Stassart et al v. Chrisman et al, No. 5:2009cv01131 - Document 72 (N.D. Cal. 2009)

Court Description: ORDER DENYING MOTIONS FOR PRELIMINARY INJUNCTION AND GRANTING MOTIONS TO DISMISS AND STRIKE WITH LEAVE TO AMEND re 27 , 36 , 38 , 40 , 46 & 47 . Signed by Judge Jeremy Fogel on 9/28/2009. (jflc3, COURT STAFF) (Filed on 9/29/2009) Modified on 10/5/2009 (dlm, COURT STAFF).

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Stassart et al v. Chrisman et al Doc. 72 1 **E-Filed 9/29/09** 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 10 SAN JOSE DIVISION 11 12 13 ELISE STASSART, Plaintiff, 14 v. 15 16 Case Number C 09-1131 JF (HRL) ORDER1 DENYING MOTIONS FOR PRELIMINARY INJUNCTION AND GRANTING MOTIONS TO DISMISS AND STRIKE WITH LEAVE TO AMEND LAKESIDE JOINT SCHOOL DISTRICT, et al., Re. docket nos. 27, 36, 38, 40, 46, 47 17 Defendants. 18 19 20 21 Plaintiff Elise Stassart (“Plaintiff”), who is proceeding pro se, alleges that Defendants 22 Lakeside School District (“Lakeside”), its Superintendent, Bob Chrisman (“Chrisman”), 23 California Department of Education (“CDE”) Superintendent Jack O’Connell (“O’Connell”), 24 Office of Administrative Hearings Officer Laura Gutierrez (“Gutierrez”), Santa Clara County 25 Office of Education (“SCCOE”) official Charles Weis (“Weis”), Campbell Union School District 26 (“CUSD”) Superintendent Johanna VanderMolen (“VanderMolen”), and Los Gatos Union 27 1 28 This disposition is not designated for publication in the official reports. Case No. C 09-1131 JF (HRL) ORDER DENYING MOTIONS FOR PRELIMINARY INJUNCTION AND GRANTING MOTIONS TO DISMISS AND STRIKE WITH LEAVE TO AMEND (JFLC3) Dockets.Justia.com 1 School District (“LGUSD”) Superintendent Richard Whitmore (“Whitmore”) have violated and 2 continue to violate the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 3 et seq., Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12131 et seq., and § 4 504 of the Rehabilitation Act of 1973 , 29 U.S.C. § 794 (“Section 504”), by denying her adoptive 5 son I.S. a federally mandated “free and appropriate public education,” and by retaliating against 6 her when she attempted to secure educational services for her son. 7 Plaintiff moves for a preliminary injunction requiring Defendant Lakeside to provide free 8 transportation to a charter school of Plaintiff’s choosing. Plaintiff also moves for a preliminary 9 injunction against Whitmore to allow I.S. to attend a middle school in LGUSD. Defendants move 10 to dismiss portions of Plaintiff’s First Amended Complaint (“FAC”) on the grounds of lack of 11 jurisdiction, statutory immunity, and failure to state valid claims, and to strike portions of the 12 complaint relating to damages and attorney’s fees. 13 14 15 16 For the reasons discussed below, Plaintiff’s motions for a preliminary injunction will be denied. Defendants’ motions to dismiss and strike will be granted, with leave to amend. I. BACKGROUND Plaintiff and her husband Philippe Stassart reside in Santa Cruz County and are the legal 17 guardians of I.S., a minor. I.S. has been diagnosed with several mental illnesses and has a long 18 history of learning disabilities of varying degrees of severity. I.S was enrolled at Lakeside 19 Elementary School for his fourth and fifth grade years (the 2005-06 and 2006-07 school years), 20 and was transferred to Rolling Hills Middle School (“Rolling Hills”) for his sixth grade year 21 (2007-08). The transfer to Rolling Hills occurred pursuant to a memorandum of understanding 22 between Lakeside, which is Plaintiff’s district of residence and does not operate a middle school, 23 and CUSD, which operates Rolling Hills. 24 In April 2007, before I.S. began attending Rolling Hills, Plaintiff requested that I.S. be 25 evaluated for an Individualized Educational Plan (“IEP”) under the IDEA. After evaluating I.S. 26 in May 2007, Lakeside found that, although I.S. had been diagnosed with an emotional 27 disturbance, “it did not adversely affect his educational performance, and classroom 28 2 Case No. C 09-1131 JF (HRL) ORDER DENYING MOTIONS FOR PRELIMINARY INJUNCTION AND GRANTING MOTIONS TO DISMISS AND STRIKE WITH LEAVE TO AMEND (JFLC3) 1 accommodations were sufficient to allow [him] to receive an education.” (FAC ¶ 55.) 2 Accordingly, Lakeside did not design an IEP for I.S. at that time. Lakeside did conclude, 3 however, that I.S. met the criteria for developing a plan pursuant to Section 504 of the 4 Rehabilitation Act. That plan provided for accommodations such as extra time and support with 5 transitions, designated adults to provide positive reinforcement and help in processing the 6 educational environment, and assistance with behavior regulation. 7 Plaintiff alleges that Rolling Hills did not adhere to the Section 504 plan and that both 8 Lakeside and CUSD committed various procedural violations under both the IDEA and Section 9 504. Additionally, and more generally, Plaintiff alleges that Lakeside, as the agency responsible 10 for her son’s educational placement, and VanderMolen, as superintendent of the school district 11 operating Rolling Hills, failed to provide her son with the educational accommodations and 12 services to which he is legally entitled. 13 Given the perceived inadequacy of Rolling Hills as a learning environment for I.S., 14 Plaintiff attempted in the fall of 2007 to enroll I.S. at Fisher Middle School (“Fisher”), which is 15 operated by LGUSD. Fisher is the closest middle school to Plaintiff’s residence, and is the 16 middle school to which residents on Plaintiff’s mountain road had enjoyed access for fifty years 17 prior to the school’s redesignation as part of a “Basic-Aid” district in 2005. However, Plaintiff’s 18 transfer request was denied by the Whitmore. Plaintiff appealed the denial to the Santa Clara 19 County Office of Education, but Weis affirmed Whitmore’s decision. Plaintiff alleges that both 20 decisions violated state and federal law. 21 In October 2007, Plaintiff attended a meeting with Rolling Hills staff to discuss the 22 implementation of I.S.’s Section 504 plan. Plaintiff alleges that Rolling Hills staff declined to 23 implement the plan developed by Lakeside, and that the alternative plan developed by Rolling 24 Hills was defective. Plaintiff alleges that as a result, she continued to receive notice from 25 teachers and staff regarding I.S.’s behavioral problems, missing assignments, and poor academic 26 progress. Plaintiff claims that Rolling Hills staff primarily blamed her for I.S.’s lack of academic 27 progress. Under these circumstances, Plaintiff arranged for private tutoring for I.S. at her own 28 3 Case No. C 09-1131 JF (HRL) ORDER DENYING MOTIONS FOR PRELIMINARY INJUNCTION AND GRANTING MOTIONS TO DISMISS AND STRIKE WITH LEAVE TO AMEND (JFLC3) 1 2 expense. As the 2007-08 school year continued, I.S. began to experience increasing anxiety and 3 depression. Plaintiff alleges that because of the lengthy commute to Rolling Hills, I.S. had 4 insufficient time, or simply was too tired, to complete his school assignments, and that he 5 experienced predictable stress upon arriving home. Plaintiff also alleges that as a result of I.S.’s 6 failure to submit assignments in a timely manner, teachers at Rolling Hills routinely kept him in 7 class during recess and lunch periods to complete the required work, further contributing to his 8 isolation, stress, and depression. 9 On the basis of these developments, Plaintiff advised Lakeside in March 2008 that in her 10 judgment the placement at Rolling Hills did not constitute the “free and appropriate public 11 education” guaranteed by both the IDEA and Section 504. Plaintiff alleges that Lakeside failed 12 to hold a hearing or to investigate her complaint. 13 In April 2008, Plaintiff had I.S. evaluated by Dr. Nancy Sullivan, a neuropsychiatrist at 14 the Children’s Health Council in Palo Alto. Plaintiff states that by the time of the evaluation, I.S. 15 was experiencing regular violent outbursts. Dr. Sullivan found that I.S.’s IQ had dropped eleven 16 points from his last assessment, only a year earlier, and that his working memory capacity had 17 decreased by thirty percent. Dr. Sullivan recommended a Section 504 plan with specific 18 accommodations, which according to Plaintiff Rolling Hills subsequently failed to provide. 19 In May 2008, Rolling Hills convened a Section 504 meeting to discuss I.S.’s preparation 20 for seventh grade. Plaintiff alleges that Rolling Hills again ignored the Section 504 plan 21 previously prepared by Lakeside, refused to include any accountability provisions designed to 22 measure the effectiveness of the plan and its implementation, and denied her reasonable request 23 that I.S. be provided with a “resource period” during which he could work with an aide in order 24 to free up the extra-curricular time that he was spending with teachers. Lakeside did not 25 participate in any of the Section 504 meetings held during the 2007-08 school year. 26 27 On June 4, 2008, Chrisman published a letter in the Lakeside school newsletter–which is distributed to all Lakeside families and posted on the Lakeside website–stating that the school 28 4 Case No. C 09-1131 JF (HRL) ORDER DENYING MOTIONS FOR PRELIMINARY INJUNCTION AND GRANTING MOTIONS TO DISMISS AND STRIKE WITH LEAVE TO AMEND (JFLC3) 1 was “under attack” by Plaintiff, who by that time had filed complaints with Lakeside for denial of 2 the free and appropriate public education guaranteed by federal and California law. Plaintiff 3 alleges that as a result of the letter, other students called I.S. names at school, parents gave I.S. 4 dirty looks, and some students threw rocks at I.S. On July 28, 2008, Plaintiff filed a request for a 5 due process hearing pursuant to the IDEA in order to challenge Lakeside’s determination that I.S. 6 was ineligible for special education services. 7 On August 15, 2008, I.S. was physically attacked by a Rolling Hills student who warned 8 him not to return to school in the fall. Plaintiff reported the attack to Rolling Hills’ principal, 9 who advised Plaintiff that the school could not become involved because the attack occurred off 10 campus. Plaintiff filed an incident report with the Campbell Police Department. 11 I.S. did not attend the start of the 2008-09 school year. An assessment sought by Plaintiff 12 in September 2008 revealed that I.S.’s reading skills remained at a second-grade level and that he 13 may have dyslexia. Plaintiff alleges that Rolling Hills failed to take any action or to suggest any 14 accommodation when presented with these findings. In late September 2008, however, Lakeside 15 did convene an IEP meeting pursuant to the IDEA to determine whether I.S. is eligible for 16 “special education” and a broad range of “related services” available under the IDEA. Plaintiff 17 alleges that Lakeside refused to consider any of the assessment data that she had gathered during 18 the preceding year, and that Lakeside insisted that I.S. was performing adequately. Lakeside 19 ultimately determined that I.S. did not qualify for services under the IDEA. 20 I.S. was absent for the first two months of his seventh-grade year, starting school only in 21 mid-October 2008. Prior to I.S.’s return to school, Rolling Hills held a further Section 504 22 meeting and again refused to provide I.S. with a “resource period.” On November 7, 2008, I.S. 23 was attacked by another student, and both students were suspended. Subsequently, I.S. 24 experienced increasing fear of attending school. He agreed to return to school only if he no 25 longer had to ride the bus. Plaintiff hired a private driver at a cost of $500 per month, as she no 26 longer could afford the wages she lost by driving I.S. to school herself. I.S. returned to school 27 but was attacked by another student only two days later. I.S. requested a staff escort before and 28 5 Case No. C 09-1131 JF (HRL) ORDER DENYING MOTIONS FOR PRELIMINARY INJUNCTION AND GRANTING MOTIONS TO DISMISS AND STRIKE WITH LEAVE TO AMEND (JFLC3) 1 after school to walk him between class and the parking lot pick-up area, an accommodation to 2 which Rolling Hills agreed. 3 A due process hearing was held on November 12, 13, and 14, 2008 before ALJ Suzanne 4 Dugan of the Office of Administrative Hearings (“OAH”), during which Plaintiff challenged 5 Lakeside’s decision that I.S. is not eligible for special education under the IDEA. ALJ Dugan 6 refused to hear testimony or to receive evidence pertaining to events occurring after the filing of 7 the due process request. On December 23, 2008, the ALJ affirmed Lakeside’s determination that 8 I.S. is not eligible for special services under the IDEA, concluding that his behavioral problems 9 do not affect his education. 10 Shortly before ALJ Dugan issued her decision, and shortly after the most recent series of 11 attacks, I.S. was reported as a habitual truant. Plaintiff alleges state and federal law violations by 12 Lakeside, the SCCOE, and CUSD–as well as the corresponding individual Defendants in their 13 official capacities–arising from I.S.’s designation as a truant. 14 In mid-December 2008, Plaintiff’s husband received a call from a student at Rolling 15 Hills, “M,” who threatened to kill I.S. if I.S. returned to school. Plaintiff and her husband 16 reported the threat to Rolling Hills’ principal, who filed a police report. The principal also 17 showed Plaintiff’s husband a website created by M’s father, on which the father appeared in a 18 photograph posing with an arsenal of weapons. Plaintiff’s husband contacted M’s father, who 19 advised Plaintiff’s husband that M had access to his weapons and was capable of killing I.S. 20 Plaintiff’s husband reported this threat to the police. 21 Plaintiff filed an administrative complaint with Lakeside on December 19, 2008, 22 requesting an alternative educational placement as a result of safety concerns generated by the 23 recent actual and threatened attacks on I.S. Plaintiff alleges that after she filed the complaint, 24 Lakeside removed the bus stop on her road, of which I.S. was the only user, providing a 25 replacement bus stop more than a mile away. The original bus stop, which had been located on 26 Plaintiff’s road for more than fifty years, apparently was restored after I.S. formally dropped out 27 of seventh grade. 28 In January 2009, Plaintiff was advised by an official at CDE to apply for enrollment at 6 Case No. C 09-1131 JF (HRL) ORDER DENYING MOTIONS FOR PRELIMINARY INJUNCTION AND GRANTING MOTIONS TO DISMISS AND STRIKE WITH LEAVE TO AMEND (JFLC3) 1 Fisher Middle School, but enrollment again was denied. Plaintiff alleges that Defendant 2 Whitmore’s denial of that request violated state and federal law. In mid-March 2009, Plaintiff 3 requested a further Section 504 meeting with Chrisman, but Chrisman allegedly refused to 4 convene such a meeting. In mid-April 2009, I.S. had recovered sufficiently from his depression 5 to begin school again, although not at Rolling Hills. Plaintiff enrolled I.S. in the California 6 Virtual Academy (“CAVA), an online home-school program. Shortly after enrolling, I.S. was 7 given a handwriting assessment which revealed that he has severe dysgraphia. He also scored in 8 the eighteenth percentile nationally on a reading placement test and in the fortieth percentile in 9 math. 10 On June 23, 2009, Plaintiff filed the operative First Amended Complaint alleging the 11 aforementioned violations and seeking reversal of the ALJ’s determination that I.S. is ineligible 12 for IDEA services as a child with an emotional disturbance. The parties then filed the instant 13 motions. On August 18, 2009, the Court issued an order granting O’Connell’s motion to dismiss 14 with leave to amend and setting or continuing all other pending motions until September 4, 2009. 15 In the meantime, Plaintiff informed the Court and Defendants that she had decided not to enroll 16 I.S. at South Bay Prep, the San Jose charter school she previously had selected for the 2009-2010 17 school year. Instead, I.S. remains enrolled in CAVA, the online charter home school in which he 18 enrolled last spring. 19 20 II. LEGAL STANDARDS A. Motions for preliminary injunction 21 A preliminary injunction is “an extraordinary remedy that may only be awarded upon a 22 clear showing that the plaintiff is entitled to such relief.” Winter v. Natural Res. Def. Council, 23 Inc., 129 S.Ct. 365, 376 (2008). A party seeking a preliminary injunction must show either “(1) a 24 combination of probable success on the merits and the possibility of irreparable injury, or (2) that 25 serious questions are raised and the balance of hardships tips sharply in its favor.” Los Angeles 26 Mem’l Coliseum Comm’n v. Nat’l Football League, 634 F.2d 1197, 1201 (9th Cir. 1980). These 27 “two formulations represent two points on a sliding scale in which the required degree of 28 irreparable harm increases as the possibility of success decreases.” Oakland Tribune, Inc. v. 7 Case No. C 09-1131 JF (HRL) ORDER DENYING MOTIONS FOR PRELIMINARY INJUNCTION AND GRANTING MOTIONS TO DISMISS AND STRIKE WITH LEAVE TO AMEND (JFLC3) 1 Chronicle Publ’g Co., 762 F.2d 1374, 1376 (9th Cir. 1985). 2 Requests for mandatory, as opposed to prohibitory, injunctive relief are subject to a 3 heightened standard: “A prohibitory injunction preserves the status quo. A mandatory injunction 4 goes well beyond simply maintaining the status quo pendente lite [and] is particularly disfavored. 5 When a mandatory preliminary injunction is requested, the district court should deny such relief 6 unless the facts and law clearly favor the moving party.” Stanley v. Univ. of S. Cal., 13 F.3d 7 1313, 1320 (9th Cir. 1994) (quotation marks and citations 8 omitted). 9 B. Motions to dismiss for lack of subject matter jurisdiction 10 A motion to dismiss is proper under Rule 12(b)(1) where the Court lacks jurisdiction 11 over the subject matter of the complaint. Fed. R. Civ. P. 12(b)(1). The court presumes a lack of 12 subject matter jurisdiction until the plaintiff meets her burden establishing subject matter 13 jurisdiction. Fed. R. Civ. P. 12(b)(1); see Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 14 375, 378 (1994). The non-moving party must support its allegations with competent proof of 15 jurisdictional facts when a party moves for dismissal under Rule 12(b)(1). See Thomson v. 16 Gaskill, 315 U.S. 442, 446 (1942). 17 C. Motions to dismiss for failure to state a claim 18 On a motion to dismiss for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6), 19 “[d]ismissal is appropriate only where the complaint lacks a cognizable legal theory or sufficient 20 facts to support a cognizable legal theory.” Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 21 1097, 1104 (9th Cir. 2008). In ruling on such a motion, a plaintiff’s allegations are taken as 22 true, and the Court must construe the complaint in the light most favorable to the plaintiff. 23 Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). However, “[w]hile a complaint attacked by a 24 Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation 25 to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, 26 and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. 27 Twombly, 550 U.S. 544, 555 (2007) (citations omitted). In addition, “[g]enerally, a district court 28 8 Case No. C 09-1131 JF (HRL) ORDER DENYING MOTIONS FOR PRELIMINARY INJUNCTION AND GRANTING MOTIONS TO DISMISS AND STRIKE WITH LEAVE TO AMEND (JFLC3) 1 may not consider any material beyond the pleadings in ruling on a Rule 12(b)(6) motion.” Hal 2 Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1555 n.19 (9th Cir.1990).2 The pleading of a pro se litigant is held to a less stringent standard than a pleading drafted 3 4 by an attorney, and is to be afforded the benefit of any doubt. Haines v. Kerner, 404 U.S. 519, 5 520 (1972); Karim- Panahi v. Los Angeles Police Dep’t, 839 F.2d 621, 623 (9th Cir. 1988). 6 However, a pro se litigant’s pleadings still must be sufficiently pled so that they provide 7 the defendant “with notice of what [it] allegedly did wrong.” Brazil v. U.S. Dep’t. of Navy, 66 8 F.3d 193 (9th Cir. 1995). A pro se litigant must be given leave to amend unless it is absolutely 9 clear that the deficiencies of the complaint could not be cured by amendment. Lucas v. Dep’t of 10 Corrs., 66 F.3d 245, 248 (9th Cir. 1995). When amendment would be futile, however, dismissal 11 may be ordered with prejudice. Dumas v. Kipp, 90 F.3d 386, 393 (9th Cir. 1996). 12 D. Motions to strike 13 Pursuant to Federal Rule of Procedure Rule 12(f), the Court may strike “from any 14 pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous 15 matter.” Fed. R. Civ. P. 12(f). This includes striking parts of the prayer for relief when the relief 16 sought is “not recoverable as a matter of law.” Shabaz v. Polo Ralph Lauren Corp., 586 F. Supp. 17 2d 1205, 1209 (C.D. Cal. 2008) (citations omitted). 18 As with motions to dismiss, when ruling on a motion to strike, the Court takes the 19 plaintiff’s allegations as true and must liberally construe the complaint in the light most favorable 20 to the plaintiff. See Jenkins, 395 U.S. at 421; Argabright v. United States, 35 F.3d 472, 474 (9th 21 Cir. 1994). Also as with motions to dismiss, leave to amend must be granted unless it is clear 22 that the complaint’s deficiencies cannot be cured by amendment. See Lucas, 66 F.3d at 248 (9th 23 Cir. 1995). 24 25 Motions to strike generally will not be granted unless it is clear that the matter to be stricken could not have any possible bearing on the subject matter of the litigation. LeDuc v. Ky. 26 27 28 2 Because of this rule, the Court will not consider Plaintiff’s claims under Section 1983 and the Equal Protection Clause of the Fourteenth Amendment, which are raised for the first time in her opposition papers. 9 Case No. C 09-1131 JF (HRL) ORDER DENYING MOTIONS FOR PRELIMINARY INJUNCTION AND GRANTING MOTIONS TO DISMISS AND STRIKE WITH LEAVE TO AMEND (JFLC3) 1 Cent. Life Ins. Co., 814 F. Supp. 820, 830 (N.D. Cal. 1992). Allegations “supplying background 2 or historical material or other matter of an evidentiary nature will not be stricken unless unduly 3 prejudicial to defendant.” Id. Moreover, allegations that contribute to a full understanding of the 4 complaint as a whole need not be stricken. Id. 5 6 III. DISCUSSION A. 7 Plaintiff’s motions for preliminary injunction In light of the recent changes in I.S.’s educational placement, the facts which formed the 8 bases for Plaintiff’s motions for preliminary injunction no longer exist. Accordingly, the Court 9 will deny the motions without prejudice. 10 11 12 13 B. Defendants’ motions to dismiss for lack of subject matter jurisdiction 1. Exhaustion of administrative remedies a. Requirement of exhaustion for IDEA, ADA, and Section 504 claims Claims brought pursuant to the IDEA ordinarily must be pursued by means of available 14 administrative remedies. “If a plaintiff is required to exhaust administrative remedies but fails to 15 do so, the federal courts do not have jurisdiction to hear the plaintiff's claim.” Blanchard v. 16 Morton Sch. Dist., 420 F.3d 918, 920-21 (9th Cir. 2005); see also J.W. ex rel. J.E.W. v. Fresno 17 Unified Sch. Dist., 570 F. Supp. 2d 1212, 1220 (E.D. Cal. 2008) (“Plaintiff must exhaust his 18 administrative remedies before this Court has subject matter jurisdiction over his claims.”) The 19 exhaustion doctrine embodies the notion that “agencies, not the courts, ought to have primary 20 responsibility for the programs that Congress has charged them to administer.” McCarthy v. 21 Madigan, 503 U.S. 140, 145 (1992). “Exhaustion of the administrative process allows for the 22 exercise of discretion and educational expertise by state and local agencies, affords full 23 exploration of technical educational issues, furthers development of a complete factual record, 24 and promotes judicial efficiency by giving these agencies the first opportunity to correct 25 shortcomings in their educational programs for disabled children.” Crocker v. Tenn. Secondary 26 Sch. Athletic Ass’n, 873 F.2d 933, 935 (6th Cir. 1989). 27 As Defendants correctly observe, the exhaustion requirement under the IDEA also applies 28 to some claims under Section 504 and the ADA. Section 1415, subsection (l) of the IDEA states 10 Case No. C 09-1131 JF (HRL) ORDER DENYING MOTIONS FOR PRELIMINARY INJUNCTION AND GRANTING MOTIONS TO DISMISS AND STRIKE WITH LEAVE TO AMEND (JFLC3) 1 2 3 4 5 that: Nothing in this chapter shall be construed to restrict or limit the rights, procedures and remedies available under the Constitution, the Americans with Disabilities Act of 1990, title V of the Rehabilitation Act of 1973, or other Federal laws protecting the rights of children with disabilities, except that before the filing of a civil action under such laws seeking relief that is also available under this subchapter, the procedures under subsections (f) and (g) of this section shall be exhausted to the same extent as would be required had the action been brought under this subchapter. 6 20 U.S.C. § 1415(l) (emphasis added). Thus, to the extent that Plaintiff seeks relief under 7 Section 504 and the ADA that is “also available under” the IDEA, the exhaustion requirement 8 applies. If Plaintiff has failed to exhaust her administrative remedies, then the Court lacks 9 jurisdiction over the Section 504 and ADA claims as well. 10 Under Ninth Circuit caselaw, “the dispositive question generally is whether the plaintiff 11 has alleged injuries that could be redressed to any degree by the IDEA’s administrative 12 procedures and remedies. If so, exhaustion of those remedies is required. If not, the claim 13 necessarily falls outside the IDEA’s scope, and exhaustion is unnecessary.” Robb v. Bethel Sch. 14 Dist. No. 403, 308 F.3d 1047, 1050 (9th Cir. 2002); see also JG v. Douglas County Sch. Dist., 15 552 F.3d 786, 802 (9th Cir. 2008). In JG, the Ninth Circuit held that the district court did not 16 have jurisdiction over the plaintiffs’ Rehabilitation Act claim where the plaintiffs did not raise 17 the claim in their IDEA administrative hearing. JG, 552 F.3d at 803. The court referred to 18 language in the IDEA that “allows claims ‘with respect to any matter relating to the 19 identification, evaluation, or educational placement of the child, or the provision of a free 20 appropriate public education.’” Id. (citing 20 U.S.C. § 1415(b)(6)) (emphasis in original). 21 Plaintiff may avoid dismissal based on exhaustion if she alleges sufficient facts to support 22 a conclusion that resort to the available procedures would have been futile. See Hoeft v. Tuscon 23 Unified Sch. Dist., 967 F.2d 1298, 1303-04 (9th Cir. 1992); see also Kerr Ctr. Parents Ass’n v. 24 Charles, 897 F.2d 1463, 1469 (listing cases). 25 b. Exhaustion of IDEA claims against LGUSD, CUSD, and the SCCOE 26 In its order issued August 18, 2009 (“August 18th Order”), the Court dismissed Plaintiff’s 27 IDEA claims against the California Department of Education (CDE) because Plaintiff had failed 28 to exhaust administrative remedies with respect to that agency. As summarized in that order: 11 Case No. C 09-1131 JF (HRL) ORDER DENYING MOTIONS FOR PRELIMINARY INJUNCTION AND GRANTING MOTIONS TO DISMISS AND STRIKE WITH LEAVE TO AMEND (JFLC3) 1 2 3 4 Where a state agency is not made a party to an administrative proceeding, it is denied the opportunity to remedy the wrong complained of, and claims with respect to that agency will not be considered to have been exhausted. Whitehead v. School Bd. for Hillsborough County, 932 F. Supp. 1393, 1396 (M.D. Fla. 1996) (“A purpose of requiring exhaustion of remedies is to provide state agencies an opportunity to resolve system defects without unnecessary judicial involvement. It is this opportunity that Plaintiffs denied Defendant [Department of Education] by failing to include the Department in the initial dispute.”). 5 August 18th Order, 7:10-16. Applying the exhaustion doctrine, the Court granted CDE’s motion 6 to dismiss because Plaintiff did not seek relief against the CDE through formal administrative 7 procedures, nor has she alleged sufficiently that such efforts would have been futile. 8 Similarly here, Whitmore, VanderMolen, and Weis move to dismiss on behalf of their 9 respective agencies–LGUSD, CUSD, and the SCCOE3–because Plaintiff has failed to exhaust 10 her remedies under the IDEA with respect to those agencies. Plaintiff did not name any of these 11 three agencies as parties in the OAH hearing presided over by ALJ Dugan or any other due 12 process hearing. 13 Nor has Plaintiff sufficiently alleged that pursuit of due process procedures with regard 14 to LGUSD, CUSD, or the SCCOE would have been futile. (FAC ¶ ¶ 113-118.) With regard to 15 the SCCOE, Plaintiff alleges simply that she has “written complaint letters to [Defendant] Weis, 16 and to his predecessor Joe Fimiani” and that the SCCOE “failed to comply with state and federal 17 laws.” (FAC ¶ 118.) Nothing in that allegation supports a conclusion that pursuing formal due 18 process procedures against the SCCOE would have been futile. 19 In her opposition to LGUSD’s motion to dismiss, Plaintiff argues that her available 20 administrative remedies were exhausted when she “consulted with an OAH technical adviser and 21 was told that OAH had no jurisdiction because the denial of admission [to Fisher Middle School] 22 was not IDEA-related.” (Resp. to Def. Whitmore’s Mot. to Dismiss, 10:14-16.) This allegation 23 is insufficient under Hoeft. As LGUSD contends, if Plaintiff had formally named LGUSD in a 24 25 3 26 27 28 While Plaintiff named Lakeside as a defendant, she failed to name any of the other agencies. Instead, Plaintiff named Chrisman, Whitmore, VanderMolen, and Weis individually as defendants in their official capacities. Because this was improper, as discussed below, the Court will treat the claims as if they were asserted against the respective agencies. This parallels the Court’s treatment of the issues relating to O’Connell and the CDE in the August 18th Order. 12 Case No. C 09-1131 JF (HRL) ORDER DENYING MOTIONS FOR PRELIMINARY INJUNCTION AND GRANTING MOTIONS TO DISMISS AND STRIKE WITH LEAVE TO AMEND (JFLC3) 1 due process hearing and the OAH held that it did not have jurisdiction, “an OAH order 2 dismissing Plaintiff’s due process request or denying her request for placement at Fisher would 3 be an appealable finding and conclusion, such as to confer subject matter jurisdiction on this 4 Court.” (Def. Whitmore’s Reply in Supp. of Mot. to Dismiss 4:15-17.) 5 Because Plaintiff has failed to exhaust her administrative remedies or plead sufficiently 6 the futility of such exhaustion, Plaintiff’s IDEA claims against LGUSD, CEUSD, and the 7 SCCOE will be dismissed, with leave to amend. 8 9 c. Exhaustion of IDEA claims against Lakeside Lakeside also contends that all claims against it based on events that occurred after the 10 period considered by ALJ Dugan must be dismissed for Plaintiff’s failure to exhaust 11 administrative remedies. The period considered by the ALJ ended on July 28, 2008, the date 12 Plaintiff requested a due process hearing. Although Plaintiff contends that the ALJ’s decision to 13 limit review was improper, the IDEA provides that “[t]he party requesting the due process 14 hearing shall not be allowed to raise issues at the due process hearing that were not raised in the 15 notice filed under subsection (b)(7) of this section, unless the other party agrees otherwise.” 20 16 U.S.C. § 1415(f)(3)(B) (2006) (emphasis added). Plaintiff does not allege that Lakeside agreed 17 to allow Plaintiff to bring claims based on events occurring after the filing date. 18 Plaintiffs under the IDEA “cannot seek to litigate claims in federal court that arose 19 subsequent to the time period at issue in the underlying proceeding.” J.W., 570 F. Supp. 2d at 20 1220; see also Metro. Bd. of Pub. Educ. v. Guest, 193 F.3d 457, 463 (6th Cir.1999) (court 21 exceeded its jurisdiction to the extent it ruled on issues from subsequent school years not at issue 22 in administrative hearing); Jeremy H. v. Mount Lebanon Sch. Dist., 95 F.3d 272, 283-84 (3d 23 Cir.1996) (claims arising after conclusion of administrative hearing and claims not raised in that 24 hearing must be exhausted, and cannot be raised in due process appeal). Because Plaintiff’s 25 IDEA claims against Lakeside based on events occurring after July 28, 2008, were not considered 26 by the ALJ, they have not been exhausted, and this Court lacks jurisdiction to hear them. 27 28 Nor has Plaintiff adequately pled that seeking administrative review with respect to events occurring after July 28, 2008, would have been futile. Plaintiff alleges merely that 13 Case No. C 09-1131 JF (HRL) ORDER DENYING MOTIONS FOR PRELIMINARY INJUNCTION AND GRANTING MOTIONS TO DISMISS AND STRIKE WITH LEAVE TO AMEND (JFLC3) 1 “[g]iven the summary dismissal of all complaints, the non-compliance with procedural 2 safeguards, and the retaliatory acts by Chrisman, it would be futile to continue filing complaints 3 alleging the same violations and requesting the same relief.” (FAC ¶ 116.) Plaintiff refers to 4 “summary dismissal of all complaints,” but she does not allege that, after being informed of the 5 limited scope of the first due process hearing, she ever sought another one or that such an effort 6 would have been futile. 7 The sole IDEA claims over which the Court currently has jurisdiction are those based on 8 events occurring between May 2007 and July 28, 2008, as these are the only claims with respect 9 to which Plaintiff has exhausted her administrative remedies. Accordingly, all other IDEA 10 claims will be dismissed, with leave to amend. d. Exhaustion of Plaintiff’s Section 504 and ADA claims4 11 12 Plaintiff’s Section 504 and ADA claims are based primarily on Defendants’ alleged 13 denial to I.S. of a free appropriate public education (“FAPE”) under the IDEA. (See, e.g., FAC ¶ 14 ¶ 133, 140.) To the extent that the claims based on Section 504 and the ADA relate to this 15 alleged denial and therefore could have been redressed through IDEA procedures, they are 16 subject to the exhaustion doctrine. Because Plaintiff failed to pursue administrative remedies for 17 any of her FAPE-based claims against LGUSD, CUSD, or SCCOE, or sufficiently allege futility 18 of such exhaustion, the Court presently has no jurisdiction over those claims. Accordingly, 19 Plaintiff’s Section 504 and ADA claims based on the alleged denial of a FAPE will be dismissed, 20 with leave to amend. 21 Similarly, Plaintiff’s Section 504 and ADA claims against Lakeside based on the denial 22 of a FAPE resulting from events alleged to have occurred after July 28, 2008, also must be 23 dismissed for failure to exhaust administrative remedies or demonstrate futility. As to claims 24 arising during the period that was considered by the ALJ, Plaintiff did not assert any ADA or 25 Section 504 claims at the administrative hearing. Thus, Plaintiff’s Section 504 and ADA claims 26 27 28 4 As with the IDEA claims, the Court will treat the Section 504 and ADA claims as if they had been made against the agencies to the extent that claims against individuals are disallowed for reasons discussed below. 14 Case No. C 09-1131 JF (HRL) ORDER DENYING MOTIONS FOR PRELIMINARY INJUNCTION AND GRANTING MOTIONS TO DISMISS AND STRIKE WITH LEAVE TO AMEND (JFLC3) 1 2 against Lakeside are subject to dismissal, with leave to amend. Section 504 and ADA claims that do not seek relief “also available under” the IDEA 3 “necessarily fall[] outside the IDEA’s scope.” Robb, 308 F.3d at 1050. For these claims, 4 therefore, “exhaustion is unnecessary.” Id. To the extent that any of Plaintiff’s 504 claims are 5 not related to the provision of FAPE or “the identification, evaluation, or educational placement” 6 of I.S., such claims are addressed below. 7 2. Federal question jurisdiction 8 Whitmore, VanderMolen, and Weis move to dismiss for lack of subject matter 9 jurisdiction all claims based on violations of the California Educational Code. The only two 10 bases for this Court’s exercise of jurisdiction over such state claims are diversity jurisdiction 11 under 28 U.S.C. § 1332 and supplemental jurisdiction under 28 U.S. C. § 1367. Because she 12 does not allege complete diversity, Plaintiff may proceed on her state claims only if Section 1367 13 is satisfied. Section 1367 requires that non-federal claims be “so related to claims in the action 14 within such original [federal] jurisdiction that they form part of the same case or controversy.” 15 28 U.S.C. § 1367(a) (2008). 16 Here, however, Plaintiff can point to no federal claim that is sufficiently related to her 17 state claims against Whitmore, VanderMolen, and Weis. Plaintiff alleges that 28 U.S.C. § 1331 18 provides federal subject matter jurisdiction because the action “arises under” Section 504, the 19 ADA, and the IDEA. (FAC ¶ 11.) As discussed above, however, this Court does not have 20 jurisdiction over Plaintiff’s claims under these federal statutes against the agencies Whitmore, 21 VanderMolen, and Weis represent. Moreover, as noted in footnote 3 above and discussed in 22 more detail below, Plaintiff cannot properly bring claims under these statutes against these 23 defendants as individuals. 24 Nor are the state claims against these defendants sufficiently related to Plaintiff’s 25 remaining federal claims. Plaintiff’s allegations of state law violations by Whitmore, 26 VanderMolen, and Weis all occurred after the period subject to ALJ Dugan’s review under the 27 IDEA, and the alleged violations are unrelated to Plaintiff’s claims of retaliation under Section 28 504 and the ADA. 15 Case No. C 09-1131 JF (HRL) ORDER DENYING MOTIONS FOR PRELIMINARY INJUNCTION AND GRANTING MOTIONS TO DISMISS AND STRIKE WITH LEAVE TO AMEND (JFLC3) 1 C. Motions to dismiss for failure to state a claim 2 Defendants also move to dismiss on several grounds those claims to which this Court 3 does have subject matter jurisdiction. These grounds are addressed below and combined to the 4 extent such arguments overlap. 5 1. Motion to dismiss for lack of standing and ability to proceed pro se 6 Defendants first challenge Plaintiff’s standing to bring claims on behalf of her son as a pro 7 se litigant. The Court addressed this argument with relation to O’Connell in its August 18th 8 Order, and the reasoning in that order is applicable here: 9 10 11 12 13 14 15 16 17 18 Defendant[s] do not dispute Plaintiff’s standing to pursue her claims under IDEA. Although such claims readily might be characterized as claims on behalf of her son, the Supreme Court held in Winkelman v. Parma City School District that “the relationship between a parent and child is sufficient to support a legally cognizable interest in the education of one’s child,” such that parents may sue directly for certain violations of IDEA. 550 U.S. 516, 535 (2007). Defendant[s] do[] challenge Plaintiff’s standing under section 504 of the Rehabilitation Act and Title II of the ADA, but under Ninth Circuit precedent, Plaintiff may assert claims under those statutes “insofar as she is asserting and enforcing the rights of her son and incurring expenses for his benefit.” Blanchard v. Morton School Dist., 509 F.3d 934, 938 (9th Cir. 2007) (citing Winkelman, 550 U.S. at 529); but see D.A. v. Pleasantville School Dist., Civil No. 07-4341 (RBK), 2008 WL 2684239, at *6-7 (D.N.J. June 30, 2008) (rejecting Blanchard’s extension of Winkelman to claims under § 504 and Title II of the ADA). Moreover, a parent has standing to assert a Rehabilitation Act claim that defendants retaliated against the parent for complaints relating to his or her child’s education. See Weber v. Cranston School Committee, 212 F.3d 41, 48-49 (1st Cir. 2000); see also Kampmeier v. Nyquist, 553 F.2d 296, 299 (2d Cir. 1977). 19 August 18th Order, 9:7-23. 20 Defendants’ motion therefore will be denied to the extent that Plaintiff is “asserting and 21 enforcing the rights of her son and incurring expenses for his benefit.” However, to the extent 22 that Plaintiff is asserting rights on behalf of her son that are unrelated to the denial of education 23 under these federal statutes, Plaintiff may not represent I.S. pro se. 24 25 2. Motion to dismiss IDEA, Section 504, and ADA claims against individual defendants 26 Whitmore, Weis, VanderMolen, and Chrisman all contend that they cannot be sued as 27 individuals under the Section 504, the ADA, or the IDEA. They are correct. Under Section 504, 28 defendants must be “recipients of public funding.” 29 U.S.C. § 794(a) (2008). Under the ADA, 16 Case No. C 09-1131 JF (HRL) ORDER DENYING MOTIONS FOR PRELIMINARY INJUNCTION AND GRANTING MOTIONS TO DISMISS AND STRIKE WITH LEAVE TO AMEND (JFLC3) 1 defendants must be “public entities” 42 U.S.C. § 12132 (2008). Because the moving Defendants 2 are neither “recipients of public funding” nor “public entities,” they cannot be sued as 3 individuals. See, e.g., Doe ex rel. Doe v. State of Hawaii Dep’t of Educ., 351 F. Supp. 2d 998, 4 1010-11 (D. Hawai’i 2004) (citing Vinson v. Thomas, 288 F.3d 1145, 1156 (9th Cir. 2002)) 5 (agreeing with defendants that “Section 504 of the Rehabilitation Act cannot support a lawsuit 6 against them in their individual capacity”). The IDEA, like the ADA and Section 504, does not 7 provide a private right of action against individual defendants, but rather provides for avenues of 8 relief against state and local educational agencies that receive federal funding. See, e.g., 20 9 U.S.C. § 1415(a) (2008). 10 As these three federal statutes do not provide a basis for individual liability, the Court 11 will grant the individual Defendants’ motions to dismiss these claims without leave to amend. If 12 Plaintiff still desires to seek relief against the individual defendants, she must amend her 13 complaint to rely upon other statutes, such as 42 U.S.C. § 1983 or state tort laws, that provide 14 private rights of action against individuals. 15 3. Motion to dismiss for failure to state a discrimination claim under Section 504 and the ADA 16 Defendants also move to dismiss Plaintiff’s discrimination claims under Section 504 and 17 the ADA on several other grounds. Because the discrimination claims are subject to the 18 exhaustion doctrine and Plaintiff has failed to exhaust her remedies under these statutes, the 19 Court need not address Defendants’ arguments in full. It will, however, address briefly 20 Defendants’ contention that Plaintiff has failed to allege that I.S. was discriminated against 21 because of his disability. 22 To state a prima facie case of discrimination under either Section 504 or the ADA, a 23 plaintiff must demonstrate, among other elements, that he or she was discriminated against by 24 reason of her disability. See, e.g., Lovell v. Chander, 303 F.3d 1039, 1052 (9th Cir. 2002) 25 (describing the prima facie elements for both statutes). Plaintiff alleges that I.S. is disabled, was 26 qualified to receive certain government benefits, and did not receive them. Even if all of these 27 allegations are accepted as true, they are insufficient to support a conclusion that I.S. was 28 17 Case No. C 09-1131 JF (HRL) ORDER DENYING MOTIONS FOR PRELIMINARY INJUNCTION AND GRANTING MOTIONS TO DISMISS AND STRIKE WITH LEAVE TO AMEND (JFLC3) 1 discriminated against because of his disability. 2 4. Motion to dismiss based on Defendants’ immunity from suit 3 a. Quasi-judicial immunity 4 Gutierrez and the Office of Administrative Hearings (OAH) (collectively “OAH 5 Defendants”)5 move to dismiss on the grounds that they are absolutely immune from suit “for 6 claims arising either from the ALJ’s conduct of the hearing or her decision.” (Def. Gutierrez’s 7 Mot. to Dismiss 4: 13-14.) Their motion is well-taken. 8 9 “Anglo-American common law has long recognized judicial immunity, a ‘sweeping form of immunity’ for acts performed by judges that relate to the ‘judicial process.’” In re Castillo, 10 297 F.3d 940, 947 (9th Cir. 2002) (citing Forrester v. White, 484 U.S. 219, 225 (1988)). 11 Through the years, courts have extended this immunity to “nonjudicial officers for ‘all claims 12 relating to the exercise of judicial functions.’” Id. (citation omitted). Under the Supreme Court’s 13 current formulation, immunity shields nonjudicial actors when they “perform official duties that 14 are functionally comparable to those of judges, i.e., duties that involve the exercise of discretion 15 in resolving disputes.” Id. at 948 (citing Antoine v. Byers & Anderson, Inc., 508 U.S. 429, 435 16 (1993)). 17 Plaintiff’s claim against the OAH Defendants is based solely on her contention that ALJ 18 Dugan misinterpreted the law in finding for Lakeside in her ruling dated December 23, 2008. 19 “The OAH is a state agency that contracts with the California Department of Education to 20 provide impartial hearing officers to presided in IDEA due process hearings.” Gutierrez MTD, 21 1:24-25. ALJ Dugan, in serving as such an impartial hearing officer for I.S.’s due process 22 hearing and issuing the contested ruling, performed the type of duties that traditionally have been 23 protected by judicial immunity. Because Plaintiff’s only claims against the OAH defendants are 24 barred by judicial immunity, the motion will be granted without leave to amend. 25 // 26 27 28 5 Plaintiff named only Ms. Gutierrez in her complaint. As the analysis in this section equally applies to the OAH, however, the Court includes OAH in the disposition of this motion. 18 Case No. C 09-1131 JF (HRL) ORDER DENYING MOTIONS FOR PRELIMINARY INJUNCTION AND GRANTING MOTIONS TO DISMISS AND STRIKE WITH LEAVE TO AMEND (JFLC3) 1 2 b. Eleventh Amendment immunity Even if the Court did have subject matter jurisdiction over state law claims against them, 3 Chrisman, Weis, VanderMolen, and Whitmore may not be sued in federal court in their official 4 capacities as agents of the State of California. As the Court noted with respect to Superintendent 5 O’Connell in its August 18th Order, “[A] state official is immune from suit in federal court for 6 actions taken in an official capacity.” California v. Deep Sea Research, Inc., 523 U.S. 491, 502 7 (1998) (citations omitted). While defendants remain liable in their personal capacity for acting 8 ultra vires, see Ex Parte Young, 209 U.S. 123 (1908), Plaintiff explicitly has sued each of the 9 individual defendants in his or her official capacity.6 (FAC ¶ ¶ 17, 21-23.) Because they are 10 immune from such suits under the Eleventh Amendment, the Court will dismiss any remaining 11 state claims against them without leave to amend. 12 5. Motion to dismiss for failure to assert a retaliation claim under the ADA 13 Chrisman and Lakeside move to dismiss Plaintiff’s claim under the anti-retaliation 14 provision of the ADA, 42 U.S.C. 12203 (2006).7 Defendants argue that (1) Plaintiff has failed to 15 state a claim for retaliation; (2) individuals may not be sued for retaliation; and (3) Chrisman 16 acted in an official, rather than a personal, capacity with respect to his alleged acts. 17 a. Plaintiff fails to state a claim for retaliation 18 To establish a claim for retaliation, Plaintiff must show that: “(1) he or she engaged in a 19 protected activity; (2) suffered an adverse . . .action; and (3) there was a causal link between the 20 two.” Pardi v. Kaiser Found. Hosps., 389 F.3d 840, 849 (9th Cir. 2004). 21 Defendants first challenge the sufficiency of the allegations against Chrisman. Plaintiff 22 alleges that Chrisman “refused to convene the meeting in violation of 34 CFR 104.36,” and that 23 he published comments about Plaintiff and I.S. in the school newsletter, without naming them, 24 claiming that Lakeside was “under attack.” (FAC ¶ ¶ 90, 105.) Plaintiff claims that the latter act 25 6 26 27 28 Plaintiff also asserts a retaliation claim against Chrisman in his personal capacity. This claim is addressed below. 7 Weis and VanderMolen join in this motion, but as they have been sued only in their official capacity, they are immune from liability for this claim. 19 Case No. C 09-1131 JF (HRL) ORDER DENYING MOTIONS FOR PRELIMINARY INJUNCTION AND GRANTING MOTIONS TO DISMISS AND STRIKE WITH LEAVE TO AMEND (JFLC3) 1 led to name calling, dirty looks, and rocks thrown at I.S. Plaintiff fails to allege in more than 2 conclusory fashion the protected activity in which she was engaged and also fails to tie that 3 protected activity to an adverse action against her by Chrisman. 4 Plaintiff’s claim against Lakeside is similarly inadequate. Plaintiff alleges that Lakeside 5 removed the bus stop near her home after I.S. had difficulties at his new school and then replaced 6 the bus stop after I.S. dropped out of Rolling Hills. Again, Plaintiff does not allege the 7 connection between any specific protected activity and adverse action allegedly undertaken by 8 Lakeside. 9 10 b. Claims against individuals for retaliation under the ADA Even if Plaintiff had stated a prima facie claim for retaliation, her claim against Chrisman 11 is subject to dismissal, as Chrisman, in his individual capacity, is neither a “public entity” nor a 12 “federal recipient.” In the employment context, courts have held explicitly that the ADA does 13 not allow for suits against individual defendants, even for retaliation claims. See, e.g., Baird v. 14 Rose, 192 F.3d 462, 471-72; Stern v. Cal. State Archives, 982 F.Supp. 690, 692 (E.D. Cal 1997) 15 (“A careful reading of the relevant provisions in light of the ADA’s overall structure makes it 16 clear that plaintiff cannot maintain an ADA retaliation claim against individual defendants who 17 do not otherwise satisfy the definition of an employer.”) By analogy, school officials may not be 18 held liable either. 19 20 c. Chrisman acted in his official capacity as Lakeside’s Superintendent Even if Chrisman were subject to suit in his personal capacity for retaliation under the 21 ADA, none of Plaintiff’s allegations involves Chrisman acting in his personal capacity. Because 22 Chrisman thus was acting as a state agent both in writing the school newsletter and in making 23 decisions regarding bus routes, he is entitled to the same Eleventh Amendment immunity 24 discussed above. 25 Pursuant to the foregoing analysis, Plaintiff’s retaliation claims against Defendants 26 Lakeside and Chrisman will be dismissed, with leave to amend. To survive future motions to 27 dismiss on the same grounds, Plaintiff must allege the elements of a prima facie case and 28 establish that Chrisman acted in his personal rather than his official capacity in committing the 20 Case No. C 09-1131 JF (HRL) ORDER DENYING MOTIONS FOR PRELIMINARY INJUNCTION AND GRANTING MOTIONS TO DISMISS AND STRIKE WITH LEAVE TO AMEND (JFLC3) 1 alleged acts of retaliation. 2 D. 3 4 Motions to Strike Portions of Plaintiff’s FAC Defendants move to strike several of Plaintiff’s requests for relief. For the reasons discussed below, these motions will be granted with leave to amend. 5 1. Punitive damages 6 Defendants first seek to strike Plaintiff’s request for punitive damages. In light of the 7 disposition of Plaintiff’s claims in this order, and pending further amendment of the pleadings, 8 Lakeside, a public agency, is the only remaining Defendant. Under California law “a plaintiff 9 who alleges injury caused by a public entity may be entitled to actual damages for that injury, but 10 not punitive damages.” Doe v. County of San Mateo, 2008 WL 5245889 *7 (N.D. Cal. Dec. 17, 11 2008). 12 2. Monetary damages under the IDEA 13 Defendant next moves to strike references to monetary damages under the IDEA. As 14 another district court in this circuit has held: Damages, however, are clearly unavailable under the IDEA. See Mountain View-Los Altos Union High Sch. Dist. v. Sharron B.H., 709 F.2d 28, 30 (9th Cir.1983) (finding “the damage remedy outside the scope of the [EAHCA, the predecessor statute to the IDEA]” and thus unavailable for violation of the stay put provision, and agreeing with the Seventh Circuit that “the wording of the statute does not disclose a congressional intent to provide a damage remedy”); Witte v. Clark County Sch. Dist., 197 F.3d 1271, 1275 (9th Cir.1999) (noting that “ordinarily monetary damages are not available under [the IDEA]” and holding that “monetary damages ... is not relief under the IDEA”); Kutasi v. Las Virgenes Unified Sch. Dist., 494 F.3d 1162, 1168 (9th Cir.2007) (same). 15 16 17 18 19 20 Alexis R. v. High Tech Middle Media Arts Sch., 2009 WL 2382429 (S.D. Cal. August 3, 2009). 21 Defendants acknowledge that damages are sometimes awarded to reimburse parents for 22 educational expenses incurred in the past. See, e.g., Burlington v. Dep’t of Educ., 471 U.S. 359, 23 369 (1985). The FAC, however, makes no such demand. 24 3. Attorneys’ fees for pro se plaintiff 25 Plaintiffs who proceed pro se are not entitled to attorney’s fees. Blanchard v. Morton 26 Sch. Dist., 509 F.3d 934, 938 (9th Cir. 2007). 27 // 28 21 Case No. C 09-1131 JF (HRL) ORDER DENYING MOTIONS FOR PRELIMINARY INJUNCTION AND GRANTING MOTIONS TO DISMISS AND STRIKE WITH LEAVE TO AMEND (JFLC3) 1 2 IV. CONCLUSION For the foregoing reasons, Plaintiffs’ motions for preliminary injunction are denied, and 3 Defendants’ motions to dismiss and to strike are granted with leave to amend in a manner 4 consistent with this order. 5 Any amended complaint shall be filed within thirty (30) days of the date of this order. 6 IT IS SO ORDERED. 7 8 DATED: 9/29/09 9 JEREMY FOGEL United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 22 Case No. C 09-1131 JF (HRL) ORDER DENYING MOTIONS FOR PRELIMINARY INJUNCTION AND GRANTING MOTIONS TO DISMISS AND STRIKE WITH LEAVE TO AMEND (JFLC3) 1 This Order has been served upon the following persons: 2 Douglas Neil Freifeld dfreifeld@fagenfriedman.com 3 Elise Stassart elise_moss@yahoo.com 4 Gregory J. Rousseve groussev@cde.ca.gov, MReed@cde.ca.gov 5 Katherine A. Alberts albertsk@stubbsleone.com, suttonk@stubbsleone.com 6 Tamar Pachter Tamar.Pachter@doj.ca.gov 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 23 Case No. C 09-1131 JF (HRL) ORDER DENYING MOTIONS FOR PRELIMINARY INJUNCTION AND GRANTING MOTIONS TO DISMISS AND STRIKE WITH LEAVE TO AMEND (JFLC3)

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