K.H. v. Antioch Unified School District, et al.,, No. 3:2018cv07716 - Document 58 (N.D. Cal. 2019)
Court Description: ORDER GRANTING IN PART AND DENYING IN PART MOTIONS TO DISMISS FIRST AMENDED COMPLAINT by Judge William Alsup [granting in part and denying in part 42 Motion to Dismiss; granting in part and denying in part 43 Motion to Dismiss]. Amended Pleadings due by NOON on 7/22/2019 with hearing date of 12/5/2019. Motions due by 9/26/2019. (whasec, COURT STAFF) (Filed on 7/1/2019)
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K.H. v. Antioch Unified School District, et al., Doc. 58 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 9 11 For the Northern District of California United States District Court 10 K.H., a minor, by and through his Guardian ad Litem MARTARICE HUMPHREY, Plaintiff, 12 13 14 15 16 17 18 v. ANTIOCH UNIFIED SCHOOL DISTRICT, a public entity; CATAPULT LEARNING WEST, LLC, a limited liability company dba Sierra School of Antioch; SAMUEL MCBRIDE, an individual; JONIQUE ANDREWS, an individual; STEVE NOSANCHUK, an individual; BRUNO DIAZ, an individual; CORY MOORE, an individual; RUTH RUBALCAVA, an individual; STEPHANIE ANELLO, an individual; and DOES 1 through 50, inclusive, 19 / 21 INTRODUCTION 22 24 25 26 ORDER GRANTING IN PART AND DENYING IN PART MOTIONS TO DISMISS FIRST AMENDED COMPLAINT Defendants. 20 23 No. C 18-07716 WHA In this civil rights action, defendants move to dismiss parts of the amended complaint. To the extent set forth below, defendants’ motions are GRANTED IN PART AND DENIED IN PART. STATEMENT The following facts, assumed to be true for purposes of the present motion, are taken 27 from the amended complaint (Dkt. No. 36). Plaintiff K.H. is a fourteen-year-old student with 28 special needs enrolled in the special education program at Antioch Unified School District Dockets.Justia.com 1 (“AUSD”). The federal government provides approximately ten percent of AUSD’s funding. 2 AUSD placed plaintiff in Sierra School, a private school specialized in providing special 3 education, operated by defendant Catapult Learning West, LLC (“Catapult”). Catapult is an 4 independent for-profit limited liability company that specializes in special education. AUSD 5 and Catapult jointly run Sierra School. Employees from both AUSD and Catapult make up the 6 staff at Sierra School. Defendant Bruno Diaz is the Director of Sierra School. Defendant Cory 7 Moore is the Administrator of Sierra School. Defendant Ruth Rubalcava is the Director of 8 Special Education for AUSD (id. ¶¶ 1–3, 5, 10–12, 26–27). At oral argument, all parties 9 conceded that AUSD, on its own, evaluated plaintiff, decided to place him in a special- 11 For the Northern District of California United States District Court 10 education program, and selected Sierra School. In December 2017, plaintiff requested and received permission from his teacher, 12 defendant Steve Nosanchuk, to remove himself from the classroom to use calming techniques 13 which were part of plaintiff’s behavior-intervention training. Defendant Samuel McBride, a 14 teacher aide at Sierra School, then saw plaintiff outside the classroom, roughly grabbed him by 15 the shirt, and pulled him toward the classroom. McBride asked defendant Jonique Andrews, 16 another employee at Sierra School, to assist. Andrews grabbed plaintiff by the wrist, forcibly 17 placed his hands behind his back, and held him by the back of his neck. McBride forcibly held 18 plaintiff’s other hand behind his back as McBride and Andrews escorted plaintiff back to class. 19 When plaintiff asked Andrews to let go of his neck, Andrews coldly laughed in response 20 (id. ¶¶ 28–32, 36). 21 Once back in the classroom and after McBride and Andrews had released their holds, 22 plaintiff said something to the effect of “let go of me” or “get off me.” In response, McBride 23 and Andrews “slammed” plaintiff to the floor causing his head to crash into a desk before 24 hitting the floor. McBride and Andrews then placed plaintiff into a “two-person pro-act prone 25 restraint,” which the United States Department of Education recommends not be used under any 26 circumstance. McBride and Andrews immobilized all four of plaintiff’s limbs. Plaintiff left the 27 incident with a gash under his eye, a split lip, and bleeding gums (id. at 9 n.1, ¶¶ 33–34). 28 2 1 2 to the authorities. When plaintiff’s father picked plaintiff up from school a few hours later, 3 he noticed the injury on plaintiff’s face. Plaintiff’s father asked Nosanchuk what had happened 4 and why he hadn’t been informed. Nosanchuk informed plaintiff’s father that the incident had 5 “just happened.” Plaintiff’s parents filed a request for assistance with AUSD. Plaintiff’s 6 parents filed a second request for assistance after receiving no response to the first request. 7 Defendant Stephanie Anello, the Superintendent of AUSD, informed plaintiff’s mother that 8 no response had been given because plaintiff’s mother failed to complete the proper form. 9 Plaintiff’s mother then submitted the correct form. (id. ¶¶ 34, 36, 46, 48). For the Northern District of California 10 United States District Court Defendants did not offer medical attention, call plaintiff’s parents, or report the incident The day after the incident plaintiff was diagnosed with a concussion. Because plaintiff 11 experienced fear and anxiety related to the incident, and thus felt unsafe to return to school, 12 plaintiff’s parents requested that AUSD provide an alternative placement and to allow for 13 independent study in the meantime. AUSD concluded that Sierra School was an appropriate 14 placement and denied both requests (id. ¶¶ 40, 43–45). 15 In February 2018, after consulting a law firm, AUSD concluded that no assault had 16 occurred. AUSD informed plaintiff’s parents that no additional protection would be provided 17 to plaintiff. McBride and Andrews were still employed at Sierra School. Accordingly, 18 plaintiff’s parents kept plaintiff from returning to school because they feared for his safety. 19 Plaintiff requested that AUSD move plaintiff to a different school and offered three options. 20 AUSD denied all three requests, stating that plaintiff was not a good fit for the other schools. 21 Defendants sent plaintiff a “Compromise and Release Agreement” that offered to grant the 22 alternative placement in exchange for release from all liability (id. ¶¶ 49–50, 52, 54–55). 23 Plaintiff’s complaint alleges the following twelve claims: (1) violation of Section 1983; 24 (2) discrimination in violation of the Americans With Disabilities Act, 42 U.S.C. § 12132; 25 (3) discrimination in violation of the Rehabilitation Act of 1973, 29 U.S.C. § 794; 26 (4) negligence; (5) negligent hiring, supervision, or retention of employee; (6) battery; 27 (7) discrimination in violation of the Unruh Civil Rights Act, California Civil Code Section 51; 28 (8) discrimination in violation of California Education Code Section 220; (9) violation of 3 1 mandatory reporting duty pursuant to California Penal Code Section 11166; (10) discrimination 2 in violation of the Tom Bane Civil Rights Act, California Civil Code Section 52.1; 3 (11) intentional infliction of emotional distress; and (12) negligent infliction of emotional 4 distress. This order follows full briefing and oral argument. ANALYSIS 5 To survive a motion to dismiss, a complaint must plead “enough facts to state a claim For the Northern District of California United States District Court 6 7 to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). 8 A claim has facial plausibility when it pleads factual content that allows the court to draw the 9 reasonable inference that the defendant is liable for the misconduct alleged. Ashcroft v. Iqbal, 10 556 U.S. 662, 678 (2009). Factual allegations in the complaint are to be accepted as true and 11 construed in the light most favorable to the nonmoving party. Manzarek v. St. Paul Fire & 12 Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). Conclusory allegations or “formulaic 13 recitation of the elements” of a claim, however, are not entitled to the presumption of truth. 14 Iqbal, 556 U.S. at 681. 15 1. SECTION 1983 CLAIM. 16 Plaintiff’s first claim is brought against Catapult, McBride, Andrews, Diaz, Moore, 17 Rubalcava, and Anello under Section 1983 (Dkt. No. 36 ¶ 60). Section 1983 provides a 18 “mechanism for vindicating federal statutory or constitutional rights.” Stillwell v. City of 19 Williams, 831 F.3d 1234, 1240 (9th Cir. 2016) (citation omitted). To state a Section 1983 20 claim, a plaintiff must show “(1) that a person acting under color of state law committed the 21 conduct at issue, and (2) that the conduct deprived the claimant of some right, privilege, or 22 immunity protected by the Constitution or laws of the United States.” Leer v. Murphy, 844 F.2d 23 628, 632–33 (9th Cir. 1988). The constitutional right at issue is the Fourth Amendment right to 24 be free from unreasonable seizure (Dkt. Nos. 36 ¶ 61; 42 at 5–6; 53 at 7). Catapult, McBride, 25 Andrews, Diaz, Moore, Rubalcava, and Anello move to dismiss (Dkt. Nos. 42 at 5–11; 43 at 26 4–11). 27 28 Our court of appeals has established that a student’s “Fourth Amendment right to be free from an unreasonable seizure extends to seizures by or at the direction of school officials.” 4 1 Doe ex rel. v. Haw. Dep’t of Educ., 334 F.3d 906, 909 (9th Cir. 2003) (internal quotation marks 2 omitted). “A seizure violates the Fourth Amendment if it is objectively unreasonable under the 3 circumstances.” Ibid. In a school setting, “the reasonableness of the seizure must be considered 4 in light of the educational objectives” the official is trying to achieve. Ibid. Plaintiff alleges 5 that McBride and Andrews violated his Fourth Amendment right to be free from unreasonable 6 seizure by holding him by the wrist, forcing his arm behind his back, grabbing his neck, 7 slamming him to the floor (which caused his head to hit a desk) and improperly implementing 8 the “two-person pro-act prone” restraint (Dkt. No. 36 ¶¶ 31, 33–34, 61–62). Taking the facts as 9 true and construing them in a light most favorable to plaintiff, this order holds that plaintiff has For the Northern District of California United States District Court 10 plausibly alleged unreasonable seizure in violation of his Fourth Amendment rights. 11 Defendants next argue that plaintiff’s claim fails because Catapult is a private company; 12 thus, defendants were not acting under color of state law (Dkt. No. 43 at 6–7). Plaintiff alleges 13 that because AUSD hired Catapult to remain compliant with federal regulations — and “[t]he 14 acts complained of were contemplated by this contract” — the relationship is sufficient to 15 establish that Catapult and its employees acted under color of state law (Dkt. No. 36 ¶¶ 5–6, 16 72). In opposition, plaintiff argues that by signing this contract, which allowed for AUSD and 17 Catapult employees to be within the same facility, AUSD “so far insinuated itself into a position 18 of interdependence with [Catapult] that . . . [it] must be considered a state actor for purposes of 19 [Section] 1983” (Dkt. No. 52 at 9). Plaintiff further alleges that AUSD and Catapult “jointly 20 controlled, directed, managed, operated, and/or owned Sierra School” (ibid.). 21 “The inquiry is whether the State was sufficiently involved in causing the harm to the 22 plaintiff to treat the conduct of the private actor as ‘under color of state law.’” Gorenc v. Salt 23 River Project Agric. Improvement & Power Dist., 869 F.2d 503, 506 (9th Cir. 1989). 24 “When addressing whether a private party acted under color of [state] law, we . . . start 25 with the presumption that private conduct does not constitute governmental action” without 26 “something more.” Sutton v. Providence St. Joseph Med. Ctr., 192 F.3d 826, 835 (9th Cir. 27 1999). Our court of appeals has recognized a four-part test “to identify what constitutes that 28 ‘something more’: (1) public function; (2) joint action; (3) governmental compulsion or 5 1 coercion; and (4) governmental nexus.” Sutton, 192 F.3d at 835–36; see also Kirtley v. Rainey, 2 326 F.3d 1088, 1092 (9th Cir. 2003). Satisfaction of any of these tests is sufficient. Kirtley, 3 326 F.3d at 1092. 4 5 as a state actor in a few limited circumstances—including, for example, (i) when the private 6 entity performs a traditional, exclusive public function; (ii) when the government compels 7 the private entity to take a particular action; or (iii) when the government acts jointly with 8 the private entity.” Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1928 ( 2019) 9 (internal citations omitted). This order finds the test from our court of appeals consistent with 10 11 For the Northern District of California United States District Court In a recent decision, the Supreme Court has indicated that “a private entity can qualify the Supreme Court’s description of the state action rule. The Supreme Court has held that the state action rule requires a necessarily fact-heavy 12 inquiry. Lugar v. Edmondson Oil Co., 457 U.S. 922, 939 (1982); Brentwood Acad. v. Tenn. 13 Secondary Sch. Ass’n, 531 U.S. 288, 298 (2001). Here, the key point is that the specific 14 facts and circumstances are not fully known to the plaintiff because they involve the internal 15 workings of AUSD and the nature of the contract. Plaintiff cannot be expected to plead facts 16 that he cannot possibly access and can only be learned through discovery. For the reasons set 17 forth below, plaintiff has plausibly alleged that employees at Sierra School were acting under 18 color of state law by reason of the contractual relationship between Catapult and AUSD. 19 “The public function test is satisfied only on a showing that the function at issue is 20 both traditionally and exclusively governmental.” Kirtley, 326 F.3d at 1093 (internal quotation 21 marks omitted); see also Jackson v. Metro. Edison Co., 419 U.S. 345, 352 (1974). Education 22 has long been available through both public and private avenues. Because it cannot be said that 23 education is traditionally and exclusively governmental, this factor does not, by itself, support a 24 finding that Catapult and the Sierra School employees were acting under color of state law. 25 “Under the joint action test, we consider whether the [S]tate has so far insinuated itself 26 into a position of interdependence with the private entity that it must be recognized as a joint 27 participant in the challenged activity.” Kirtley, 326 F.3d at 1093 (internal quotation marks 28 omitted). “In other words, if the [S]tate knowingly accepts the benefits derived from 6 For the Northern District of California United States District Court 1 unconstitutional behavior . . . then the conduct can be treated as state action.” Gorenc, 869 F.2d 2 at 507 (internal quotation marks omitted). Plaintiff alleges that “Sierra School staff are 3 comprised of both District and [Catapult] employees and is housed within AUSD facilities” 4 (Dkt. No. 36 ¶ 5). At oral argument, plaintiff’s counsel indicated that it was unclear who 5 McBride and Andrews worked for, because employees from both AUSD and Catapult worked 6 at Sierra School. At the pleading stage, the mixed nature of the school is sufficient to support a 7 plausible inference of joint action. 8 “The compulsion test considers whether the coercive influence or significant 9 encouragement of the [S]tate effectively converts a private action into a government action.” 10 Kirtley, 326 F.3d at 1094 (internal quotation marks omitted). In other words, the State can be 11 held responsible “when it has exercised coercive power or has provided such significant 12 encouragement, either overt or covert, that the choice must in law be deemed to be that of the 13 State.” Blum v. Yaretsky, 457 U.S. 991, 1004 (1982). Plaintiff alleges that AUSD and Catapult 14 “controlled, directed, managed, operated and/or owned Sierra School,” and that actions by 15 McBride and Andrews were taken in the scope of employment with AUSD and Catapult 16 (Dkt. No. 36 ¶¶ 6–8). If true, these allegations are sufficient to support the plausible inference 17 that the State coerced or encouraged the acts at issue. Anything more would be impossible for 18 the plaintiff to plead, because he does not yet have access to the contract between Catapult and 19 AUSD. The interworkings of AUSD’s involvement in the school obtained through discovery 20 will tease out whether the employees at Sierra School, specifically McBride and Andrews, were 21 acting under color of state law in the course of the events at issue. 22 The government nexus test, which is by far the most loosely-defined test, “asks whether 23 there is such a close nexus between the State and the challenged action that the seemingly 24 private behavior may be fairly treated as that of the State itself.” Kirtley, 326 F.3d at 1094–95 25 (internal quotation marks omitted). On the one hand, the Supreme Court has held that “[a]cts 26 of . . . private contractors do not become acts of the government by reason of their significant or 27 even total engagement in performing public contracts.” Rendell–Baker v. Kohn, 457 U.S. 830, 28 841 (1982). On the other hand, because of the necessarily fact-bound inquiry, it is impossible to 7 1 make a finding here without knowing what the contract between AUSD and Catapult entails. 2 Among other nexus considerations, this order finds the allegation that “[t]he acts complained of 3 were contemplated by this contract” sufficient to establish a nexus between government action 4 and the incident at issue (Dkt. No. 36 ¶ 72). For the Northern District of California United States District Court 5 Catapult cites Caviness v. Horizon Community Learning Center, Inc., 590 F.3d 806 6 (9th Cir. 2010), where our court of appeals found that a private, non-profit corporation running 7 a charter school was not a state actor for employment purposes (Dkt. No. 43 at 8). Catapult also 8 cites Rendell–Baker v. Kohn, 457 U.S. 830, 841–42 (1982), to argue that the provision of 9 educational services is not “a function that is traditionally and exclusively the prerogative of the 10 [S]tate . . .” (Dkt. No. 43 at 8). As the Caviness decision indicates, however, “[i]t is important 11 to identify the function at issue because an entity may be a [s]tate actor for some purposes but 12 not for others.” Caviness, 590 F.3d at 812–13. Both decisions addressed the charter school’s 13 role as an employer, not a provider of a secure educational environment. Rendell–Baker, 14 457 U.S. at 836; Caviness, 590 F.3d at 813. As such, the facts of those two decisions do not 15 apply here. 16 Additionally, in Caviness, the plaintiff’s argument failed because he pled that all 17 Arizona charter schools were state actors as a matter of law under Arizona’s statutory scheme. 18 Caviness, 590 F.3d at 813. Here, in contrast, plaintiff alleges that the contract between Catapult 19 and AUSD to provide educational services indicates that AUSD, through the State, sufficiently 20 established a position of interdependence with Catapult and the Sierra School employees (Dkt. 21 No. 36 ¶ 6). This is the type of fact-specific inquiry that requires more than what plaintiff can 22 possibly plead absent discovery. Because plaintiff has alleged as much as would be possible 23 prior to discovery, this order finds that the complaint leads to a plausible inference that McBride 24 and Andrews acted under color of state law through the government nexus, compulsion, and 25 joint action tests. Accordingly, the motion to dismiss this claim against McBride and Andrews 26 is DENIED. 27 28 Plaintiff alleges that Catapult, Diaz, Moore, Rubalcava, and Anello are individually liable under Section 1983 for their inaction in the training, supervision, and control of McBride 8 1 and Andrews (Dkt. No. 36 ¶ 65). Catapult, Diaz, Moore, Rubalcava, and Anello move to 2 dismiss, reasoning that they did not personally participate or take an “affirmative part” in the 3 actions of Andrews and McBride (Dkt. Nos. 42 at 5–11; 43 at 7–10). Section 1983 does not 4 provide for liability under respondeat superior. Iqbal, 556 U.S. at 676. A plaintiff may only 5 hold “supervisors individually liable in [Section] 1983 suits when culpable action, or inaction, 6 is directly attributed to them.” Starr v. Baca, 652 F.3d 1202, 1205 (9th Cir. 2011). Because 7 plaintiff fails to allege that these defendants played a personal role in the acts at issue, this claim 8 against these defendants cannot survive a motion to dismiss. In opposition, plaintiff argues Anello and Rubalcava are individually liable under For the Northern District of California United States District Court 9 10 Section 1983 because they “knew of past violations of the rights of other students committed 11 by these individuals and failed to act to prevent them” (Dkt. No. 53 at 7). Plaintiff further 12 argues that Catapult, Diaz, and Moore are liable for their failure to adequately train their 13 employees which resulted in the use of excessive force (Dkt. No. 52 at 11–12). Our court of 14 appeals has found that a supervisor can be held liable in a Section 1983 action “by setting in 15 motion a series of acts by others, or by knowingly refusing to terminate a series of acts by 16 others, which the supervisor knew or reasonably should have known would cause others to 17 inflict a constitutional injury.” Starr, 652 F.3d at 1207–08 (internal citations, quotation marks, 18 and brackets omitted). Plaintiff alleges that Diaz, Moore, Rubalcava, and Anello had “actual 19 or constructive knowledge” of previous incidents of abuse, and that Catapult has a “permanent 20 and well-settled practice of downplaying the abuse of special education students” (Dkt. No. 36 21 ¶¶ 67, 71–72). These allegations are a mere formulaic recitation of the elements, which the 22 Supreme Court has indicated is insufficient to survive a motion to dismiss. Iqbal, 556 U.S. 23 at 681. 24 It is possible that facts and circumstances will come to light that show that some or all 25 of these defendants should be held responsible. However, because the present record does not 26 show that these defendants personally participated in the acts at issue, and because Section 1983 27 does not provide for liability under respondeat superior, the motion to dismiss this claim 28 against Catapult, Diaz, Moore, Rubalcava, and Anello is GRANTED. 9 1 2 (Dkt. Nos. 42 at 9; 43 at 8–9). Because this order dismisses the Section 1983 claim against 3 these defendants, the immunity issues need not be addressed at this time. 4 2. 5 Plaintiff asserts AUSD violated his rights under the ADA and Section 504 of the Rehabilitation Act (Dkt. No. 36 ¶¶ 82–86, 97). AUSD moves to dismiss these claims (Dkt. 7 No. 42 at 11–14). In Duvall v. County of Kitsap, 260 F.3d 1124, 1135 (9th Cir. 2001), our court 8 of appeals stated: 10 11 For the Northern District of California ADA AND REHABILITATION ACT CLAIMS. 6 9 United States District Court In their motions to dismiss, Catapult, Rubalcava, and Anello raise immunity defenses 12 To prove that a public program or service violated Title II of the ADA, a plaintiff must show: (1) he is a “qualified individual with a disability”; (2) he was either excluded from participation in or denied the benefits of a public entity's services, programs, or activities, or was otherwise discriminated against by the public entity; and (3) such exclusion, denial of benefits, or discrimination was by reason of his disability. 13 That decision also held that “[a] plaintiff bringing suit under § 504 must show (1) he is an 14 individual with a disability; (2) he is otherwise qualified to receive the benefit; (3) he was denied 15 the benefits of the program solely by reason of his disability; and (4) the program receives 16 federal financial assistance.” Ibid. The parties do not dispute that plaintiff is a “qualified 17 individual with a disability” under both statutes (Dkt. No. 36 ¶ 83). “To recover monetary 18 damages under Title II of the ADA or the Rehabilitation Act, a plaintiff must prove intentional 19 discrimination on the part of the defendant.” Duvall, 260 F.3d at 1138. Intentional 20 discrimination can be met by showing “deliberate indifference.” Ibid. Deliberate indifference 21 requires “both knowledge that a harm to a federally protected right is substantially likely, and a 22 failure to act upon that . . . likelihood.” Id. at 1139. 23 Plaintiff’s theory for relief against AUSD under these statutes is two-fold. First, plaintiff 24 asserts that AUSD violated the ADA and Section 504 when it failed to provide an adequate 25 alternative placement other than Sierra School. Second, plaintiff posits that AUSD is vicariously 26 liable for the actions of McBride and Andrews. 27 28 The Individuals with Disabilities Education Act (“IDEA”) provides federal funds for States that provide a free appropriate public education (“FAPE”) “to all children with disabilities 10 1 residing in the State between the ages of 3 and 21, inclusive, including children with disabilities 2 who have been suspended or expelled from school.” 20 U.S.C. § 1412(a)(1)(A). Plaintiffs 3 seeking relief under the ADA, the Rehabilitation Act, “or other Federal laws protecting the rights 4 of children with disabilities” must first exhaust administrative remedies available under the 5 IDEA. 20 U.S.C. § 1415(l). To be subject to the exhaustion requirement, a plaintiff must be 6 seeking relief for the denial of a FAPE. Fry v. Napoleon Cmty. Schs., 137 S.Ct. 743, 752 (2017). 7 To determine whether a plaintiff seeks relief for such a denial, “a court should look to the 8 substance, or gravamen, of the plaintiff’s complaint.” Ibid. Here, if plaintiff seeks relief for 9 AUSD’s failure to provide him with meaningful access to education, plaintiff must first exhaust 11 For the Northern District of California United States District Court 10 the remedies available to him under the IDEA. First, plaintiff alleges that AUSD discriminated against him and denied him equal access 12 to educational benefits by “subject[ing] him to physical abuse causing him to fear returning to 13 school” and subsequently denying him a reasonable alterative placement (Dkt. No. 36 ¶ 84). 14 This order finds that the decision to place plaintiff in another school is without doubt educational 15 in nature. The gravamen of plaintiff’s complaint is that AUSD failed to provide him with a 16 FAPE when AUSD denied him adequate alternative placement. Therefore, the ADA and 17 Section 504 claims against AUSD for failure to find adequate alternative placement are barred 18 for failure to allege exhaustion of remedies available under the IDEA. 19 Second, plaintiff argues that AUSD is liable for the wrongful acts of McBride and 20 Andrews. AUSD moves to dismiss this claim because AUSD did not participate in the alleged 21 violation and that it did not act with deliberate indifference (Dkt. No. 42 at 12–13). AUSD does 22 not address plaintiff’s respondeat superior argument. The ADA and Section 504 specifically 23 provide for relief under the doctrine of respondeat superior. Duvall, 260 F.3d at 1141. “When a 24 plaintiff brings a direct suit under either the Rehabilitation Act or . . . the ADA . . . the public 25 entity is liable for the vicarious acts of its employees.” Ibid. Therefore, the appropriate inquiry 26 is whether the actions of McBride and Andrews were educational in nature and thus subject to 27 IDEA exhaustion. If not, then the claim against AUSD under the doctrine of respondeat 28 11 1 superior may survive so long as plaintiff plausibly alleged that the actions of McBride and 2 Andrews violated the ADA and Section 504. 3 Plaintiff alleges that Andrews coldly laughed at plaintiff when he asked Andrews to 4 let go of his neck and that Andrews and McBride used excessive force by implementing the 5 “two-person pro-act prone restraint” (Dkt. No. 36 ¶¶ 32–33). Plaintiff further alleges that 6 McBride and Andrews responded in this manner because plaintiff exhibited symptoms related 7 to his disability (Dkt. No. 36 ¶ 87). This order finds these allegations sufficient to support an 8 inference that McBride and Andrews, with deliberate indifference, deprived plaintiff of his right 9 to be free from unreasonable seizure. Therefore, with respect to the injuries resulting from the 11 For the Northern District of California United States District Court 10 restraint, plaintiff has plausibly alleged a violation of the ADA and Section 504. The injuries resulting from the restraint are not educational in nature and thus not subject 12 to IDEA exhaustion. In Fry, the Supreme Court laid out a two-part hypothetical to determine 13 whether or not the complaint concerns the denial of a FAPE. Fry, 137 S.Ct. at 756. The first 14 inquiry is whether the plaintiff could “have brought essentially the same claim if the alleged 15 conduct had occurred at a public facility . . . .” Ibid. The second is whether “an adult at the 16 school—say, an employee or visitor—[could] have pressed essentially the same grievance . . . .” 17 Ibid. In a footnote, the Supreme Court indicated that when “a teacher, acting out of animus or 18 frustration, strikes a student with a disability, who then sues the school under a statute other than 19 the IDEA,” that suit would likely not be subject to IDEA exhaustion. Ibid. n.9. The reasoning is 20 that a child in that situation could file a claim under the ADA or Section 504 against an official 21 if it occurred at another public facility. Furthermore, an adult in that same situation at a school 22 could file a claim under the ADA or Section 504 against the school. Ibid. 23 Plaintiff’s allegations against McBride and Andrews are similar to the situation that the 24 Supreme Court addressed in that footnote. The alleged overreaction by McBride and Andrews 25 is plausibly outside the realm of education. This order recognizes that there is a mix of opinion 26 in other district courts regarding whether or not the use of restraints is educational in nature. 27 For example, in N.S. by and Through his Parent (J.S.) v. Tennessee Department of Education, 28 No. 3:16-cv-0610, 2017 WL 1347753, at *11 (M.D. Tenn. Apr. 12, 2017) (Judge Aleta A. 12 1 Trauger), a district court in Tennessee indicated that “[t]he discipline of students is primarily 2 educational in nature.” But in P.G. by and Through R.G. v. Rutherford County Board of 3 Education, 313 F. Supp. 3d 891, 900, 902 (M.D. Tenn. 2018) (Judge Waverly D. Crenshaw, Jr.), 4 the same court held that the use of restraints was particular to the school environment but that a 5 teacher’s striking of a student was outside the realm of education and not subject to IDEA 6 exhaustion. Here, the ultimate determination will turn on the specific facts and circumstances 7 of the situation revealed after discovery. 8 For the Northern District of California United States District Court 9 Because plaintiff has plausibly alleged that McBride and Andrews violated the ADA and Section 504, AUSD would be held vicariously liable for their actions. The motion to 10 dismiss plaintiff’s ADA and Section 504 claims against AUSD under a theory of respondeat 11 superior is DENIED. 12 3. STATE-LAW CLAIMS. 13 The state-law claims will be HELD IN ABEYANCE pending a determination of whether 14 any of the federal claims survive summary judgment. By SEPTEMBER 26, 2019, defendants shall 15 file summary-judgment motions setting forth their factual versions of the case and whatever 16 factual discovery defendants obtain from plaintiff and elsewhere. Plaintiff’s counsel may take 17 discovery reasonably necessary to meet the issues raised in the motion. Within forty-nine days 18 after the motion for summary judgment is filed, plaintiff must file his opposition. The reply shall 19 be due one week later. The hearing will be DECEMBER 5, 2019. 20 In the Court’s experience, cases of this nature can be best managed by getting at the 21 actual facts contended by the two competing sides under oath, as opposed to unsworn 22 allegations, complaints, and responses by the plaintiff. If the federal claims are dismissed on 23 summary judgment, then it is unlikely the Court will exercise supplemental jurisdiction over the 24 state law claims. If any of the federal claims survive, however, the Court may retain some or all 25 of the state law claims pursuant to supplemental jurisdiction. The briefing to date has asked the 26 judge to make many rulings on issues of state law regarding matters of first impression. It is 27 unwise to do this on a motion to dismiss based on mere allegations as opposed to the actual facts 28 13 1 of the case. Therefore, this order, which is already far too long, will not delve further into the 2 state-law claims at this time. 3 CONCLUSION 4 5 dismissed claims, plaintiff may move for leave to file an amended complaint by JULY 22 AT 6 NOON. 7 amended complaint that clearly identifies all changes from the initial complaint. In the proposed 8 amended complaint, plaintiff should be sure to plead his best case. If such a motion is made, it 9 will not slow up the summary-judgment plan set forth above. Both sides are expected to 10 Any such motion should include as an exhibit a redlined version of the proposed cooperate in discovery to help get to the truth of the matter. 11 For the Northern District of California United States District Court Defendants’ motions to dismiss are GRANTED IN PART AND DENIED IN PART. As to the 12 IT IS SO ORDERED. 13 14 15 Dated: July 1, 2019. WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 14
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