M.E.L. v. Sherwood School District et al, No. 3:2011cv00987 - Document 14 (D. Or. 2011)
Court Description: OPINION and ORDER: Granting 9 Motion to Dismiss for Failure to State a Claim; Granting Motion to Dismiss Case for Lack of Jurisdiction 9 . Plaintiff's claims are dismissed. As such, defendants' request for oral argument is deni ed as unnecessary. Therefore, this case is remanded to state court, as plaintiff's only remaining claims are those asserted against DKL and his parents for assault and batter, which arise under Oregon law. Signed on 12/14/11 by Chief Judge Ann L. Aiken. (ljb)
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON MEL, a minor, by and through his parents TROY and TRENNA E. LANDERS, and by his guardian ad litem, TRENNA E. LANDERS, Plaintiff, v. SHERWOOD SCHOOL DISTRICT; DAN JAMISON; MICHELLE DeBOARD; MATTHEW BORING; MELISSA GOFF; DKL, a minor; MICHELLE LEONARD; GREGORY W. LEONARD; and DOES 1-10, Defendants. Steven M. McCarthy McCarthy Law Offices 1265 Highway 1 Independence, Oregon 97351 Attorney for plaintiff Karen M. Vickers Blake Fry Mersereau Shannon LLP Page 1 - OPINION AND ORDER Civil No. 11-0987-AA OPINION AND ORDER One SW Columbia street, Suite 1600 Portland, Oregon 97258 Attorneys for defendants Sherwood School District, Dan Jamison, Michelle DeBoard, Matthew Boring, and Melissa Goff Steven A. Kraemer Gregory R. Roberson Hoffman, Hart & Wagner LLP 1000 SW Broadway, Twentieth Floor Portland, Oregon 97205 Attorneys for defendants DKL, Michelle Leonard, and Gregory W. Leonard AIKEN, Chief Judge: Defendants Sherwood School District, Dan Jamison, Michelle DeBoard, Matthew Boring, and Melissa Goff move to dismiss plaintiff MEL's complaint for failure to state claims upon which relief can be granted. See Fed. R. Civ. P. 12(b) (6). In addition, defendants move to dismiss plaintiff's Oregon tort claims for lack of subject matter jurisdiction. See Fed. R. Civ. P. 12 (b) (1) . For the reasons set forth below, defendants' motion is granted. BACKGROUND Plaintiff, a minor, is a student at Sherwood High School (the "SchoolU), which lies within defendant Sherwood School District's (the "District") defendants Dan territory. Jamison, During Michelle the relevant DeBoard, time Matthew period, Boring, and Melissa Goff were employees of the School. In student, September 2009, plaintiff while walking along a bumped into School corridor. occurrence, plaintiff and DKL had never met. the bumping to be an accident and apologized. Page 2 - OPINION AND ORDER DKL, a fellow Prior to this Plaintiff believed Thereafter, DKL shout pro each t ities and made other threatening remarks at plaintiff they passed in the halls at School. On October 29, 2009, plaintiff was struck in the and quently knocked down by DKL's "leg by DKL sweepll while both parties were under the care and supervision of the II) ¢ "Inci the st ct As a consequence of DKL's acts, plaintiff , a rmanent loss of an upper front tooth, facial broken jaw, a broken nose, a concussion, bruises, an ury to his elbow, and an exacerbation of a previous knee injury, all of whi result in extensive medical treatment and costs. On I ¢ 15, 2011, plaintiff filed his original compla this Court on the basis of federal August 19, 2001, pla question jurisdiction. iff filed an amended complaint, all On ing J that s: 1) violated his "first amendment, due process and rightsll as guaranteed by "the US Constitution, No equal Child Le Act of 2001, Title IX, [and] IDEAII pursuant to 42 U.S.C. § 1983; 2) violated his "rights, privileges, or immunities secured by 3) Constitution and laws" pursuant to 42 U.S.C. § 1983; committ pursuant i committed intent I I I , ,~ 1 ! an offici Finally, poli I and 4) ("lIED") See generally Am. Compl. or custom to condone or tolerate and violence on School grounds. DKL and his parents, who are not parties 1 1 law; interests, pursuant to 42 U.S.C. § 1983, by bullying, harassment, 59-63. tort , plaintiff alleges that the District violated his liberty and having Oregon nal infliction of emotional distress pursuant to Oregon tort law. In addit to Page 3 - OPINION AND ORDER to this motion, plaintiff alleges assault and battery pursuant to Oregon tort law. general damages Id. at <f(<f( 77-83. As relief, in the amount of $275,000, plaintiff seeks special damages for plaintiff's health care costs, "damages by way of punishment and example," attorney fees, and an injunction. Subsequently, defendants moved to dismiss plaintiff's amended complaint. STANDARDS Where plaintiff fails to establish that federal subject matter jurisdiction exists, the court must dismiss the action. Civ. P. 12 (b) (1), Coal. v. Fed. R. Civ. P. 12 (h) (3) U.S. Envtl. Cir. 2007) Prot. Agency, i Fed. R. see also Rattlesnake 509 F.3d 1095, 1102 n.1 (9th (plaintiff bears burden of establishing subject matter jurisdiction) . Similarly, where plaintiff "fails to state a claim upon which relief can be granted," the court must dismiss the action. Ci v. P. 12 (b) (6). To survive a motion to dismiss, must allege "enough facts plausible on its face." 544, 570 (2007). to state a claim for the complaint relief that For the purpose of a motion to dismiss, allegations are taken as true. (9th Cir. 1983). is Bell Atlantic Corp. v. Twombly, 550 U.S. complaint is liberally construed in favor of plaintiff, 1424 Fed. R. Rosen v. Walters, Bare assertions, however, the and its 719 F.2d 1422, that amount to nothing more than a "formulaic recitation of the elements" of a claim "are conclusory and not entitled to be Ashcroft v. Igbal, 129 S.Ct. 1937, 1951 (2009). a plausible claim for Page 4 - OPINION AND ORDER relief, the complaint assumed true." Rather, to state "must contain sufficient allegations of underlying facts" to support its legal conclusions. Starr v. Bacca, 652 F.3d 1202, 1216, reh'g en banc denied, 659 F.3d 850 (9th Cir. 2011). DISCUSSION Defendants move to dismiss plaintiff's complaint under two theories: first, defendants contend that this Court lacks subject matter jurisdiction because plaintiff's state law tort claims are precluded by defendants the assert claims for reI I. Oregon that Torts the Claims complaint Act fails ("OTCA")l; to state second, plausible f. Notice Under the OTCA Defendants contend that plaintiff's state law claims are prohibited under the OTCA because plaintiff failed to give timely notice. Conversely, plaintiff asserts that no portion of his tort claims are proscribed because he "filed this action within two years of the incident," in accordance with the relevant statute of limitations. The OTCA Pl.'s Resp. to Mot. Dism. 10. provides the exclusive remedy for tort claims instituted against a "public body or an officer, employee or agent of a public body." Or. Rev. Stat. §§ 30.260 et seq. Under the OTCA, a minor plaintiff must provide notice of a claim within 270 I As a preliminary matter, it should be noted that this Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331. Thus, defendants misconstrue the effect of failing to comply with the OTCA notice provision. Where notice is not timely under the OTCA, it does not divest this Court of subject matter jurisdiction pursuant to Fed. R. Civ. P. 12(b) (1); the effect, instead, is that plaintiff is unable to state a claim upon which relief can be granted. Page 5 - OPINION AND ORDER days after 30.275(2), publ the (3). al ged loss or In addition, injury. Or. any action Rev. Stat. §§ instituted against a body or its employees "shall be commenced within two years after the alleged loss or injury." Or. Rev. Stat. § 30.275(9). In either instance, the "time period begins to run on the first day that there has been some discernible injury and the plaintiff has had a reasonable opportunity to discover both the injury and the identity of the tortfeasor." *5 n.3 Vineyard v. Soto, 2011 WL 3705001, at (D.Or. July 21, 2011), adopted by, 2011 WL 3704177 Aug. 22, 2011) (D.Or. (citing Adams v. Or. State Police, 289 Or. 233, 235, 611 P.2d 1153 (1980)). Here, plaintiff asserts state law claims for negligence and lIED against the District and its employees; therefore, the OTCA applies. See Or. Rev. Stat. § 30.275: see also Or. Rev. Stat. §§ 174.109, 174.117 (defining "public body" as a "school district"). the purposes of OTCA Under the OTCA, plaintiff was required to provide notice of these claims no later than July 26, 2010, which is 270 days from date of the Incident. Cnty. Sch. 1995), aff'd, however, 2010. Dist. ("Plumeau Iff), 130 F.3d 432 See Plumeau v. 907 F.Supp. 1423, (9th Cir. 1997). 1433 34 Yamhill (D.Or. It is undisputed, that plaintiff did not provide notice until August See Am. Compo ~ 16. 9, Accordingly, because plaintiff did not furnish the requisite notice until approximately two weeks after the statutory period elapsed, his c ims for negligence and lIED are time-barred. Plaintiff's assertion that his "state law claims are not timePage 6 - OPINION AND ORDER barred because [p]laintiff filed his OTCA claims and this action within two years of the incident" confuses the issue of notice with the statute of limitations. While similar, functions. these See Plo's Resp. temporal to Mot. restrictions Dism. serve 10. different The notice provision of the OTCA exists "to allow the public body to investigate the claim while evidence is still sh and to promptly correct any defect from which the claim arose." Vineyard, 2011 WL 3705001 at *4 (citing Perez v. Bay Area Hosp., 315 Or. 474, 482, 846 P.2d 405 (1993)). The purpose of the statute of limitations is to protect defendants from unfair surprise and stale claims by ensuring that such claims are commenced a certain amount of time from the occurrence of the loss or injury. Onilab Corp. Class II (Non-Exempt) Members Grp. Benefit Plan, 83 Fed.Appx. 954, 956 (9th Cir. 2003). the notice provision synonymous; rather, public body under Sousa v. and the As such, the requirements of statute of limitations are not in order to institute a tort claim against a the OTCA, plaintiff must meet two distinct requirements: first, plaintiff must give notice to the public body in accordance with Or. Rev. Stat. §§ 30.275(2) and (3); second, plaintiff must file the action within the limitations period in accordance with Or. Rev. Stat. § 30.275(9). Accordingly, since notice was untimely, the fact that plaintiff filed this action within the statute of limitations is irrelevant. Therefore, defendants' motion to dismiss is granted in regard to plaintiff's negligence and lIED claims. Page 7 OPINION AND ORDER II. Failure to State a Claim Three of plaintiff's pursuant to 28 U. S. C. § remaining 1983. claims Specif ically, allege liability plaintiff alleges that: 1) his substantive due process interest in bodily integrity was violated because defendants knew or should have know that DKL posed a physical threat and did nothing to prevent the Incident; 2) his substantive due process interest in being free from humiliation was violated because defendants failed to prevent plaintiff's fellow classmates from ridiculing and ostracizing him after the Incident; and 3) these substantive due process interests were violated by the District itself pursuant to a policy or custom to permit bullying and harassment on School grounds. Plaintiff's fourth requiring defendants implement appropriate and to final "engag[e] policies and claim in seeks the an injunction, necessary procedures to steps prevent to the culture and incidence of bullying, harassment, and attacks such as are manifest in this action." A. Am. Compl. Claims Pursuant to 28 U.S.C. § 1983 To state a claim under section 1983, that: 1) 86. <Jl: p intiff must allege the conduct complained of deprived him of an existing federal constitutional or statutory right; and 2) the conduct was committed by a person acting under color of state law. Atkins, 487 U.S. 42, 48 (1988); L.W. v. Grubbs See West v. ("Grubbs I"), F.2d 119, 120 (9th Cir. 1992), cert. denied, 508 U.S. 951 i. 974 (1993). Deprivation of an Existing Constitutional Right It is undisputed that there is a federally recognized liberty Page 8 - OPINION AND ORDER interest in the right to bodily integrity under Amendment. 907 Wright, 430 U.S. whether there is F.Supp. 651, 673-74 a federally at 1435 (1977)). Fourteenth (cit The issue, recognized liberty however, or of property interest in an individual's right to be free from humiliation is a different matter. protections of substantive due process " accorded ion, plainti from and the 510 U.S. to 's matters right 266, 272 relating marri to bodily integrity." (1994) family, Albright v. (citations ) aim to be free from humiliation is mar previously recognized rights. not to the most y different Further, plaintiff has directly or by analogy, that the Due Process Clause of the Fourteenth Amendment protects such an interest. intiff wholly fails to address this issue in his response brief. Therefore, substanti ve due process humil ion. this Court s 1 interest in the right ii. 227 F. im. Section 1983 Claim Against the District's Employees § 1983. 1082, 1086 9 . omissions" Munger v. City of Glasgow Police Dep't, (9th Cir. 2000). Similarly, 's Due Process Clause does not s: from ss is granted ly, state actors are "not liable for . 28 U.S.C. int or to intiff's second section 1983 c In fact, to recognize a Accordingly, defendants' motion to di to p ri Here, to, and this Court is not aware of, any authority that holds, e p . con r the Fourteenth any affirmative "[t]he Clause is phrased as a limitation on t OPINION AND ORDER State's power to act, not as a guarantee of certain minimal levels of safety and. security." Deshaney v. Winnebago Cnty. Dep't of Soc. Servs., 195 489 U.S. Seattle, 474 189, F.3d 634, (1989); 638-39 see also Johnson v. (9th Cir. 2007). As City of such, "the Fourteenth Amendment does not impose a duty on [state actors] protect individuals from third parties." F.3d 1084, 1093 (9th Cir. 2007), to Morgan v. Gonzales, 495 cert. denied, 552 U.S. 1186 (2008). There are, however, two exceptions to this rule: 1) when a "special relationship" exists between plaintiff and the state actor (the "special relationship exception"); and 2) when the state actor affirmatively places plaintiff in danger by acting with "deliberate indifference" to a "known or obvious danger" (the "danger creation exception"). Cir. 2011) ("Grubbs Patel v. Kent Sch. Dist., 648 F.3d 965, 971-72 (9th (citing DeShaney, 489 U.S. at 198-202 and L.W. v. Grubbs II"), 92 F.3d 894, 900 (9th Cir. 1996)). If e her exception applies, a state actor's omission or failure to act may give rise to a claim under 29 U.S.C. § 1983. at 972. Plaintiff asserts that both of the exceptions are implicated; conversely, defendants argue that neither is relevant to this case. It must therefore be determined whether either of these exceptions apply. a. Special Relationship Exception The special relationship exception applies where a state actor abuses a special state-created relationship with an individual. Morgan, 495 F.3d at 1093-94. Page 10 - OPINION AND ORDER This exception has only been recognized where a plaintiff is "in custody." Romeo, 457 between U.S. 307, 324 (1982) (special See Youngerberg v. relationship involuntarily committed mental patient Estelle v. Gamble, 429 U. S. 97, 104-5 (1976) and the exists state), (special relationship exists between incarcerated prisoner and the state); see also Funez ex rel. Funez v. Guzman, 687 F.Supp.2d 1214, 1229 (D.Or. 2009). other words, where the In the special relationship exception applies "'[o]nly state has exercised its power individual unable to care for himself.'" so as to render an Funez, 687 F.Supp.2d at 1229 (quoting J.O. v. Alton Comm. Unit Sch. Dist. 11, 909 F.2d 267, 272-73 (7th Cir. 1990)). Plaintiff asserts that a special relationship existed between himself and the District because students are required to attend schools, which, in turn, owe students a certain duty of care. In support of his contention, plaintiff cites to Fazzolari v. Portland Sch. Dist. No. 1J2 and a number of other Oregon cases discussing negligence, two second circuit cases, and a case from the Eastern District of New See York. Pl.'s Resp. to Mot. Dism. 6. Plaintiff's argument, however, must be rejected for two reasons. First, while plaintiff is correct that the Eastern District of New York held that a special relationship may exist between a student and a school district, that case is distinguishable. Pagano v. 1989). Massapequa Pub. Schs., 714 F.Supp. 641, 643 (E.D.N.Y. In Pagano, the plaintiff, a minor student, alleged that he 2 Fazzolari v. Portland Sch. Dist. No. 1J, 303 Or. 1, 734 P.2d 1326 (1987). Page 11 - OPINION AND ORDER reported to school officials seventeen instances of physical and verbal abuse by other students. at 642. After each report, school officials "expressly said they would take the necessary steps to prevent such attacks from occurring in the future." Id. The school, however, never took any preventative measures to ensure plaintiff's right to bodily integrity. Id. In discussing defendants' motion to dismiss plaintiff's section 1983 claim, the court held that, where the school actually knew of the abuse and promised actions to take "may be affirmative steps to remedy considered to rise to the it, level defendants' of an affirmative duty" so as to establish a special relationship. Id. at 643. Here, plaintiff has not alleged that he reported DKL's verbal abuse to defendants or that defendants affirmative duty to protect plaintiff. agreed to assume an Moreover, plaintiff alleges a single violation of his due process right to bodily integrity. Accordingly, unlike Pagano, plaintiff has not asserted sufficiently frequent violations of his constitutional rights so as to trigger the exception. Second, the District of Oregon and the Ninth Circuit have previously addressed this precise issue, expressly holding that "a student is not 'in custody' at school within the meaning of the special-relationship exception." (qu 0 tin g J. 0 ., Funez, 9 0 9 F. 2 d at 2 7 2 - 7 3) i 687 F.Supp.2d at see a 1 soPate 1 , 1229 64 8 F« 3 d at 972-74 (no special relationship exists between schools and students despite the fact that attendance is compulsory and schools have Page 12 - OPINION AND ORDER loco parentis duties). In Funez, the p intiff, a disabled high school student of Hispanic descent, was attacked and beaten by nine other high school students whi under the care and supervision of the Hood River County School District. Id. at 1218. and underwent extensive surgery. Id. Plaintiff was hospitalized As a result of this attack, plaintiff sued the school district, alleging that it violated his right to substantive due process under the Fourteenth Amendment pursuant to 28 U.S.C. § 1983. dismiss plainti Id. 's complaint for The school district moved to ilure to state a claim. Id. at 1218 19. Specifically, the plaintiff in Funez alleged that the special relationship exception applied, relying "on the fact that he is required to attend school and on the reasoning of Fazzolari." at 1229. Id. The Funez court, however, rejected plaintiff's argument. As a preliminary matter, the court held that the principles in Fazzolari were "Fazzolari and the Un rd. distinguishable and, as such, not binding: was a negligence action analyzed under Oregon law Fazzolari court did not address due process under the ed States constitution of the special-relationship exception." Id. More importantly, the court held that compulsory school attendance does not render a child "in custody"; the requirement that a child attend school does not negate the fact that parents retain the primary child-care responsibilities: "\ [wJ e do not suggest that prisoners and mental patients are an exhaustive list Page 13 - OPINION AND ORDER of all persons to whom the state owes some affirmative duties, but the government, acting through local school administrations, has not rendered its schoolchildren so helpless that an affirmative const utional duty to protect arises. Whatever duty of protection does arise is best left to laws outside the Const (qu 0 ting J. 0., 90 9 F. 2 d at 2 7 2 - 7 3) . As such, ution.'" Id. the Funez court dismissed plaintiff's section 1983 claim pursuant to Fed. R. Civ. P. 12(b) (6). Id. at 1230. Here, plaintiff is asserting an identical argument based on analogous circumstances to those in Funezi in fact, signif icant two cases. Thus, while this Court has sympathy for plaintiff's suffering and Mr. and Ms. factual distinctions between the there are no Edwards' positions as concerned and caring parents, cannot depart from this well-settled authority. it Accordingly, for the same reasons articulated by the District of Oregon and the Ninth Circuit, I find that plaintiff was not "in custody" at School within the meaning of the exception when the Incident occurred. Therefore, plaintiff cannot state a claim against defendants for violations of his due process rights under the special relationship exception. b. To state a Danger Creation Exception claim under the danger creation exception, a plaintiff must show that the state affirmatively placed plaintiff in a position of danger, "'that is, where state action creates or exposes an individual to a danger which he or she would not have otherwise faced.'" Johnson, Page 14 - OPINION AND ORDER 474 F.3d at 639 (quoting Kennedy v. City of Ridgefield, DeShaney, 489 439 F.3d u.s. at 197)). 1055, 1061 (9th The exception, Cir. 2006) however, and "does not create a broad rule that makes state officials liable under the Fourteenth Amendment whenever they increase the risk of some harm to members of the public." Huffman v. Cnty. of L.A., 147 F.3d 1054, 1061 (9th Cir. 1998). Accordingly, to trigger plaintiff must prove that: plaini tff] the 1) danger creation exception, the state "affirmatively place [d in a position of danger" or "'effectively prevented [plaintiff] from protecting himself or prevented access to outside sources of help'"; and 2) the state acted indifference" to the state-created danger. N. Clackamas Sch. Dist., 654 with "deliberate G.C. ex reI. Counts v. F.Supp.2d 1226, 1247 (D.Or. 2009) (quoting Morgan v. Bend-La Pine Sch. Dist., 2009 WL 312423, at *11 (D.Or. Feb. 6, 2009) and Ridgefield, 439 F.3d at 1064)); see also Huffman, 147 F.3d at 1061. To establish deliberate indifference, plaintiff must show: "'1) an unusually serious risk of harm ... , 2) defendant's actual knowledge of (or, at least, willful blindness to) that elevated risk, and 3) defendant's failure to take obvious steps to address that known, serious risk.'" Grubbs II, 92 F.3d at 900). Funez, 687 F.Supp.2d at 1228 (quoting "In other words, the plaintiff must show the defendant knows 'something is going to happen but ignores the risk and exposes someone to it.'" Id. F.3d at 900). (quoting Grubbs II, 92 "Negligence on the part of state officials, whether simple or gross, is not sufficient to establish liability for a Page 15 - OPINION AND ORDER due-process violation./I Id. (citing Grubbs II, 92 F.3d at 898 900 and Daniels v. Williams, 474 U.S. deliberate is indifference requiring proof a 327, 331-35 "'stringent standard "a culpable mental state./I 974 (quoting Bryan Cnty. v. Brown, a u.s. (1986)). "was at all times of fault,' 397, 410 (1997)). because DKL was a ther expressly encouraged, or not discouraged in any way, from the demonstration and exe of unequal and coercive power by adult defendants./I 19. Plaintiff also asserts that /I Patel, 648 F.3d at Here, plaintiff's complaint alleges that, valued athlete, As such, defendants se Am. Compl. "had actual <Jl or constructive notice of the anti social and combative and sexually repressed conduct of DKL prior to [the date of the Incident] /I because of "conduct he exhibited at Sherwood Middle School./I at <JI 33. Further, plaintiff contends that "defendants knew or should have known that DKL posed an immediate and continuous threat of intentional random violence . well 39. ing of other students, In addition, for the [to] the health, sa including [plaintiff]./I first time in his y, and Id. response at <JI brief, plaintiff argues that the District created the danger by violating "Oregon's anti-bullying law at ORS 339.351 to 339.364./1 Plo's Resp. to Mot. Dism. 9. While plaintiff states that defendants "expressly encouraged, or not discouraged in any way" DKL's behavior, he does not allege any facts in support of this legal conclusion. bare assertion is not ent Ashcroft, 129 S.Ct. led to the presumption of truth. at 1951; Page 16 - OPINION AND ORDER Accordingly, this see also Starr, See 652 F.3d at 1216. Regardless, even accepting this allegation as true, plaintiff fails to plead that defendants required him to be in the School hallway in which he was attacked or prevented him from waiting in another area in between classes. Further, plaintiff does not allege that defendants deprived him of means to defend himself or cut him off from sources of aid. Moreover, plaintiff fails to articulate how the to alleged failure successfully implement "Oregon's anti bullying law"3 can satisfy the affirmative act required in a danger creation exception case. As such, these factual allegations are inadequate to establish that defendants affirmatively created the danger that DKL ultimately posed to plaintiff. unable to state the Thus, plaintiff is rst element of the danger creation exception. Nevertheless, even if plaintiff sufficiently plead the first this exception, he is unable to demonstrate deliberate element indifference. Plaintiff states that defendants "had actual or constructive notice" that DKL was dangerous and that they "knew or should have known" that DKL's dangerous propensities could lead to violence at School; plaintiff, however, at no point asserts that defendants actually knew of or were willfully blind to the growing tension between allegations from plaintiff which this and DKL. Court As could such, infer there that are no defendants 3 Despite plaintiff's assertions to the contrary, Oregon does not statutorily regulate bullying. Rather, the statutes that plaintiff cites to, Or. Rev. Stat. §§ 339.351 through 339.364, regulate schools dist cts, requiring each district to "adopt a policy prohibiting harassment, intimidation or bullying and prohibiting cyberbullying." Or. Rev. Stat. § 339.356. Plaintiff acknowledges, however, that the District has such a policy in place. Am. Compl. ~ 34. Page 17 OPINION AND ORDER intended to expose pl ntiff to DKL's attack or otherwise knew that DKL was going to assault plaintiff and ignored the risk. Thus, while to properly fendants may have acted negligently by failing supervise and police the School for bullying, plaintiff's complaint fails to plead a requisite element of this exception. See, e.g, Funez, 687 F.Supp.2d at 1228 (allegations in a complaint that someone is dangerous and that a state official led to adequately address that danger are insufficient to show deliberate indif rence). Therefore, plaintiff cannot state a claim against defendants for violations of his due process rights under the danger creation exception. iii. Section 1983 Against the District A local governing body, such as a school district, cannot liable under 28 U.S.C. § 1983 because of its status as an employer. Monell v. Dept. of Soc. Servs. of City of N.Y., 436 U.S. 658, 691 (1978) (local governing body cannot be vicariously liable based on respondeat superior theory under section 1983). of a of local governing body arises only when Rather, "liability 'action pursuant to cial ... policy of some nature caused a constitutional tort.'" Funez, 687 F.Supp.2d at 1224 (quoting Monell, 436 U.S. at 691). such, the circumstances in which a governing body may under 28 U.S.C. § 1983 are "carefully circumscribed." As liable Fuller v. City of Oakland, 47 F.3d 1522, 1534 (9th Cir. 1995). Thus, to state a c 1983, plaintiff constitutional must right; im against a school district under section allege that: 2) school the Page 18 - OPINION AND ORDER 1) he was district deprived had a of policy a or custom; 3) the policy or custom amounted to deliberate indifference to plaintiff's constitutional rights; and 4) the policy or custom was the moving force behind the constitutional violation. Funez, 687 F.Supp.2d at 1224 (citing Mabe v. San Bernardino Cnty., Dep't of Pub. Soc. Servs., 237 F.3d 1101, 1110-11 (9th Cir. 2001), Plumeau v. Sch. Dist. No. 40 Cnty. of Yamhill ("Plumeau II"), 130 F.3d 432, Fed.Appx. 438 463, (9th Cir. 464-65 1997), Christie v. (citing Trevino v. Harry (9th Cir. 2007)). deprivation is generally insuff custom. and Iopa, A. Duncan, 234 A single constitutional ient to establish a practice or 176 F.3d 1231, 1235 99 Gates, v. 918 F.3d 911, (9th Cir. (9th Cir. 1999) 1996) ("[l]iability for improper custom may not be predicated on isolated or sporadic incidents; it must be founded upon practices of sufficient duration, frequency and consistency that the conduct has become a traditional method of carrying out policy")). Here, the entirety of plaintiff's section 1983 claim asserted against the District is nothing more than a bare recitation of the requisite elements: 1) "[t] he individual defendants' acts and omissions . . . resulted in violations of [plaintiff's] liberty and property interests"; 2) individual defendants. "[t]he actions and omissions the . exhibit official practices, customs, and/or policies of defendant the District"; 3) "[t]he District's actions, herein omissions, amount constitutional polices and/or to policies, deliberate customs, indifference and statutory rights"; practices Page 19 - OPINION AND ORDER and/or practices alleged were the and to 4) moving the plaintiff's " [t] he District's force behind the consti tutional ~~ Compl. wi thout and 59-62. statutory violations alleged These allegations, however, factual support. herein." Am. are conclusory and Plaintiff has provided no facts from which to infer that the District condones or ignores violence and harassment at School. In fact, by plaintiff's own admission, the District has "mandatory, non-discretionary rules, policies and procedures which address the issues of bullying, aggressive and harassing conduct by students against other students." Thus, Am. Compl. ~ 34. the District has an official policy against bullying and violence at School. Plaintiff contends that the District's rules were "ineffective and incomplete"; while this may be true, it is unclear to this Court how the District's anti-bullying rules, when not properly enforced, equate to the deliberate choice to ignore or encourage student-on-student violence on School grounds. Moreover, plaintiff's single Incident. theory liabili ty arises out of a A single constitutional deprivation is inadequate to establish a policy or custom. See Christie, 176 F.3d at 1235. Therefore, without more, plaintiff is unable to allege practices of sufficient duration, frequency and consistency so as to rise to the level of an of cial policy or custom. Thus, while this Court is dismayed by the milieu of hostility and violence in the public school system, seeking to impose liability against a school district pursuant to 28 U.S.C. § 1983 for the abuse perpetrated by one student against another is simply not the proper avenue through which to redress this type of injury. Page 20 - OPINION AND ORDER B. Injunctive Relief Finally, plaintiff see an unction, requiring defendants to more vigorously enforce their anti-bullying rules. See Am. Compl. en 86. "[A]n injunction is appropriate only when necess irreparable harm." Nat'l Wildlife Fed'n v. Cosgriffe, 21 F.Supp.2d 1211, 1218 (D.Or. 1998) U.S. 305, 314-15 discretion, to prevent (citing Weinberger v. Romero-Barcelo, 456 (1982)). Accordingly, as a matter of equitable an injunction is "'an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is ent to such relief.'" (9th Cir. 2010) U.S. 7, 24 led Earth Island Inst. v. Carlton, 626 F.3d 462, 469 (quoting Winter v. Natural Res. Def. Council, 555 (2008)). Such a remedy must be narrowly tailored: "'injunctive relief should be no more burdensome to the defendants than necessary to provide complete relief to the plaintiffs.'" Lamb-Weston, Cir. 1991) Inc. v. McCain Foods, (quoting Califano v. Ltd., 941 F.2d 970, Yamasaki, 442 U.S. 974 (9th 682, 702 (1979) ) . To state demonstrate: a 1) claim for injunctive relief, plaintiff that he suffered an injury in fact; 2) must that the injury stems from defendants' challenged action; and 3) that the relief sought v. Am. 2004). In addition, plaintiff must show "a sufficient likelihood that [he] Multi-Cinema, will will Inc., redress 364 F.3d the injury. 1075, 1081 in be wronged in a similar way." 461 U.S. 95, 111 (1983) i Fortyune (9th Cir. City of L.A. v. Lyons, see also Fortyune, 364 F.3d at 1081. Page 21 - OPINION AND ORDER The likelihood of future injury is sufficient where there is a "real and irrunediate threat of repeated injury." O'Shea v. Littleton, 414 U.S. 488, 496 (1974); see also Fortyune, 364 F.3d at 1081. Here, as discussed above, plaintiff is unable to state a claim for violations of his constitutional or state corrunon law rights. Further, plaintiff has not alleged that irrunediate threat of repeated inj ury. there Rather, is a real and plaintiff asserts that "there is a substantial likelihood the problems created [by the failure to successfully implement the District's anti-bullying policy] will persist unabated." Am. Compl. 'j[ 86. in addition to being conclusory, This allegation, is too broad and indefinite to demonstrate that there is a strong probability that DKL will attack plainti again difficult, if while not at School. impossible, for In addition, this Court it to would be fashion an injunction that provides complete relief to plaintiff without being overly broad. Accordingly, defendants' motion to dismiss is granted in regard to plaintiff's claim for injunctive relief. CONCLUSION Defendants' motion dismiss to Plaintiff's claims are DISMISSED. (doc. 9) is GRANTED. As such, defendants' request for oral argument is DENIED as unnecessary. Therefore, this case is REMANDED to state court, as plaintiff's only remaining claims are those asserted against DKL and his parents for assault and battery, which arise under Oregon law. Page 22 - OPINION AND ORDER f IT IS SO ORDERED. Dated this of December 2011. United States District Judge Page 23 - OPINION AND ORDER
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