposes. See, e.g., Gini., 40 F.3d at 1044-1045. 9 1 constitutional injury based on the failure of the CPS and the 2 Sheriff’s Department to comply with the procedural prerequisites to 3 removing a child from parental custody required by due process. 4 See, e.g., Rogers, 487 F.3d at 1294 (reasonable cause to believe 5 that the child is likely to experience serious bodily harm required 6 in absence of a warrant). 7 3. Allegations Regarding Defendants’ Knowledge 8 The TAC contains the conclusory allegations that CPS and the 9 Sheriff’s Department had a well established pattern, practice, and 10 custom of effecting seizures not based on warrants or exigent 11 circumstances. 12 support an inference that either CPS or the Sheriff’s Department 13 had such a pattern, practice, and custom. 14 TAC alleges that Defendants were aware of the constitutionally 15 violative policies of CPS and the Sheriff’s office because of their 16 past experiences with such agencies, (TAC at 35), there are no 17 facts 18 allegation regarding Defendants’ knowledge. 19 does not allege that the school administrators had knowledge that 20 either CPS or the Sheriff’s Department had removed a child without 21 complying 22 statements unsupported by factual allegations are insufficient to 23 satisfy federal pleading standards. E.g. Iqbal, 129 S.Ct. at 1949. 24 Count three of the seventh cause of action alleged in the TAC alleged with However, there are no facts alleged in the TAC to in the TAC required to Similarly, although the support procedures in Plaintiffs’ the 25 is DISMISSED, without prejudice. 26 opportunity to properly allege this claim. 27 /// 28 /// 10 conclusory For example, the TAC past. Conclusory Plaintiffs will have one more 1 B. Plaintiffs’ Eleventh Cause of Action 2 Count one of Plaintiffs’ eleventh cause of action asserts a 3 claim for violation of California Civil Code section 52.1 against 4 the District and Shive. 5 Section 52.1 provides in part: If a person or persons, whether or not acting under color of law, interferes by threats, intimidation, or coercion, or attempts to interfere by threats, intimidation, or coercion, with the exercise or enjoyment by any individual or individuals of rights secured by the Constitution or laws of the United States, or of the rights secured by the Constitution or laws of this state...Any individual whose exercise or enjoyment of rights secured by the Constitution or laws of the United States, or of rights secured by the Constitution or laws of this state, has been interfered with, or attempted to be interfered with, as described in subdivision (a), may institute and prosecute in his or her own name and on his or her own behalf a civil action for damages 6 7 8 9 10 11 12 13 Cal. Civ. Code § 52.1. 14 are: 15 16 17 18 19 20 The elements of a claim under section 52.1 (1) that the defendant interfered with or attempted to interfere with the plaintiff's constitutional or statutory right by threatening or committing violent acts; (2) that the plaintiff reasonably believed that if she exercised her constitutional right, the defendant would commit violence against her or her property; that the defendant injured the plaintiff or her property to prevent her from exercising her right or retaliate against the plaintiff for having exercised her right; (3) that the plaintiff was harmed; and (4) that the defendant's conduct was a substantial factor in causing the plaintiff's harm. 21 See Austin B. v. Escondido Union School Dist., 149 Cal. App. 4th 22 860, 882 (Cal. Ct. App. 2007)(citing CACI No. 3025). Section 23 52.1(j) provides: 24 25 26 27 28 Speech alone is not sufficient to support an action brought pursuant to subdivision (a) or (b), except upon a showing that the speech itself threatens violence against a specific person or group of persons; and the person or group of persons against whom the threat is directed reasonably fears that, because of the speech, violence will be committed against them or their property 11 1 and that the person threatening violence had the apparent ability to carry out the threat 2 3 Cal. Civ. Code § 52.1(j). 4 The TAC alleges that Shive threatened harm to P.M. by refusing 5 to keep him in a nut-free environment in order to discourage the 6 McCues from requesting accommodations for P.M. 7 alleges that Shive deliberately sought to increase P.M.’s risk of 8 exposure to peanut products. 9 state a claim under section 52.1. The TAC also Neither allegation is sufficient to 10 Serving a child a peanut butter cookie is not an inherently 11 violent act. As Plaintiffs were advised in the Memorandum Decision 12 dismissing the SAC: 13 The SAC fails to allege that P.M. was given the peanut butter cookie by a person with actual knowledge of P.M.'s allergy. The SAC's conclusory allegation that the school served the cookie to P.M. with "full knowledge" of his allergy is not supported by sufficient factual allegations as required by federal pleading standards. Although the SAC does establish that some school personnel where aware of P.M.'s allergy, the SAC does not allege facts which permit the inference that any person with actual knowledge of P.M.'s allergy played a role in serving P.M. the cookie. Further, the SAC fails to allege that P.M. was given the peanut butter cookie in order to interfere with constitutional or statutory rights. Plaintiff's claim under section 52.1 is DISMISSED, with leave to amend, only if Plaintiff can allege a specific individual acted with the requisite intent. 14 15 16 17 18 19 20 21 22 (Doc. 36 at 8). Plaintiffs TAC does not remedy the deficiencies 23 that required dismissal of the SAC’s claim under section 52.1. 24 Plaintiffs have not alleged that any person gave P.M. the peanut 25 butter cookie with knowledge of P.M.’s nut allergy, the TAC does 26 not allege an act of violence against P.M. 27 properly allege any threat of violence against P.M. 28 /// 12 As Nor does the TAC 1 For the purposes of the Bane Act, the term “threat” means “an 2 ‘expression of an intent to inflict evil, injury, or damage to 3 another.’” See In re M.S., 10 Cal. 4th 698, 710 (Cal. 1995) 4 (discussing criminal counterpart to section 52.1, California Penal 5 Code section 422.6). 6 only if it would reasonably tend to produce fear in the victim. 7 Cal. Civ. Code 52.1(j) (“...and the person or group of persons 8 against whom the threat is directed reasonably fears that, because 9 of the speech, violence will be committed”); see also In re M.S., A threat is actionable under section 52.1 10 10 Cal. 4th at 714. 11 constituted threats of violence: (1) “Shive threatened harm to P.M. 12 by refusing to keep him in a nut-free environment;” (2) “the McCues 13 were told [by an unidentified school administrator] that there was 14 nothing the District could do to protect [P.M. from exposure to 15 nuts at school].” (TAC at 44-45). 16 perceive these statements as threats of violence against P.M. 17 refusal by school administrators to abolish all nut products from 18 a 19 reasonably 20 listener. 21 to intentionally expose P.M. to nuts or nut products. 22 claim against the Shive, Damron, and Zurin for violation of section 23 52.1 is DISMISSED WITH PREJUDICE. 24 school’s campus tend to The TAC alleges that the following statements is not produce the No reasonable person would type fear of of statement violence in that an A would ordinary Nothing in the TAC suggests that anyone ever threatened Plaintiffs’ ORDER 25 For the reasons stated, IT IS ORDERED: 26 1) Count three of the seventh cause of action alleged in the 27 TAC under 42 U.S.C. § 1983 is DISMISSED, without prejudice; 28 2) Count one of the eleventh cause of action alleged in the 13 1 TAC under California Civil Code section 52.1 is DISMISSED, 2 WITH PREJUDICE; and 3 3) Plaintiff shall lodge a formal order consistent with this 4 decision within five (5) days following electronic service of 5 this decision by the clerk. 6 complaint within ten (10) days of the filing of the order. 7 Defendant shall file a response within fifteen (15) days of 8 receipt of the amended complaint. Plaintiff shall file an amended 9 10 IT IS SO ORDERED. 11 Dated: hkh80h February 7, 2011 /s/ Oliver W. Wanger UNITED STATES DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14
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