Opinion
No. CV-F-04-6284 REC SMS, (Doc. 12).
September 9, 2005
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS OR FOR A MORE DEFINITE STATEMENT.
On July 11, 2005, the Court heard Defendants' motion to dismiss or, in the alternative, for a more definite statement of Plaintiff Rosie Banks' Complaint. At that time, the Court requested further filing from the parties regarding a settlement agreement entered into by the parties. That information was received on July 20, 2005.
Upon due consideration of the written and oral arguments of the parties and the record herein, Defendants' motions are GRANTED IN PART AND DENIED IN PART as set forth below.
I. Factual Background
This case centers around the treatment of Plaintiff Rosie Banks ("Plaintiff") by school and police officials. At the time of the alleged events, Plaintiff was thirteen years old and a student in the Modesto City Schools District ("the District"). Plaintiff is mentally disabled; she has been diagnosed with autism or an "autistic-like condition." Plaintiff is also African-American. Although she is learning disabled, Plaintiff has made progress toward normal functioning on an academic level and improving her ability to handle new events.
Plaintiff was a student in the District for several years before the events at issue occurred. As a disabled student, Plaintiff, through her parents, requested and received from the District an Individualized Education Program ("IEP") as required by the Individuals with Disabilities in Education Act ("IDEA"). Pursuant to the IEP, meetings between Plaintiff, her parents and District officials were periodically held. Plaintiff was assessed and was progressing through the public school system in the District. As part of her IEP, Plaintiff was assigned an aide while at school.
In September 2003, Plaintiff began the seventh grade at La Loma Junior High School in Modesto. Plaintiff's teacher was Defendant Paula Lentine and Plaintiff was again assigned an aide, Defendant Dawn Melead. The District's special education director, Defendant Camille Taylor, was supposed to handle Plaintiff's transition to La Loma but failed to perform the necessary tasks to ensure a smooth transition.
On or about September 5, 2003, Plaintiff was in a new classroom and was confronted with new sounds, new students and some teasing. Plaintiff may have reacted in an aggressive manner, which is predictable for someone with Plaintiff's disability. Defendant Melead did not react properly and aggravated the situation. She brought Plaintiff to the school office where she was mishandled by Defendants Red Balfour and Mike Henderson, the principal and assistant principal, and others. Defendant Officer Urquhart was also on the scene and Plaintiff grew more aggressive when confronted by the officer.
Plaintiff alleges that Officer Urquhart had not received proper training on how to handle persons with disabilities and that, as a result, Officer Urquhart panicked and pepper-sprayed Plaintiff in her face. Plaintiff alleges that this force was excessive given the available options within the use of force continuum.
Two other incidents occurred during September of 2003. During one incident, Defendant Lentine reminded Plaintiff of the pepper-spray incident, which greatly upset Plaintiff. On September 25, 2003, Plaintiff was taken from her classroom by Defendant Balfour and Defendant Julie Myers, the other assistant principal. Plaintiff begged Defendants Balfour and Myers not to see the police and she grew agitated upon seeing Officer Urquhart. Officer Urquhart proceeded to handcuff Plaintiff, which in addition to being humiliating, aggravated the situation.
Plaintiff was suspended from school after this incident. On September 29, 2003, Plaintiff's mother met with Defendant Mary Jackson, the District's SELPA Director, in an emergency IEP for placement. Defendant Jackson had advised Plaintiff's parents that such a placement was necessary for Plaintiff to continue receiving special education services. Plaintiff's parents signed the IEP under duress, having been told that if they did not, no services would be provided to Plaintiff.
Plaintiff's parents complained verbally about this action in September and October of 2003. Plaintiff's parents subsequently complained about the District's conduct in this regard by written memo. Plaintiff's parents asserted that Plaintiff was being treated differently both because she is disabled and because she is African-American. In October of 2003, Plaintiff's father wrote a memo to the District that was sent to the California Department of Education. This memo detailed Plaintiff's efforts, through her parents, to obtain academic records and that those efforts had been frustrated. Plaintiff's father also informed the District that it was out of compliance with the IEP, and a copy of this notice was sent to the Department of Education. In sum, Plaintiff's parents made various complaints to the District regarding Plaintiff's treatment and situation through January of 2004.
While Plaintiff was a Modesto resident she and her mother moved to Turlock during a temporary separation of Plaintiff's parents. District Defendants attempted to disqualify Plaintiff as a student in the District based on her residency, despite the fact that Plaintiff's father resided in Modesto. Plaintiff believes these efforts were in retaliation for the complaints being made by Plaintiff, through her parents.
District Defendants' efforts to disqualify Plaintiff as a student were successful. The District and its superintendent, Defendant Jim Pfaff, "dropped" Plaintiff as a student and stopped providing her with special education services as of December 5, 2003. Plaintiff's parents exercised their due process rights and filed a motion to allow Plaintiff to remain in the District. Plaintiff also demanded that she receive speech education five days per week, counseling for the trauma she experienced at La Loma three days per week, private tutoring, medical services and home schooling.
Plaintiff and the District both filed actions with the Special Education Hearing Office. On or about March 4, 2004, the matters settled and a settlement agreement was signed. The terms of the settlement are confidential, although it did not prohibit the filing of a tort claim.
II. Procedural History
On September 20, 2004, Plaintiff filed her Complaint, which alleges seven causes of action. The Complaint specifies that all individual District Defendants are sued in their individual and official capacities except for Defendants Wasden and Enochs, who are specifically sued in only their official capacity. Compl. ¶¶ 8, 13, 18.
The first cause of action is a section 1983 claim against all Defendants and is based on violations of Plaintiff's rights under the First, Fourth, Fifth, Eighth and Fourteenth Amendments. Plaintiff alleges that all Defendants "ratified and condoned the conduct of the individual defendants" and that the "supervisory defendants set the official policies, customs, and practices for the two municipal entities that were the moving force behind Plaintiff's constitutional injuries." Compl. ¶ 37. Plaintiff alleges that District Defendants retaliated against her for her complaints about matters of public concern. Plaintiff also alleges that Defendants failed to properly train, supervise and otherwise prepare officers employed by the Modesto Police Department to deal with disabled students such as Plaintiff. Compl. ¶ 37.
The second cause of action is a section 1983 claim against those District Defendants considered "supervisory" and is based on violations of Plaintiff's rights under the First, Fourth, Fifth, Eighth and Fourteenth Amendments. It repeats the allegation in claim one that these defendants ratified the conduct of other District Defendants and set the official policies, customs and practices that were the moving force behind Plaintiff's constitutional injuries. Compl. ¶ 40.
These are defined as Defendants Wasden, Jackson, Taylor, Enoch and Pfaff. Compl. ¶ 40.
The third cause of action is for violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101, et seq., and is against the District only. Plaintiff alleges that she is a qualifying disabled person and that she was excluded from participation in and denied benefits of the District's services, programs or activities. Plaintiff alleges that she was discriminated against because of her disability or because of complaints made by Plaintiff's parents on her behalf.
The fourth cause of action is for violation of the Rehabilitation Act, 29 U.S.C. §§ 794 et seq., and is against the District only. Plaintiff alleges that she is disabled as defined by the Act and that she was denied the reasonable accommodations requested. These accommodations would not have required a fundamental or substantial modification of the District's programs or standards. They also would have enabled Plaintiff to meet the requirements of the District's programs and would have prevented Plaintiff's suspension because the failure of the District to reasonably accommodate Plaintiff led directly to her outbursts and subsequent suspension.
The fifth cause of action is for intentional infliction of emotional distress ("IIED") and is against the individual Defendants. Plaintiff alleges that Defendants' conduct was outrageous and caused Plaintiff emotional distress. Plaintiff seeks punitive damages under this claim, alleging that the conduct was oppressive and malicious.
The sixth and seventh causes of action are for violation of the California Constitution and various state statutes and for assault and battery. They are against Officer Urquhart and Doe Defendants only and are not at issue at this time.
The Complaint seeks general and compensatory damages, punitive damages against the individually-named defendants, interest, fees and costs. The Complaint also seeks injunctive relief, as will be discussed infra.
The City of Modesto and Defendants Wasden and Urquhart filed an answer to the Complaint. These parties have not joined in the current motion.
District Defendants filed a motion to dismiss or, in the alternative, for a more definite statement. Defendant Red Balfour joined in this motion. See Doc. 23.
III. Legal Standards
A. Motion to Dismiss
Dismissal of a complaint pursuant to Rule 12(b)(6) is proper if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief."Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957). In testing the sufficiency of a complaint against a Rule 12(b)(6) challenge, a court must "accept all material allegations in the complaint as true and construe them in the light most favorable to the plaintiff." North Star Int'l v. Arizona Corp. Comm'n, 720 F.2d 578, 580 (9th Cir. 1983). The Court need not, however, "accept legal conclusions cast in the form of factual allegations if those conclusions cannot reasonably be drawn from the facts alleged." Clegg v. Cult Awareness Network, 18 F.3d 752 (9th Cir. 1994).
A complaint may be dismissed as a matter of law if there is a lack of a cognizable legal theory or if there are insufficient facts alleged under a cognizable legal theory. Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990). The Court must determine whether or not it appears to a certainty under existing law that no relief can be granted under any set of facts that might be proved in support of a plaintiff's claims.De La Crux v. Tormey, 582 F.2d 45, 48 (9th Cir. 1978), cert. denied, 441 U.S. 965, 99 S. Ct. 2416, 60 L. Ed. 2d 1072 (1979).
B. Motion For a More Definite Statement
Rule 12(e) allows for a motion for a more definite statement if the pleading "is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading." Fed.R.Civ.P. 12(e). Motions for a more definite statement are disfavored, but are within the Court's discretion and may be appropriate in certain situations. "[P]roper pleading under Rule 8 requires a pleading to contain allegations of each element of the claim. If it does not, and if the deficiency is not so material that the pleading should be dismissed under Rule 12(b)(6), a more definite statement is appropriate." 2 Moore's Federal Practice, § 12.36[1] (Matthew Bender 3d ed.). However, "where the information sought by the moving party is available and/or properly sought through discovery the motion [for a more definite statement] should be denied." Famolare, Inc. v. Edison Bros. Stores, Inc., 525 F. Supp. 940, 950 (E.D. Cal. 1981).
III. Discussion
A. Fifth Eighth Amendment Theories
Plaintiff concedes that her section 1983 claims fail to the extent they are based on violation of her rights under the Fifth and Eighth Amendments to the United States Constitution. None of the District Defendants are federal actors to whom the Fifth Amendment applies, see Lee v. City of Los Angeles, 250 F.3d 668, 687 (9th Cir. 1994), and Plaintiff was not arrested or subjected to cruel and unusual punishment such that the Eighth Amendment would apply. Id. To the extent claims one and two are based on the Fifth and Eighth Amendments, they are DISMISSED WITH PREJUDICE as against all Defendants.
B. Eleventh Amendment Capacity Issues
1. Claim One As Against the District
Plaintiff concedes that her claims for money damages under section 1983 against the District are barred by the Eleventh Amendment. See Belanger v. Madera Unified Sch. Dist., 963 F.2d 248, 251 (9th Cir. 1992). As a state agency, the District is not a "person" within the meaning of section 1983. Will v. Michigan Dep't of State Police, 491 U.S. 58, 70-71 (1989).
As the District is not subject to suit under section 1983, claim one is hereby DISMISSED WITH PREJUDICE as against the District.
2. Claims One and Two For Monetary Damages As Against District Defendants Sued in Official Capacities
The Eleventh Amendment's prohibition of money damages applies both to entities and to individuals who are sued in their official capacities. See Belanger, 963 F.2d at 251 (9th Cir. 1992); Cole v. Oroville Union High Sch. Dist., 228 F.3d 1092, 1100 n. 4 (9th Cir. 2000). To the extent claims one and two seek monetary damages against the individual District Defendants sued in their official capacities they are DISMISSED WITH PREJUDICE.
3. Claim Five As Against Individual District Defendants Sued in Official Capacities
District Defendants argue that to the extent Plaintiff's fifth claim for relief is against the individual District Defendants in their official capacities, it must be dismissed with prejudice. As discussed in the previous section, money damages are not available against individuals sued in their official capacity. Under the Ex parte Young exception, suits seeking prospective injunctive relief against individuals in their official capacities for violations of federal statutory and constitutional rights are permitted. Emma C. v. Eastin, 985 F. Supp. 940, 946 n. 8 (N.D. Cal. 1997). The exception does not, however, apply to suits "seeking relief against state officials for violations of state law." Id. at 946.
Claim five is a state law tort claim. Accordingly, to the extent claim five seeks monetary and injunctive relief against the individual District Defendants sued in their official capacities, it is prohibited. Claim five is DISMISSED WITH PREJUDICE as against the individual District Defendants sued in their official capacities.
C. Subject Matter Jurisdiction Regarding Special Education Allegations
District Defendants argue that to the extent Plaintiff's section 1983, ADA and Rehabilitation act claims (one through four) are based on certain special education allegations, they must be dismissed because they fall within the Individuals with Disabilities Education Act ("IDEA") and require exhaustion of administrative remedies, which District Defendants argue is lacking. Failure to exhaust administrative remedies deprives a court of subject matter jurisdiction. District Defendants acknowledge that, to the extent Plaintiff's claims are based on physical violations and seek monetary relief, they are not within the IDEA and do not require exhaustion.
1. The Exhaustion Requirement
A plaintiff is generally not required to exhaust administrative remedies prior to seeking relief pursuant to the Rehabilitation Act, see King v. County of Los Angeles, 633 F.2d 876, 879 (9th Cir. 1980), or Title II of the ADA, see Bogovich v. Sandoval, 189 F.3d 999, 1002 (9th Cir. 1999). An exception to this general rule is if a plaintiff is "seeking relief that is also available" under the IDEA. The IDEA specifies that:
Nothing in this title shall be construed to restrict or limit the rights, procedures, and remedies available under the Constitution, the Americans with Disabilities Act of 1990, Title V of the Rehabilitation Act of 1973, or other Federal Laws protecting the rights of children with disabilities, except that before the filing of a civil action under such laws seeking relief that is also available under this part, the procedure under subsections (f) and (g) shall be exhausted to the same extent as would be required had the action been brought under this part.20 U.S.C. § 1415(1) (emphasis added).
The purpose of the IDEA is to "ensure that all children with disabilities have available to them a free appropriate public education that emphasizes special education and related services designed to meet their unique needs . . . [and] to ensure that the rights of children with disabilities and parents of such children are protected." Robb v. Bethel Sch. Dist. No. 40, 308 F.3d 1047, 1049 (9th Cir. 2002) (quoting 20 U.S.C. § 1400(d)). The IDEA provides procedural protections to this end in that:
Parents are entitled to (1) examination of all relevant records pertaining to evaluation and educational placement of their child; (2) prior written notice whenever the responsible educational agency proposes, or refuses, to change the child's placement; (3) an opportunity to present complaints concerning any aspect of the local agency's provision of a free appropriate public education; and (4) an opportunity for an impartial due process hearing with respect to such complaints.Id. (citing Honig v. Doe, 484 U.S. 305, 311-12, 98 L. Ed. 2d 686, 108 S. Ct. 592 (1998)). "If a hearing is held by a state agency, as is the case in California, any party dissatisfied with the result may file a civil action." Christopher S. v. Stanislaus County Office of Educ., 384 F.3d 1205, 1210 (9th Cir. 2004). Money damages are not a remedy available under the IDEA. Witte v. Clark County Sch. Dist., 197 F.3d 1271, 1275 (9th Cir. 1999).
In Robb, 308 F.3d at 1049, the Ninth Circuit held that "a plaintiff cannot avoid the IDEA's exhaustion requirement merely by limiting a prayer for relief to money damages." The court defined "available relief" to mean relief suitable to remedy the wrong done and it may not necessarily be the relief sought by the plaintiff. Id. The court stated that the "dispositive question generally is whether the plaintiff has alleged injuries that could be redressed to any degree by the IDEA's administrative procedures and remedies. If so, exhaustion is required." Id. at 1050. If the determination of whether a remedy is available under the IDEA is unclear, exhaustion is required so that educational agencies are first given a chance to "ascertain and alleviate the alleged problem." Id.
2. Plaintiff's Special Education Allegations
Plaintiff states seven special education allegations regarding the District's failure to meet her special education needs: (1) Defendant Taylor did not adequately prepare for Plaintiff's transfer to La Loma, Compl. ¶ 20; (2) Plaintiff was wrongfully deprived of most IEP-mandated services after September 25, 2003, Compl. ¶ 27; (3) Plaintiff was wrongfully suspended, Compl. ¶ 24; (4) Plaintiff's parents were coerced into agreeing to an improper emergency IEP, Compl. ¶ 24; (5) Plaintiff's parents were wrongfully refused access to Plaintiff's school records, Compl. ¶ 24; (6) efforts were made to wrongfully disqualify Plaintiff from special education services based on Plaintiff's residency, Compl. ¶¶ 27-28; and (7) Plaintiff's special education services were wrongfully terminated on December 5, 2003. Compl. ¶ 28.
District Defendants have characterized these allegations as separate "claims" and list these allegations as claims 4-10. Defs.' Reply at 2. To avoid confusing Plaintiff's claims with her causes of action/claims for relief, the court declines to follow this labeling and will label these "special education allegations." Special education allegations one through seven correspond with Defendants' "claims" four through ten.
3. Are Plaintiff's Allegations Within the IDEA?
District Defendants argue that Plaintiff's special education allegations fall within the scope of IDEA remedies because they can be redressed within the scheme of the IDEA. Defendants assert that special education allegations one, two, three, four, six and seven constitute complaints that Plaintiff was not provided with appropriate special education services as required by the IDEA. Defendants also argue that special education allegation four, that Plaintiff's parents were forced to sign an emergency IEP, is a complaint that Plaintiff's parents were not allowed to participate meaningfully in Plaintiff's special education needs as provided by the IDEA. Defendants assert that special education allegation five, that Plaintiff's parents were wrongfully refused Plaintiff's school records, is a violation of the IDEA, 20 U.S.C. § 1415(g), and can be redressed by the IDEA.
Plaintiff argues in response that she is seeking remedies other than those provided for in the IDEA in that her claims for injunctive relief relate only to her section 1983 claim and not to her claims under the ADA and the Rehabilitation Act. Both arguments are unavailing. By its terms, section 1514(1) of the IDEA applies to all federal statutes, including section 1983. Additionally, as the court held in Robb, the question is not whether the remedy sought by Plaintiff is available under the IDEA, but whether the claims can be redressed under IDEA.
The Court agrees with Defendants that, with one exception, Plaintiff's special education allegations constitute injuries that can be redressed within the IDEA. See generally, 20 U.S.C. § 1414(d) (regarding IEPs); Robb, 308 F.2d at 1049 (stating procedural safeguards of the IDEA permit parental involvement and that parents are entitled to review relevant records). Special education allegations one, two, four, five, six and seven specifically relate to Plaintiff's special education program are within the scope of IDEA remedies.
The Court is unconvinced, however, that Plaintiff's special education allegation four, that she was wrongfully suspended, falls within the scope of the IDEA. Defendants have cited no authority for the proposition that a claim of wrongful suspension is within the scope of IDEA. The wrongful suspension allegation appears to have little if anything to do with Plaintiff's rights as a special education student versus her rights as a student generally; construing the facts most favorably to the Plaintiff, special education allegation four is outside the IDEA.
To the extent the injuries alleged in Plaintiff's special education allegations could have been redressed within the scope of the IDEA, Plaintiff was required to exhaust her administrative remedies before bringing a civil action.
4. Settlement as Exhaustion
Plaintiff asserts that the confidential settlement agreement between her parents on her behalf and the District Defendants sufficed to exhaust her administrative remedies. District Defendants argue that a hearing is required in order for administrative remedies to be exhausted and that, because there was a settlement, Plaintiff is not an "aggrieved" party entitled to appeal. District Defendants also argue that even if the settlement agreement were sufficient, parties cannot consent to waive subject matter jurisdiction.
The Ninth Circuit has not specifically addressed the issue of whether a settlement agreement may be sufficient for exhaustion in an IDEA case. Two district courts have reached differing results. In Woods v. New Jersey Dep't of Educ., 796 F. Supp. 767, 776 (D.N.J. 1992), the parties reached a settlement after the hearing had begun. The settlement agreement was approved by an ALJ, who stated the settlement was voluntary, fully disposed of all the issues, and was final and appealable. Id. The court stated that it had subject matter jurisdiction under 20 U.S.C. § 1415 because the plaintiff was "aggrieved by the findings and decision of the ALJ" in the settlement agreement. In contrast, inHamilton v. Bd. of Sch. Comm'rs, 993 F. Supp. 884, 890 (D. Ala. 1996), aff'd without opinion, 112 F.3d 1172 (11th Cir. 1997), the court found that a settlement agreement was not tantamount to exhaustion. The court stated that it was unlike the case in Woods because the settlement agreement was entered into prior to any hearing being conducted and was not approved by an ALJ.
In order to evaluate what, if any, effect the settlement agreement in this case might have, the Court requested that the parties submit a copy of the settlement agreement. The agreement was submitted under seal and it unnecessary to disclose the contents. As in Hamilton and unlike the case in Woods, the settlement agreement in this case was not entered into after hearings had begun and it was not approved of by an ALJ or other official. Because no hearing was conducted as to Plaintiff's IDEA related issues, she is not an aggrieved party under the statute and her administrative remedies have not been exhausted. See also Weber v. Cranston Sch. Comm., 212 F.3d 41, 53 (1st Cir. 2000) (finding that only hearing will exhaust administrative remedies under IDEA).
Although a document outside the pleadings, consideration of the settlement agreement is proper. See Branch v. Tunnel, 14 F.3d 449, 454-55 (9th Cir. 1994) (stating that court may consider documents whose contents are alleged in complaint on motion to dismiss); Schwarzer, Tashima Wagstaffe, Cal. Prac. Guide: Fed. Civ. Pro. Before Trial § 9:85, p. 9-21 (The Rutter Group 2005).
To the extent Plaintiff's section 1983, ADA and rehabilitation act claims are based on special education allegations 1-3 and 5-7, they are DISMISSED WITH PREJUDICE.
Because 20 U.S.C. § 1415(1) requires exhaustion "before the filing of a civil action," it would be inappropriate to grant leave to amend in the event that Plaintiff subsequently exhausts her administrative remedies.
D. Plaintiff's Remaining Federal Claims
To state a claim under section 1983 a plaintiff must allege a deprivation of a federal or Constitutional right by a person acting under color of state law. 18 U.S.C. § 1983.
1. Substantive Due Process Violation — Claims One Two
a. Behavior that Shocks the Conscience
District Defendants argue that the facts alleged are insufficient to support a claim for violation of Plaintiff's substantive due process rights as asserted in the first and second causes of action. District Defendants argue that the pepper-spray and handcuffing actions in this case do not "shock the conscience" so as to state a claim for violation of substantive due process. District Defendants also argue that even those allegations are sufficient to allege a due process violation, they are not personally alleged against any of the District Defendants and Plaintiff's allegation of conspiracy is insufficient.
Students have a constitutional right under the Fourteenth Amendment to be free from violations of bodily integrity, including "freedom from excessive physical abuse by school employees." Plumeau v. Sch. Dist. No. 40, 130 F.3d 432, 438 (9th Cir. 1997) (quoting Ingraham v. Wright, 430 U.S. 651, 674, 51 L. Ed. 2d 711, 97 S. Ct. 1401 (1977)). Although in Graham v. Connor, 490 U.S. 386, 394-95, 104 L. Ed. 2d 443, 109 S. Ct. 1865 (1989), the Supreme Court held that claims of excessive force are to be analyzed under the Fourth Amendment's objective reasonableness standard, as recently as 2001 the Ninth Circuit reiterated that claims not involving an arrest or custodial situation and claims by students asserting the right to be free of violations of bodily integrity remain within the purview of the Fourteenth Amendment. Fontana v. Haskin, 262 F.3d 871, 882 (9th Cir. 2001).
The threshold question in a substantive due process claim is "whether the behavior of the governmental officer is so egregious, so outrageous, that it may fairly be said to shock to contemporary conscience." Id. at 882 n. 7 (quoting County of Sacramento v. Lewis, 523 U.S. 833, 846, 140 L. Ed. 2d 1043, 118 S. Ct. 1708 (1998)).
The facts as alleged by Plaintiff that might, if proven, "shock the conscience" are as follows: the use of pepper-spray by Officer Urquhart; the restraint of Plaintiff in handcuffs, also by Officer Urquhart; the mishandling of Plaintiff by Defendants Balfour and Henderson as they removed Plaintiff from her classroom; the under-training and overreaction of Defendant Melead, Plaintiff's aide, to Plaintiff's reaction to being teased and in a new environment; the reminding of the pepper-spray incident by Plaintiff's teacher; and Defendants Balfour and Myers' ignoring of Plaintiff's pleas not to see the police.
This conduct, at this stage in the litigation, is sufficient to state a claim for a substantive due process violation. That school officials and/or a police officer working with school officials would use pepper-spray and handcuffs to restrain a thirteen year old mentally disabled child is shocking. The cases cited by District Defendants, neither of which is binding authority, in support of their argument that the behavior complained of does not shock the conscience are not persuasive at this point. Defs.' Mot. at 9 (citing Costello v. Mitchell Pub. Sch. Dist. 79, 266 F.3d 916, 919 (8th Cir. 2001); Abeyta v. Chama Valley Indep. Sch. Dist., 77 F.3d 1253, 1258 (10th Cir. 1996)). Both were procedurally dissimilar; they involved motions for summary judgment rather than dismissal. Both cases are also factually distinguishable; they involved allegations of name-calling by teachers and other generally unprofessional behavior that did not physically harm the students involved.
Where Plaintiff's section 1983 claims fail as to this issue is in the allegation of conspiracy. To state conspiracy sufficient to survive a motion to dismiss, a plaintiff must plead specific facts to support the existence of the alleged conspiracy. Burns v. County of King, 883 F.2d 819, 821 (9th Cir. 1989);Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 626 (9th Cir. 1988) (stating that a "mere allegation of conspiracy without factual specificity is insufficient"). The Complaint makes the following allegations:
34. Plaintiff is informed and believes that the acts by the individual defendants, as described above, were part of an agreement or a concerted course of conduct, with the goal being to harm or injury the plaintiff.
35. Plaintiff was injured as a direct result of the efforts by the individual defendants who acted in furtherance of the conspiracy or agreement to damage or injure Plaintiff.
Compl. ¶¶ 34-35. There are no factual allegations in the Complaint to support the conspiracy allegation; indeed, the most serious of the actions, the pepper-spray incident, is alleged by Plaintiff to be the result of Officer Urquhart's panicking, not an agreement to harm Plaintiff. Compl. ¶ 22.
If the allegations not personally alleged against District Defendants are removed from the above equation, the remaining allegations do not "shock the contemporary conscience" sufficient to support a claim of a substantive due process violation.
b. Failure to Protect
In her opposition Plaintiff puts forth an alternate theory that is sufficiently pleaded. Section 1983 liability may lie where there is an affirmative duty to protect on the part of the defendant in a school abuse case. See Plumeau, 130 F.3d at 438 (upholding summary judgment where plaintiffs failed to show issue of material fact regarding, inter alia, an "affirmative duty to protect"); see also Balistreri, 901 F.2d at 699-700 (noting that duty to protect may arise by virtue of a special relationship). Here, Plaintiff argues that District Defendants had a duty to protect Plaintiff, a mentally disabled minor, from the use of excessive force by Officer Urquhart because of their special relationship with Plaintiff. District Defendants did not address this issue in their reply. Plaintiff's allegations regarding failure to protect are sufficient to state a substantive due process claim.
In sum, to the extent claims one and two for violation of Plaintiff's substantive due process rights rely on the alleged conspiracy to show behavior that shocks the conscience, the facts alleged are insufficient and claims one and two are DISMISSED to that extent. However, to the extent claims one and two are based on the failure to protect theory, they are sufficient and the motion to dismiss is DENIED. Plaintiff is granted leave to amend her complaint to include facts regarding conspiracy and/or behavior that "shocks the contemporary conscience."
2. Procedural Due Process Violation — Claims One Two
District Defendants argue that Plaintiff has not sufficiently pleaded a claim for a procedural due process violation. Plaintiff did not specifically address this in her opposition and it appears from the Complaint that Plaintiff is raising a substantive due process claim only. Accordingly, to the extent claims one and two are based on the violation of Plaintiff's procedural due process rights, they are DISMISSED with leave to amend.
3. Equal Protection
To state a claim for violation of the equal protection clause of the Fourteenth Amendment a plaintiff must allege that she was treated differently from other similarly situated persons. City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439, 87 L. Ed. 2d 313, 105 S. Ct. 3249 (1985); Willowbrook v. Olech, 528 U.S. 562, 564, 145 L. Ed. 2d 1060, 120 S. Ct. 1073 (allowing for equal protection claim by "`class of one' where the plaintiff alleges that she has been intentionally treated differently from others similarly situated and there is no rational basis for the difference in treatment") .
The Complaint alleges that "Plaintiff through her parents complained about the perception that Plaintiff was being treated differently not only because she is disabled but also because she is black, or African-American." Compl. ¶ 24. District Defendants argue that this assertion is insufficient because it is based on a "perception" and does not allege "that any of the actions taken by the Defendants occurred because of racial animus." While this allegation may not be as crystalline as might be desired, given the liberal pleading standards and taking the facts alleged in the Complaint as true, it can be inferred from the statements made by Plaintiff's parents and the facts in the Complaint as a whole that Plaintiff was treated differently based on her race and/or status as a disabled student. To the extent Plaintiff's section 1983 claims are based on an equal protection theory, they are sufficient and District Defendants motion to dismiss on this basis is DENIED.
In sum, District Defendants' motion to dismiss Plaintiff's section 1983 claims is GRANTED IN PART AND DENIED IN PART.
4. Motion for a More Definite Statement
District Defendants argue that the Complaint is vague and uncertain and object to Plaintiff's reference to the first and fourteenth amendments "without clarification about which portions of which Amendments are supposed to apply to which items on her undifferentiated laundry list of fact allegations." Defs.' Reply at 13. Defendants fail to cite a case in which such pleading was found to be insufficient and admit that a Plaintiff is not required to specify a particular legal theory.
A motion for a more definite statement is inappropriate here. It cannot be said that Plaintiff's Complaint is "so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading." Fed.R.Civ.P. 12(e). The allegations in the Complaint are sufficient to enable a defendant to, at the very least, discern the general basis for Plaintiff's claims and frame a general denial.
E. Intentional Infliction of Emotional Distress
To state a claim for IIED, a plaintiff must allege that "(1) the defendant engaged in extreme or outrageous conduct with the intention of causing, or reckless disregard of the probability of causing, severe emotional distress to the plaintiff; (2) the plaintiff actually suffered severe or extreme emotional distress; and (3) the outrageous conduct was the actual and proximate cause of the emotional distress." Ross v. Creel Pub. Co., Inc., 100 Cal. App. 4th 736, 744-45 (2002). "Outrageous conduct" is that which is "so extreme as to exceed all bounds of that usually tolerated in a civilized community." Id. at 745.
District Defendants argue that Plaintiff's factual allegations do not rise to the level of "extreme and outrageous" conduct required to state a claim for IIED, largely due to the insufficiency of Plaintiff's conspiracy allegation, discussedsupra. District Defendants do not cite any cases in which IIED has or has not been sufficiently stated to contrast with Plaintiff's allegations.
Here, Plaintiff's teacher, Defendant Letine, taunted the mentally disabled child about a traumatic incident, the use of the pepper spray, and threatened Plaintiff with its repeated use. Other District Defendants threatened Plaintiff with seeing the police and intentionally brought Plaintiff to Officer Urquhart a second time despite her pleas not to see the police.
Even ignoring the fact that Plaintiff was placed in handcuffs at the hands of Officer Urquhart, at this stage in the litigation, this sort of conduct, particularly by school officials who are entrusted with the care of hundreds of children, is sufficient to state a claim for IIED. Defendants' motion to dismiss claim five as against the individual District Defendants in their individual capacities is DENIED.
F. Injunctive Relief
District Defendants argue that Plaintiff lacks standing to seek the injunctive relief delineated in the Complaint. The Complaint seeks an injunction in the form of an order requiring Defendants: 1) stop all harassing acts aimed at Plaintiff and persons affiliated with her; 2) retrain the individually named defendants regarding the handling of disabled children; 3) cease using real or implied threats of violence in police work; 4) terminate all of the individually named defendants with a history of similar malfeasance; 5) permit Plaintiff to re-enter the District and provide reasonable accommodation for her; 6) permit Plaintiff's parents reasonable access to their daughter, her academic records within the District and her teacher and aides; and 7) end the pattern or practice of retaliation against persons who complain about the District or is employees.
Standing to seek injunctive relief under Article III of the Constitution requires that a party demonstrate an "injury that is actual or imminent, not conjectural or hypothetical. In the context of injunctive relief, the plaintiff must demonstrate a real or immediate threat of an irreparable injury." Hangarter v. Provident Life Accident Ins. Co., 373 F.3d 998, 1021-22 (9th Cir. 2004) (quoting Clark v. City of Lakewood, 259 F.3d 996, 1007 (9th Cir. 2001)). In Hangarter, the district court ordered the defendants to "obey the law refrain from future violations, including, but not limited to, targeting categories of claims or claimants, employing biased medical examiners, destroying medical reports, and withholding from claimants information about their benefits." Id. The Ninth Circuit reversed the injunction because the plaintiff was not threatened by the defendant's conduct. Id.
Here, District Defendants argue that Plaintiff has failed to plead facts that support an inference that there are any on-going violations of her own or her parents' rights or that there is any imminent threats of harm. Plaintiff did not respond to this argument in her opposition. The Court agrees with District Defendants. Because Plaintiff lacks standing to seek injunctive relief, her claims are DISMISSED with leave to amend to the extent they seek injunctive relief.
Plaintiff's section 1983 claims as against the individual District Defendants in their official capacities rise and fall with Plaintiff's ability to seek injunctive relief, as money damages are not available against those defendants. In her amended Complaint Plaintiff may include the individual District Defendants in her section 1983 claim only if she also requests injunctive relief.
ACCORDINGLY, IT IS ORDERED that the motion for a more definite statement is DENIED and the motion to dismiss is GRANTED IN PART AND DENIED IN PART as follows:
To the extent they are based on violations of the Fifth and Eighth Amendments, Plaintiff's first and second causes of action are DISMISSED WITH PREJUDICE as to all Defendants.
To the extent they seek injunctive relief, Plaintiff's causes of action are DISMISSED with leave to amend as to all District Defendants.
To the extent they are based on special education allegations 1-3 and 5-7, Plaintiff's first, second, third and fourth causes of action are DISMISSED WITH PREJUDICE as to District Defendants.
As to Defendant District: Plaintiff's first cause of action is DISMISSED WITH PREJUDICE.
As to individual District Defendants sued in their official capacities: to the extent Plaintiff's first and second causes of action seek monetary relief they are DISMISSED WITH PREJUDICE; Plaintiff's fifth cause of action is DISMISSED WITH PREJUDICE; and to the extent Plaintiff's first and second causes of action seek injunctive relief and are insufficiently alleged under the Fourteenth Amendment as set forth above, they are DISMISSED with leave to amend.
As to individual District Defendants sued in their individual capacities: to the extent Plaintiff's first and second causes of action are insufficiently alleged under the Fourteenth Amendment as set forth above, they are DISMISSED with leave to amend; Defendants' motion to dismiss the fifth cause of action is DENIED. To the extent Plaintiff's first and second causes of action are based on the First Amendment and the substantive due process/equal protection components of the Fourteenth Amendment, District Defendants' motion to dismiss is DENIED.
FURTHER ORDERED that Plaintiff's amended complaint shall be filed in 30 business days.
IT IS SO ORDERED.