Callahan vs. Gustine Unified School District et al.,, No. 1:2007cv00796 - Document 143 (E.D. Cal. 2009)

Court Description: MEMORANDUM DECISION re Defendants Gustine Unified School District, Jason Spaulding, Anthony Souza, and Adam Cano's Motion for Summery Judgment 96 and Defendant Carl Scudder's Motion for Summary Judgment 91 , signed by Judge Oliver W. Wanger on 12/22/2009. (Verduzco, M)

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1 2 3 UNITED STATES DISTRICT COURT 4 EASTERN DISTRICT OF CALIFORNIA 5 6 7 JOHN ROE, a minor, by and through his Guardian ad Litem, SHEILA IRENE CALLAHAN, 1:07-CV-00796-OWW-SMS MEMORANDUM DECISION RE DEFENDANTS GUSTINE UNIFIED SCHOOL DISTRICT, JASON SPAULDING, ANTHONY SOUZA, AND ADAM CANO S MOTION FOR SUMMARY JUDGMENT (Doc. 96) AND DEFENDANT CARL SCUDDER S MOTION FOR SUMMARY JUDGMENT (Doc. 91.) 8 Plaintiff, 9 10 v. 11 12 13 14 15 16 17 18 GUSTINE UNIFIED SCHOOL DISTRICT; GOLDEN VALLEY UNIFIED SCHOOL DISTRICT; KYLE MATTHEW FISCHER, aka KYLE SIMMONS, a minor; KELLY SIMMONS; JASON SIMMONS; MATTHEW McKIMMIE, a minor; MYRNA TYNDAL; TOMMY SAN FELIPO, a minor; FRANK HUDSON; BETTY HUDSON; CARL SCUDDER; JASON SPAULDING; ANTHONY SOUZA; ADAM CANO; TIMOTHY HAYES; KULJEEP MANN; CHRIS IMPERATRICE; and DOES 1-200, 19 Defendants. 20 I. 21 INTRODUCTION 22 This case arises from alleged student-on-student harassment of 23 Plaintiff John Roe while he was attending a football camp at 24 Liberty High School in July 2006. 25 incoming freshman at Gustine High School, who intended to play 26 football for Gustine High in the fall of 2006. 27 a football camp jointly coordinated by Gustine and Liberty High 28 Schools. In July 2006, Plaintiff was an Plaintiff attended While at football camp, Plaintiff was assaulted by 1 1 several upper class teammates, and suffered additional acts of 2 hazing by these individuals. 3 The defendants are the Gustine and Golden Valley Unified 4 School Districts, Gustine High School football coaches, the 5 individuals who allegedly perpetrated these events, and the parents 6 of the minors allegedly involved in these events. 7 On May 31, 2007, Sheila Irene Callahan, as guardian ad litem 8 for John Roe,1 a minor, the real party in interest, filed this 9 action against defendants under 20 U.S.C. section 1681-1688 ("Title 10 IX") and 42 U.S.C. § 1983, as well as various state law tort 11 claims. 12 employees violated Title IX of the Education Amendments Act of 13 1972, 20 U.S.C. §§ 1681 et seq., by being deliberately indifferent 14 to the alleged harassment. 15 U.S.C. § 1983 is based on an alleged equal protection violation 16 under U.S. Constitutional Amendment XIV. Plaintiff contends that the school districts and their Plaintiffs claim for relief under 42 17 Plaintiff s state law claims against the school districts and 18 its employees relate to their negligent failure to supervise the 19 students under their custody and control. 20 Before the court are motions for summary judgment filed by 21 Defendants Gustine 22 Anthony 23 Defendants") Souza, and and Unified Adam School Cano Defendant District, (collectively Carl Scudder Jason Spaulding, "School District ( Scudder ) (all 24 25 26 27 28 1 John Roe is the pseudonym for the Plaintiff, who was fourteen years old during the incidents giving rise to this litigation. 2 1 collectively Defendants ).2 2 judgment as to all of Plaintiff s claims against Gustine Unified 3 School District or School District employees. Defendants motions seek summary 4 II. 5 FACTUAL BACKGROUND Because all material facts must be viewed in the light most 6 7 favorable to the non-movant, they are accepted as true. 8 The parties' submissions present the following facts:3 9 10 11 A. The Parties At all relevant times, Plaintiff, John Roe, was a minor, under 12 the age of eighteen years. (Compl. ¶ 5.) Sheila Callahan is the 13 biological Roe, 14 Arizona. 15 mother of John and both reside in Glendale, (Compl. ¶ 5.) Gustine Unified School District ( GUSD ) was a public school 16 district in the County of Merced. (Compl. ¶ 6.) 17 School entity 18 Defendants Carl Scudder, Jason Spaulding,, Anthony Souza, and Adam 19 Cano (collectively Individual GUSD Defendants ) are employees of ( GHS ) was a subordinate under Gustine High GUSD. (Id.) 20 21 22 23 24 25 26 27 28 2 District Defendants and Scudder filed separate motions for summary judgment. Due to the overlapping facts and issues presented by these motions, all Defendants motions are addressed together. 3 Unless otherwise noted, the facts are undisputed. Along with his opposition, Plaintiff filed a Statement of Disputed/Undisputed Facts in Opposition to Defendants Motions for Summary Judgment, ( PSUF ). Defendants Gustine Unified School District, Jason Spaulding, Anthony Souza, and Adam Cano filed a Statement of Undisputed Facts in Support of Motion for Summary Judgment, ( DSUF ), on April 30, 2009, as did Defendant Carl Scudder, ( Scudder SUF ). 3 1 a GUSD and/or Gustine High School. (Compl. ¶ 7.) Golden Valley Unified School District ( GVUSD ) was a public 2 3 school district in the County of Madera. 4 High School ( LHS ) was a subordinate entity under GVUSD. 5 Defendants Hayes, Mann, and Imperatrice (collectively Individual 6 GVUSD Defendants ) are employees of a GVUSD and/or Liberty High 7 School. (Compl. ¶ 9.) Defendants 8 9 Kyle Simmons and residing in the County of Merced. (Compl. ¶ 8.) Michael Simmons (Compl. ¶ 10.) were Liberty (Id.) minors Defendants Kelly 10 Simmons and Jason Simmons are the biological parents of Kyle 11 Simmons and Michael Simmons. (Id.) Defendant Matthew McKimmie is a minor residing in the County 12 13 of Merced. (Compl. ¶ 11.) Defendant 14 biological mother of Matthew McKimmie. Myrna Tyndal is the (Id.) Defendant Tommy San Felipo is a minor residing in the County 15 16 of Merced. (Compl. ¶ 12.) Defendants Frank Hudson and Betty 17 Hudson are the legal guardians of Tommy San Felipo. (Id.) 18 In July 2006, Kyle Simmons, Michael Simmons, Matthew McKimmie, 19 and Tommy San Felipo were upperclassmen on the Gustine High School 20 football team. 21 Simmons were reprimanded by GHS administrators for behavioral 22 issues prior to the July 2006 football camp, including having their 23 interdistrict transfers suspended or revoked. (Scudder Dep. 117:3- 24 117:25.) 25 July 2006 football camp. It is undisputed that Kyle Simmons and Michael Coach Scudder was aware of the suspension prior to the (Id.) 26 27 28 B. The July 2006 Football Camp On July 13th through July 15th, 2006, Gustine High School and 4 1 Liberty High School held a contact football camp at Liberty High 2 School. 3 Defendants Chris Imperatrice, head football coach at LHS, and Carl 4 Scudder, head football coach at GHS. 5 football players and coaches participated in a similar camp in the 6 summers of 2004 and 2005. 7 incidents of hazing or sexual harassment in 2004 or 2005. 8 9 (PSUF 20.) The camp was organized and planned by (PSUF 35.) (PSUF 36.) GHS and LHS There were no reported Approximately 60 GHS players attended the 2006 football camp, which was a designated Play under rules.4 California Interscholastic 11 Attendance at the football camp was voluntary and players did not 12 receive school credit for their attendance.5 13 SUF 3-4.) 14 two buses that were owned and operated by GUSD. (PSUF 51, 63.) 15 of the buses and participation in the camp was requested in advance 16 by Scudder and approved by Dennis Shaw, the Principal of GHS. 17 (PSUF 52.) The ( CIF ) event 10 18 Federation Day (PSUF 39-40.) (DSUF 4-5; Scudder GHS students were transported to and from the Camp by only requirements for students to be eligible Use to 19 participate in the camp were 1) that the students (or their 20 parents) sign a Liability Waiver for LHS, 2) that they pay $25 or 21 22 23 24 25 26 27 28 4 According to Coach Scudder, the Camp was intended to be "an opportunity for an individual to improve his football skills and for a team to improve their cohesion and ability to play together." (Scudder Dep. 69:20-69:23.) 5 GHS and LHS athletics are governed by the California Interscholastic Federation. In 2006, a CIF rule classified the off-season to include the time period of July 13-15, 2006, and identified an "out of season," organized recreational activity involving teams from two or more high schools, such as the subject Camp, as a "Play Day" event. (PSUF 38-39) 5 1 receive a hardship waiver, and 3) that they attend 40 hours of 2 football practice prior to the camp. 3 undisputed that Plaintiff signed the waiver, paid the fee, and 4 attended the required 40 hours of practice prior to July 13, 2006.6 5 The GHS players and coaches slept in the LHS gym Thursday and 6 Friday nights, while the LHS players left campus each night after 7 camp activities. 8 responsible for supervising the students while on the field and 9 during combined activities. (PSUF 44-45.) It is During the Camp, all coaches for GHS and LHS were (PSUF 40-43.) The four GHS coaches 10 were responsible for supervising the 60 GHS students while off the 11 field, during break, meal and rest periods, and overnight while in 12 the gym.7 13 supervising the GHS students during the camp. (PSUF 42.) (PSUF 41-42.) No other adults were charged with 14 15 C. Hazing Incidents 16 17 1. The Air Pump Incident 18 On the second day of camp, Plaintiff was assaulted by a group 19 of GHS upperclassmen, Kelly Simmons, Michael Simmons, Matthew 20 McKimmie, and Tommy San Felippo. 21 the LHS locker room, held him down, and then inserted a battery- 22 controlled air pump into his rectum. 23 The group then activated the pump, inserting air into Plaintiff s The group chased Plaintiff into (Pl. Dep. 188:11-191:10.) 24 25 26 6 At time of camp, it is undisputed that GUSD had policies prohibiting sexual harassment and gender harassment/discrimination. (DSUF 8.) 27 7 28 It is undisputed that Coach Cano left Liberty High School and returned home following the first evening practice. 6 1 rectum for a few seconds. 2 Plaintiff, the attack occurred in the presence of several LHS 3 students, 4 Plaintiff also witnessed these individuals assault several other 5 teammates with the air pump during the football camp. 6 179:4:181:11.) who did not end (Id. 194:25-196:3.) the assault. (Id. According to 196:4-196:22.) (Id. 7 It is undisputed that Kelly Simmons, Michael Simmons, Matthew 8 McKimmie, and Tommy San Felippo assaulted or attempted to assault 9 with an air hose approximately fifteen players during the July 2006 10 football camp. 11 12 2. The Shower Incident 13 On the second day of camp, following the assault, Plaintiff 14 took a shower in the boys locker room. (Id. 204:12-204:22.) 15 While Plaintiff was in the shower, San Felippo, without any clothes 16 on, entered the shower area and proceeded towards Plaintiff, who 17 was in the corner of the shower area. 18 Plaintiff s shoulders from behind and Plaintiff pushed him away. 19 (Id. 206:3-207:6.) 20 effeminate tone, called Plaintiff a homosexual and grabbed his 21 buttocks. 22 area. San Felippo grabbed According to Plaintiff, San Felippo, in an (Id. 207:13-209:12.) San Felippo then left the shower (Id.) 23 24 3. The Pillow Fight 25 On the second night of camp, the players engaged in a pillow 26 fight. Based on the record, the pillow fight was a yearly ritual, 27 with no prior incidents of abuse or violence. 28 approved of the pillow fight and several of the coaches were 7 Coach Scudder 1 2 present in the gym for the pillow fight. According to Plaintiff, the pillow cases were filled with baby 3 powder, football equipment, and other heavy objects. 4 The players then used the filled pillow cases to attack their 5 teammates. 6 GHS coaches during the pillow fight in the hopes that he would be 7 protected. 8 Plaintiff engaged in the pillow fight. 9 Plaintiff, he was then hit in the head and face with the pillow 10 cases stuffed with heavy objects. (PSUF 73.) Plaintiff states that 11 he suffered injuries as a result of the blows. 12 (Id.) (PSUF 73.) Plaintiff states that he sat next to one of the (PSUF 72.) Sensing that he would be attacked anyway, According to Scudder, the players (Id.) According to (PSUF 71-75.) were not required to 13 participate in the pillow fight. 14 Scudder stated that several players sat near their bunks, opting 15 not to participate in the pillow fight. 16 the assistant coaches witnessed any players put anything into their 17 pillow cases. 18 The assistant coaches also (Scudder Dep. 172:8-172:14.) did (Id.) not Neither Scudder nor report any injuries 19 stemming from the pillow fight, other than Nathan Xavier, who had 20 a bloody nose. (Scudder Dep. 174:9-174:19.) According to Scudder, 21 Mr. Xavier had a bloody nose earlier in the day. (Id.) 22 23 4. Flashing Incidents 24 According to Plaintiff, during practice at GHS and during the 25 2006 Camp, the Simmons twins and San Felippo repeatedly exposed 26 their genitals to other GHS players both on and off the field. 27 (PSUF 76-78.) Plaintiff states that San Felippo repeatedly exposed 28 his genitals, and would slap players on the head and face with 8 1 his penis. 2 victims of this conduct. (Id.) According to Plaintiff, he was one of the many It is undisputed that Plaintiff did not report this behavior 3 4 (Id.) to Coach Scudder or any of the assistant football coaches. 5 There is no evidence that Coach Scudder or any other Gustine 6 high coach witnessed or otherwise knew of any of any players 7 exposing their genitals. 8 5. 9 Verbal Harassment at Camp 10 According to Plaintiff, he suffered from repeated sexual 11 harassment by the upperclassmen after the air pump incident. 12 Plaintiff states that he was called homosexual epithets, resulting 13 in a collective belief among the other GHS players that Plaintiff 14 was a homosexual. It is undisputed that Plaintiff did not report this behavior 15 16 (PSUF 80.) to Coach Scudder or any of the assistant football coaches. There is no evidence that Coach Scudder or any other Gustine 17 18 employees witnessed 19 or otherwise knew that any players used homosexual epithets. 20 21 22 D. Knowledge of Hazing Events During the Camp, Coach Scudder observed a group of 23 upperclassmen run across the gym in the direction of a teammate, 24 Kevin St. Jean, who was sitting on his air mattress. 25 152:6-152:16.) 26 Simmons, San Felippo, McKimmie, and Felix Figueroa, pinned St. 27 Jean s arms to his side and blew air up the leg of his shorts, near 28 his thigh. (Scudder Dep. According to Scudder, the group, Kyle and Michael (Id.) St. Jean was sitting upright on his air mattress 9 1 during the incident, never in a spread eagle position. (Scudder 2 Dep. 153:8-153:12.) 3 reprimanding them and their horseplay. (Id.) Coach Scudder then 4 confiscated the air pump and kept it for the duration of the camp. 5 (Scudder Dep. 153:16-153:18.) Scudder yelled at the group to stop, verbally Coach Souza was also present in the gym during the football 6 7 camp, supervising the players. There is no evidence that Souza 8 witnessed or otherwise knew of any of the events described above. 9 Unless specifically noted, there is no evidence that Coach 10 Scudder or any other Gustine high coach witnessed or otherwise knew 11 of any of the events described above. 12 13 E. Conduct after Camp 14 The Camp concluded on Saturday, July 15,2006. (PSUF 20.) The 15 GHS coaches and players next met for practice on Tuesday, July 18, 16 2006. 17 (DSUF 12.) 18 so Coach Cano ran the practice in his absence. 19 practices, Coach Cano overhead one of the players talking about 20 what was done to Plaintiff during the Camp. 21 Cano called Dennis Shaw, the Principal of GHS, and told him he 22 needed to speak with him about behavior at the Camp. 23 later, the two spoke and set up a meeting to review the incidents. 24 On Monday, July 24, 2006, Dennis Shaw contacted the Gustine Plaintiff returned to football practice on July 18, 2006. Coach Scudder was out of town the week after the Camp Department 26 Scudder, 27 Department met on July 25, 2006 to discuss the events of July 13 28 through July 15, 2006. and an Scudder. officer 10 Principal A few days Police Cano, Coach The next day, Coach 25 Coach and During one of the with the Shaw, Gustine Coach Police 1 2 On September 12, 2006, GUSD initiated expulsion proceedings against the Simmons twins, McKimmie, and San Felippo. 3 III. PROCEDURAL BACKGROUND 4 5 On May 30, 2007, Plaintiff filed a complaint against Gustine 6 and Golden Valley Unified School Districts, Gustine High School 7 football coaches, the individuals who allegedly perpetrated these 8 events, and the parents of the minors allegedly involved in these 9 events. (Doc. 1.) 10 action: (1) violation of statutory rights under Title IX, 20 11 U.S.C. §§ 1681-1688 against the School District Defendants and 12 their employees; (2) violation of civil rights under 42 U.S.C. § 13 1983 against the School District Defendants and their employees; 14 (3) sexual battery against the individual Defendants; (4) assault 15 and battery against the individual Defendants; (5) intentional 16 infliction 17 violation of Cal. Constitution, art. 1, § 7(a) against the School 18 District Defendants and their employees; (7) violation of Cal. 19 Civil Code § 52.4 against all defendants; (8) violation of Cal. 20 Civil Code § 51 against the School District Defendants and their 21 employees; (9) violation of Cal. Civil Code § 51.7 against the 22 School 23 discrimination under the Cal. Education Code against the School 24 District Defendants and their employees; (11) 25 of Parent/Guardian for willful acts of a minor; (12) negligent of The complaint set forth fifteen causes of emotional District distress Defendants and 26 27 28 11 against their all defendants; employees; (10) (6) sex vicarious liability 1 supervision;8 2 Defendants and their employees; and (14) negligent training against 3 School District Defendants. 4 5 6 (13) negligence per se against School District Defendants filed their answers to Plaintiff s complaint on August 8, 2007. (Docs. 33, 35.) Defendants filed their motions for summary judgment on April 7 30, 2009. 8 following grounds: 9 federal and state causes of action pursuant to California Education 10 Code § 35330; 2) Plaintiff s section 1983 claims are barred by the 11 Eleventh Amendment; 3) Plaintiff s evidence is insufficient to 12 create a genuine issue of material fact under Title IX; and 4) 13 Plaintiff s gender violence cause of action lacks merit. 14 (Docs. 91, 96.) Defendants seek judgment on the 1) Defendants are immune from Plaintiff s Plaintiff filed his opposition to Defendants summary judgment 15 motions on July 27, 2009. (Doc. 107.) In support of his 16 opposition, Plaintiff submitted a single Memorandum opposing all 17 the motions ( Memorandum ). 18 Plaintiff argues that Defendants are not immune under any 19 provision of the California Education Code because the football 20 camp was not a field trip or excursion under Cal. Ed. Code § 21 35330. 22 incapable of providing a basis to defeat Plaintiff s federal causes 23 of action. 24 Plaintiff also asserts that a state law immunity is As to Defendants arguments concerning liability under federal 25 26 27 28 8 The complaint includes two negligent supervision causes of action: the first against the School Districts and their employees (Count XIII), the second against the parents/guardians of the minor defendants (Count XIV). 12 1 law, Plaintiff argues that the Eleventh Amendment does not bar § 2 1983 claims against Scudder, Cano, Spaulding, and Souza in their 3 individual capacities. 4 triable issues of material fact as to his Title IX claim against 5 GUSD. Plaintiff also argues that there are 6 In his opposition, Plaintiff conceded he cannot prevail on the 7 following state law claims against the moving Defendants: (1) 8 Plaintiff s seventh and ninth causes of action based on Gender 9 Violence.9 (Doc. 107, 7:17-7:19.) 10 Plaintiff also concedes the following federal claims: (1) 11 Plaintiff s Title IX claim for sexual discrimination and harassment 12 against the individual moving Defendants; and (2) Plaintiff s § 13 1983 claim against GUSD and the individual moving defendants, in 14 their official capacity only. (Doc. 107, 7:23-7:26.) 15 IV. LEGAL STANDARD 16 17 A. Summary Judgment/Adjudication 18 Summary judgment, or summary adjudication, is appropriate when 19 "the pleadings, the discovery and disclosure materials on file, and 20 any affidavits show that there is no genuine issue as to any 21 material fact and that the movant is entitled to judgment as a 22 matter of law." Fed. R. Civ. P. 56(c). 23 the initial responsibility of informing the district court of the 24 basis 25 pleadings, depositions, answers to interrogatories, and admissions for its motion, and identifying The movant "always bears those portions of the 26 27 28 9 Accordingly, summary adjudication is GRANTED in favor of Defendants as to Plaintiff s seventh and ninth causes of action for gender violence. 13 1 on file, together with the affidavits, if any, which it believes 2 demonstrate the absence of a genuine issue of material fact." 3 Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal 4 quotation marks omitted). 5 Where the movant will have the burden of proof on an issue at 6 trial, it must "affirmatively demonstrate that no reasonable trier 7 of fact could find other than for the moving party." 8 Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir.2007). 9 respect to an issue as to which the non-moving party will have the 10 burden of proof, the movant "can prevail merely by pointing out 11 that there is an absence of evidence to support the nonmoving 12 party's case." Soremekun v. With Soremekun, 509 F.3d at 984. 13 When a motion for summary judgment is properly made and 14 supported, the non-movant cannot defeat the motion by resting upon 15 the 16 non-moving party must set forth, by affidavit or as otherwise 17 provided in Rule 56, specific facts showing that there is a 18 genuine issue for trial. 19 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986)). A 20 non-movant's bald assertions or a mere scintilla of evidence in his 21 favor are both insufficient to withstand summary judgment. FTC v. 22 Stefanchik, 559 F.3d 924, 929 (9th Cir. 2009). 23 must 24 affirmative evidence from which a jury could find in his favor. 25 Id. (emphasis in original). "[S]ummary judgment will not lie if [a] 26 dispute about a material fact is genuine, that is, if the 27 evidence is such that a reasonable jury could return a verdict for 28 the nonmoving party." allegations show a or denials genuine of its own pleading, rather the Soremekun, 509 F.3d at 984. (quoting issue of material fact Anderson, 477 U.S. at 248. 14 [A] non-movant by presenting In determining 1 whether a genuine dispute exists, a district court does not make 2 credibility determinations; rather, the "evidence of the non-movant 3 is to be believed, and all justifiable inferences are to be drawn 4 in his favor." Id. at 255. 5 V. DISCUSSION 6 7 To determine the scope of the federal actions that may be 8 considered as part of the Plaintiff s case, the first inquiry 9 addresses Defendants arguments that they are immune from liability 10 for Plaintiff s federal claims under Cal. Educ. Code § 35330. 11 12 13 A. Immunity Under California Education Code § 35330 Defendants argue that Cal. Educ. Code § 35330, subsection d, 14 disposes of Plaintiff s entire action. 15 contend that Plaintiff s claims, both federal and state, are barred 16 by Cal. Educ. Code § 35330(d), which provides immunity to school 17 districts, charter schools and the State of California for injuries 18 occurring during a field trip or excursion. 19 provides: 20 21 22 Specifically, Defendants Section 35330(d) All persons making the field trip or excursion shall be deemed to have waived all claims against the district, a charter school, or the State of California for injury, accident, illness, or death occurring during or by reason of the field trip or excursion. 23 24 Plaintiff disputes Defendants broad interpretation of 25 California s field trip immunity. 26 35330(d) is limited to claims for injury, accident, illness, or 27 death occurring during or by reason of the field trip or excursion 28 ... [b]oth Title IX and 1983 suits are civil rights actions - not 15 Plaintiff maintains that § 1 personal injury actions. 2 argues that even if the field trip immunity applies, the field 3 trip immunity would affect only state law causes of action and not 4 any federal or constitutional claims. 5 (Doc. 107, 18:13-18:15.) Plaintiff (Doc. 107, 18:10-18:11.) The motion presents a question of law largely unrelated to the 6 facts of this case: 7 immunity statute, immunize Defendants from Plaintiff s federal 8 civil rights claims? 9 does Cal. Educ. Code § 35330(d), a state Pursuant to 42 U.S.C. § 1988, if a civil rights statute is 10 "deficient in the provisions necessary to furnish suitable 11 remedies," the court is to look to state law. 12 This rule is "subject to the important proviso that state law may 13 not be applied when it is inconsistent with the Constitution and 14 laws of the United States." 15 590 (1978) (internal quotations omitted). 16 identified the purposes behind the Federal Civil Rights Act: (1) to 17 prevent official illegality, Robertson, 436 U.S. at 592, and (2) to 18 "compensate persons for injuries caused by the deprivation of 19 constitutional rights." Carey v. Piphus, 435 U.S. 247, 254 (1978). 20 Defendants argue that § 35330(d) is consistent with federal 21 law and provides guidance on a unique situation not contemplated 22 by federal legislation. 23 that without consideration of § 35330 with respect to Plaintiff s 24 federal claims, the law is not adapted to the object as is required 25 by 42 U.S.C. 1988(a). 26 decisions for the proposition that federal courts are expressly 27 authorized to adopt state law to define the scope of federal 28 claims, including 42 U.S.C. 1983. 42 U.S.C. § 1988. Robertson v. Wegmann, 436 U.S. 584, The Supreme Court has (Doc. 96, 8:9-8:11.) Defendants assert (Id.) Defendant cites a number of federal 16 1 Defendants rely on Provencia v. Vasquez, No. 1:07-CV-0069-AWI- 2 TAG, 2008 WL 3982063, (E.D. Cal., August 18, 2008), to assert that 3 § 35330(d) is consistent with the Constitution and the Federal 4 Civil Rights Act, permitting adoption of § 35330 to define the 5 scope of the federal claims at issue in this litigation. Provencia 6 is distinguishable. 7 whether a state survival statute barring recovery of a decedent s 8 pain and suffering was contrary to the compensation and deterrence 9 purposes of § 1983.10 Unlike this case, the issue in Provencia was Provencia found: The deterrent purpose of Section 1983 is satisfied by the fact that Section 377.34 allows the estate to recover the punitive damages the decedent would have been entitled to recover had he survived. Unfortunately, once deceased a decedent cannot in any practical way be compensated for his injuries or pain and suffering, or be made whole. However, the statutory scheme for survivors in California still provides compensatory damages for the remaining injured parties, i.e. the survivors. California law provides for not only recovery by the representative of the estate but also for a wrongful death action by the decedent's heirs. Thus, this court finds that the Estate's claims for pain and suffering damages and hedonic damages are precluded by Section 377.34. 10 11 12 13 14 15 16 17 18 Id. at *12 (citations omitted). 19 Defendants reliance on Provencia is misplaced. Because 20 California s statutory scheme still provided for recovery by the 21 representative of the estate and for a wrongful death action by the 22 decedent s heirs, Provencia found that § 377.34 was not 23 inconsistent. In this case, the application of § 35330(d) 24 25 26 27 28 10 The Ninth Circuit has not specifically addressed this issue. But cf. Gotbaum v. City of Phoenix, 617 F.Supp.2d 878, 884 (D. Ariz. 2008) (stating [m]ost courts have concluded that state statutes limiting civil remedies in cases where a constitutional violation has caused death to the victim simply are not consistent with the purposes of section 1983. ). 17 1 completely eliminates any potential remedy for Plaintiff under § 2 1983 and Title IX. 3 Court precedent and the legislative intent that protection of 4 federal civil rights be encouraged. 5 131, 139 (1988) ( the central objective of the Reconstruction-Era 6 civil rights statutes ... is to ensure that individuals whose 7 federal constitutional or statutory rights are abridged may recover 8 damages 9 Defendants attempt to apply or expand the holding of Provencia 10 11 or Barring recovery is inconsistent with Supreme secure injunctive See Felder v. Casey, 487 U.S. relief. ) (citation omitted). fails. Good v. Dauphin County Social Services for Children and Youth, 12 891 F.2d 1087 (3d Cir. 1989), is analogous. In Good, a mother 13 suspected of child abuse brought a civil rights action against 14 municipal and county officials who allegedly conducted an improper 15 search of her home. 16 Pennsylvania s Child Protective Services Law 11 Pa. St. Ann. § 17 2211 which specifically granted immunity to those carrying out 18 its provisions. 11 19 grounds that 11 Pa. St. Ann. § 2211 immunized Defendants for any 20 violation of Plaintiffs Fourth Amendment rights. 21 Circuit reversed: Defendants moved for summary judgment under The District Court granted summary judgment on The Third A state immunity statute, although effective against a state tort claim, has no force when applied to suits under the Civil Rights Acts. The supremacy clause of the Constitution prevents a state from immunizing 22 23 24 25 26 27 28 11 11 Pa. St. Ann. § 2211: Any person, hospital, institution, school, facility or agency participating in good faith in the making of a report, cooperating with an investigation or testifying in any proceeding arising out of an instance of suspected child abuse ... shall have immunity from any liability,*1091 civil or criminal, that might otherwise result by reason of such actions. 18 entities or individuals alleged to have violated federal law. This result follows whether the suit to redress federal rights is brought in state or federal court. Were the rule otherwise, a state legislature would be able to frustrate the objectives of a federal statute. 1 2 3 4 5 Id. at 1091, citing Wade v. City of Pittsburgh, 765 F.2d 405, 6 407-408 (3d Cir. 1985). 7 Supreme Court and Ninth Circuit precedent is consistent with 8 Good. 9 Defendant Parole Board Officials were dismissed (federal and state 10 claims) by the trial court under a California statute conferring 11 immunity on officials responsible for parole decisions. 12 Supreme Court found that the California immunity statute does not 13 control this claim even though the federal cause of action is being 14 asserted in state courts: 15 16 17 18 19 In Martinez v. State of California, 444 U.S. 277 (1980), Id. The Conduct by persons acting under color of state law which is wrongful under 42 U.S.C. § 1983 or § 1985(3) cannot be immunized by state law. A construction of the federal statute which permitted a state immunity defense to have controlling effect would transmute a basic guarantee into an illusory promise; and the supremacy clause of the Constitution insures that the proper construction may be enforced. The immunity claim raises a question of federal law. 20 Martinez, 444 U.S. at 284 (citations omitted). 21 The Supreme Court recently reaffirmed this well-established 22 principle in Haywood v. Drown, 129 S. Ct. 2108, 2131 (2009): 23 permitt[ing] a state immunity defense to have controlling effect 24 over a federal claim violates the Supremacy Clause. 25 The Ninth Circuit recognizes that state law cannot provide 26 immunity from suit for federal civil rights violations. Wallis v. 27 Spencer, 202 F.3d 1126, 1143-44 (9th Cir. 2000); Romstad v. Contra 28 19 1 Costa County, 41 F. App x 43 (9th Cir. 2002). 2 Ninth Circuit found that the district court erred by applying 3 California Government Code § 820.2, a state immunity statute, to 4 the Romstads' federal claims: immunity under § 1983 is governed by 5 federal law; state law cannot provide immunity from suit for 6 federal civil rights violations. 7 Defendants simply ignore In Romstad, the Id. at 46. federal law concerning the 8 application of state law immunities to federally created statutory 9 rights. In his reply brief, Defendant Scudder states [i]f the 10 court were to limit the reach of Education Code § 35330(d) to the 11 state law claims only, this would fly in the face of the clear 12 intent of the [California] legislature to financially protect 13 school district and their employees. 14 head. 15 Clause and clearly established Supreme Court and Ninth Circuit law 16 that federal not state law is supreme. This turns the law on its Defendants arguments fly in the face of the Supremacy 17 Congress sought to provide an effective remedy for federal 18 violations, to do so Supreme Court and Ninth Circuit precedent 19 expressly abrogate conflicting state law immunities in federal 20 civil rights cases. 21 immunity statute is inconsistent with purposes of the Civil Rights 22 Act. Section 35330(d) does not preclude a specific form of damages 23 as did the survival statute in Provencia. 24 applied, § 35330(d) completely immunizes defendants from liability 25 resulting from a violation of federal law and defeats the federal 26 civil rights act. 27 28 The application of the California field trip In this case, if Even assuming, arguendo, that § 35330(d) is applicable to this case, the California field trip 20 immunity cannot immunize 1 Defendants from liability resulting from a violation of superceding 2 federal law, only, if applicable, for state law claims. 3 4 B. Section 1983 5 Plaintiff s Complaint alleges that Defendants actions are 6 prohibited by 42 U.S.C. § 1983 and the Fourteenth Amendment to the 7 U.S. 8 intentional 9 Plaintiff's right to equal protection because as a male victim of 10 sexual abuse and sexual harassment, discrimination and violence by 11 other males, Plaintiff was intentionally treated differently from 12 female victims of sexual abuse and sexual harassment. 13 56.) 14 Constitution. acts Section or 1983 The Complaint omissions provides [...] a states caused federal forum that a Defendants deprivation to of (Compl. ¶ remedy many 15 deprivations of civil liberties, but it does not provide a federal 16 forum for litigants who seek a remedy against a State for alleged 17 deprivations of civil liberties. 18 suits unless the State has waived its immunity, or unless Congress 19 has exercised its undoubted power under § 5 of the Fourteenth 20 Amendment to override that immunity. Will v. Mich. Dept. of State 21 Police, 491 U.S. 58, 66 (1989). The Eleventh Amendment bars such 22 23 1. Gustine Unified School District 24 In Belanger v. Madera Unified School Dist., 963 F.2d 248, 251 25 (9th Cir. 1992), the Ninth Circuit held that a California school 26 district was a state agency for purposes of the Eleventh Amendment. 27 Belanger is premised on a number of significant facts; California 28 school districts have budgets that are controlled and funded by the 21 1 state government rather than local districts, California law treats 2 public schooling as a statewide or central government function, and 3 California school districts can sue and be sued in their own name. 4 Id. at 251-54; see also Doe v. Petaluma City Sch. Dist., 830 5 F.Supp. 1560, 1577 (N.D. Cal. 1993) ( California School districts 6 are arms of the state for purposes of Eleventh Amendment immunity 7 and are therefore immune from liability under section 1983 ). 8 Defendant Gustine Unified School District argues that it is an 9 arm of the state for purposes of Eleventh Amendment immunity, 10 entitling it to summary adjudication. (Doc. 96-2, 9:18-9:20.) 11 Plaintiff does not oppose Defendant s motion, abandoning the § 1983 12 cause of action against Defendant Gustine Unified School District. 13 (See Doc. 107, 7:25-7:27 (stating 14 of the following claims: Plaintiff s 42 U.S.C. 1983 claim against 15 GUSD ....] .) Plaintiff concede[s] dismissal 16 Summary adjudication is GRANTED in favor of Defendant Gustine 17 Unified School District against Plaintiff as to Plaintiff s § 1983 18 claim. 19 20 2. Individual Defendants Sued in their Official Capacities 21 [A] suit against a state official in his or her official 22 capacity is not a suit against the official but rather is a suit 23 against the official's office. 24 against the State itself. It is no different from a suit Will, 491 U.S. at 71, 109 S.Ct. 2304. 25 Individual District Defendants move for summary adjudication 26 as to Plaintiff s § 1983 claim against them in their official 27 capacities. 28 does not oppose Individual District Defendants motions, abandoning (Doc. 96, 10:7-10:16; Doc. 91, 9:14-9:22.) 22 Plaintiff 1 the § 1983 official capacity cause of action . 2 7:25-7:27 (stating Plaintiff concede[s] dismissal of the following 3 claims: Plaintiff s 42 U.S.C. 1983 claim against [...] Defendants 4 Scudder, 5 capacit[ies]. .) Cano, Spaulding, and Souza, in (See Doc. 107, their official 6 Summary adjudication is GRANTED in favor of moving Defendants 7 as to Plaintiff s § 1983 claims against Defendants Scudder, Cano, 8 Spaulding, and Souza, in their official capacities. 9 10 3. Individual Defendants Sued in their Personal Capacities 11 Defendants first argue that the Complaint does not allege 12 that the Individual Defendants are being sued for violations under 13 Section 1983, in their personal capacity. 14 complaint is ambiguous or unclear as to the capacity in which an 15 official is being sued, as is the case here, it is presumed that he 16 is being sued in his personal capacity. 17 Bible, 18 "presume[s] that officials necessarily are sued in their personal 19 capacities where those officials are named in a complaint, even if 20 the complaint does not explicitly mention the capacity in which 21 they are sued"); Shoshone-Bannock Tribes v. Fish & Game Comm'n, 42 22 F.3d 1278, 1284 (9th Cir. 1994) (stating "[w]here state officials 23 are named in a complaint which seeks damages under Section 1983, it 24 is presumed that the officials are being sued in their individual 25 capacities. 26 complaint is silent as to capacity, since a claim for damages 27 against state officials in their official capacities is plainly 28 barred.") (citation omitted). 169 F.3d 1182, 1186 (9th Cir. However, when a § 1983 See, e.g., Romano v. 1999) (noting courts Any other construction would be illogical where the 23 1 While the Complaint does not name the Individuals Defendants 2 in their "individual capacities," the Complaint clearly asserts 3 individual capacity claims by specifically naming each Individual 4 Defendant 5 punitive damages based on the coaches personal involvement.12 6 Defendants first argument is insufficient to summarily adjudicate 7 Plaintiff s 8 However, Individual Defendants advance an alternative argument for 9 summary adjudication, namely that each coach is shielded from the and § requesting 1983 claim actual, in compensatory, favor of statutory, Individual 10 liability by the doctrine of qualified immunity. 11 and Defendants. (Doc. 96-2, 10:24-10:28.) 12 Suits against government officials in their individual or 13 personal, rather than official capacities, are not barred by the 14 Eleventh Amendment. 15 1990). 16 government officials performing discretionary functions ... from 17 liability for civil damages insofar as their conduct does not 18 violate clearly established statutory or constitutional rights of 19 which a reasonable person would have known. Harlow v. Fitzgerald, 20 457 U.S. 800, 818 (1982). However, the Price v. Akaka, 928 F.2d 824, 828 (9th Cir. doctrine of qualified immunity protects The doctrine of qualified immunity 21 22 23 24 25 26 27 28 12 The Complaint does not specifically identify, in the caption or otherwise, whether the Individual Defendants are sued in their official, personal, or individual capacities. (See Compl. ¶ 7, 9, 13.) However, the Complaint alleges that Defendants were acting within the course and scope of employment at GUSD and/or Gustine High School, and had the authority to institute corrective measures, were aware of the harassment, yet repeatedly and intentionally failed to take the appropriate or necessary measures to prevent or stop the abuse suffered by Plaintiff. (Id. at 13.) The Complaint also requests actual, compensatory, statutory, and punitive damages. (Id. at 131.) 24 1 protects all but the plainly incompetent or those who knowingly 2 violate the law .... Malley v. Briggs, 475 U.S. 335, 341 (1986). 3 In analyzing a claim of qualified immunity, there are two 4 inquiries: First, we inquire whether, taken in the light most 5 favorable 6 established 7 threshold inquiry is satisfied, we consider whether the School 8 Officials' 9 constitutional rights of which a reasonable person would have 10 known. Preschooler II v. Clark County Bd. of Trs., 479 F.3d 1175, 11 1179-80 12 omitted). 13 longer be regarded as mandatory. 14 808, 818 (2009). to the a party violation conduct (9th asserting Cir. of violated 2007) a the injury, federal clearly (internal that right. established quotations party Assuming has this statutory and or citations While this sequence is often appropriate, it should no Pearson v. Callahan, 129 S.Ct. 15 Plaintiff alleges a claim for violation of his right to equal 16 protection, contending that the Individual Defendant s actions were 17 driven by gender discrimination. 18 that employees of GUSD have enforced and do enforce policies and 19 procedures to prevent and/or remedy female students and female 20 student 21 harassment, discrimination, and violence. 22 particularly, Plaintiff alleges that Defendants intentionally 23 failed to take appropriate disciplinary or remedial measures to 24 address the ongoing harassment, intimidation, assault, battery, and 25 retaliation because of Plaintiff s gender and the male-on-male 26 nature of the sexual abuse and harassment. athletes from The Complaint alleges generally male-on-female sexual abuse and (Compl. ¶ 49.) sexual More (Id.) 27 The Fourteenth Amendment provides that "[n]o state shall ... 28 deny to any person within its jurisdiction the equal protection of 25 1 the laws." 2 are actionable under § 1983. 3 protection violation, Plaintiff must show that the Individual 4 Defendants, acting under color of state law, discriminated against 5 him 6 discrimination was intentional. Flores v. Morgan Hill Unified Sch. 7 Dist., 324 F3d 1130, 1134 (9th Cir. 2003). as a Denials by any person acting under color of state law member of an In order to establish a § 1983 equal identifiable class and that the 8 An equal protection claim turns on proof that the defendant 9 "acted in a discriminatory manner and that the discrimination was 10 intentional." Reese v. Jefferson Sch. Dist. No. 14J, 208 F.3d 736, 11 740 (9th Cir. 2000) (citation omitted). 12 Court cases make clear that the Equal Protection Clause requires 13 proof of discriminatory intent or motive." 14 F.3d 712, 716 (9th Cir. 1995) (emphasis in original; citations 15 omitted). 16 evidence sufficient to permit a reasonable trier of fact to find by 17 a preponderance of the evidence that the individual defendants' 18 conduct was motivated by gender discrimination. See, e.g., Bingham 19 v. City of Manhattan Beach, 341 F.3d 939, 948-49 (9th Cir. 2003). 20 Plaintiff does not specifically address equal protection. 21 Plaintiff states the Eleventh Amendment immunity does not bar 22 claims 23 individual capacities. 24 denied [....] 25 identify specific evidence that the Defendants denied protection to 26 GHS male students that it afforded similarly situated female 27 students. Nor is there evidence that his coaches acted with gender 28 animus. A "long line of Supreme Navarro v. Block, 72 To preserve his equal protection claim, Plaintiff needs against Scudder, Cano, Spaulding, and Souza in their In that respect summary judgment should be (Doc. 107, 25:15-25:19.) 26 Plaintiff does not 1 Plaintiff has the burden to establish his equal protection 2 allegations. See Reese, 208 F.3d at 740 ( To succeed on a § 1983 3 equal 4 defendants 5 discrimination was intentional. ) (citation omitted). 6 is devoid of evidence of gender discrimination other than the 7 allegations the Complaint s conclusory allegations that sexual 8 harassment policies were applied differently based on gender. 9 Pleadings are insufficient to oppose summary adjudication. protection acted claim, the in discriminatory a plaintiffs must prove that the manner and that the The record See 10 Ross v. Hoeft, No. 07-17369, 2009 WL 3748187 *1 (9th Cir. Nov. 10, 11 2009) (stating that [i]n order to rebut a party's motion for 12 summary judgment, the non-moving party must point to specific facts 13 supported by the record, which demonstrate a genuine issue of 14 material fact [...] [s]uch specific facts, however, may not come 15 from mere allegations or denials in its own pleading. ). 16 Reese, 208 F.3d 736, held that defendant school district, 17 which excluded plaintiff students from commencement ceremony for 18 throwing water balloons at boys in the boys restroom, did not 19 violate 20 plaintiffs without punishing the male students accused by the 21 plaintiffs.13 the Equal Protection Clause when it punished female 22 23 13 24 25 26 27 28 Concerning the circumstances of the water balloon fight and the school districts response in Reese, the Ninth Circuit recounted: The plaintiffs admitted hiding in the boys' bathroom, but argued that they were merely retaliating for several acts of harassment committed by the boys during the school year. Prior to [the school board hearing re: their dismissal], the plaintiffs had never reported any harassment, and the record offers no evidence that the school district actually knew prior to May 28 of the boys' alleged harassment of the girls. Id. at 738. 27 The record does not support a charge that the school district acted with an impermissible motive, even if its disciplinary action against the plaintiffs can be viewed as harsh. There is no direct evidence of gender animus, nor is there even evidence of system-wide disparate impact in punishments between genders. The plaintiffs concede that the school district has enacted anti-harassment policies and has a record of enforcing those policies when violations are reported in a timely manner. Rather, the plaintiffs rely almost entirely on the fact that in this one case the girls who were caught in the act of inappropriate behavior were punished, while the accused boys, whose behavior had not been previously reported, were not punished. 1 2 3 4 5 6 7 8 9 Id. at 740. 10 Here, the Complaint suggests that the Individual Defendants, 11 and GUSD, responded differently to male-on-female complaints of 12 sexual abuse and/or sexual discrimination than it did to male-on13 male incidents of the same conduct, but Plaintiff presents no 14 evidence to support his claims that males and females were treated 15 differently. Absent evidence of unconstitutional motive, 16 Plaintiff s § 1983 claim necessarily fails. Summarily adjudicating 17 Plaintiff s § 1983 in favor of Individual Defendants is consistent 18 with Ninth Circuit precedent. See Reese, supra.14 19 It is undisputed that GUSD had a sexual harassment policy in 20 2006 and that the policy prohibited sexual harassment and gender 21 harassment/discrimination. (DSUF 8.) The record reveals the only 22 23 24 25 26 27 28 14 But cf. Flores, 324 F.3d at 1135, where the Ninth Circuit upheld the district court s denial of summary judgment on Plaintiff s § 1983 equal protection claim because [t]he plaintiffs presented evidence that they were harassed for years and that the defendants failed to enforce these policies to protect them. When viewed in the context of the other evidence plaintiffs presented and their interactions with the defendants, there is sufficient evidence for a jury to reasonably find that plaintiffs were treated differently. 28 1 permissible inference is that the policy was consistently and 2 fairly applied to male and female students enrolled in the Gustine 3 Unified School District. 4 school officials learned of the alleged sexual harassment, they 5 suspended the suspected students and, later, expelled them. 6 91-92). 7 from similar incidents involving female students, if there were 8 such incidents. 9 coaches treated him differently and discriminated against him 10 The record also demonstrates that once (PSUF Plaintiff does not explain how this treatment differed There is no record evidence that Plaintiff s because he was a male. 11 Viewing the evidence in the light most favorable to Plaintiff, 12 no evidence shows a violation of Plaintiff s equal protection 13 constitutional rights. Summary adjudication is GRANTED in favor of 14 Defendants Scudder, Cano, Spaulding, and Souza in their individual 15 capacity on Plaintiff s equal protection claim. 16 17 C. Title IX 18 Defendants Scudder, Cano, Spaulding, and Souza move for 19 summary judgment, arguing that they cannot be held individually 20 liable under a Title IX theory. (Doc. 91, 10:18-10:21.) Plaintiff 21 does not oppose this motion, abandoning the Title IX cause of 22 action against Defendants Scudder, Cano, Spaulding, and Souza. 23 (See Doc. 107, 7:23-7:25, filed July 27, 2009 (stating 24 concede[s] dismissal of the following claims: Plaintiff s 42 25 U.S.C. 1983 claim against ... Defendants Scudder, Cano, Spaulding, 26 and Souza, in their official capacity. .) 27 28 Plaintiff Summary judgment is GRANTED in favor of Defendants Jason Spaulding, Anthony Souza, Adam 29 Cano, and Carl Scudder as to 1 Plaintiff s 2 harassment.15 3 Title IX claim for sexual discrimination and Defendant GUSD seeks summary judgment against Plaintiff s 4 second claim for a violation of Title IX. Plaintiff alleges that 5 the severe and pervasive attacks on Plaintiff during the Camp 6 amount to sexual discrimination and harassment in violation of 7 Title IX. 8 Coach Scudder, the Gustine High School head football coach and 9 supervisor of the GUSD approved football camp, had actual knowledge 10 of the student-to-student sexual harassment occurring during the 11 football camp and took no disciplinary action. The substance of Plaintiff s Title IX claim is that 12 Title IX provides, with certain exceptions not relevant here, 13 that "[n]o person in the United States shall, on the basis of sex, 14 be excluded from participation in, be denied the benefits of, or be 15 subjected to discrimination under any education program or activity 16 receiving federal financial assistance." 20 U.S.C. § 1681(a). 17 Recipients of federal funding, like the Gustine Unified School 18 District, 19 student-on-student sexual harassment. See Davis v. Monroe Cty. Bd. 20 of Educ., 526 U.S. 629 (1999). 21 22 may be liable for damages under Title IX for For student-to-student sexual harassment, four requirements for imposition of school district liability under Title IX are: 23 24 25 26 27 28 15 Individual defendants cannot be found liable under Title IX: "The Government's enforcement power may only be exercised against the funding recipient, see [20 USC] § 1682, and we have not extended damages liability under Title IX to parties outside the scope of this power." Davis, 526 US at 641 (citations omitted); see also Soper v. Hoben, 195 F.3d 845, 854 (6th Cir. 1999), cert denied, 530 U.S. 1262 (2000) ("only recipients of federal funds may be held liable for damages under Title IX"). 30 (1) the school district must exercise substantial control over both the harassed and the context in which the known harassment occurs, (2) the plaintiff must suffer sexual harassment . . . that is so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school, (3) the school district must have actual knowledge of the harassment, and (4) the school district's deliberate indifference subjects its students to harassment. 1 2 3 4 5 6 7 Reese, 208 F.3d at 739. 8 Defendant GUSD argues that the alleged harassment was not 9 severe and pervasive; not based on Plaintiff s gender; that the 10 District lacked actual knowledge of alleged sexual harassment; and 11 that there is no evidence of deliberate indifference by GUSD. 12 13 1. Substantial Control 14 The Supreme Court limited a school district s liability to 15 "circumstances wherein the [district] exercises substantial control 16 over both the harasser and the context in which the known 17 harassment occurs." Davis, 526 US at 646; see also Reese, 208 F.3d 18 at 739. GUSD argues that the first factor is not met because the 19 alleged conduct occurred during a voluntary football camp, which 20 was not held on GUSD campus and which occurred during the summer 21 before school was in session. (Doc. 91, 12:5-12:7.) 22 The first requirement is that the District exercised 23 substantial control over the harasser and the context in which the 24 harassment occurs. This requirement can be met by proof that the 25 misconduct occurred "during school hours and on school grounds" or 26 when the "harasser is under the school s disciplinary authority." 27 Davis, 526 U.S. at 646. The District argues that none of the 28 31 1 allegedly harassing acts took place on "school grounds," given that 2 the most egregious conduct took place on the campus of Golden 3 Valley High School. It is undisputed, however, that the football 4 camp and 5 football coaches and administrators, was a core part of Gustine 6 High s football program, and was under the supervision of Gustine 7 High teachers and/or football coaches. 8 that the players were transported to and from Liberty High School 9 by was sponsored GUSD buses and that promoted by Gustine Gustine High High School, its The record clearly reveals School football coaches 10 supervised the players during the bus ride. 11 governed by a GUSD Administrative Directive, outlining supervision 12 ratios, 13 evidence is sufficient to satisfy this threshold inquiry on summary 14 judgment. disciplinary procedures, and The football camp was control techniques. This 15 2. 16 Pervasive, Severe & Objectively Offensive Harassment 17 The second requirement is that the harassment is sufficiently 18 severe, pervasive, and objectively offensive that Plaintiff was 19 denied an educational benefit. 20 two-part inquiry. Davis, 526 U.S. at 633. This is a 21 A. 22 Severe and Pervasive Sexual Harassment 23 As for the first part of the second element, Plaintiff has 24 presented enough evidence that the discrimination was severe, 25 pervasive, 26 gender-oriented conduct rises to the level of actionable harassment 27 depends 28 expectation, and relationships, including, but not limited to, the on and a objectively constellation offensive. of 32 Id. surrounding Whether circumstances, 1 ages of the harasser and the victim and the number of individuals 2 involved. Id. at 651 (citations omitted). 3 mind that schools are unlike the adult workplace and that children 4 may regularly interact in a manner that would be unacceptable among 5 adults." 6 the testing ground for a variety of behaviors that would be 7 unacceptable 8 behavior will subject a funding recipient to liability: 9 10 11 12 13 14 15 Id. Courts "must bear in Davis explicitly recognizes that schools serve as elsewhere, and that only sufficiently egregious [A]t least early on, students are still learning how to interact appropriately with their peers. It is thus understandable that, in the school setting, students often engage in insults, banter, teasing, shoving, pushing, and gender-specific conduct that is upsetting to the students subjected to it. Damages are not available for simple acts of teasing and name-calling among school children, however, even where these comments target differences in gender. Rather, in the context of student-on-student harassment, damages are available only where the behavior is so severe, pervasive, and objectively offensive that it denies its victims the equal access to education that Title IX is designed to protect. 16 17 Davis, 526 U.S. at 651-52. 18 In this instance, Plaintiff s facts are that his teammates 19 pinned him down and sexually assaulted him with an air hose, that 20 he was hit with a pillow carrying a foreign object, that a teammate 21 exposed his penis during a football practice, that one of the 22 assailants subsequently touched his buttocks while in the shower, 23 and that he was called homosexual epithets. 24 proved, could amount to severe and pervasive conduct that was 25 objectively offensive under Title IX. 26 These incidents, if This harassment must amount to sexual harassment prohibited by 27 Title IX. Title IX by its terms provides a remedy only for 28 discrimination or harassment "on the basis of sex." 33 20 U.S.C. § 1 1681(a). Harassment on the basis of sex can be perpetrated by an 2 individual of the same sex as the victim for Title VII purposes, 3 Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 118 S. Ct. 4 998, 140 L. Ed. 2d 201 (1998), and the same reasoning applies in 5 the Title IX context. 6 04-00390-JMS-KSC, 2007 WL 602097 at *7 (D. Haw. Feb. 16, 2007) 7 (stating that Title VII principles guide the resolution of Title 8 IX sexual harassment and discrimination claims. ). 9 argues that Plaintiff s Title IX claim fails on the ground that the 10 assault is somehow mitigated because his harassers were of the same 11 sex. 12 related to age and class standing, not gender. 13 points 14 demonstrate the lack of gender animus: See Sherez v. Hawaii Dept. of Educ., No. Defendant Specifically, Defendant argues that the incidents of hazing to Plaintiff s deposition testimony in an Defendant attempt Q: And as far as [the air pump victims], it sounds like some of them were freshman, and some of them were people in older grades, and some were even high school seniors; is that right? A: Just to that one senior. Q: Any other seniors? A: Not that it would matter. Q: What about juniors? A: I doubt it. Q: So most of them were freshman then? A: 15 to Yeah, not even really sophomores. 16 17 18 19 20 21 22 23 24 25 (Pl. Dep. 178:7-178:18.) 26 Although the record demonstrates that the perpetrators grabbed 27 some of their victims from the freshman sleeping area, and that 28 the pillow fight was upperclassmen vs. lowerclassmen, this does 34 1 not eliminate the factual dispute arising from the sexual nature of 2 the perpetrators acts. 3 have been targeted because of their class standing are capable of 4 more than one inference, i.e., the facts are relevant to show 5 animus 6 exclusive. based on age Facts demonstrating that the victims may and gender. The two are not mutually 7 The use of gender-based or sexually loaded insults such as 8 "fag or homo can certainly be indicative of animus on the basis 9 of gender, but the use of such terms without more is not 10 necessarily sufficient to establish gender discrimination. 11 Supreme Court in Davis recognized that children are not like adults 12 and often engage in behavior that adults would find inappropriate 13 and offensive, without such behavior necessarily being actionable. 14 526 U.S. at 652. 15 function 16 homophobic language used by the perpetrators appears to be part of 17 a larger constellation of sexually-based conduct, which included 18 assaulting Plaintiff with an air hose, exposing their genitalia, 19 and 20 inferences in Plaintiff s favor, there remains a factual dispute on 21 the issue of whether the conduct at issue relate[s] to gender. to grabbing Although Title IX was not intended and does not protect his The bare students from buttocks in bullying the generally, shower. Drawing the the 22 At oral argument, GUSD maintained that, under Supreme Court 23 precedent, including Davis, one instance of peer-on-peer harassment 24 is insufficient to satisfy Title IX. First, taking the evidence in 25 Plaintiff s favor, Plaintiff has identified multiple incidents of 26 sexually-charged harassment by his peers at the football camp in 27 July 2006. Second, several courts have held that a single instance 28 of assault is sufficient to state a Title IX claim. 35 See T.Z. v. 1 City of N.Y., 634 F.Supp.2d 263, 270 (E.D.N.Y. 2009) (outlining the 2 cases in which courts have found a single event to withstand a 3 Title IX challenge.) 4 Drawing all reasonable inferences in Plaintiff s favor, 5 material factual issues exist on the type of sexual harassment 6 prohibited by Title IX. 7 alleged 8 aggressive nature, were sufficiently severe and pervasive and were 9 based upon sex. harassment, A reasonable jury could find that the name-calling, and other incidents of an 10 B. 11 Denial or Exclusion from Educational Opportunities 12 The remaining issue is whether the discrimination effectively 13 bar[red] the victim's access to an educational opportunity or 14 benefit. 15 student need only establish that the sexual harassment was severe, 16 pervasive, 17 undermined and detracted from Plaintiff s educational experience 18 and that he was denied equal access to an institution s resources 19 and opportunities. 20 between 21 services, balanced with the persistence and severity of harassment, 22 can work to establish a disadvantaged environment for the victim. 23 Davis, 24 harassment 25 resulting in Plaintiff s withdrawal from Gustine High School. Davis, 526 U.S. at 633. the 526 and objectively that offensive to Davis, 526 U.S. at 651. harassment U.S. To satisfy this element, a at and 652. lasted for access As at to point that it An evidentiary link educational discussed, least the this three or case days, related involves ultimately 26 The sum of the District s briefing on the issue is that 27 Plaintiff was not denied access to educational opportunity because 28 [a]s of July 13, 2006, and at all relevant times thereafter, 36 1 Plaintiff was permitted to attend Gustine High School and was 2 permitted to participate on the football team [] in fact, Plaintiff 3 continued to participate on the football team after the camp. 4 (Doc. 96-2, 12:23-12:27.) Plaintiff s single sentence response was 5 that the unabated sexually harassing conduct effectively barred 6 the Plaintiff s access to educational opportunities or resources. 7 (Doc. 107, 21:13-21:14.) 8 9 The most obvious example of student-on-student sexual harassment capable of triggering a damages claim involves the 10 overt, physical deprivation of access to school resources. Davis 11 at 650. 12 to demonstrate that a student has been deprived of an educational 13 opportunity by the actions of another student. 14 Rather, the harassment must have a concrete, negative effect on 15 the victim's education or access to school-related resources. 16 at 654. 17 dropping grades, id. at 634, being diagnosed with behavioral and/or 18 anxiety disorders, Theno v. Tonganoxie Unified School District No. 19 464, 377 F. Supp. 2d 952, 968 (D. Kan. 1005), becoming homebound or 20 hospitalized due to harassment, see Murrell v. School District No. 21 1, Denver, Colorado, 186 F.3d 1238, 1248-49 (10th Cir. 1999), 22 physical violence, see Vance v. Spencer County Public School 23 District, 231 F.3d 253, 259 (6th Cir. 2000), or sexual assault, see 24 Williams v. Board of Regents of University System of Georgia, 477 25 F.3d 1282, 1299 (11th Cir. 2007). 26 consistent 27 football camp, including during actual practice sessions, the free 28 periods between practices, during sleeping periods, and during It is not necessary, however, to show physical exclusion Id. at 651. Id. Examples of a negative impact on access may include and substantial abuse 37 Plaintiff presents evidence of throughout the Gustine High 1 evening free periods. 2 Liberty High s open gymnasium, on the practice field, in the locker 3 room, and in the showers. 4 favor, the trier of fact could reasonably conclude that Plaintiff s 5 ability 6 sufficiently impaired and denied because of the level of harassment 7 he received by his peers at the Gustine High football camp, at 8 least from July 13th through July 15th. to access These incidents allegedly occurred in Construing the evidence in Plaintiff s Gustine High s athletic resources was 9 Doe ex rel. Doe v. Coventry Board of Education, 630 F.Supp.2d 10 226 (D. Conn. 2009), ( Coventry ), a case where the court found a 11 genuine issue of material fact on the issue of Plaintiff s access 12 to her school s educational opportunities, is instructive: 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The mere fact that [Plaintiff] Mary Doe and Jesse attended school together could be found to constitute pervasive, severe, and objectively offensive harassment so as to deny Mary Doe equal access to school resources and opportunities. The evidence shows that Jesse was permitted to continue attending school with Mary Doe for three years after the assault, leaving constant potential for interactions between the two. Although the Defendant argues otherwise, a reasonable jury could conclude that Jesse's mere presence at the high school was harassing because it exposed [Plaintiff] to the possibility of an encounter with him. As potential interactions between Mary Doe and Jesse are enough to preclude summary judgment in favor of the Defendant, actual interactions between the victim and her assailant could also be found to create an environment sufficiently hostile to deprive the victim of access to educational opportunities provided to her at school. The record shows that Mary Doe and Jesse shared a lunch period and class during their sophomore year, and shared a class together the first day of their junior year. Mary Doe testified in her deposition that: [Jesse] was always everywhere I looked. I always had to see him. Mary Doe also stated that her prom memories are pretty much trashed because [she] saw [Jesse] the whole time. A jury could reasonably conclude that the circumstances were sufficiently pervasive, severe, and objectively offensive so as to detract from Mary Doe's educational 38 experience. 1 2 Id. at 233. (citations omitted). 3 In this case, Plaintiff practiced, scrimmaged, showered, and 4 slept with his assailants for the duration of the football camp, as 5 well as practicing with them when he returned to practice in August 6 2006.16 Although Coventry presents different facts, taking the 7 evidence in his favor, Plaintiff has presented enough evidence 8 that, if believed by a jury, could support a finding of a denial of 9 athletic opportunities.17 10 At oral argument, GUSD argued that Plaintiff s mother s 11 removal of him from Gustine High in 2006 acts as a waiver and 12 bars him from establishing that he was deprived access to the 13 education opportunities or benefits provided by Gustine High. This 14 argument was not fully briefed by the District, therefore the 15 impact of Plaintiff s removal from Gustine High school by his 16 mother is unclear. Since Plaintiff has created a triable issue of 17 material fact as to whether he was denied access to Gustine High s 18 resources in July 2006, prior to his removal from Gustine High in 19 August 2006, this issue need not be resolved at this time. 20 21 3. Actual Knowledge 22 23 16 (See Pl. Dep. 210:1-210:7.) 24 17 25 26 27 28 Based on the summary judgment record, a jury could reasonably conclude that the sexual assault complained of by Plaintiff, as well as the other harassing incidents he endured in July 2006, were severe, pervasive, and objectively offensive that it can be said to deprive the [plaintiff] of access to the education opportunities or benefits provided by the school. Davis, 526 U.S. at 650. 39 1 The third requirement is that Defendant must have actual 2 knowledge of the harassment. In order for a funding recipient to 3 be subject to Title IX liability, "an official who at a minimum has 4 authority to address the alleged discrimination and to institute 5 corrective measures on the recipient's behalf [must have] actual 6 knowledge of discrimination." Reese, 208 F.3d at 739 (citation 7 omitted).18 8 applied repeatedly by courts since Gebser v. Lago Vista Indep. Sch. 9 Dist., its contours have yet to be fully defined. Although the actual knowledge standard has been Doe A. v. 10 Green, 298 F. Supp. 2d 1025, 1034 (D. Nev. 2004); Crandell v. N.Y. 11 Coll. of Osteopathic Med., 87 F.Supp.2d 304, 320 (S.D. N.Y. 2000) 12 (citation omitted). It is difficult to define what kind of notice 13 is sufficient." 14 Supp. 2d 387, 397 (E.D.N.Y. 2005) (citation omitted). Tesoriero v. Syosset Cent. Sch. Dist., 382 F. 15 Plaintiff does not claim that he ever reported his own alleged 16 harassment to any GUSD official prior to Coach Cano reporting the 17 matter to Principal Shaw on July 20, 2006. Nevertheless, Plaintiff 18 argues that Title IX s actual knowledge requirement is satisfied 19 because Scudder admitted that he observed several of the students 20 assaulting other victims with the air pump in a sexually assaulting 21 manner. (Doc. 107, 21:18-21:20.) Additionally, Plaintiff argues 22 23 18 24 25 26 27 28 The Ninth Circuit has not addressed the contours of the actual notice standard under Gebser. Other courts have attempted to define an appropriate standard that does not require the plaintiff-student to complain of the precise type of harassment upon which the allegations are based, but which ensures that the school had sufficient knowledge to implement remedial measures that should have addressed the alleged conduct underlying the plaintiff's claims. See, e.g., Doe v. Alameda Unified Sch. Dist., No. C 04-02672 CRB, 2006 WL 734348 *3 (N.D. Cal. March 20, 2006). 40 1 that Scudder knew of the "imminent danger" posed by the group 2 because the group assaulted, in similar fashion, more than fifteen 3 boys on the first two days of the camp. 4 was impossible for Coach Scudder not to have known about the 5 repeated sexual assaults, given that they were conducted by the 6 same five-member group in an open gymnasium, the area supervised by 7 Gustine High coaches. Plaintiff contends that it 8 GUSD rejoins that even if it is permissible to impute Coach 9 Scudder s knowledge to GUSD, Coach Scudder did not have actual 10 knowledge of the alleged harassment during the football camp. 11 Defendant contends that the observed acts of alleged harassment 12 did not qualify as sexual harassment and were of a student other 13 than Plaintiff. 14 these two distinguishing facts demonstrate the lack of disputed 15 factual issue concerning actual knowledge under Title IX. (Doc. 91, 17:14-17:17.) Defendant asserts that 16 Defendant s argument that the prior sexual assault and/or 17 conduct must be plaintiff specific is unsupported by current case 18 law. Although the Ninth Circuit has not specifically weighed in on 19 the issue, recent decisions from the Fifth, Seventh, Tenth, and 20 Eleventh 21 California, demonstrate that Title IX s third element is satisfied 22 once an appropriate official has actual knowledge of a substantial 23 risk of abuse of students, whether or not directed at Plaintiff 24 specifically. 25 defendants' preexisting knowledge of the harasser's past sexual 26 misconduct - committed against people other than the plaintiff - 27 was relevant when determining whether the plaintiff had stated a 28 claim under Title IX); Escue v. Northern Oklahoma College, 450 F.3d Circuits, as well as District Courts in Nevada and See Williams, 477 F.3d at 1293 (finding that the 41 1 1146, 1153 (10th Cir. 2006) (stating that because actual knowledge 2 of discrimination in the recipient s program is sufficient, ... 3 harassment of persons other than the plaintiff may provide the 4 school with the requisite notice to impose liability under Title 5 IX ); Delgado v. Stegall, 367 F.3d 668, 672 (7th Cir. 2004) 6 (recognizing that, in Davis the Court required knowledge only of 7 acts of sexual harassment by the [harasser], ... not of previous 8 acts directed against the particular plaintiff ); 9 No. 3:06-0202, 2009 WL 3768906 at (M.D. Tenn. Nov. 9, 2009) ( the 10 actual notice required by Gebser is not notice that a particular 11 plaintiff was being abused. ); 12 Union 13 judgement [i]n view of defendants' knowledge of [plaintiff's 14 harasser's] prior behavior ); 15 (finding that liability could be based on actual knowledge of a 16 substantial risk of abuse to students based on prior complaints by 17 other students ); Johnson v. Galen Health Institutes, Inc., 267 18 F.Supp.2d 679, 688 (W.D. Ky. 2003) ( [T]he actual notice standard 19 is met when an appropriate official has actual knowledge of a 20 substantial risk of abuse to students based on prior complaints by 21 other students. ). School Dist., 2006 WL Doe v. Farmer, Michelle M. v. Dunsmuir Joints 2927485, at *6 (denying summary Doe A., 298 F. Supp. 2d at 1033-34 22 The case law reveals no requirement that the appropriate 23 district officials observe prior acts of a sexual nature against 24 Plaintiff himself to establish actual knowledge under Title IX; 25 rather the test is whether the appropriate official possessed 26 enough knowledge of the harassment that he or she reasonably could 27 have responded with remedial measures to address the kind of 28 harassment upon which plaintiff's legal claim is based. 42 1 In arguing that the circumstances of the present case create 2 a triable issue of fact on the issue of actual knowledge, 3 Plaintiff states that Coach Scudder personally observed the group 4 assault Kevin St. Jean, a Gustine High football player, with an air 5 hose. 6 that the group of boys were trying to stick an air mattress pump 7 nozzle up someone s shorts. (Reporter s Transcript ( RT ), August 8 10, 2009, 19:13-19:17.) 9 nothing sexual from Scudder - Coach Scudder s point of view, 10 Plaintiff characterizes the attack as a sexual assault in Defendant maintains that there was there was nothing sexual involved. (Id. 18:23-18:25.) 11 Coach Scudder s deposition testimony demonstrates that he knew 12 about the assault on St. Jean on July 14, 2005; that he witnessed 13 the incident, but considered it childish behavior warranting only 14 a verbal reprimand. 15 that Coach Scudder witnessed the boys run across the gym, attack 16 St. Jean on his bed, restrain his arms and legs, and attempt to 17 insert a battery-operated air pump up St. Jean s shorts: The deposition testimony further indicates Q. After the coaches meeting, did you back inside the gym? A. I did. Q. And did you see anything unusual? A. 18 That time I did. As I was entering the entering into the foyer into the gymnasium, I saw a group of four or five football players, Gustine high football players, running across the gym, and they ended up all together at another young man s air mattress. They were holding him down. He was sitting on his mattress, and it was a couple on his arms, couple on his feet, and I believe it was Kyle Simmons had the air pump and he was blowing it up the front of Kevin St. Jean s shorts [...] Q. Okay. You saw this group of boys running across the gym? 19 20 21 22 23 24 25 26 27 28 43 1 A. Uh-huh. 2 Q. Were they chasing Kevin St. Jean 3 A. No. Kevin was sitting down on his bunk at the time or sitting down on his air mattress at the time. Q. How far did you see this group of boys run? A. They were already past mid court when I came into the gym, so it was maybe 20 feet, 25 feet. 7 Q. And St. Jean was sitting on his mattress -- 8 A. Sitting. 9 Q. - at the time. And this group of boys ran over to him on his mattress. A. Yes. Q. And what did they do? A. As I said, they grabbed his arms and his legs, and I was yelling for them to stop, I saw Kyle lift his shorts and blow air up the leg of his shorts. Q. Kyle Simmons did that? A. Yes. Q. Were -- was this a situation where one of these boys was holding one arm, another another arm? 18 A. Basically, yes. 19 Q. So they had him spread? 20 A. They didn t have him spread down. I mean, he was sitting there. They had his arms pinned to the side, and his knees were down, so they had his legs on the air mattress. Q. So he couldn t move basically? A. Kevin was a strong kid. He could have moved, but he was just, what are you guys doing, you re being idiots. The look on his face was like what are you doing? Q. And it was Kyle who put the air mattress pump inside his shorts? A. I believe so, yes. 4 5 6 10 11 12 13 14 15 16 17 21 22 23 24 25 26 27 28 44 1 (Scudder Dep. 152:2-154:19.) 2 Here, there are two conflicting interpretations on whether the 3 St. Jean incident provides actual knowledge of actionable conduct 4 under Title IX. 5 or kids just being kids. 6 experience in the incident. 7 had 8 participants at issue, the similarity of other assaults, the use of 9 force by the perpetrators, the positioning of the victim while he 10 was assaulted, and the attempt to place a battery operated device 11 up the shorts of a restrained individual. actual Defendant characterizes the event as horseplay knowledge of This is contrary to Plaintiff s According to Plaintiff, Coach Scudder sexual discrimination based on the 12 On the current record, taking the evidence in Plaintiff s 13 favor, whether this conduct was sexual in nature or was instead 14 indicative of childish behavior gone too far is a function of 15 intent and cannot be resolved. 16 nature of the St. Jean assault precludes an entry of summary 17 judgment in this case. 18 Under the Supreme The total dispute over the sexual Court's Title IX analysis, a school 19 district's opportunity to respond and remedy a situation depends on 20 its actual notice of the alleged discrimination; if it is unclear 21 whether the predicate of that knowledge is sexual in nature, that 22 dispute 23 liability or, in this case, whether to grant or deny summary 24 adjudication. 25 raised in Brodeur v. Claremont School District, 626 F. Supp. 2d 195 26 (D.N.H. 2009): 27 28 must be considered when determining the district s Defendant s argument is similar to the argument The District acknowledges that the sexual harassment policy was not followed, but maintains that Couture's response was still not clearly unreasonable because he 45 did not view the comments as sexual harassment. The best that can be said of this argument for the moment is that a jury could rationally find otherwise [....] 1 2 3 Id. at 211-12 (quotations omitted). 4 Viewing the facts in a light most favorable to Plaintiff, a 5 reasonable finder of fact could conclude that the St. Jean episode 6 was sexually-motivated and that Coach Scudder possessed enough 7 knowledge of the harassment that [he or she] reasonably could have 8 responded with remedial measures to address the kind of harassment 9 upon which plaintiff's legal claim is based. 19 10 The potential difficulties inherent in assessing the attack on 11 Kevin St. Jean on July 15, 2006 demonstrate why the resolution of 12 this issue depends on how the facts are ultimately determined by 13 the trier of fact. According to Plaintiff, the St. Jean assault provided with 14 Defendant sufficient notice of at least some 15 incidents of harassment in order for liability to attach. 16 Defendant characterizes the incident as horseplay among young men 17 and deny any sexual connotation or connection. Given the dispute 18 over the proper factual interpretation of the St. Jean incident, 19 which provides the underlying basis for Title XI liability, summary 20 adjudication is not appropriate. A jury must decide whether Coach 21 Scudder s observations on the afternoon of July 14, 2006 constitute 22 23 19 24 25 26 27 28 To further establish a triable issue of fact, Plaintiff challenges that Scudder and other GUSD coaches saw much more of the hazing and sexual harassment committed by the players than they will readily admit. (Doc. 107, 21:21-21:24.) However, as Defendant correctly argues, Title IX liability does not attach liability simply because a school or district should have known about sexual and/or gender discrimination. See, e.g., P.H. v. Sch. Dist. of Kansas City, Mo., 265 F.3d 653, 663 (8th Cir. 2001) (citation omitted). 46 1 actual knowledge under Title IX.20 This does not end the inquiry. 2 A school district can be held 3 liable under Title IX only if an appropriate person had knowledge 4 of 5 "appropriate person" is, "at a minimum, an official of the [school 6 district] with authority to take corrective action to end the 7 discrimination." 8 "address the alleged discrimination and to institute corrective 9 measures." the abuse. The Supreme Court 524 U.S. at 290. in Gebser stated that an This person must be able to Id. 10 Plaintiff argues that the inaction of a teacher or coach can 11 give rise to Title IX liability, relying primarily upon Nicole M v. 12 Martinez Unified School District, 964 F. Supp. 1369 (N.D. Cal. 13 1997). 14 regarding whether a teacher is a person whose knowledge can be 15 imputed to the district, it would appear that if the school 16 district 17 athletics, and which policy designates the head coach and teacher 18 with the authority to take corrective measures, then the person so 19 designated should be an appropriate person. 20 22:13.) Plaintiff contends that [a]lthough no cases were found has a policy which addresses sexual harassment in (Doc. 107, 22:9- Defendant rejoins only that Plaintiff concedes that 21 22 23 24 25 26 27 28 20 The District argues that the St. Jean incident did not qualify as sexual harassment and was not severe and pervasive conduct. The District s first point represents its legal opinion that the conduct did not reach the level of notice required to meet Davis standard. Defendant s subjective factual interpretations are not dispositive of claims at the summary judgment stage. Though this is a close case and the evidence of actual notice is predominantly based on Scudder s observations of the St. Jean incident, Plaintiff has marshaled enough evidence to raise a genuine issue of material fact regarding GUSD s actual knowledge of sexual harassment/discrimination in July of 2006. 47 1 Defendant Scudder did not have actual notice of alleged harassment 2 of Plaintiff, therefore whether Scudder is an appropriate person is 3 immaterial. (Doc. 116, 17:18-17:20.) 4 Although the issue is not thoroughly briefed by the parties, 5 Annamaria M v. Napa Valley Unified School Dist., 2006 WL 1525733, 6 is instructive: 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 In Nicole M, Judge Patel decided as a matter of first impression in the Ninth Circuit and in the pre-Gebser/Davis Title IX landscape that peer harassment is actionable under Title IX. As one basis for her decision, Judge Patel reasoned that a "teacher whose agency status is sufficient to hold the district liable for her harassment of a student stands in no different position when she knows of peer sexual harassment." Significantly, no teacher was named as a defendant in Nicole M, which relegates this language to the status of obiter dicta. Of more fundamental importance, however, Judge Patel's rationale was explicitly based on agency principles. Intervening Supreme Court authority makes clear that Title IX liability cannot be imputed to a school district merely on the basis of agency principles. Rather, Title IX liability can be predicated only upon the acts or omissions of "an official who at a minimum has authority to address the alleged discrimination and to institute corrective measures on the recipient's behalf has actual knowledge of the discrimination." Unsurprisingly, then, the Eleventh Circuit has recognized that it is "an open question" whether a teacher's deliberate indifference can trigger Title IX liability after Davis. The Tenth Circuit has opined that when peer harassment occurs on school grounds, "teachers may well possess the requisite control necessary to take corrective action to end the discrimination." Still, the Tenth Circuit acknowledged that "[b]ecause officials' roles vary among school districts, deciding who exercises substantial control for the purposes of Title IX liability is necessarily a fact-based inquiry." "In order to answer the question, it would be necessary to examine how [California] law organizes its public schools, the authority and responsibility granted by state law to teachers, the school district's discrimination policies and procedures, and the facts and circumstances of the particular case." 27 Id. at *3-4 (citations omitted). 28 48 Case law does not expressly limit the employee who may trigger 1 2 a school district's liability under Title IX; it is an open 3 question. 4 F.3d 1279, 1286 (11th Cir. 2003) ( We likewise consider the issue 5 of whether notice to a teacher constitutes actual knowledge on the 6 part of a school board to be open. ). 7 if an employee who has been invested by the school board with 8 supervisory power over the offending employee actually knew of the 9 abuse, had the power to end the abuse, and failed to do so. See, e.g., Hawkins v. Sarasota County Sch. Bd., 322 School districts are liable 10 Gebser, 524 U.S. at 280. 11 layers 12 vice-principals, 13 specialized counselors such as Title IX coordinators. Different 14 school districts may assign different duties to these positions or 15 even reject the traditional hierarchical structure altogether. 16 Rosa H. v. San Elizario Indep. Sch. Dist., 106 F.3d 648, 660 (5th 17 Cir. 1997). 18 deciding who exercises substantial control for the purposes of 19 Title IX liability is necessarily a fact-based inquiry. below the [S]chool districts contain a number of school and board: teachers superintendents, and coaches, not principals, to mention Because officials roles vary among school districts, Here, Coach Scudder was employed by GUSD as the head varsity 20 21 football coach and a teacher. 22 High did not employ an athletic director, which may have created an 23 administrative 24 principal. 25 aspect of the Gustine High football program, as well as the July 26 2006 27 disciplinary authority over the football program. 28 2006 football camp, Scudder acted as an administrative proxy void between At the time of the camp, Gustine the head football coach and the The record demonstrates that Scudder formulated every football camp. He was 49 the chief administrator and As to the July 1 between the football program and GUSD, obtained approval for the 2 athletes transportation (by GUSD buses) and overnight field trip 3 status, prepared and requisitioned permission slips, determined 4 eligibility criteria, formatted attendance of both athletes and 5 coaches, and was admittedly responsible for the athletes on and 6 off the field. 7 camp, interacted with boosters, and was considered the school 8 personnel in charge under GUSD s Administrative Directive. 9 the present record and without evidence from the District, it 10 cannot be established as a matter of law that Coach Scudder was not 11 an appropriate person for purposes of Title IX.21 He also conducted the football aspects of the On 12 13 4. Deliberate Indifference 14 Defendant argues that they are entitled to summary 15 adjudication on the issue of deliberate indifference because, as a 16 matter of law, its response once learning of Plaintiff s assault 17 was not clearly unreasonable. 18 employees and administrators, the district followed its sexual 19 harassment and gender harassment/discrimination policies, which 20 resulted 21 ultimately, expulsion of the offending students. in an investigation Defendant contends that via its of Plaintiff s allegations and, Plaintiff s 22 23 21 24 25 26 27 28 The Davis court did not explicitly discuss the role of the school employee who must know about harassment by a fellow student before it is actionable, but held that notice of harassment to the principal and two teachers was deemed sufficient to support a cause of action under Title IX. In dissent, Justice Kennedy suggested that in most cases of student misbehavior it is the teacher, at least in the first instance, who has authority to punish the offender and remedy the harassment. Davis, 526 U.S. at 679 (Kennedy, J., dissenting). 50 1 opposition to summary adjudication focuses on different issues. 2 While Plaintiff concedes that GUSD investigated Plaintiff s assault 3 and later expelled the responsible students, he maintains that 4 GUSD s 5 indifferent - because it was too little too late. Plaintiff also 6 rejoins that Coach Scudder had actual knowledge of the sexual 7 harassment - by virtue of observing the St. Jean incident -, but 8 did not comply with the requirements of Title IX in that he failed 9 to take corrective action to end the discrimination. response violated Title IX - and was deliberately 10 A school district is liable for damages under Title IX only 11 where the district itself remains deliberately indifferent to known 12 acts of harassment. 13 spent much of its Davis opinion emphasizing the limits on its 14 "deliberate indifference" holding, rejecting any suggestion that is 15 was imposing a reasonableness standard on school administrators: 16 "On the contrary, the recipient must merely respond to known peer 17 harassment in a manner that is not clearly unreasonable. Id. at 18 648-49. 19 from second-guessing the disciplinary decisions made by school 20 administrators," id., and stressed that its holding "does not mean 21 that recipients can avoid liability only by purging their schools 22 of actionable peer harassment or that administrators must engage in 23 particular disciplinary action." Davis, 526 U.S. at 642-43. The Supreme Court The Supreme Court cautioned that "courts should refrain Id. at 648. 24 Deliberate indifference is more than a mere reasonableness 25 standard that transforms every school disciplinary decision into a 26 jury question, Gant ex rel. Gant v. Wallingford Bd. of Educ., 195 27 F.3d 134, 141 (2d Cir. 1999), and describes a state of mind more 28 blameworthy than negligence. Farmer v. Brennan, 511 U.S. 825, 835 51 1 (1994). 2 something less than acts or omissions for the very purpose of 3 causing 4 Deliberate indifference will often be a fact-laden question, for 5 which bright lines are ill-suited. 6 Dist., 15 F.3d 443, 457 n.12 (5th Cir. 1994); see also Doe A. v. 7 Green, 298 F.Supp.2d at 1035-36 n.4 (stating that no bright line 8 rule in Ninth Circuit cases defines deliberate indifference, and 9 from review of cases outside Ninth Circuit, it is clear that most 10 11 But deliberate indifference is also satisfied by harm or with knowledge that harm will result. Id. Doe v. Taylor Indep. Sch. courts have similarly not discovered such a bright-line ). In his opposition, Plaintiff maintains that summary 12 adjudication is inappropriate because GUSD s response and remedial 13 measures after the camp were too little too late. 14 24:9-24:10.) 15 deliberate indifference exists because Coach Cano waited 24 hours 16 to call Principal Shaw after he overhead two players discussing 17 what happened to Plaintiff at the football camp. 18 contends that Principal Shaw was deliberately indifferent when he 19 waited two days to meet with Coach Cano and several more days 20 before he contacted the police. 21 counsel argued that Coach Cano and Principal Shaw s response to 22 hearing about the incident on July 13, 2005 constituted deliberate 23 indifference: 24 Counsel: Because I m not so sure that whether Coach Souza actually saw these incidents occurring makes a difference. Because it goes further than that to what the district and its employees did after the camp. We know within a few days of the camp Coach Cano had actual knowledge of what happened to the plaintiff. Court: Right. 25 26 27 28 (Doc. 102, Plaintiff alleges that a factual dispute concerning Plaintiff also At oral argument, Plaintiff s He reported it to the principal a day 52 later, as I understand it [...] [a]nd then it took a few days for the principal to start the process. And eventually all the boys were expelled. 1 2 3 Counsel: 4 5 6 7 8 9 10 11 12 Well, it s a little more egregious than that, Your Honor. Because Coach Cano overhears this conversation about what happened to Plaintiff, the principal tells him, okay, we ll meet in person the next time I m in Gustine because he lives in Merced and didn t want to come to Gustine. So a couple more days pass. Cano finally meets with the principal. We think that was still in the first week. And then they sit on it for a couple more days until the following week. And the only, after parents started contacting the school, did the district do anything about this. So you have at least a week delay between when Cano had actual knowledge of what happened to plaintiff and the time that anything is reported to the police [...] (RT, August 10, 2009, 13:5-14:6.) 13 The record reveals that following the 2006 football camp, 14 Coach Cano led practice while Coach Scudder was at an all-week 15 conference. 16 Filippini, tell another player that, while at the summer football 17 camp, Plaintiff was held down and an air pump was inserted his 18 rectum. 19 told him that they needed to meet in-person to discuss a matter 20 that might have happened at the football camp. Cano and Principal 21 Shaw met at the school two days later, at which time Cano repeated 22 Filippini s statement to Shaw. 23 Principal Shaw contacted the Gustine Police Department concerning 24 the incident. The offenders were removed from the football team on 25 July 25, 2006 and GUSD instituted disciplinary proceedings against During practice, Coach Cano overheard a player, Jake The following day, Coach Cano called Principal Shaw and Approximately five days later, 26 27 28 53 1 them.22 Although 2 Plaintiff - reasonable delay by school officials in dealing with alleged 6 sexual harassment does not equal deliberate indifference. See Oden 7 v. N. Marianas Coll., 440 F. 3d 1085 (9th Cir. 2006). 8 offenders were allowed to continue practicing until July 25th, 9 2006, the timeframe is not necessarily clearly unreasonable, 10 especially given the lack of direct corroboration concerning the 11 conduct 12 involvement, and the sensitive nature of the accusations. 13 Wills v. Brown Univ., 184 F.3d 20, 26 (1st Cir. 1999) (stating that 14 if a funding recipient takes timely and reasonable measures to end 15 the 16 harassment. ).23 it is multiple not liable Cano and layers under Principal - 5 harassment, Coach response investigation, as well as law enforcement and parental notification the of GUSD s 4 issue, pace with primarily at the issue 3 17 with takes of Title Shaw s Although the administrative IX for See prior Plaintiff, however, contends that Coach Scudder s response to 18 19 22 20 21 22 23 24 25 26 27 28 The record indicates that expulsion proceedings were instituted against the offenders within two months of the Coach Cano learning about the incident. Specifically, on September 12, 2006, GHS revoked Michael and Kyle Simmons inter-district transfers, and officially expelled the twins from GHS in October 2006. McKimmie and San Felippo were both expelled from GHS for two semesters. 23 In this case, if Coach Cano and Principal Shaw s actions were the only conduct at issue, it is possible that Defendant GUSD could have met its Rule 56 burden and demonstrated, as a matter of law, that no genuine issue of material fact existed as to deliberate indifference. However, GUSD s conduct must be viewed in light of the conduct of its employees, coaches, and administrators, including whether Coach Scudder acted with deliberate indifference after witnessing Kevin St. Jean s assault on July 15, 2006. 54 1 the St. Jean incident was clearly unreasonable in light of the 2 known circumstances.24 3 that shows, among other things, that Coach Scudder knew that one of 4 the Simmons brothers interdistrict transfer was in limbo following 5 disciplinary problems; that Tommy San Felippo was suspended for 6 fighting prior to the football camp; that a number of students 7 brought air mattress pumps to the camp, including the Simmons 8 brothers; and that something unusual was going on with the 9 Simmons brothers, San Felippo, McKimmie, and Figueroa on the Plaintiff points to evidence in the record 10 afternoon of July 14, 2006. The summary judgment record also 11 demonstrates that Coach Scudder observed the Simmons brothers, San 12 Felippo, McKimmie, and Figueroa run across the gym and assault 13 Kevin St. Jean with an air hose on July 14, 2006. 14 Once he observed the St. Jean assault, the record reveals that 15 Coach Scudder verbally admonished the group and told them they were 16 being childish; and that he confiscated the air pump from Kyle 17 Simmons and placed it with his own personal belongings. 18 Coach Scudder stated in his deposition that the confiscated air 19 pump was sitting next to all my stuff, and it was there where 20 somebody could have come by and picked it up and used it again, put 21 it back [...] yes, it was in the open. 22 However, Plaintiff also points to Coach Scudder s deposition testimony, 23 24 25 26 27 28 24 Given the factual dispute over whether Coach Scudder had actual knowledge and whether he was an appropriate person for purposes of Title IX, GUSD s conduct must be viewed in light of the conduct of its employees, coaches, and administrators, including whether Coach Scudder acted with deliberate indifference after witnessing Kevin St. Jean s assault on July 15, 2006. 55 1 which he argues demonstrates deliberate indifference:25 Q: Did you report this incident to any of these kids parents? A: I did not. Q: Did you talk to any of the other coaches about this incident while you were at the camp? 6 A: No. 7 Q: This is probably a variation of the same question, but did you ask Coach Souza if he had seen anything happen with the pump while you were at the camp? A: I did not. 2 3 4 5 8 9 10 (Scudder Dep. 158:24-159:14.) 11 The record also shows that many of the assaults occurred in 12 Liberty High s open gymnasium on July 14, 2006, an area which was 13 admittedly supervised by Gustine High coaches; that the five 14 assailants openly chased their victims, held them down and 15 attempted to assault the students with an air pump; that their 16 victims attempted to evade capture and openly struggled. It also 17 appears that the assaults escalated following the St. Jean assault, 18 culminating in the assault on Plaintiff. According to the record, 19 Gustine High coaches neither witnessed this conduct nor heard 20 rumors that such behavior took place. 21 Both parties attempt to draw factual distinctions and 22 23 25 24 25 26 27 28 Plaintiff also points to the GUSD Administrative Directive, applicable to the July 2006 football trip, and requires school personnel and chaperones to ensure proper supervision of the students and to immediately notify the school personnel in charge of the trip if any suspicious or inappropriate behavior is observed. (Doc. 105, Exh. I (emphasis added).) The administrative directive also provides that there shall be one chaperone or school employee per ten students, which Plaintiff argues was not followed by GUSD or Coach Scudder. 56 1 comparisons between this case and others in an attempt to support 2 their contentions as to whether Scudder s conduct constitutes 3 deliberate indifference. (See Doc. 107, 23:4-25:2; Doc. 116, 18:5- 4 19:13.) 5 what 6 discussing the sorts of circumstances under which a court may rule 7 that a particular response was or was not "clearly unreasonable" as 8 a matter of law; they do not offer a bright-line rule defining what 9 constitutes a "clearly unreasonable" response to known harassment The cited cases, however, only outline the boundaries of may or may not constitute "deliberate indifference," 10 or discrimination in violation of Title IX. 11 response is deliberately indifferent, the inquiry is whether the 12 response the known 13 circumstances to remedy the violation that had occurred. Here, 14 Coach Scudder did not wholly fail to act in response to the St. 15 Jean 16 reprimanded the offenders. 17 conduct, did not inquire with or report the incident to other 18 coaches/chaperones, and did not take measures to avoid recurrence. 19 As 20 investigation into the July 2006 football camp more than a week 21 after learning of Plaintiff s assault; however, the offenders 22 continued to practice with their victims/teammates during this 23 time. 24 reasonably been expected to remedy the violation," i.e., whether 25 Scudder, Cano, and Shaw's responses were "clearly unreasonable." 26 In light of the known circumstances that occurred during the 27 football camp, and taking the evidence in Plaintiff s favor, it 28 cannot be determined as a matter of law that GUSD s response was was incident. to Coach clearly He Cano unreasonable confiscated and in the Whether a particular light air pump of and verbally However, he did not investigate the Principal Shaw, they commenced an The question is whether those responses "could not have 57 1 2 not clearly unreasonable.26 Although arising from a teacher-student harassment case, Doe 3 A is instructive. In finding that the case did not lend itself 4 well to summary adjudication, Doe A noted that the question of 5 whether an institution acted with deliberate indifference under a 6 particular set of circumstances is a question normally left to the 7 jury. 8 Waugh v. Pearce, 954 F.3d 1470, 1478 (9th Cir. 1992) ("Whether a 9 local government entity has displayed a policy of deliberate 10 indifference is generally a question for the jury.")); Davis v. 11 Mason County, 927 F.2d 1473, 1482 (9th Cir. 1991); Alexander v. 12 City and County of San Francisco, 29 F.3d 1355, 1367 (9th Cir. 13 1994); Blair v. City of 14 *5 (9th Cir. 2000); Lee v. City of Los Angeles, 250 F.3d 668, 681 15 (9th Cir. 2001). 16 that the deliberate indifference or clearly unreasonable standard 17 does not lend itself well to a determination by the Court on 18 summary judgment, and have permitted the claim to go to the jury if 19 the plaintiff advanced some evidence in support." Id. (citing Hart 20 v. Paint Valley, 2002 WL 31951264, at *4 (S.D. Oh. 2002) (stating 21 that whether a response is unreasonable under Title IX "does not 22 lend itself well to a determination by the Court on summary 23 judgment")). 298 F. Supp. 2d at 1036 (citing, e.g., Oviatt By and Through Pomona, 206 F.3d 938, 2000 WL 290246, at A number of "[o]ther district courts have found Here, there is evidence in the record to support a 24 25 26 27 28 26 A school acts appropriately if it investigates what has already occurred, reasonably tries to end any harassment still ongoing by the offenders, and seeks to prevent the offenders from engaging in such conduct again. Patterson v. Hudson Area Schools, 551 F.3d 438, 460 (6th Cir. 2009). Here, during the camp Coach Scudder s actions were ineffective. 58 1 finding that Coach Scudder did not take appropriate or effective 2 remedial measures after his observations of sexual harassment. 3 a result, a rational trier of fact could conclude that Scudder s 4 response of a verbal warning about childish behavior, without 5 more, was clearly unreasonable when there is sufficient evidence in 6 the record to support a claim that Scudder was on notice that the 7 offenders were sexually assaulting players with an air hose. As 8 Construing the record and reasonable inferences therefrom in 9 the light most favorable to Plaintiff, a trier of fact could also 10 find that Scudder had "actual notice" on the afternoon of July 14, 11 2006. 12 July 15, 2006 would have elicited the same findings the police and 13 district investigations later revealed, and could have prevented 14 the sexual assault against Plaintiff, as well as assaults against 15 several other Gustine High players. 16 exists as to to whether GUSD exhibited deliberate indifference. 17 Summary judgment is DENIED on the Title IX claim. It appears from the record an investigation on July 14 or A question of material fact 18 As detailed in §§ V(C)(1)-(4), supra, Defendant GUSD has not 19 provided sufficient evidence to either negate an essential element 20 of Plaintiff s Title XI claim nor shown that Plaintiff does not 21 have sufficient evidence to carry his ultimate burden of persuasion 22 at trial. 23 Plaintiff s Title IX claim is DENIED. Defendant GUSD s motion for summary adjudication on 24 25 D. State Law Claims 26 Plaintiff brings several state law claims against Defendants 27 Gustine Unified School District, Jason Spaulding, Anthony Souza, 28 Adam Cano, and Carl Scudder: intentional infliction of emotional 59 1 distress (Claim V), violation of Cal. Constitution, art. 1, § 7(a) 2 (Claim VI), violation of Cal. Civil Codes §§ 51, 51.7 and 52.4 3 (Claims VII-IX), sex discrimination under the Cal. Education Code 4 (Claim X), negligent supervision (Claim XIII), negligence per se 5 (Claim XIV), and negligent training (Claim XV). 6 The Eleventh Amendment s bar against suing an arm of the state 7 in federal court applies equally to federal and state law claims. 8 See Durning v. Citibank, N.A., 950 F.2d 1419, 1422-23 (9th Cir. 9 1991) ("Although by its terms the Eleventh Amendment only withholds 10 article III jurisdiction from cases predicated upon citizen-state 11 diversity, the Supreme Court has judicially extended its reach to 12 bar federal courts from deciding virtually any case in which a 13 state 14 jurisdiction is predicated upon a federal question unless the 15 state has affirmatively consented to suit.") (internal quotations 16 omitted); see also Pena v. Gardner, 976 F.2d 469, 473 & n.6 (9th 17 Cir. 1992) (discussing Pennhurst State Sch. & Hosp. v. Halderman, 18 465 U.S. 89, 117-23 (1984)). or the arm of a state is a defendant even where As Gustine Unified School District is an arm of the state, it 19 20 is protected by the Eleventh Amendment and is immune from 21 Plaintiff's state law claims in this Court. The Eleventh Amendment 22 does not, however, bar Plaintiff's claims against the individual 23 defendants because, for the reasons discussed supra, they are sued 24 in their individual capacity. 25 Office of Educ., 502 F.3d 1116, 1125 (9th Cir. 2007). See Stoner v. Santa Clara County 26 Defendants Jason Spaulding, Anthony Souza, Adam Cano, and Carl 27 Scudder argue they are entitled to immunity on Plaintiff s state 28 60 1 law claims pursuant to California Education Code § 35330.27 2 relevant portions of § 35330 provide: 7 (a) The governing board of a school district or the county superintendent of schools of a county may: (1) Conduct field trips or excursions in connection with courses of instruction or school-related social, educational, cultural, athletic, or school band activities to and from places in the state, any other state, the District of Columbia, or a foreign country for pupils enrolled in elementary or secondary schools. 8 [....] 9 The (d) All persons making the field trip or excursion shall be deemed to have waived all claims against the district, a charter school, or the State of California for injury, accident, illness, or death occurring during or by reason of the field trip or excursion. 3 4 5 6 10 11 12 Cal. Educ. Code. § 35330(a),(d). 13 Defendants argue that § 35330(d) provides immunity to school 14 districts, charter schools, occurring during and the State of California for 15 injuries a field trip or excursion. 16 Defendants maintain that the July 2006 football camp is a field 17 trip or excursion under § 35330 because the camp: (a) was a 18 school-related athletic activity,28 (b) was voluntary, (c) Plaintiff 19 20 27 21 22 23 24 25 California case law has confirmed that individual teachers fall within the immunity protections of § 35330. See Casterson v. Superior Court, 101 Cal. App. 4th 177, 186-190 (2002) ("it is consistent with legislative intent to construe section 35330 as extending field trip immunity to school district employees in order to protect a school district from vicarious liability for an employee's alleged negligence in the course and scope of employment during a field trip."). 28 26 27 28 As opposed to a school-sponsored activity, which is defined as an activity that requires attendance and for which attendance credit may given. Myricks v. Lynwood Unified Sch. Dist., 74 Cal. App. 4th 231, 239 (1999). If a student is injured while off-campus for a school-sponsored activity, the student s 61 1 did not receive a grade or credit for his attendance, and (d) is 2 consistent with § 35330's legislative intent to protect school 3 districts from exposure to personal injury claims arising from 4 field trips. 5 Plaintiff argues that § 35330(d) s statutory immunity is 6 inapplicable to the facts of this case because § 35330(d) applies 7 only to field trips or excursions occurring off school premises. 8 (Id. at 11:12-11:14.) According to Plaintiff, because the alleged 9 assault and hazing at issue in this litigation occurred on LHS 10 school grounds ... the camp was not a field trip or excursion to 11 which the immunity of Section 35330(d) applies. 12 11:18.) 13 constructively owned the Liberty High School for purposes of 14 analyzing § 35330. 15 Plaintiff Plaintiff also essentially contends argues that § that 35330(d) (Id. at 11:8GUSD does or not GHS apply 16 because: (a) school was not in session at the time of the camp; and 17 (b) case law demonstrates that the proper legal inquiry is not 18 whether the trip was voluntary, but rather whether the trip had 19 the ear markings of a field trip or an excursion, based on 20 compliance with internal district guidelines. 21 In the context of public schools, the California Legislature 22 has established different rules for injuries occurring during 23 required school-sponsored, off-premises activities, on the one hand 24 (Cal. Ed. Code § 44808), and filed trips or excursions, on the 25 other hand (Cal. Ed. Code § 35330). If a student is injured while 26 27 28 injury is treated, for liability purposes, in the same manner as an on-campus injury. Id. 62 1 off campus for a school-sponsored activity, which is defined as an 2 activity that requires attendance and for which attendance credit 3 may be given, the student's injury is treated, for liability 4 purposes, in the same manner as an on-campus injury. 5 Lynwood Unified Sch. Dist., 74 Cal. App. 4th 231, 239 (1999); see 6 also Ramirez v. Long Beach Unified Sch. Dist., 105 Cal. App. 4th 7 182, 189 n.2 (2002). 8 property for required school purposes are entitled to the same 9 safeguards 10 11 as Myricks v. Students who are off of the school's those who supervisorial limits. are on school property, within Id. However, if a student is injured while on a field trip or 12 excursion in 13 school-related social, educational, cultural, athletic, or school 14 band activities he shall be deemed to have waived all claims 15 against 16 accident, illness, or death occurring during or by reason of the 17 field trip or excursion. Cal. Educ. Code, § 35330(d); Myricks, 18 74 Cal. App. 4th at 239. "Field trip is defined within the 19 meaning of § 35330 as "a visit made by students and usually a 20 teacher for purposes of first hand observation (as to a factory, 21 farm, clinic, museum). 22 Cal. App. 4th 132-133. "Excursion" means a journey chiefly for 23 recreation, a usual brief leisure trip, departure from a direct or 24 proper course, or deviation from a definite path. the connection district or with the courses State of of instruction California for or injury, Wolfe v. Dublin Unified School Dist., 56 Id. 25 In Casterson v. Superior Court, 101 Cal. App. 4th 177 (2002), 26 the court provided an in-depth review of the legislative history: 27 28 Our review indicates that the Legislature was concerned that the financial costs of field trips not burden school districts [....] [¶] From these 63 1 2 3 4 5 6 7 legislative history materials, we discern that one aspect of the Legislature's intent in enacting former section 1081.5 in 1967 was to authorize school field trips upon the condition that no public funds be expended for the trips. We further discern that the waiver provision was added in furtherance of this purpose, because it prevents school district exposure to personal injury claims arising from field trips. This intent is apparent throughout the amendments to field trip immunity provisions of former section 1081.5 and section 35330, since the waiver provision has been carried over in each amendment with only slight changes. 8 Id. (citations omitted). 9 Prior to Casterson, Castro v. Los Angeles Bd. of Education 10 54 Cal. App. 3d 232 (1976), noted: 11 12 13 14 15 16 17 18 The Legislature, by these sections, recognized that: Not all educational facilities can be provided within the confines of each school's property. To accomplish a school's educational aims, it therefore is necessary for students to accomplish portions of their study off the school's property. Students who are off of the school's property for required school purposes are entitled to the same safeguards as those who are on school property, within supervisorial limits. Students who participate in nonrequired trips or excursions, though possibly in furtherance of their education but not as required attendance, are effectively on-their-own; the voluntary nature of the event absolves the district of liability. 19 Id. at 236. 20 Although Plaintiff contends that a school-organized football 21 camp is not a field trip or excursion within the meaning of § 22 35330, several California cases in which immunity was found to 23 exist control the facts of this case. 24 In Myricks, 74 Cal. App. 4th 231, a case cited by Defendants, 25 several high school basketball players on a summer tournament road 26 trip were injured when, traveling between games, the car of the 27 volunteer driver with whom they were riding drove off the road. 28 64 1 The students claimed the summer league was a school-sponsored 2 activity for which the school district could be liable. 3 District asserted that the summer trip was not school-sponsored and 4 that 5 District liable for the players injuries. 6 summer basketball trip was not a school-sponsored activity for 7 which attendance was required and attendance credit given and, 8 assuming the trip was school related at all, the waiver provisions 9 of Education Code section 35330, subdivision (d) must control. 10 California s field trip immunity precluded holding The the Myricks found that the Id. at 240. 11 Barnhart v. Cabrillo Community College, 76 Cal. App. 4th 818 12 (2002), involved a lawsuit by three members of a community college 13 soccer team against the college and their coach for personal 14 injuries suffered in an automobile accident that occurred when the 15 coach, a college employee, was driving plaintiffs from their 16 college to a game in a van owned by the college. 17 Barnhart was whether California Code of Regulations, title 5, § 18 55450, provided field trip immunity to community college districts 19 in 20 districts set forth in § 35330: 21 22 23 24 25 26 27 28 language identical to the field trip immunity At issue in for school Strictly speaking, plaintiffs' trip to Fresno does not appear to be a field trip given that it was a trip to participate rather than observe; and, though the trip had recreational and pleasurable aspects, the essence of the trip was not excursionary given that the trip was part of a regular activity rather than a departure or deviation from the norm. But title 5, section 55450 itself further describes field trips or excursions. The section supposes that field trips or excursions are conducted in connection with ... school-related ... athletic ... activities. (tit. 5, § 55450, subd. (a).) School-related athletic activities necessarily include extracurricular sports programs. Thus, by its own terms, title 5, section 65 55450 places trips in connection with extracurricular sports programs into the narrowly defined field trip or excursion type of school-sponsored activity. 1 2 Plaintiffs were therefore on a field trip or excursion; hence, the special or specific immunity statute applies. 3 4 5 Id. at 828-829. 6 Although Myricks and Barnhart did not specifically deal with 7 students suffering injuries on a co-sponsor s school property, 8 the issues are substantially the same. The summary judgment record 9 demonstrates that Gustine students were participating in an 10 athletic event on Liberty High property. Gustine Unified School 11 District does not own or otherwise hold an interest in Liberty High 12 School. Like traveling to an away game in Barnhart or traveling 13 between tournament games in Myricks, the students here were off14 campus, participating in a school-related athletic function. Even 15 if Liberty High School were somehow affiliated with Gustine Unified 16 School District, Anderson v. Cornn, No. F042137, 2004 WL 396439 17 (Cal. App. 5 Dist. Mar. 4, 2004) ( Cornn ), an unpublished 18 decision,29 found that § 35330 applies if students have left their 19 regular school grounds and are having their field trip on what 20 may or may not be other [District] property. 30 21 22 23 24 25 29 The Ninth Circuit has stated that we may consider unpublished state decisions, even though such opinions have no precedential value. Employers Ins. of Wausau v. Granite State Ins. Co., 330 F.3d 1214, 1220 n.8 (9th Cir. 2003) (citation omitted). 30 26 27 28 In Cornn, a junior high student alleged that he was injured while at a summer camp promoted by his school. Plaintiff brought claims for negligence against the camp leader and District, alleging that the camp leader, threw [him] to the ground, held him on his back, and struck him, forcibly, in his chest three (3) times 66 1 Plaintiff distinguishes Myricks, Barnhart, and Cornn, arguing 2 that none of the cases [...] support the proposition that a school 3 sponsored event which occurred outside of the school year and where 4 student attendance is not credited, is the type of field trip or 5 excursion that was contemplated by Section 35330. 6 15:4-15:9.) Plaintiff is incorrect. See Myricks, 74 Cal. App. 4th 7 231 (applying § 35330 to a summer basketball tournament); Elbaz v. 8 Beverly Hills Unified Sch. Dist., No. B195563, 2007 WL 1545921 9 (Cal. App. 2 Dist. May 30, 2007)(stating [w]e conclude that his 10 claims against [the District] have been waived pursuant to section 11 35330, subdivision (d). (Doc. 107, As a matter of law, the tournament 12 13 14 and thereafter stated words to the effect Now how does that feel. Id. at *1. Cornn affirmed summary judgment in favor of the District, finding that § 35330 precluded liability: 15 16 17 18 19 20 21 22 23 24 25 26 Defendants provided undisputed evidence that the trip was entirely voluntary [...] As stated above, this was undisputedly a field trip [] Castro reaffirms that section 35330 precludes liability for a school district when a student is participating in nonrequired trips or excursions. Under such circumstances, students are effectively on their own; the voluntary nature of the event absolves the district of liability. Again, appellant does not dispute that Camp KEEP was voluntary in nature, and KCSOS offered evidence both regarding the voluntary nature of Camp KEEP and that students who did not go remained at the school. Accordingly, whether the activity took place on property also owned by KCSOS does not change the nature of the activity nor the applicability of the immunity. This is especially true where, as here, the students have left their regular school grounds and just happen to be having their field trip on what may or may not be other KCSOS property. 27 Id. at *3 (citations omitted). 28 67 1 constituted a field trip or an excursion, not a school-sponsored 2 activity. There are no allegations to indicate that [Plaintiff] was 3 required to attend, or received credit for, taking part in the 4 tournament [...] [t]he tournament occurred when school was not even 5 in session.)(emphasis added); see also Swearinger v. Fall River 6 Joint Unified Sch. Dist., 212 Cal.Rptr. 400, 406 (1985), review 7 granted and opinion superseded by, 701 P.2d 1172 (Jul. 18, 1985) 8 ( One might argue that the basketball tournament [] doesn't fit 9 neatly in either category [§35330 or §44808]. However, an 10 examination of the statutory history of the usage of field trip or 11 excursion 12 off-campus school activities. )(emphasis added). reveals that that composite term encompasses all 13 In this case, it is undisputed that the football camp was not 14 a school-sponsored activity for which attendance was required and 15 attendance credit given. 16 that the trip was voluntary, the event was held off campus on the 17 grounds of another school, that it related to athletic endeavors of 18 the high school, and comported with legislative intent. 19 the football camp s transportation was coordinated by the District, 20 this fact bear[s] no relation to whether the road trip was a 21 school sponsored activity and does not preclude the application of 22 § 35330. 23 tournaments were not part of LHS' formal CIF or summer intersession 24 programs. 25 attend the tournaments without being dropped from the summer 26 intersession program and bring school assignments with them does 27 not suggest the road trip was a mandatory or required school 28 activity. Defendants provided substantial evidence Although See Myricks, 74 Cal. App. 4th 231 ( The out of state The fact that LHS authorized two of the plaintiffs to Similarly, Barfield's 68 use of LHS facilities and 1 equipment for [team] practices and the district's funding of its 2 employees' emergency post-accident trip [] bear no relation to 3 whether the road trip was a school sponsored activity for which 4 attendance was required. ). 5 football camp at Liberty High School was a voluntary activity that 6 qualified as a "field trip" within the meaning of the statutory 7 framework. Granting summary judgment in favor of the District is 8 also 9 Barnhart, 10 11 consistent and with Cornn, Gustine High School s July 2006 California as well case as law, including Casterson, the Myricks, most recent published decision discussing § 35330. In his opposition, Plaintiff introduces several additional 12 facts into the § 35330 analysis. Specifically, Plaintiff argues 13 that genuine issues of material fact exist as to whether football 14 camp is a field trip or excursion because: 15 the camp did not receive attendance credit from the State School 16 Fund; (2) GUSD did not provide or make available medical or 17 hospital service for students attending the football camp; (3) GUSD 18 did not comply with its own internal guidelines for overnight field 19 trips; and (4) GUSD did not procure permission slips.31 20 11:8-15:2.) (1) students attending (Doc. 107, 21 22 23 24 25 26 27 28 31 Plaintiff cites Barnhart for the proposition that the football camp is a field trip or excursion because the students attending the camp did not receive attendance credit from the State School Fund. Plaintiff s citation is unpersuasive; he incorporates § 35330(c)(1), a stand alone portion of § 35330. Section 35330(c)(1) provides: The attendance or participation of a pupil in a field trip or excursion authorized by this section shall be considered attendance for the purpose of crediting attendance for apportionments from the State School Fund in the fiscal year. Credited attendance resulting from a field trip or excursion shall be limited to the amount of attendance that would have accrued had the pupils not been engaged in the field trip or excursion. 69 1 Plaintiff s opposition concerning internal factual development 3 permission 4 argument with any legal authority. There is nothing in Plaintiff s 5 26-page opposition or the accompanying exhibits and declarations to 6 support the proposition that these criteria are relevant to a § 7 35330 determination. The field trip immunity is clearly defined by 8 § 35330 and the universe of cases interpreting and applying § 35330 9 is not insubstantial. Plaintiff, care, substantial 2 slips. medical provides however, does guidelines, not support and his Without a single legal citation in support, 10 it is impermissible to depart from the statutory language and the 11 substantial California case law interpreting the provision.32 12 Plaintiff has failed to create a triable of fact whether the 13 July 2006 football camp was a field trip or excursion within the 14 meaning of § 35330. Defendants motion for summary adjudication on 15 the issue of § 35330 immunity is GRANTED as to Plaintiff s state 16 law claims only. 17 18 A. Penal Code § 245.6 19 Plaintiff argues in his opposition that notwithstanding the 20 immunity of the Education Code, Penal Code § 245.6[(e)] provides an 21 22 23 32 24 25 26 27 28 Plaintiff argues that if the camp is found to be an offpremises activity, then Education Code § 44808 applies. (Doc. 107, 17:1-17:3.) However, a "school-sponsored activity," within the meaning of § 44808, is one that students are required to attend and for which they receive credit. Myrick, 74 Cal. App. 4th at 239-240. Here, the football camp was not a "school-sponsored activity" under this definition because attendance was optional. The immunity from liability that is granted under § 44808 does not apply here. 70 1 independent cause of action for acts of hazing. 33 2 oral argument, Plaintiff s counsel conceded that a Penal Code § 3 245.6(e) claim was not specifically pled in the Complaint: However, during Court: Then we have Penal Code Section 245.6, which prohibits hazing and it s defined as the initiation or pre-initiation into a student organization or student body . It does not include sanctioned events. Doesn t that end it? You can t have it both ways, can you? Counsel: I don t think it does. But I think that the threshold issue is whether it was a field trip or excursion because --- Court: Yes. Counsel: - if it was not, then we don t even need to go to the hazing statute [...] Penal Code 245.6 is not a cause of action that was specifically pled in the complaint. It s -- 13 Court: Then it s not a claim. 14 Counsel: It s just independent activities. Court: But it s not alleged in the complaint, so let s not go there. Counsel: It s not in the complaint. 4 5 6 7 8 9 10 11 12 15 16 a statute cause of that provides an action for hazing 17 18 19 20 21 (RT 34:6-35:6.) A party cannot maintain a cause of action that is specifically pled in the complaint. See, e.g., Seven Worlds LLC v. 22 23 24 25 26 27 not 33 Penal Code § 245.6(e) provides, in relevant part: (e) The person against whom the hazing is directed may commence a civil action for injury or damages. The action may be brought against any participants in the hazing, or any organization to which the student is seeking membership whose agents, directors, trustees, managers, or officers authorized, requested, commanded, participated in, or ratified the hazing. 28 71 1 Network Solutions, 260 F.3d 1089, 1098 (9th Cir. 2001); accord Fox 2 v. Bd. of Trs. of the State Univ. of N.Y., 42 F.3d 135, 141-42 (2nd 3 Cir. 1994) (rejecting nominal damages claim not mentioned in the 4 complaint). 5 requirements of Federal Rules of Civil Procedure illusory. 6 Fed.R.Civ.P. 8(a)(1)-(3) ( A pleading that states a claim for 7 relief must contain [...] a short and plain statement of the claim 8 showing that the pleader is entitled to relief. ) 9 undisputed that the Complaint does not include a cause of action Penal To conclude otherwise would render the pleading Code § 245.6. Plaintiff cannot, See Here, it is 10 under as presently 11 constituted, advance a hazing cause of action against any of the 12 named Defendants. 13 to Plaintiff s Penal Code § 245.6 is GRANTED. Defendants motion for summary adjudication as 14 VI. CONCLUSION. 15 16 For the reasons set forth above: 17 18 A. Applicability of Field Trip Immunity to Federal Claims 1. 19 California Education Code § 35330(d), California s 20 field trip immunity, cannot immunize Defendants from liability 21 resulting from a violation of superceding federal law. 22 23 24 B. Section 1983 1. Summary adjudication is GRANTED in favor of 25 Defendant Gustine Unified School District against Plaintiff as to 26 Plaintiff s § 1983 claim. 27 28 2. Summary adjudication is GRANTED in favor of Defendants Scudder, Cano, Spaulding, and Souza in their official 72 1 capacities on Plaintiff s § 1983 claim. 3. 2 Summary adjudication is GRANTED in favor of 3 Defendants Scudder, Cano, Spaulding, and Souza in their individual 4 capacities on Plaintiff s § 1983 claim. 5 6 C. Title IX 1. 7 Summary judgment is GRANTED in favor of Defendants 8 Jason Spaulding, Anthony Souza, Adam Cano, and Carl Scudder as to 9 Plaintiff s 10 harassment. 2. 11 Title IX claim for sexual discrimination and Defendant GUSD has not provided sufficient evidence 12 to either negate an essential element of Plaintiff s Title XI claim 13 or show that Plaintiff does not have sufficient evidence to carry 14 his ultimate burden of persuasion at trial. 15 motion for summary adjudication on Plaintiff s Title IX claim is 16 DENIED. Defendant GUSD s 17 18 19 D. State Law Causes of Action 1. Summary adjudication is GRANTED in favor of 20 Defendants against Plaintiff as to Plaintiff s seventh and ninth 21 causes of action for gender violence. favor of 23 Defendant GUSD as to Plaintiff s remaining state law claims. As 24 Gustine Unified School District is an arm of the state, it is 25 protected by the Eleventh Amendment and is immune from Plaintiff's 26 state law claims in this Court. 22 27 28 2. 3. Summary Summary adjudication adjudication is is GRANTED GRANTED in in favor of Defendants Jason Spaulding, Anthony Souza, Adam Cano, and Carl 73 1 Scudder as to Plaintiff s remaining state law claims. 2 Jason Spaulding, Anthony Souza, Adam Cano, and Carl Scudder are 3 entitled to immunity on Plaintiff s state law claims pursuant to 4 California Education Code § 35330(d), California s field trip 5 immunity. 4. 6 7 adjudication is GRANTED in favor of Defendants as to Plaintiff s claim under Penal Code § 245.6. Plaintiff shall submit a form of order consistent with this 8 9 Summary Defendants memorandum decision within five (5) days of electronic service. 10 11 12 IT IS SO ORDERED. 13 Dated: 9i274f December 22, 2009 /s/ Oliver W. Wanger UNITED STATES DISTRICT JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 74

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