Torres et al v. Pittsburg Unified School District et al, No. 3:2016cv03314 - Document 49 (N.D. Cal. 2016)

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Torres et al v. Pittsburg Unified School District et al Doc. 49 1 2 3 4 IN THE UNITED STATES DISTRICT COURT 5 FOR THE NORTHERN DISTRICT OF CALIFORNIA 6 7 8 United States District Court For the Northern District of California 11 ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS Plaintiffs, 9 10 No. CV 16-3314 CRB K.T., et al., v. PITTSBURG UNIFIED SCHOOL DISTRICT, et al., Defendants. 12 / 13 A girl just shy of her tenth birthday brings claims against her former special-education 14 15 aide, teacher, principal, and school district for abuse she allegedly suffered at their hands or 16 on their watch. So do her parents. The latter three defendants now move to dismiss. 17 I. BACKGROUND 18 A. Factual Background 19 Plaintiff K.T. suffers from autism, attention deficit hyperactivity disorder, and an 20 intellectual disability. Compl. (dkt. 1) ¶ 16. Although she understands when spoken to, K.T. 21 has a limited vocabulary and has trouble speaking in complete sentences. Id. ¶ 18. She also 22 often puts inedible objects in her mouth. Id. ¶ 16. 23 During the 2014-15 academic year, K.T. attended Parkside Elementary in Pittsburg, 24 California as a special-education student. Id. ¶ 17. Her assigned teacher was Defendant Tara 25 Brinkerhoff. Id. Defendant Gloria Joseph served as a special-education aide in 26 Brinkerhoff’s class. Id. K.T. and her parents, Plaintiffs Rachel Torres and David Cope, 27 allege “ongoing verbal and physical abuse” at the hands of one or both women – including 28 being verbally and physically “aggressive,” “forcibly grabbing K.T.’s hands,” “grabbing K.T.’s hands and jerking them away from her body,” “grabbing and pulling K.T.,” “holding 1 K.T. really hard and pulling her,” “forcibly turning K.T.’s body around,” “pushing K.T.,” 2 “slapping K.T.’s face,” and kicking K.T.’s buttocks. Id. ¶ 21. 3 Maria Aldave, a parent of another Parkside student, saw Joseph “and/or” Brinkerhoff 4 commit “similar abuse” multiple times. Id. ¶ 21(d). Caterina Ferrante, a Parkside staff 5 member, saw other staff – including Joseph “and/or” Brinkerhoff – pull up K.T.’s shirt and 6 exhibit “very abrupt and jumpy” behavior towards her on a “daily or near-daily basis.” Id. 7 ¶ 22(c). Occupational therapist Cynthia Chaires discovered strange bruises K.T.’s hips, 8 stomach, and underarms. Id. ¶ 21(a). The bruises ranged in size and color, from big to small, 9 red to green. Id. An unnamed bus driver saw Joseph scream at a student and complained to United States District Court For the Northern District of California 10 Parkside’s principal, Defendant Jeffrey Varner, about what he saw. Id. ¶ 22(a). And 11 Brinkerhoff herself reported problems with how Joseph interacted with students to Varner. 12 Id. ¶ 22(b). She had seen Joseph being rough with students, pulling students, being 13 “physically loud” with students, raising her voice to students, getting “in the kids’ faces,” and 14 generally being “rough around the edges with them.” Id. ¶ 22(c). All of this happened 15 before May 28, 2015. See id. ¶¶ 21-22. 16 On May 28, Aldave and another parent, Bertha Canales, saw Joseph “and/or” 17 Brinkerhoff grab K.T. roughly by the hands, pull her back and forth, and scream at her. Id. 18 ¶ 21(b). On June 1, those two parents again saw Joseph “and/or” Brinkerhoff grab K.T. 19 roughly, pull on her arms, push her – and then slap her across the face and kick her buttocks. 20 Id. ¶21(c). The parents told Varner what they saw. Id. ¶ 24. 21 On June 3, yet another parent, Maria Hernandez, saw Joseph “and/or” Brinkerhoff 22 grab K.T.’s hands roughly and pull them away from her mouth “in an aggressive and strong 23 manner.” Id. ¶ 21(e). That same day, K.T.’s parents found out about the alleged abuse. Id. 24 ¶ 25. Joseph was placed on administrative leave. Id. ¶ 26. On June 4, a district staff 25 member called the police. Id. ¶ 27. Parkside staff, including Joseph “and/or” Brinkerhoff, 26 said K.T.’s disability justified their behavior.1 Id. ¶ 23. 27 28 1 The complaint does not mention when or to whom they said this. 2 Because of the abuse, K.T. has regressed verbally and behaviorally. Id. ¶ 31. She 1 2 now fears going to school. Id. K.T. picks at her skin and hits herself in the face hard enough 3 to leave bruises. Id. She turns ten years old on November 14, 2016. Id. 4 B. Procedural History 5 As required by California law, K.T. and her parents each filed claims with Defendant 6 Pittsburg Unified School District (“the District”) on November 12, 2015. See Dist. Claims 7 (dkt. 25-1 Exs. A, B & C); Cal. Gov’t Code § 945.4. Those claims named Gloria Joseph and 8 “other unidentified employees” of Pittsburg Unified School District as those “causing the 9 accident or loss.” See Dist. Claim at 1. They also listed “Tara Brinkerhoff” as a witness. Id. United States District Court For the Northern District of California 10 The allegations there are nearly identical to those here, with one exception: they allege that 11 Joseph alone – not Joseph “and/or” Brinkerhoff – abused K.T. See id. The District denied 12 the claims on December 16, 2015. Compl. ¶ 1. K.T. and her parents sued Joseph, Brinkerhoff, Varner, and the District on June 15, 13 14 2016. See id. at 15. They alleged federal constitutional and statutory claims, as well as 15 claims under California law. See id. at 1. Brinkerhoff, Varner, and the District now move to 16 dismiss all claims against them, except those for negligence. See MTD at 2. 17 II. 18 LEGAL STANDARD Under Federal Rule of Civil Procedure 12(b)(6), the Court should dismiss a complaint 19 if it does not plead facts that entitle the plaintiff to relief. See Fed. R. Civ. P. 12(b)(6). A 20 Rule 12(b)(6) dismissal “can be based on the lack of a cognizable legal theory or the absence 21 of sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police 22 Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). A complaint “must contain either direct or 23 inferential allegations respecting all the material elements necessary to sustain recovery 24 under some viable legal theory.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 562 (2007). 25 Under Rule 12(b)(6), the Court must accept all material allegations as true and 26 construe the complaint in the light most favorable to the plaintiff. Cahill v. Liberty Mut. Ins. 27 Co., 80 F.3d 336, 337-38 (9th Cir. 1996) (citation omitted). But the Court is “not bound to 28 accept as true a legal conclusion couched as a factual allegation.” Papasan v. Allain, 478 3 1 U.S. 265, 286 (1986) (citation omitted); see Clegg v. Cult Awareness Network, 18 F.3d 752, 2 754-55 (9th Cir. 1994). A “pleading that offers ‘labels and conclusions’ or ‘a formulaic 3 recitation of the elements of a cause of action will not do.’ Nor does a complaint suffice if it 4 tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Ashcroft v. Iqbal, 556 5 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555, 557). Rather, it must plead 6 “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its 7 face.’” Id. (quoting Twombly, 550 U.S. at 570). A complaint should not be dismissed without leave to amend unless there is strong 9 evidence that an amendment will result in “undue delay, bad faith, . . . repeated failure to 10 United States District Court For the Northern District of California 8 cure deficiencies by amendments previously allowed . . . [or] futility of amendment . . . .” 11 Sonoma Cnty. Ass’n of Retired Emps. v. Sonoma Cnty., 708 F.3d 1109, 1117 (9th Cir. 2013) 12 (quotation omitted); see also Fed. R. Civ. P. 15. The Court should examine whether the 13 complaint can be amended to cure the defect “without contradicting any of [the] original 14 complaint.” Reddy v. Litton Indus., 912 F.2d 291, 296 (9th Cir. 1990). Courts should 15 liberally grant leave to amend, but an amended complaint must allege facts consistent with 16 the challenged pleading. Id. at 296-97. 17 III. 18 DISCUSSION K.T. and her parents bring an array of federal and state law claims against 19 Brinkerhoff, Varner, and the District. But before reaching the substance of those claims, the 20 Court will address an issue left mostly unaddressed by the parties: immunity. 21 A. 22 Because this case involves a suit for money damages against state officials and a state 23 24 Immunity entity, there are two immunity issues lurking in the shadows. First, Brinkerhoff and Varner could have invoked qualified immunity at this stage but 25 did not. See MTD at 2-3, 6-15; Reply at 4-16. So, for now, they have waived the defense. 26 See Norwood v. Vance, 591 F.3d 1062, 1076 (9th Cir. 2009); Isom v. Town of Warren, 360 27 F.3d 7, 9 (1st Cir. 2004) (“[D]efendants did not raise immunity . . . and so they have waived 28 that defense as grounds for the motion.”); see also Siegert v. Gilley, 500 U.S. 226, 231 4 1 (1991) (“Qualified immunity is a defense that must be pleaded.”). Still, they may invoke 2 qualified immunity at summary judgment so long as it does not cause unfair prejudice. See 3 Norwood, 591 F.3d at 1076. 4 Second, although California school districts are state agencies, Belanger v. Madera Unified School. Dist., 963 F.2d 248, 254 (9th Cir. 1992), the District has not invoked 6 sovereign immunity.2 See MTD at 2-3, 6-15; Reply at 4-16; ITSI T.V. Prod. v. Agric. Ass’n, 7 3 F.3d 1289, 1291 (9th Cir. 1993) (citing Blatchford v. Native Vill. of Noatak, 501 U.S. 775, 8 785 n.3 (1991)) (noting that sovereign immunity must be affirmatively invoked). That said, 9 sovereign immunity – unlike qualified immunity – “partakes of the nature of jurisdictional 10 United States District Court For the Northern District of California 5 bar” and may be raised for the first time, well, anytime. See Edelman v. Jordan, 415 U.S. 11 651, 678 (1974). But even if the District eventually invokes sovereign immunity, it will not 12 do it any good. K.T.’s only federal claims against the District come under the Americans 13 with Disabilities Act (ADA) and the Rehabilitation Act.3 See Compl. ¶¶ 32-52. The Ninth 14 Circuit has squarely held that Title II of the ADA validly abrogates sovereign immunity. See 15 Miranda B. v. Kitzhaber, 328 F.3d 1181, 1185 (9th Cir. 2003). As for the Rehabilitation Act 16 claims, the District waived sovereign immunity by accepting federal funds. Id. at 1186. 17 B. Section 1983 Claims Under the Fourth Amendment 18 K.T. asserts two theories of liability under the Fourth Amendment. First, she 19 maintains that Joseph “and/or” Brinkerhoff used excessive force. See Compl. ¶ 33; Opp’n 20 21 2 22 23 24 The complaint says that the District “agreed to waive” its sovereign immunity with respect to all state law claims, Compl. ¶ 10, but that waiver appears to be a creature of statute, see Cal. Gov’t Code. § 815.2 (“A public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would . . . have given rise to a cause of action against that employee . . . .”). 3 25 26 27 28 K.T. does not bring a claim under Monell v. Dep’t of Soc. Serv., 436 U.S. 658 (1978) against the District. See Compl. ¶¶ 32-52. That makes sense because, again, the District is a state entity not a municipal one. See Belanger, 963 F.2d at 254. This is an important point. The District repeatedly maintains that it may only be held liable under the ADA and Rehabilitation Act for the actions of someone “high enough up the administrative hierarchy.” See, e.g., MTD at 14. That argument mistakes the bar for municipal liability under City of St. Louis v. Praprotnik, 485 U.S. 112 (1988) – a species of Monell liability requiring a policymaker to ratify unconstitutional acts of underlings – with the bar for liability under the ADA and Rehabilitation Act: respondeat superior. See Duvall v. Cnty. of Kitsap, 260 F.3d 1124, 1141 (9th Cir. 2001). 5 1 (dkt. 35) at 7-9. Second, she maintains that Brinkerhoff and Varner knew about the alleged 2 abuse but failed to act, resulting in supervisory liability. See Compl. ¶ 35. 1. 3 4 Excessive Force Contrary to Defendants’ suggestions, it is abundantly clear that K.T.’s excessive force claim should be analyzed under the Fourth Amendment, not substantive due process. 6 Compare Preschooler II v. Clark Cnty. School Bd., 479 F.3d 1175, 1180 (9th Cir. 2007); 7 (“The consequences of a teacher’s force against a student at school are generally analyzed 8 under . . . the Fourth Amendment.”); Doe v. Hawaii Dep’t of Ed., 334 F.3d 906, 909 (9th Cir. 9 2003) (“We hold that Doe’s claim is appropriately brought under the Fourth Amendment, not 10 United States District Court For the Northern District of California 5 the Due Process Clause.”), with MTD at 7 (“It is not clear whether Plaintiff’s excessive force 11 claim should be analyzed under the Fourth or Fourteenth Amendment.”). It is equally clear 12 that K.T. has stated a claim for excessive force under the Fourth Amendment. 13 Like the plaintiff in Preschooler II, K.T. is young, non-verbal, and suffers from 14 autism. See Preschooler II, 479 F.3d at 1180-81; Compl. ¶¶ 16, 18. She too alleges that her 15 teacher – among other things – grabbed and slapped her. See 479 F.3d at 1178; Compl. 16 ¶¶ 21(a)-(d).4 And here, as there, “the full extent of the abuse is not known,” since neither 17 child could “be counted on to report it.” See 479 F.3d at 1180-81; Compl. ¶¶ 20-22. So 18 although Defendants suggest that K.T. needs a shoehorn to analogize her case to Preschooler 19 II, at this stage they need a magic wand to distinguish it. 2. 20 21 22 Supervisory Liability K.T. also alleges that Brinkerhoff and Varner failed “to act in response to allegations of serious child abuse” and exhibited “deliberate indifference to the risk of harm to K.T. from 23 24 25 26 27 28 4 To the extent it matters, the allegations in both cases also “allegedly occurred over a period of months.” See Preschooler II, 479 F.3d at 1180; Compl. ¶¶ 21-22. In any event, a seizure occurs when a state official makes “an intentional acquisition of physical control” over a person. Brower v. Cnty. of Inyo, 489 U.S. 593, 596 (1989). So restraining someone’s bodily movements by grabbing a hand, squeezing, and then pulling on the arm is a seizure, W. v. Davis, 767 F.3d 1063, 1073 (11th Cir. 2014), which suggests that any particular use of similar force here was a seizure. K.T. has plausibly alleged that at least some of those instances bore no “reasonable relation to the need,” P.B. v. Koch, 96 F.3d 1298, 1304 (9th Cir. 1996), and has therefore stated a claim for excessive force. 6 1 Joseph and/or Brinkerhoff or Joseph, respectively.” Compl. ¶ 35. This is a claim for 2 supervisory liability. 3 Although there is no respondeat superior liability under section 1983, supervisors may 4 still be liable for their own misconduct. Ashcroft v. Iqbal, 556 U.S. 662, 676-77 (2009) 5 (emphasis added). And even after Iqbal,5 actionable misconduct includes “action or inaction 6 in the training, supervision, or control” of subordinates, “acquiescence in the constitutional 7 deprivation,” or “reckless or callous indifference to the rights of others.” Starr v. Baca, 652 8 F.3d 1202, 1207-08 (9th Cir. 2011) (citation omitted). The question here, then, hinges on 9 whether any of those three things can be said about Brinkerhoff6 or Varner. United States District Court For the Northern District of California 10 Brinkerhoff had a first-hand view of Joseph’s behavior because Joseph worked in her 11 classroom. See Compl. ¶ 17; 21. And at some point, she reported “problems” with her 12 special education aide to Varner – but not to police as required by California’s mandatory 13 reporter law. See id. ¶¶ 21; 22(b)-(c); Cal. Penal Code §§ 11165.7 & .9. But even if the 14 constitutional minimum for “acquiescence” falls below state law reporting requirements, 15 K.T. has – at the very least – plausibly alleged that Brinkerhoff failed to “control” Joseph. 16 See Compl. ¶¶ 21; 22(b)-(c). That is enough. See Starr, 652 F.3d at 1208. 17 Varner presents a closer question, but not by much. Both Brinkerhoff and a bus driver 18 told him about “screaming” and other “problems” with Joseph. See Compl. ¶¶ 22(a)-(b). 19 That is all the complaint alleges until June 1,7 when Aldave and Canales reported K.T. being 20 slapped, pushed, and kicked. See id. ¶¶ 21(a)-22(c), 28. But even after the report on June 1 21 22 23 24 25 26 5 It is important to remember that the plaintiff in Iqbal sued for invidious discrimination under the Free Exercise Clause of the First Amendment and the Equal Protection Component of the Fifth Amendment. See 556 U.S. at 676. Those intentional tort claims required the plaintiff to “plead and prove that the defendant acted with a discriminatory purpose.” Id. But here the defendant’s state of mind plays “no role” in deciding the Fourth Amendment claims at issue here. See Whren v. United States, 517 U.S. 806, 813 (1996). 6 27 28 K.T’s supervisory claim against Brinkerhoff only makes sense if Joseph committed the abuse – or at least most of it – so for this claim the Court assumes that to be true. 7 Chaires and Ferrante, for example, apparently reported nothing to Varner or anyone else. See Compl. ¶¶ 21(a), 22(c). 7 1 – a Monday – Varner did not remove Joseph from class until two days later. See id. ¶¶ 24- 2 27. It is also unclear whether he ever called the police. See id. ¶ 27. 3 In any event, K.T. has alleged more than enough. As principal of Parkside, Varner 4 may be held liable for failing to control teachers and aides at his school. See Preschooler II, 5 479 F.3d at 1182-83 (affirming denial of motion to dismiss supervisory claims against school 6 principal, district superintendent, and other administrative personnel). And, if Parkside’s 7 training about mandatory reporter laws was as “woefully inadequate ” as alleged, Compl. 8 ¶ 30, he bears much of the blame.8 That qualifies as “inaction in the training” of 9 subordinates. See Starr, 652 F.3d at 1208. United States District Court For the Northern District of California 10 C. Section 1983 Claim Under Substantive Due Process 11 K.T.’s parents bring a substantive due process claim against Joseph, Brinkerhoff, and 12 Varner for “intentionally interfering” with their “liberty to direct the upbringing, education, 13 and care of K.T.,” as well as with the parent-child relationship itself. See Compl. ¶ 37. The 14 complaint appears to assert substantive due process claims against Joseph “and/or” 15 Brinkerhoff as alleged perpetrators, as well as against Brinkerhoff and Varner as supervisors. 1. 16 17 Perpetrator Liability Although an alleged victim of excessive force herself may not bring a substantive due 18 process claim, Graham v. Connor, 490 U.S. 386, 395 (1989), the Ninth Circuit allows parents 19 to bring one for a deprivation of “companionship and society” with their child, Curnow v. 20 Ridgecrest Police, 952 F.2d 321, 325 (9th Cir. 1991). But to recover, a parent-plaintiff must 21 demonstrate that the defendant’s conduct “shocked the conscience.” Porter v. Osborn, 546 22 F.3d 1131, 1136 (9th Cir. 2008); see also Brittan v. Hansen, 451 F.3d 982, 992, 996 (9th Cir. 23 2006) (holding that, to state a substantive due process claim, parents must allege (1) a 24 protected liberty interest, (2) a deprivation of that interest, and (3) conduct that shocks the 25 conscience). This is a high bar, which “only the most egregious official conduct” meets. 26 Cnty. of Sacramento v. Lewis, 523 U.S. 833, 846 (1998); see also, e.g., Breithaupt v. Abram, 27 28 8 Because no one at Parkside called the police until June 4, see Compl. ¶ 27, this allegation is plenty plausible. 8 1 352 U.S. 432, 435 (1957) (holding that conduct shocks the conscience when it so “brutal” 2 and “offensive” as to not “comport with traditional ideas of fair play and decency”). 3 Substantive due process, therefore, is not a “font of tort law to be superimposed upon 4 whatever systems may already be administered by the States.” Paul v. Davis, 424 U.S. 693, 5 701 (1976). 6 The parties focus on whether K.T.’s parents must allege a “total deprivation” of the 7 parent-child relationship for their substantive due process claim to survive. See MTD at 11- 8 12; Opp’n at 11-13. But that glosses over the dispositive point that the abuse – as plausibly 9 alleged9 – does not shock the conscience, at least in the constitutional sense. See id.; but see United States District Court For the Northern District of California 10 Reply at 13 (referencing the severity of alleged conduct). This is not a case where the 11 defendants shot someone in the head and killed him, see Porter, 546 F.3d at 1135, shot 12 someone in the head and permanently impaired his mental faculties, see Ovando v. City of 13 Los Angeles, 92 F. Supp. 1011, 1015 (C.D. Cal. 2000), or sexually molested a child, see Doe 14 v. Dickenson, 615 F. Supp. 2d 1002, 1004 (D. Ariz. 2009). Grabbing, slapping, and kicking 15 a child with special needs is deplorable. But – without more – it is not so depraved as to be 16 among the “most egregious” of official conduct. 2. 17 18 19 Supervisory Liability Because the perpetrator’s alleged conduct does not shock the conscience, it follows a fortiori that her supervisor’s did not either. 20 D. Federal Statutory Claims 21 K.T. asserts claims against the District under Title II of the ADA and Section 504 of 22 the Rehabilitation Act. See Compl. ¶¶ 39-52. Congress modeled the former on the latter, so 23 the elements for both claims are nearly identical. Under the ADA, K.T. must plausibly allege 24 that she is a “qualified individual with a disability” and that the District denied her benefits 25 or services “by reason of” her disability. See Duvall v. Cnty. of Kitsap, 260 F.3d 1124, 1135 26 (9th Cir. 2001); 42 U.S.C. § 12132. Under the Rehabilitation Act, she must do the same, 27 28 9 The Court does not credit the conclusory assertion that defendants “intentionally” interfered with the relationship between K.T. and her parents. See Iqbal, 556 U.S. at 680-81. 9 1 except that the denial must have been “solely by reason” of her disability. See id. 2 Furthermore, to state a claim for money damages under either statute, K.T. must allege that 3 the District intentionally discriminated against her. See Duvall, 260 F.3d at 1138. In the 4 Ninth Circuit, deliberate indifference meets this intent requirement. Id. So if K.T. has 5 plausibly alleged that the District knew that harm to her federally protected rights was 6 “substantially likely” but failed to act, she has stated claims for relief. See id. 7 K.T. is clearly a “qualified individual with a disability” under both statutes – and the 8 District does not suggest otherwise, see MTD at 12-15; Reply at 14-16. K.T. also alleges 9 that the abuse came in response to “various symptoms” of her disability, like putting inedible United States District Court For the Northern District of California 10 objects in her mouth. See Compl. ¶ 44. Someone even had the gall to tell someone that 11 K.T.’s disability justified the alleged abuse. See Compl. ¶ 23. The defendants seem to 12 reiterate the point here. See MTD at 9. That is enough to satisfy even the Rehabilitation 13 Act’s heightened causation standard. See, e.g., E.H. v. Brentwood Union School Dist., 2013 14 WL 5978008 at *5, (N.D. Cal. Nov. 4, 2013) (holding that allegations of school officials 15 “grabbing” and “dragging” plaintiff in “direct response to manifestations of his disability” 16 met the Rehabilitation Act’s causation standard). 17 The District counters that no one “high enough up in the chain of command” knew 18 about the alleged abuse and failed to act, and so the District was not deliberately indifferent 19 to K.T.’s rights. MTD at 13-15 (relying on Garedakis v. Brentwood Union School Dist., WL 20 1718270 at *6, (N.D. Cal. April 29, 2016)). This is, again, beside the point. Duvall makes 21 abundantly clear that, when a plaintiff brings a direct suit under the ADA or the 22 Rehabilitation Act, a public entity is liable in respondeat superior for the acts of its 23 employees. See 260 F.3d at 1141; see also Sheehan v. City & Cnty. of San Francisco, 743 24 F.3d 1211, 1232 (9th Cir. 2014) (holding that a city may be held liable under the ADA for 25 acts of beat-level officers). K.T. need only allege that the perpetrator of the alleged abuse 26 was deliberately indifferent to her rights.10 That bar is clearly met here: both Joseph and 27 28 10 The complaint, then, undersells its case by focusing on what Brinkerhoff and Varner knew about the alleged abuse in their role as supervisors. See Compl. ¶¶ 45, 51. 10 1 Brinkerhoff knew about K.T.’s disability but at least one of them still went forward with the 2 alleged abuse. 3 E. State Law Claims 4 K.T. brings a number of claims against Joseph, Brinkerhoff, Varner, and the District 5 under California law.11 The latter three have moved to dismiss K.T.’s claims for battery, 6 intentional infliction of emotional distress, and violations of the Bane Act and Unruh Civil 7 Rights Act. See MTD at 2. They have not moved to dismiss K.T.’s negligence claims. See 8 id. But before reaching the merits, the Court must deal with a threshold issue for some of the 9 claims against Brinkerhoff. 1. United States District Court For the Northern District of California 10 11 California Tort Claims Act Bar The California Tort Claims Act requires anyone suing a public entity to first file a 12 claim with the entity that includes a “general description” of the alleged injury “so far as it 13 may be known at the time of presentation of the claim.” See Cal. Gov’t Code §§ 910, 945.4. 14 If a plaintiff does not comply with the statute, California courts will dismiss any claims not 15 already properly brought to the entity’s attention. 16 Still, the statute is designed “to give the government entity notice sufficient for it to 17 investigate and evaluate the claim, not to eliminate meritorious actions.” Stockett v. Ass’n of 18 Cal. Water Agencies, 34 Cal. 4th 441, 446 (2004) (citation omitted) (allowing plaintiff to 19 proceed on wrongful termination claim based on his support for a coworker’s complaint of 20 sexual harassment, objections to self-dealing, and protected speech about company bidding 21 practices – even though his initial claim listed only the first basis for wrongful termination). 22 The statutory bar therefore applies only to a “complete shift in allegations, usually involving 23 an effort to premise civil liability on acts or omissions committed at different times or by 24 different persons.” Id. (quoting Blair v. Superior Court, 218 Cal. App. 3d 221, 226 (1990)). 25 26 Although K.T.’s district claim makes nearly identical allegations as her complaint, the former alleged that Joseph alone – rather than Joseph “and/or” Brinkerhoff – committed the 27 28 11 Because some federal claims have survived the motion to dismiss, the Court retains supplemental jurisdiction over the state law claims. See 28 U.S.C. §§ 1331, 1367. 11 1 abuse. Compare Dist. Claim at 2-4 with Compl. ¶¶ 21-23, 30. For this reason, Brinkerhoff 2 asserts that K.T.’s state law claims against her (namely battery, intentional infliction of 3 emotional distress, and Bane Act violations) must be dismissed to the extent they rely on her 4 being a perpetrator. See MTD at 5-6. And indeed, plaintiff’s counsel should have 5 recognized that an email referencing “Tara” was referring to “Tara Brinkerhoff.” See Opp’n 6 at 20; Williams v. Braslow, 179 Cal. App. 3d 762, 772-73 (observing that a plaintiff without 7 reason to know a defendant’s identity when filing a Torts Act claim may still sue that 8 person). That being so, Brinkerhoff would have the Court seize on the “different persons” 9 language in Stockett and throw these claims out without a second thought. United States District Court For the Northern District of California 10 The Court refuses the invitation. The district claims named Joseph and “other 11 unidentified employees” as alleged perpetrators. See Dist. Claims at 1. They also told the 12 District what happened, when it happened, and who saw it happen. It is therefore not clear 13 how counsel’s oversight deprived the District of the chance to investigate; it had everything 14 else – including all witnesses and school personnel named here – at its fingertips. And, 15 under Stockett,12 that is what matters. 2. 16 17 18 Battery Brinkerhoff gives no reason to dismiss K.T.’s battery claim other than the California Tort Claims Act, see MTD 5-6, so that claim falls away based on the above analysis. 3. 19 Bane Act 20 The Bane Act provides for liability when someone, “by threat, intimidation, or 21 coercion,” interferes with “rights secured by the Constitution or laws of the United States” or 22 those of California. See Cal. Civ. Code. § 52.1. Courts deciding whether the “threat, 23 intimidation or coercion” must be distinct from the alleged underlying constitutional or 24 statutory violation have come out all over the map. Compare Cameron v. Craig, 713 F.3d 25 1012, 1022 (9th Cir. 2013) (holding that the elements for an excessive force claim under the 26 Bane Act are “the same” as under Section 1983), with Shoyoye v. Cnty. of Los Angeles, 203 27 28 12 That case, moreover, comes from the California Supreme Court and post-dates Williams, which is a lower court decision. 12 1 Cal.App.4th 957, 959 (2012) (holding that the Bane Act “requires a showing of coercion 2 independent from the coercion inherent in the wrongful detention itself”). 3 Despite that confusion, the Bane Act claims survive. For a start, K.T. has stated such 4 a claim under Cameron – controlling authority from the Ninth Circuit – simply by having 5 stated a claim for excessive force under Section 1983. See 713 F. 3d at 1022; Part III.B.1. 6 What is more, K.T. has plausibly alleged that physical abuse denied her equal access to 7 education in violation of the ADA, Rehabilitation Act, and the Unruh Civil Rights Act. See 8 Parts I.A, III.D, III.F.5. That is coercion enough. And because California law permits 9 respondeat superior liability for Bane Act violations, Gant v. Los Angeles Cnty., 772 F.3d United States District Court For the Northern District of California 10 11 12 608, 623 (9th Cir. 2014); Cal. Gov’t Code § 815.2(a), no defendant gets off the hook. 4. Intentional Infliction of Emotional Distress To prevail on her claim for intentional infliction of emotional distress, K.T. must 13 prove, among other things, that the defendants’ conduct was “outrageous.” See Hughes v. 14 Pair, 46 Cal. 4th 1035, 1050-51 (2009) (citations omitted); CACI Model Civ. Jury Instr. 15 1600. Conduct is outrageous only if it is “so extreme as to exceed all bounds of that usually 16 tolerated in a civilized community.” Hughes, 46 Cal. 4th at 1051; CACI Model Civ. Jury 17 Instr. 1602. These claims, then, fail for the same reasons as the substantive due process 18 claims. See Stoot v. City of Everett, 582 F.3d 910, 930 (9th Cir. 2009) (equating standard for 19 substantive due process with that for intentional infliction of emotional distress). 20 21 5. Unruh Civil Rights Act The District moves to dismiss K.T.’s claim under the Unruh Civil Rights Act because 22 a public school is not a “business establishment” within the meaning of the statute. See 23 MTD at 17-18. The District is mistaken. 24 The Unruh Civil Rights Act provides that all people in California “are entitled to the 25 full and equal accommodations, advantages, facilities, privileges, or services in all business 26 establishments of every kind whatsoever.” See Cal. Civ. Code § 51(b) (emphasis added). 27 The statute’s plain language leaves no doubt that courts should read “business 28 establishments” in the “broadest sense possible.” Isbister v. Boys Club of Santa Cruz, Inc., 13 1 40 Cal. 3d 72, 78 (1985). And if that were not enough, the Ninth Circuit has held that “[a]ny 2 violation of the ADA necessarily constitutes a violation of the Unruh Act.” See Molski v. 3 M.J. Cable, Inc., 481 F.3d 724, 731 (9th Cir. 2007). The Court will not take the bold step of suggesting that the ADA does not apply to 4 5 public schools. Accordingly, it holds that public schools are “business establishments” under 6 the Unruh Act, which accords with the weight of lower court authority. See, e.g., Walsh v. 7 Tehachapi Unified School Dist., 827 F. Supp. 2d 1107, 1123 (E.D. Cal. 2011); Y.G. v. 8 Riverside Unified School Dist., 774 F. Supp. 2d 1055, 1065 (C.D. Cal. 2011); Davison v. 9 Santa Barbara Unified School Dist., 48 F. Supp. 2d 1225, 1232-33 (C.D. Cal. 1998); Nicole United States District Court For the Northern District of California 10 M. v. Martinez Unified School Dist., 964 F. Supp. 1369, 1388 (N.D. Cal. 1997). 11 IV. Conclusion For the foregoing reasons, the Court: 12 • DENIES the motion to dismiss K.T.’s Fourth Amendment claims against both Brinkerhoff and Varner. • GRANTS, with LEAVE TO AMEND, the motion to dismiss Torres’s and Cope’s substantive due process claims against both Brinkerhoff and Varner. • DENIES the motion to dismiss K.T.’s ADA and Rehabilitation Act claims against the District. • DENIES the motion to dismiss K.T.’s battery claim against Brinkerhoff. • DENIES the motion to dismiss K.T.’s Bane Act claims against both Brinkerhoff and the District. • GRANTS, with LEAVE TO AMEND, the motion to dismiss K.T.’s intentional infliction of emotional distress claims against Brinkerhoff, Varner, and the District. • 13 DENIES the motion to dismiss K.T.’s Unruh Civil Rights Act claim against the District. 14 15 16 17 18 19 20 21 22 23 IT IS SO ORDERED. 24 Dated: November 7, 2016 25 ________________________________ 26 CHARLES R. BREYER UNITED STATES DISTRICT JUDGE 27 28 14