McCue et al v. South Fork Union School District et al, No. 1:2010cv00233 - Document 67 (E.D. Cal. 2011)

Court Description: MEMORANDUM DECISION and ORDER Regarding Defendants' 58 Motion to Dismiss Plaintiffs' Fourth Amended Complaint signed by Judge Oliver W. Wanger on 5/23/2011. ( Amended Complaint due by 6/14/2011) (Figueroa, O)
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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 AND ORDER REGARDING DEFENDANTS MOTION TO DISMISS PLAINTIFFS FOURTH AMENDED COMPLAINT (Doc. 58). v. 11 12 SOUTH FORK UNION ELEMENTARY SCHOOL, et al., 13 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 fourth amended complaint ( 4AC ) on March 11, 2011. (Doc. 56). 19 Defendants filed a motion to dismiss the 4AC on March 28, 2011 20 (Doc. 58). Plaintiffs filed opposition to the motion to dismiss on 21 May 2, 2011. II. RELEVANT FACTUAL BACKGROUND. 22 23 (Doc. 63). Plaintiff P.M. was a student at South Fork Elementary School 24 ( the School ) at all times relevant to this action. The School is 25 part of the South Fork Union School District ( the District ). 26 Plaintiffs Lawrence and Darlene McCue are P.M. s parents ( the 27 McCues ). 28 and Karen Zurin were teachers and administrators at the School all Defendants Shannon Damron, Sabine Mixion, Robin Shive, 1 1 times relevant to this action. 2 P.M. is allergic to nuts. On December 12, 2006, the McCues met 3 with the School s Principal, Robin Shive ( Shive ), to request 4 accommodations for P.M. s nut allergy from the School. 5 advised the McCues that the only accommodation the School could 6 provide was for P.M. to sit at a nut free table in the cafeteria 7 for lunch. 8 there were several additional meetings between the McCues and the 9 District in which the McCues requested that the School stop serving Shive During the remainder of the 2006-2007 school year, 10 nuts or products containing nuts. 11 neither the District nor the School would stop serving nuts. 12 Plaintiffs contend the refusal to ban nuts and nut products from 13 the District constituted a failure to make reasonable accommodation 14 for P.M. as required by the Individuals with Disabilities Education 15 Act. 16 Shive repeatedly stated that At the beginning of the 2007-2008 school year, the McCues 17 again met with Shive to request accommodations for P.M. 18 advised the McCues that the School could no longer have a nut 19 free table, but that P.M. could eat his lunch in the office to 20 keep 21 proposition and continued to request further accommodation. 22 him safe. The McCues were dissatisfied with Shive Shive s On February 28, 2008, the School held an event at which all of 23 the schools students were present on the play ground at one time. 24 During this event, P.M. was served a peanut butter containing 25 cookie by South Fork Elementary School. 26 allege who gave P.M. the cookie. 27 the cookie and required medical treatment. Plaintiffs subsequently 28 contacted the State Board of Education to report the February 28, The complaint does not P.M. had an allergic reaction to 2 1 2008 incident. The State Board of Education reprimanded Defendants 2 Shive, Damron, Zurin, Mixion, and the School District. 3 According to the complaint, Shive and Zurin retaliated against 4 Plaintiffs by refusing to make accommodations for P.M. and by 5 attempting to remove P.M. from the District. 6 allege that Defendants engaged in conduct that they knew or should 7 have known would result in P.M. being wrongfully taken from the 8 McCues. 9 statements to doctors at Mattel Children s Hospital to encourage Plaintiffs further Plaintiffs allege that Defendants made knowingly false 10 filing of a report with Child Protective Services. 11 further allege that Defendants had knowledge that the County had a 12 well 13 constitutional rights under the First, Fourth, and Fourteenth 14 Amendments of the United States Constitution. established pattern, practice, and custom of Plaintiffs violating 15 After receiving a referral for potential child endangerment 16 from a doctor at Mattel Children s Hospital, the Kern County 17 Sheriff s Department initiated an investigation into P.M. s medical 18 condition. Before the investigation was complete, Child Protective 19 Services ( CPS ) and James D. Stratton ( Stratton ) made the 20 decision to remove P.M. from the McCue s parents. 21 On or about March 6, 2008, CPS, the Kern County Sheriff s 22 Department, and Stratton arrived at the School and removed P.M., 23 without providing notice to the McCues. That evening, Stratton 24 informed the McCues that P.M. was removed from their custody 25 because Darlene took too good a [sic] care of P.M. and was at the 26 school with P.M. too much. 27 warrant or court order authorizing P.M. s removal from his home. 28 (TAC at 11). No Defendant sought a After P.M. s removal from the McCues custody, P.M. was 3 1 transferred out of the District to a school located in Bakersfield, 2 California. 3 about P.M. and the McCues to Mattel Children s Hospital. Shive continued to disclose confidential information 4 The morning after P.M. was removed from the McCue s custody, 5 Shive called Plaintiff an intimated that she had caused P.M. s 6 removal in order to retaliate against the McCue s for reporting the 7 cookie incident to the State Board of Education. 8 On March 10, 2008, Damron, P.M.s teacher, told her entire 9 class that P.M. had been taken by Child Protective Services, would 10 not be returning to school, and was safe. 11 receiving letters from children and their families describing 12 Damron s statements. III. LEGAL STANDARD. 13 14 The McCue s began A. Motion to Dismiss Standard 15 Dismissal under Rule 12(b)(6) is appropriate where the 16 complaint lacks sufficient facts to support a cognizable legal 17 theory. 18 (9th Cir.1990). 19 survive a 12(b) (6) motion, the pleading does not need detailed 20 factual allegations but the [f]actual allegations must be enough 21 to raise a right to relief above the speculative level. Bell Atl. 22 Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 23 929 24 recitation of the elements of a cause of action will not do. Id. 25 Rather, there must be enough facts to state a claim to relief that 26 is plausible on its face. Id. at 570. In other words, the 27 complaint must contain sufficient factual matter, accepted as 28 true, to state a claim to relief that is plausible on its face. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (2007). Mere To sufficiently state a claim to relief and labels and conclusions 4 or a formulaic 1 Ashcroft v. Iqbal, --- U.S. ----, ----, 129 S.Ct. 1937, 1949, 173 2 L.Ed.2d 868 (2009) (internal quotation marks omitted). 3 The Ninth Circuit has summarized the governing standard, in 4 light of Twombly and Iqbal, as follows: In sum, for a complaint to 5 survive a motion to dismiss, the nonconclusory factual content, and 6 reasonable 7 suggestive of a claim entitling the plaintiff to relief. Moss v. 8 U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir.2009) (internal 9 quotation marks omitted). Apart from factual insufficiency, a 10 complaint is also subject to dismissal under Rule 12(b)(6) where it 11 lacks a cognizable legal theory, Balistreri, 901 F.2d at 699, or 12 where the allegations on their face show that relief is barred 13 for some legal reason, Jones v. Bock, 549 U.S. 199, 215, 127 S.Ct. 14 910, 166 L.Ed.2d 798 (2007). inferences from that content, must be plausibly 15 In deciding whether to grant a motion to dismiss, the court 16 must accept as true all well-pleaded factual allegations in the 17 pleading under attack. Iqbal, 129 S.Ct. at 1950. A court is not, 18 however, required to accept as true allegations that are merely 19 conclusory, 20 inferences. Sprewell v. Golden State Warriors, 266 F.3d 979, 988 21 (9th Cir.2001). When ruling on a Rule 12(b)(6) motion to dismiss, 22 if a district court considers evidence outside the pleadings, it 23 must normally convert the 12(b)(6) motion into a Rule 56 motion for 24 summary 25 opportunity to respond. 26 907 (9th Cir. 2003). A court may, however, consider certain 27 materials-documents 28 incorporated by reference in the complaint, or matters of judicial 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 5 the complaint, documents 1 notice-without converting the motion to dismiss into a motion for 2 summary judgment. Id. at 908. 3 B. Motion for a More Definite Statement Standard 4 5 6 7 8 Federal Rule of Civil Procedure 12(e) provides in pertinent part: A party may move for a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response. The motion must be made before filing a responsive pleading and must point out the defects complained of and the details desired. 9 10 The Ninth Circuit has held that the federal rules ordinarily do not 11 require the pleader to set forth "the statutory or constitutional 12 basis for his claim, only the facts underlying it." McCalden v. 13 California Library Ass'n, 955 F.2d 1214, 1223 (9th Cir. 1990) 14 (reviewing a Rule 12(b)(6) motion). 15 statement is used to attack unintelligibility, not mere lack of 16 detail, and a complaint is sufficient if it is specific enough to 17 apprise the defendant of the substance of the claim asserted 18 against him or her." San Bernardino Pub. Employees Ass'n v. Stout, 19 946 F. Supp. 790, 804 (C.D. Cal. 1996). A motion for a more 20 definite statement should be denied "where the information sought 21 by the moving party is available and/or properly sought through 22 discovery." Famolare, Inc. v. Edison Bros. Stores, Inc., 525 F. 23 Supp. 940, 949 (E.D. Cal. 1981). "Thus, a motion for a more 24 definite statement should not be granted unless the defendant 25 literally cannot frame a responsive pleading." Bureerong v. Uvawas, 26 922 F. Supp. 1450, 1461 (C.D. Cal. 1996) (citing Boxall v. Sequoia 27 Union High School District, 464 F. Supp. 1104, 1114 (N.D. Cal. 28 1979)). 6 "A motion for a more definite IV. DISCUSSION. 1 2 Defendants seek dismissal of count three of the seventh cause 3 of action asserted in the 4AC.1 4 that count three is so deficient that Defendants cannot be expected 5 to frame a response. 6 A. Motion to Dismiss Alternatively, Defendants assert 7 Count three of the 4AC s seventh cause of action asserts a due 8 process claim under section 1983 against Defendants Shive, Damron, 9 Zurin, and Mixon based on P.M. s removal from his parents home. 10 Plaintiffs claim is characterized as a derivative due process 11 claim, as Defendants Shive, Damron, Zurin, and Mixon were not 12 directly responsible for removing P.M. from Plaintiffs home. See 13 Gini v. Las Vegas Metro. Police Dep't, 40 F.3d 1041, 1044-1045 (9th 14 Cir. 15 process claim against defendant who did not have authority to 16 directly effect due process violation). 17 1994) (discussing possibility of stating derivative due Due process requires observance of procedural protections 18 before the state may interfere with the family relationship. E.g. 19 Woodrum v. Woodward County, 866 F.2d 1121, 1125 (9th Cir. 1989); 20 Baker v. Racansky, 887 F.2d 183, 187 (9th Cir. 1989); Rogers v. 21 Cnty. of San Joaquin, 487 F.3d 1288, 1294 (9th Cir. 2007). 22 However, the constitutional liberty interest in the maintenance of 23 the familial relationship is not absolute. 24 1125. Woodrum, 866 F.2d at The interest of the parents must be balanced against the 25 26 27 28 1 A single reference to count one of the eleventh cause of action asserted in the 4AC is contained in the caption to section C of Defendants motion. As Defendants motion is devoid of analysis concerning any deficiency in Plaintiffs eleventh cause of action, Defendants have not carried their burden as the moving parties. 7 1 interests of the state and, when conflicting, against the interests 2 of the children. Id. (citations omitted). 3 Officials who remove a child from the home without a warrant 4 must have reasonable cause to believe that the child is likely to 5 experience serious bodily harm in the time that would be required 6 to obtain a warrant. 7 1288, 1294 (9th Cir. 2007). Serious allegations of abuse that have 8 been 9 "reasonable inference of imminent danger sufficient to justify 10 taking children into temporary custody" if they might again be 11 beaten or molested during the time it would take to get a warrant. 12 Id. (citing Ram v. Rubin, 118 F.3d 1306, 1311 (9th Cir. 1997)). investigated Rogers v. Cnty. of San Joaquin, 487 F.3d and corroborated usually give rise to a 13 Substantive due process prevents unwarranted interference 14 with the familial relationship, regardless of what procedures are 15 employed. See, e.g., Crowe v. County of San Diego, 608 F.3d 406, 16 441 n.23 (9th Cir. 2010) (" unwarranted state interference with 17 the relationship between parent and child violates substantive due 18 process ) (citing Smith v. City of Fontana, 818 F.2d 1411, 1419- 19 1420 20 Hodgers-Durgin v. De La Vina, 199 F.3d 1037, 1041 n.1 (9th Cir. 21 1999)).2 22 unwarranted when it is effected for the purposes of oppression. 23 Fontana, 818 F.2d at 1420 (citing Daniels v. Williams, 106 S. Ct. 24 662, 25 governmental power for purposes of oppression regardless of the (9th 665 Cir. 1987) overruled Interference (1986) with in the (substantive due part on familial process other grounds relationship prevents use by is of 26 27 28 2 In Crowe, the Ninth Circuit cited Fontana as authority for the proposition that the substantive due process standard is unwarranted interference, not the shocks the conscience standard. 608 F.2d at 441 n. 23. 8 1 2 fairness of the procedures used)). Count three of the 4AC s seventh cause of action purports to 3 assert a substantive due process claim. 4 dismissing 5 following analysis of the pleading deficiencies of Plaintiffs 6 substantive due process claim: 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiffs third amended The memorandum decision complaint provided The gravamen of Plaintiff s claim is that Damron, Shive, and Zurin made false statements calculated to cause P.M. to be removed from the McCues custody. Plaintiffs aver that they have properly alleged section 1983 liability under Gini v. Las Vegas Metro. Police Dep't, 40 F.3d 1041, 1044-1045 (9th Cir. 1994). (Doc. 47, Opposition at 2). To properly allege that Damron, Shive, and Zurin set in motion a series of acts that they reasonably knew would cause the constitutional injury Plaintiffs complain of, Plaintiffs must allege that Defendants knew or had reason to know that the relevant actors would remove P.M. from the McCues custody in violation of due process. See Gini, 40 F.2d at 1044 ( because Mahony did not terminate Gini's employment without due process, and did not know and should not reasonably have known that her federal employer would terminate her employment without due process, Gini has failed to state a claim under § 1983. ); accord Crowe v. County of San Diego, 593 F.3d 841, 879 (9th Cir. 2010) (there are two ways to state a cognizable constitutional claim based on defamatory statements: (1) allege that the injury to reputation was inflicted in connection with a federally protected right; or (2) allege that the injury to reputation caused the denial of a federally protected right) (citing Herb Hallman Chevrolet v. Nash-Holmes, 169 F.3d 636, 645 (9th Cir. 1999)). Although the TAC alleges a constitutional injury at the hands of the entities that removed P.M., it does not properly allege that Defendants Damron, Shive, and Zurin had the requisite knowledge to render their alleged defamatory statements constitutionally violative... To the extent Plaintiffs claim is based on an alleged substantive due process violation, the TAC is deficient. Mere negligence by state officials in the conduct of their duties resulting in temporary interference with familial rights does not trigger the substantive due process protections of the Fourteenth Amendment. E.g. Woodrum, 866 F.2d at 1126. As alleged, the removal of P.M. by the relevant actors did not constitute unwarranted state interference effected for the 9 the 1 2 purpose of oppression. No substantive due process claim is alleged. Fontana, 818 F.2d at 1420; Crowe, 608 F.3d at 441 n.23. 3 (Doc. 51). Footnote three of the memorandum decision discussed the 4 allegations necessary to establish a derivative substantive due 5 process claim in the context of Plaintiffs case: 6 15 Although the TAC is sufficient to allege that certain school administrators acted with oppressive intent, it does not allege facts sufficient to establish that the persons responsible for removing P.M. from the McCues' custody acted with oppressive intent. The TAC's conclusory allegation that CPS and the Sheriff's Department "acted with malice and with the intent to cause injury to P.M." is unsupported by any factual allegation sufficient to give rise to an inference that the actions of CPS and the Sheriff's Department were anything more than negligent, at worst. (See TAC at 18-23). In order to properly state a derivative substantive due process claim against school administrators based on the theory of liability expressed in the TAC, Plaintiffs must allege facts sufficient to support an inference that the school administrators knew that the CPS and the Sheriff's Department would interfere with Plaintiffs' familial rights for oppressive purposes. See, e.g., Gini., 40 F.3d at 1044-1045. 16 The 4AC does not remedy the defects that required dismissal of the 17 substantive 18 complaint. 19 action pled does sufficiently allege a derivative procedural due 20 process claim, despite the fact that the claim is improperly 21 labeled as a substantive due process claim. 7 8 9 10 11 12 13 14 22 23 24 25 due process claim advanced in the third amended However, the 4AC s count three of the seventh cause of Defendants argue that the 4AC does instructions of the memorandum decision.3 not comply with the Defendants contend: the [4AC] does not contain any factual allegations which support an inference that any one of the District Defendants were aware of the constitutionally violative policies of the CPS and the Sheriff s office ...There 26 27 28 3 Although Defendants motion purports to assail Plaintiffs substantive due process claim, in fact, Defendants arguments pertain to procedural due process. 10 1 remains no factual allegations demonstrating how Defendants allegedly became aware of CPS or the Sheriff s Department s policy for taking children in violation of the constitution. 2 3 (Doc. 59, Motion to Dismiss at 7-8). Defendants are incorrect. 4 The 4AC alleges that, on at least three occasions, two special 5 needs students were denied accommodations by the District and were 6 subsequently taken from their families absent exigent circumstances 7 or probable cause after Shive reported the students families to 8 CPS. (4AC at 43-44). The 4AC provides details about the alleged 9 incidents such as the children s ages and specific disabilities and 10 information about the children s families. With respect to one of 11 the incidents, a time frame is provided. The 4AC also alleges that 12 Defendants Shive, Damron, Zurin, and Mixon had knowledge of the 13 incidents by virtue of their experience with CPS and the Sheriff, 14 including prior observations and general knowledge about the 15 incidents. The allegations of the 4AC are sufficient to support a 16 reasonable inference that Defendants Shive, Damron, Zurin, and 17 Mixon had knowledge that their false statements would set in motion 18 a chain of events that would culminate in P.M. being removed from 19 his parents absent exigent circumstances or a warrant. The 4AC 20 sufficiently alleges a cognizable derivative procedural due process 21 claim. 22 B. Motion for a More Definite Statement 23 Defendants motion to dismiss confirms that the 4AC is pled 24 with sufficient clarity to permit Defendants to frame a response. 25 Although both parties submissions purport to address a substantive 26 due process claim when in fact the issues discussed pertain to a 27 procedural due process claim, Defendants have properly identified 28 11 1 the nature of Plaintiffs due process claim and have marshaled 2 apposite, although unsuccessful, arguments regarding the applicable 3 pleading 4 allegations 5 derivative procedural due process claim. 6 DENIED. requirements. and is The 4AC sufficiently contains clear to sufficient state a factual cognizable The motion to strike is ORDER 7 8 For the reasons stated, IT IS ORDERED: 9 1) Defendants motion to dismiss is DENIED with respect to 10 Plaintiffs procedural due process claim and GRANTED as to 11 Plaintiffs substantive due process claim; 12 2) Defendants motion for a more definite statement is DENIED; 13 and 14 3) Plaintiffs shall file any amended complaint within fifteen 15 (15) days of electronic service of this decision. 16 17 IT IS SO ORDERED. 18 Dated: hkh80h May 23, 2011 /s/ Oliver W. Wanger UNITED STATES DISTRICT JUDGE 19 20 21 22 23 24 25 26 27 28 12