McCue et al v. South Fork Union School District et al, No. 1:2010cv00233 - Document 36 (E.D. Cal. 2010)
Court Description: MEMORANDUM DECISION re defendants' Motion to Dismiss, document 25 , ORDERING as follows: plaintiff's defamation-plus claim against defendants Damron, Zurin, Shive, Mixion, and South Fork Union School District is DISMISSED, without prejudic e; plaintiff's claim against defendants Damron, Zurin, Shive, Mixion, and South Fork Union School District is DISMISSED, without prejudice; and plaintiff's claims for intentional infliction of emotional distress against defendants Damron, M ixion, and South Fork Union Elementary are DISMISSED, without prejudice; and, plaintiff shall lodge a formal order consistent with this decision within five days following electronic service; plaintiff shall submit an amended complaint as stated in this order; signed by Judge Oliver W. Wanger on 10/8/2010. (Rooney, M)
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McCue et al v. South Fork Union School District et al Doc. 36 1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF CALIFORNIA 6 7 8 McCUE et al., Plaintiffs, 9 10 1:10-cv-00233-OWW-MJS MEMORANDUM DECISION REGARDING DEFENDANTS’ MOTION TO DISMISS (Doc. 25). v. 11 12 13 SOUTH FORK UNION ELEMENTARY SCHOOL, et al., Defendants. 14 I. INTRODUCTION. 15 16 Plaintiffs proceed with this civil rights action pursuant to 17 42 U.S.C. § 1983 against various Defendants. Plaintiffs filed a 18 second amended complaint (“SAC”) on June 21, 2010. 19 Defendants filed a motion to dismiss the SAC on July 21, 2010. 20 (Doc. 25). Plaintiffs filed opposition to the motion to dismiss on 21 September 13, 2010. 22 September 20, 2010. 23 24 (Doc. 31). (Doc. 22). Defendants filed a reply on (Doc. 32). II. RELEVANT FACTUAL BACKGROUND. Plaintiff P.M. was a student at South Fork Elementary School 25 (“the School”) at all times relevant to this action. Plaintiffs 26 Lawrence and Darlene McCue are P.M.’s parents. 27 Shannon Damron, Sabine Mixion, Robin Shive, and Karen Zurin were 28 teachers and administrators at the School all times relevant to Moving Defendants 1 Dockets.Justia.com 1 this action. 2 P.M. is allergic to nuts. Beginning in December, 2006, Darlene 3 and Lawrence began requesting accommodations for P.M.’s nut allergy 4 from the School. 5 school consider not serving all food containing any nut products. 6 Ultimately, the only accommodation offered by the School for P.M.’s 7 second-grade year was that P.M. could eat his lunch in the school 8 office. Specifically, the McCues requested that the 9 On February 28, 2008, the School held an event where all of 10 the schools students were present on the play ground at one time. 11 During this event, P.M. was served a cookie containing peanut 12 butter. 13 medical treatment. 14 Board of Education to report the February 28, 2008 incident. 15 State Board of Education reprimanded Defendants Shive, Damron, 16 Zurin, Mixion, and the School District. P.M. had an allergic reaction to the cookie and required Plaintiffs subsequently contacted the State The 17 According to the complaint, Shive and Zurin retaliated against 18 Plaintiffs by making knowingly false statements to doctors at 19 Mattel Children’s Hospital to encourage filing of a report with 20 Child Protective Services.1 P.M. was subsequently removed from the 21 McCue’s custody. 22 McCue’s custody, Shive called Plaintiff an intimated that she had 23 caused P.M.’s removal in order to retaliate against the McCue’s for The morning after P.M. was removed from the 24 25 26 27 28 1 It is unclear whether the complaint alleges that Mixion and Damron made any false statements to doctors. Portions of the complaint allege that “District Defendants” made false statements, whereas other portions of the complaint specifically allege that Shive and Zurin made false statements to doctors. The complaint defines “District Defendants” to include the School itself, and thus, with the exception of the direct allegations pertaining to Shive and Zurin, the complaint is ambiguous as to who made false statements to doctors. 2 1 reporting the cookie incident to the State Board of Education. 2 On March 10, 2008, Damron, P.M.s teacher, told her entire 3 class that P.M. had been taken by Child Protective Services, would 4 not be returning to school, and was safe. 5 the McCue’s began receiving phone calls from the parents of P.M.’s 6 classmates to inquire about P.M. III. LEGAL STANDARD. 7 8 9 Later that afternoon, Dismissal under Rule 12(b)(6) is appropriate where the complaint lacks sufficient facts to support a cognizable legal 10 theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 11 (9th Cir.1990). 12 survive a 12(b) (6) motion, the pleading “does not need detailed 13 factual allegations” but the “[f]actual allegations must be enough 14 to raise a right to relief above the speculative level.” Bell Atl. 15 Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 16 929 17 recitation of the elements of a cause of action will not do.” Id. 18 Rather, there must be “enough facts to state a claim to relief that 19 is plausible on 20 “complaint must contain sufficient factual matter, accepted as 21 true, to state a claim to relief that is plausible on its face.” 22 Ashcroft v. Iqbal, --- U.S. ----, ----, 129 S.Ct. 1937, 1949, 173 23 L.Ed.2d 868 (2009) (internal quotation marks omitted). (2007). To sufficiently state a claim to relief and Mere “labels and conclusions” or a “formulaic its face.” Id. at 570. In other words, the 24 The Ninth Circuit has summarized the governing standard, in 25 light of Twombly and Iqbal, as follows: “In sum, for a complaint to 26 survive a motion to dismiss, the nonconclusory factual content, and 27 reasonable 28 suggestive of a claim entitling the plaintiff to relief.” Moss v. inferences from that 3 content, must be plausibly 1 U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir.2009) (internal 2 quotation marks omitted). Apart from factual insufficiency, a 3 complaint is also subject to dismissal under Rule 12(b)(6) where it 4 lacks a cognizable legal theory, Balistreri, 901 F.2d at 699, or 5 where the allegations on their face “show that relief is barred” 6 for some legal reason, Jones v. Bock, 549 U.S. 199, 215, 127 S.Ct. 7 910, 166 L.Ed.2d 798 (2007). 8 In deciding whether to grant a motion to dismiss, the court 9 must accept as true all “well-pleaded factual allegations” in the 10 pleading under attack. Iqbal, 129 S.Ct. at 1950. A court is not, 11 however, “required to accept as true allegations that are merely 12 conclusory, 13 inferences.” Sprewell v. Golden State Warriors, 266 F.3d 979, 988 14 (9th Cir.2001). “When ruling on a Rule 12(b)(6) motion to dismiss, 15 if a district court considers evidence outside the pleadings, it 16 must normally convert the 12(b)(6) motion into a Rule 56 motion for 17 summary 18 opportunity to respond.” 19 907 (9th Cir. 2003). “A court may, however, consider certain 20 materials-documents 21 incorporated by reference in the complaint, or matters of judicial 22 notice-without converting the motion to dismiss into a motion for 23 summary judgment.” Id. at 908. 24 25 unwarranted judgment, and deductions it must of give fact, the or unreasonable nonmoving party an United States v. Ritchie, 342 F.3d 903, attached to the complaint, documents IV. DISCUSSION. A. Plaintiff’s Seventh Cause of Action 26 Count three of Plaintiffs’ seventh cause of action asserts a 27 claim under 42 U.S.C. § 1983 against Defendant Shannon Damron 28 4 1 (“Damron”) under a “defamation-plus” theory.2 2 claim requires an allegation of injury to a plaintiff's reputation 3 from 4 recognizable property or liberty interest. E.g. Crowe v. County of 5 San Diego, 593 F.3d 841, 879 (9th Cir. 2010). 6 to state a cognizable § 1983 claim for defamation-plus: (1) allege 7 that the injury to reputation was inflicted in connection with a 8 federally 9 reputation caused the denial of a federally protected right. defamation accompanied protected right; by or an A “defamation-plus” allegation (2) allege of injury to a There are two ways that the injury to Id. 10 (quoting Herb Hallman Chevrolet v. Nash-Holmes, 169 F.3d 636, 645 11 (9th Cir. 1999). 12 Plaintiffs contend that the defamation-plus standard is 13 satisfied because Damron’s alleged defamatory statements where made 14 in 15 constitutional right to petition the government under the First 16 Amendment of the United States Constitution. 17 Specifically, Plaintiffs argue that Damron’s statements where made 18 in retaliation for the complaints Plaintiffs made against various 19 Defendants. 20 alleging 21 retaliation 22 insufficient to state a defamation-plus claim. 23 Metro. Police Dep't, 40 F.3d 1041, 1045 (9th Cir. 1994) (citing 24 Paul v. Davis, 424 U.S. 693 (1976) and Patton v. County of Kings, 25 857 F.2d 1379, 1381 (9th Cir. 1988)); accord Sanders v. City & connection with (Id.). that for a of Plaintiffs’ federal (Opposition at 7-8). Under the law of the Ninth Circuit, however, defamation the violation by exercise a of public a official First occurred Amendment right in is Gini v. Las Vegas 26 2 27 28 The caption of this count identifies “District Defendants,” however, only allegations pertaining to Damron are included. To the extent Plaintiffs seek to assert this cause of action against other Defendants, the complaint fails to give fair notice. 5 1 County of San Francisco, 226 Fed. Appx. 687, 690-91 (9th Cir. 2007) 2 (unpublished); Dube v. Dinshaw Contr., 359 Fed. Appx. 890, 891 (9th 3 Cir. 2009) (unpublished). 4 Plaintiff also contends that Damron’s statement was made in 5 connection with a violation of Plaintiffs’ right to privacy under 6 the California constitution.3 (Opposition at 8) (citing Cal. Const. 7 Art. I and other California authorities). However, Plaintiff cites 8 no authority that violation of a state constitutional right is 9 sufficient to satisfy the defamation-plus standard. Contra Nash- 10 Holmes, 169 F.3d at 645 (“There are two ways to state a cognizable 11 § 1983 claim for defamation-plus: (1) allege that the injury to 12 reputation was inflicted in connection with a federally protected 13 right; or (2) allege that the injury to reputation caused the 14 denial 15 Defendants’ motion to dismiss Plaintiffs’ defamation-plus claim 16 under section 1983 is GRANTED, without prejudice. 17 B. Plaintiffs’ Eleventh Cause of Action 18 of a federally protected California Civil Code section 52.1.4 20 part: 22 (emphasis added). Plaintiffs’ eleventh cause of action is for violation of 19 21 right”) Section 52.1 provides in If a person or persons, whether or not acting under color of law, interferes by threats, intimidation, or coercion, or attempts to interfere by threats, intimidation, or 23 3 24 25 26 27 28 The complaint alleges that Damron’s statement was made in connection with the unlawful seizure violation, however, Plaintiffs’ opposition to the motion to dismiss does not articulate how the seizure violation is connected to Plaintiff’s defamation-plus claim. In any event, the requisite nexus between the alleged defamation and seizure is lacking. See Gini, 40 F.3d at 1044 (complaint must allege that future constitutional depravation was a reasonablely foreseeable result of defamatory statement in order to state a claim). 4 Plaintiffs abandon their claim under California Civil Code section 57.1. (Opposition at 10 n.1). 6 1 coercion, with the exercise or enjoyment by any individual or individuals of rights secured by the Constitution or laws of the United States, or of the rights secured by the Constitution or laws of this state...Any individual whose exercise or enjoyment of rights secured by the Constitution or laws of the United States, or of rights secured by the Constitution or laws of this state, has been interfered with, or attempted to be interfered with, as described in subdivision (a), may institute and prosecute in his or her own name and on his or her own behalf a civil action for damages 2 3 4 5 6 7 Cal. Civ. Code § 52.1. The elements of a claim under section 52.1 8 are: 9 15 (1) that the defendant interfered with or attempted to interfere with the plaintiff's constitutional or statutory right by threatening or committing violent acts; (2) that the plaintiff reasonably believed that if she exercised her constitutional right, the defendant would commit violence against her or her property; that the defendant injured the plaintiff or her property to prevent her from exercising her right or retaliate against the plaintiff for having exercised her right; (3) that the plaintiff was harmed; and (4) that the defendant's conduct was a substantial factor in causing the plaintiff's harm. 16 See Austin B. v. Escondido Union School Dist., 149 Cal. App. 4th 17 860, 882 (Cal. Ct. App. 2007)(citing CACI No. 3025). 18 52.1(j) provides: 10 11 12 13 14 Section 19 20 21 22 23 Speech alone is not sufficient to support an action brought pursuant to subdivision (a) or (b), except upon a showing that the speech itself threatens violence against a specific person or group of persons; and the person or group of persons against whom the threat is directed reasonably fears that, because of the speech, violence will be committed against them or their property and that the person threatening violence had the apparent ability to carry out the threat 24 25 26 Cal. Civ. Code § 52.1(j). Plaintiffs’ claim under section 52.1 is that Defendants 27 retaliated against Plaintiffs for exercising their right to file 28 complaints regarding the Defendants’ conduct. 7 (Opposition at 13). 1 The retaliatory acts Plaintiffs identify are the various “malicious 2 statements” made by Defendants and Defendants’ act of feeding P.M. 3 a peanut butter cookie, causing him to have a severe allergic 4 reaction. (Opposition at 11-12). 5 statements Plaintiffs 6 Plaintiffs. 7 section 52.1 based on Defendants’ statements. 8 52.1(j) (speech not actionable unless threats of violence are 9 entailed).5 complain of None of the alleged malicious threatened violence against Accordingly, Plaintiffs fail to state a claim under Cal. Civ. Code § 10 Plaintiffs’ allegations regarding the peanut butter cookie 11 served to P.M. are too vague and conclusory to state a claim under 12 section 52.1. 13 14 15 The SAC alleges: On February 28, 2008, South Fork Elementary School had an event to the middle school and elementary school children were all present on the play ground at once. During that event, South Fork Elementary school served peanut butter cookies to all of the students with full knowledge that P.M. was allergic to peanuts 16 17 (SAC at 8). The SAC fails to allege that P.M. was given the peanut 18 butter cookie by a person with actual knowledge of P.M.’s allergy. 19 The SAC’s conclusory allegation that the school served the cookie 20 to P.M. with “full knowledge” of his allergy is not supported by 21 sufficient factual allegations as required by federal pleading 22 standards. 23 personnel where aware of P.M.’s allergy, the SAC does not allege Although the SAC does establish that some school 24 25 26 27 28 5 At oral argument, Plaintiffs suggested that pursuant to Venegas v. County of Los Angeles, 32 Cal. 4th 820 (Cal. 2004), a complaint states a cause of action under section 52.1 even where no threats of violence are alleged. Venegas does not support Plaintiffs’ contention: “All we decide here is that, in pursuing relief for those constitutional violations under section 52.1, plaintiffs need not allege that defendants acted with discriminatory animus or intent, so long as those acts were accompanied by the requisite threats, intimidation, or coercion.” 32 Cal. 4th at 843. 8 1 facts which permit the inference that any person with actual 2 knowledge of P.M.’s allergy played a role in serving P.M. the 3 cookie. 4 peanut butter cookie in order to interfere with constitutional or 5 statutory 6 DISMISSED, with leave to amend, only if Plaintiff can allege a 7 specific individual acted with the requisite intent. 8 C. Plaintiff’s Twelfth Cause of Action 9 Further, the SAC fails to allege that P.M. was given the rights. Plaintiff’s Plaintiff’s twelfth claim cause of under action section asserts 52.1 claims is for 10 intentional infliction of emotional distress against, among others, 11 Defendants Shive, Damron, Zurin, and Mixon. 12 A cause of action for intentional infliction of emotional 13 distress exists when there is (1) extreme and outrageous conduct by 14 the defendant with the intention of causing, or reckless disregard 15 of 16 plaintiff's suffering severe or extreme emotional distress; and (3) 17 actual and proximate causation of the emotional distress by the 18 defendant's outrageous conduct. 19 1035 , 1051 (Cal. 2009) (citations omitted). A defendant's conduct 20 is “outrageous” when it is so extreme as to exceed all bounds of 21 that 22 defendant's conduct must be intended to inflict injury or engaged 23 in with the realization that injury will result. the probability usually of causing, tolerated in emotional distress; (2) the E.g. Hughes v. Pair, 46 Cal. 4th a civilized community, and the Id. 24 1. Lawrence and Darlene McCue’s Claim Against Defendant Shive 25 The SAC alleges that Shive made knowingly false statements to 26 doctors at Mattel Children’s Hospital in order to encourage the 27 them to file a report with Child Protective Services, with the 28 intent to harm Plaintiffs. Defendants contend that the SAC fails 9 1 to allege extreme and outrageous conduct and fails to allege that 2 Shrive directed her conduct at Lawrence McCue. 3 The SAC sufficiently alleges conduct by Shrive that is extreme 4 and outrageous. 5 order to cause a CPS report against parents is unquestionably 6 beyond 7 community if it evinces malice and the intent to cause a child to 8 be removed from the child’s parent. 9 alleges that Shive’s conduct was directed at Lawrence McCue. the Making a knowingly false report of child abuse in bounds of that usually tolerated in a civilized The SAC also sufficiently The 10 SAC specifically alleges that Shive intended to harm Plaintiffs 11 when making the false reports, 12 inferences derived from the facts alleged in the complaint support 13 the notion that Shive directed her conduct at Lawrence McCue, (SAC 14 at 2) (stating that Lawrence is P.M.’s adopted father). 15 axiomatic that a child’s parents will suffer severe emotional 16 distress as a result of false allegations of child abuse against 17 them and the depravation of their custodial rights. 18 (SAC at 52), and reasonable It is Defendants contend that they are mandatory reporters under 19 California Penal Code section 11164 et seq., and that their 20 statements to doctors regarding potential abuse of P.M. were 21 privileged. However, Defendants cite no authority which stands for 22 the proposition that malicious and knowingly false statements are 23 privileged as within any reporting duty. 24 dismiss Plaintiffs’ claim for intentional infliction of emotional 25 distress against Shive is DENIED. Defendants’ motion to 26 2. Lawrence and Darlene McCue’s Claim Against Defendant Damron 27 Plaintiffs 28 claim for intentional infliction of emotional distress against Defendant Damron is based on Damron’s statement to 10 1 students in her class that “P.M. had been taken away from his 2 parents and put in a foster home and now he will be safe and he 3 would not be coming back.” 4 statement falls short of conduct that is so extreme as to exceed 5 all bounds of that usually tolerated in a civilized community. 6 Further, 7 statement was directed at Plaintiffs. 8 statement and Plaintiffs injury is attenuated: in order for Damron 9 to have directed her statement to Plaintiffs, Damron needed to 10 intend or expect for her statement to be relayed to Plaintiffs; the 11 SAC does not allege facts sufficient to permit such an inference. 12 Finally, 13 regarding how Damron’s alleged statement is connected to Plaintiffs 14 vague allegation of conspiracy. 15 Plaintiffs’ claim for intentional infliction of emotional distress 16 against Defendant Damron is GRANTED, without prejudice. the the SAC SAC does not fails to (SAC at 13). sufficiently Damron’s alleged allege that Damron’s The link between Damron’s articulate any cognizable theory Defendants’ motion to dismiss 17 3. Lawrence and Darlene McCue’s Claim Against Zurin and Mixon 18 Plaintiffs claim against Defendants Zurin and Mixion is 19 predicated on Plaintiffs’ allegation of conspiracy, as well as the 20 allegation that Zurin made knowingly false statements to doctors at 21 Mattel Children’s Hospital. 22 for intentional infliction of emotional distress against Zurin 23 based on Zurin’s alleged act of making knowingly false statements 24 in 25 Protective Services. 26 state a claim for intentional infliction of emotional distress 27 against Mixion, as there are no relevant factual allegations 28 against Mixion. order to encourage The SAC sufficiently alleges a claim filing of a false report with Child The SAC does not allege sufficient facts to The SAC fails allege any specific conduct by 11 1 Mixion. Defendants’ motion to dismiss is GRANTED as to Mixion, 2 without prejudice, and DENIED as to Zurin. 3 4. Plaintiffs’ Conspiracy Claim 4 Plaintiffs’ fourth count is premised on an alleged conspiracy 5 between Defendants Shive, Damron, Zurin, and Mixion. 6 SAC 7 Plaintiffs’ conspiracy claim. 8 fails to give Defendants fair notice of However, the the nature of The SAC provides: Defendants Damron, Zurin, and Mixion, each of them, participated in, conspired with, approved of, and/or aided and abetted the conduct of the remaining Defendant Shive. As an aspect of the conspiracy, and in furtherance of the objectives of the conspiracy, Defendant Damron made the disclosure [to her class that P.M. had been placed in a foster home] 9 10 11 12 (SAC at 56). 13 the SAC is unclear. 14 of the alleged conspiracy was the district’s policy of refusing to 15 provide reasonable accommodations to students with food allergies, 16 the 17 following the cookie incident. 18 intentional infliction of emotional distress based on an alleged 19 conspiracy is impermissibly vague and must be dismissed, without 20 prejudice. cookie The nature and object of the conspiracy alleged in The SAC is ambiguous as to whether the object incident, or retaliation for Plaintiffs complaint Accordingly, Plaintiffs’ claim for ORDER 21 22 For the reasons stated, IT IS ORDERED: 23 1) 24 Damron, Zurin, Shive, Mixion, and South Fork Union School 25 District is DISMISSED, without prejudice; 26 2) Plaintiffs’ claim under California Civil Code section 52.1 27 against Defendants Damron, Zurin, Shive, Mixion, and South 28 Fork Union School District is DISMISSED, without prejudice; Plaintiff’s defamation-plus 12 claim against Defendants 1 3) Plaintiffs claims for intentional infliction of emotional 2 distress against Defendants Damron, Mixion, and South Fork 3 Union Elementary School are DISMISSED; without prejudice; and 4 4) Plaintiff shall lodge a formal order consistent with this 5 decision within five (5) days following electronic service of 6 this decision by the clerk. 7 complaint within ten (10) days of the filing of the order. 8 Defendant shall file a response within fifteen (15) days of 9 receipt of the amended complaint. 10 IT IS SO ORDERED. 11 Dated: hkh80h October 8, 2010 Plaintiff shall file an amended /s/ Oliver W. Wanger UNITED STATES DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13
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