Hollander v. Rainier Sch. Dist.

Full title: JONATHAN HOLLANDER, Plaintiff, v. RAINIER SCHOOL DISTRICT, Defendant.

Court: UNITED STATES DISTRICT COURT DISTRICT OF OREGON PORTLAND DIVISION

Date published: Mar 22, 2013

No. 3:11-cv-01200-HU (D. Or. Mar. 22, 2013)

Opinion

No. 3:11-cv-01200-HU

03-22-2013

JONATHAN HOLLANDER, Plaintiff, v. RAINIER SCHOOL DISTRICT, Defendant.

Jonathan Hollander Plaintiff Pro Se Steven A. Kraemer Leslie A. Edenhofer HART WAGNER LLP Attorneys for Defendant Rainier School District

DENNIS J. HUBEL

OPINION AND

ORDER

Jonathan Hollander

Plaintiff Pro Se Steven A. Kraemer
Leslie A. Edenhofer

HART WAGNER LLP

Attorneys for Defendant

Rainier School District
HUBEL, Magistrate Judge:

Plaintiff Jonathan Hollander ("Plaintiff"), father of two children who attend public school in Rainier, Oregon, brings this action against Defendant Rainier School District ("Defendant"), alleging violations of 42 U.S.C. § 1983, the Fourteenth Amendment and section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, as well as state-law claims for defamation, and intentional and negligent infliction of emotional distress. Defendant moves to dismiss Plaintiff's amended complaint pursuant to Federal Rule of Civil Procedure ("Rule") 12(b)(1) for lack of subject matter jurisdiction or, alternatively, under Rule 12(b)(6) for failure to state a claim upon which relief can be granted. For the reasons that follow, Defendant's motion (Docket No. 31) to dismiss is GRANTED in part and DENIED in part.

Facts

These are the facts as recited in the amended complaint: Plaintiff is a retired disabled Navy veteran and resident of Rainier, Oregon whose children attend its public schools. In October 2009, Plaintiff noticed that Defendant removed his contact information for his children from its computer system. As a result, Plaintiff would not receive pertinent information regarding his children, nor was he able to attend school events "or play an active role [in] the lives of his children[.]" (FAC ¶ 5.)

On April 15, 2010, a county social worker inspected Plaintiff's home based on a complaint from an unidentified employee of Defendant. The social worker had been informed that Plaintiff's children no longer wanted to live with him because his residence contained "huge piles of guns, and illegal drugs." (FAC ¶ 6.) Ultimately, no guns or weapons were found, despite the fact that Plaintiff allowed the social worker to go on a 30-minute, self-guided tour of his home.

On October 28, 2010, Plaintiff joined one of his children for their biweekly lunch at school. At that time, Plaintiff's child said she wanted to stay at his house, not her grandparent's house (e.g., "a one bedroom, one bath cottage with 11 current occupants"), because she "hadn't seen her mother in days" and was being forced to sleep on the floor. (FAC ¶ 8.) Soon thereafter, Plaintiff went to the administration office at the school and filled out the appropriate paperwork in order for his child to be transported to his residence after school. Within ten minutes of departing from the school, an administrator left Plaintiff a voice mail indicating Plaintiff's ex-wife had been contacted and that Plaintiff's request was being denied because Plaintiff "wasn't on the emergency contact card," which meant that Plaintiff's daughter would have to ride her "normal" school bus home. (FAC ¶¶ 11, 14.)¹ On other occasions, Plaintiff claims Defendant's employees "would take the children home to stay with them," without Plaintiff's knowledge or consent. (FAC ¶ 16.)

1 Presumably, the school administrator contacted Plaintiff's ex-wife first because she has custody of the children, whereas Plaintiff is only permitted "specific days of visitation." (FAC ¶ 16); see generally Ortiz v. Ortiz, 310 Or. 644, 649, 801 P.2d 767 (1990) (explaining that, "in the context of divorced persons, 'custody' is the legal relationship between a minor child and the legal custodian, i.e., the person to whom the court has given the primary rights and responsibilities to supervise, care for, and educate the child; usually, that is the person with whom the child lives most of the time.")(emphasis added).

On December 11, 2010, "after exhausting all known remedies," Plaintiff met with the superintendent of the school district, Michael Carter, and explained "how the school staff had for years, intentionally interfered [with his access to] his children, and repeatedly ignored his parental rights." (FAC ¶¶ 19-21.) Mr. Carter "verified that the court order gave [him] 100% access to his children" during the meeting. (FAC ¶ 21.)

On February 21, 2011, Plaintiff's oldest daughter returned home from school with a pair of crutches, a knee brace, and a bottle of Vicodin in her backpack.² Neither the school district, nor any school official contacted Plaintiff regarding his daughter's injuries, even though she had to be taken to the emergency room. Plaintiff attributes this to the fact that his contact information was removed from Defendant's computer system. In order to rectify the situation, Plaintiff went to the school administration office and personally watched a school official type his contact information into the computer. Two days later, in late February 2011, Plaintiff returned and asked another school official to verify that his contact information had been entered. Much to his dismay, the school official was not able to locate Plaintiff's contact information in the computer database.

2 The amended complaint does not specify whether Plaintiff is referring to his home or his ex-wife's.

On July 7, 2011, Plaintiff was approached by his youngest daughter's softball coach, who informed Plaintiff that "several complaints had been filed by [Defendant's] employees alleging that [P]laintiff was rowdy, vulgar, a danger to children, a threat to other parents, and should be banned from attending all athletic events within the entire" school district. (FAC ¶ 29.) Although the softball coach did not echo these sentiments, he felt compelled to inform Plaintiff that he was "being watched by the director of [Defendant's] athletic department" and "casually pointed the man out" at the school-related sporting event. (FAC ¶ 29.)

Between July and September 2011, Plaintiff "received zero information from [Defendant] concerning his children and the upcoming school year" because his contact information was never reentered into the computer system. (FAC ¶ 29.) Based on Defendant's aforementioned actions, Plaintiff claims he "has suffered debilitating anxiety and severe depression" and "has been under the care of a physician for 2 years due to the mental anguish and incredible stress caused by the non-stop interference of [Defendant] into his family life, as well as the loss of years of companionship with his children." (FAC ¶¶ 31-32.)

Based on the foregoing actions taken by Defendant and its employees, Plaintiff claims that Defendant discriminated against him on the basis of his disability; however, nowhere does the amended complaint specify the nature of Plaintiff's disabilities other than to say they resulted from his military service. Likewise, there are no allegations that anyone at the school district had knowledge of the disabilities. The sole allegation about Plaintiff's disabilities is in paragraph 33 of the amended complaint, where Plaintiff alleges that his "military service, and the many disabilities caused by that service, were always used to propel the rumors of impending danger to [P]laintiff's children." (FAC ¶ 33.) There is no allegation the "rumors" were "propelled" by anyone at the school district pursuant to any policy or practice of the District.

Legal Standards

I. Rule 12(b)(1) Motion to Dismiss

Unlike a motion to dismiss for failure to state a claim, a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction

can attack the substance of a complaint's jurisdictional allegations despite their formal sufficiency, and in so doing rely on affidavits or any other evidence properly before the court. . . . It then becomes necessary for the party opposing the motion to present affidavits or any other evidence necessary to satisfy its burden of establishing that the court, in fact, possesses subject matter jurisdiction. The district court obviously does not abuse its discretion by looking to this extra-pleading material in deciding the issue, even if it becomes necessary to resolve factual disputes.

St. Clair v. City of Chico, 880 F.2d 199, 201 (9th Cir. 1989) (internal citations omitted); see also Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994) ("Federal courts are courts of limited jurisdiction. . . . It is to be presumed that a cause lies outside this limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting jurisdiction.")

II. Rule 12(b)(6) Motion to Dismiss

A court may dismiss a complaint for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6). In considering a Rule 12(b)(6) motion to dismiss, the court must accept all of the claimant's material factual allegations as true and view all facts in the light most favorable to the claimant. Reynolds v. Giusto, No. 08-CV-6261, 2009 WL 2523727, at *1 (D. Or. Aug. 18, 2009). The Supreme Court addressed the proper pleading standard under Rule 12(b)(6) in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). Twombly established the need to include facts sufficient in the pleadings to give proper notice of the claim and its basis: "While a complaint attacked [under] Rule 12(b)(6) . . . does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. at 555 (brackets omitted).

Since Twombly, the Supreme Court has clarified that the pleading standard announced therein is generally applicable to cases governed by the Rules, not only to those cases involving antitrust allegations. Ashcroft v. Iqbal,---U.S.---, 129 S. Ct. 1937, 1949 (2009). The Iqbal court explained that Twombly was guided by two specific principles. First, although the court must accept as true all facts asserted in a pleading, it need not accept as true any legal conclusion set forth in a pleading. Id. Second, the complaint must set forth facts supporting a plausible claim for relief and not merely a possible claim for relief. Id. The court instructed that "[d]etermining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 129 S. Ct. at 1949-50 (citing Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d Cir. 2007)). The court concluded: "While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Id. at 1950.

The Ninth Circuit further explained the Twombly-Iqbal standard in Moss v. U.S. Secret Service, 572 F.3d 962 (9th Cir. 2009). The Moss court reaffirmed the Iqbal holding that a "claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Moss, 572 F.3d at 969 (quoting Iqbal, 129 S. Ct. at 1949). The court in Moss concluded by stating: "In sum, for a complaint to survive a motion to dismiss, the non-conclusory factual content, and reasonable inference from that content must be plausibly suggestive of a claim entitling the plaintiff to relief." Moss, 572 F.3d at 969.

Analysis

I. The Domestic Relations Exception

Defendant argues that this case should be dismissed for lack of subject matter jurisdiction because it falls within the domestic relations exception to federal jurisdiction.

Long ago the Supreme Court recognized that, when the relief sought relates primarily to domestic relations, a doctrine referred to as the domestic relations exception divests federal courts of jurisdiction. See, e.g., In re Burrus, 136 U.S. 586, 593-94 (1890). As the Court more recently explained, "[s]o strong is our deference to state law in this area that we have recognized a domestic relations exception that divests the federal courts of power to issue divorce, alimony, and child custody decrees." Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 12-13 (2004) (citation and internal quotation marks omitted).

Defendant relies almost exclusively on Coats v. Woods, 819 F.2d 236 (9th Cir. 1987), in support of its position that the domestic relations exception applies here. In Coats, the plaintiff-mother brought an action under § 1983, alleging that her husband and others, including the Newport-Mesa School District, wrongfully deprived her of the custody of her two children. Id. at 236-37. At the time appeal was taken, the plaintiff also had two cases pending in state court; one involving the constitutional issues raised in the federal action and another focusing on state-law custody matters. Id. at 237. In affirming the district court's dismissal, the Ninth Circuit stated:

[F]ederal courts traditionally decline to exercise jurisdiction in domestic relations cases when the core issue involves the status of parent and child or husband and wife. . . .
. . . .
This case, while raising constitutional issues, is at its core a child custody dispute. The state courts have already considered the merits of [the plaintiff's] claims and have held that her former husband is entitled to custody. The district court was aptly reluctant to put itself in the position of having to review the state courts' custody decision. If the constitutional claims in the case have independent merit, the state courts are competent to hear them. Given the state courts' strong interest in domestic relations, we do not consider that the district court abused its discretion when it invoked the doctrine of abstention.

Id.

In the court's view, and contrary to Defendant's position, Coats did not rely on the domestic relations exception in affirming the dismissal of an action brought pursuant to § 1983. Rather, Coats' holding appears to be grounded on the abstention principles established in Younger v. Harris, 401 U.S. 37 (1971). Compare Columbia Basin Apartment Ass'n v. City of Pasco, 268 F.3d 791, 799 (9th Cir. 2001) ("Younger abstention is required if the state proceedings are (1) ongoing, (2) implicate important state interests, and (3) provide the plaintiff an adequate opportunity to litigate federal claims"), with Coats, 819 F.2d at 237 (concluding that "[t]he district court's application of the abstention doctrine was appropriate under" Peterson v. Babbitt, 708 F.2d 465 (9th Cir. 1983), wherein the court "affirmed the district court's dismissal of [a § 1983] case on the ground that plaintiff had pending state actions in which he could bring his constitutional claims and that the case itself raised issues of traditional state concern"), and United States v. Bailey, 115 F.3d 1222, 1231 (5th Cir. 1997) ("The domestic relations exception . . . has no application where . . . there exists an independent basis for federal jurisdiction.")

Unlike Coats, there is no allegation in this case by Defendant of any pending state proceeding. See generally Ankenbrandt v. Richards, 504 U.S. 689, 705 (1992) ("[W]e have never applied the notions of comity so critical to Younger's 'Our Federalism' when no state proceeding was pending . . . .") Rather, as Defendant points out, Plaintiff merely "refers to court orders regarding child custody in his Amended Complaint as well as alleged discussions with his ex-wife regarding child custody." (Def.'s Mem. Supp. at 3.)

In any event, Defendant's reliance on the domestic relations exception is particularly dubious in light of the Ninth Circuit's decision in Atwood v. Fort Peck Tribal Court Assiniboine, 513 F.3d 943 (9th Cir. 2008). Atwood involved a custody dispute concerning an Indian child. Id. at 945. The child's non-Indian father brought an action in federal court challenging the jurisdiction of the Fort Peck Tribal Court that granted temporary custody to the child's maternal grandmother. Id. The district court dismissed the case, relying on the domestic relations exception to subject matter jurisdiction. Id. On appeal, Atwood held "that the domestic relations exception, a doctrine divesting the federal courts of jurisdiction, applies only to the diversity jurisdiction statute, 28 U.S.C. § 1332, and that the district court erred by applying the domestic relations exception because federal question jurisdiction exists in th[at] case under 28 U.S.C. § 1331." Id.

"It is most true that this Court will not take jurisdiction if it should not: but it is equally true, that it must take jurisdiction if it should. . . . [The Court has] no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given." Marshall v. Marshall, 547 U.S. 293, 298-99 (2006) (citation omitted). As in Atwood, Plaintiff's § 1983 claim(s) and Rehabilitation Act claims present a clear basis for federal question jurisdiction under § 1331, thereby rendering the domestic relations exception inapplicable. See Brown v. Astrue, No. 10-cv-04826, 2012 WL 948926, at *3 (N.D. Cal. Mar. 20, 2012) ("As this case arises under the federal question jurisdiction statute, the domestic-relations exception has no application here.") Accordingly, Defendant's motion to dismiss is denied on this ground.

II. Failure to State a Claim

Defendant moves to dismiss each of Plaintiff's claims as presented in his first amended complaint. I will address these contentions in turn.

A. Rehabilitation Act Claims

Section 504 of the Rehabilitation Act provides in relevant part: "No otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance . . . ." 29 U.S.C. § 794(a). "Section 504 applies to all public schools that receive federal financial assistance." Mark H. v. Lemahieu, 513 F.3d 922, 929 (9th Cir. 2008).

To make out a prima facie case of disability discrimination under the Rehabilitation Act, Plaintiff must show that: (1) he is handicapped within the meaning of the Rehabilitation Act; (2) he is otherwise qualified for the benefit or services sought; (3) he was denied the benefit or services "solely by reason of" his handicap; and (4) the program providing the benefit or services receives federal financial assistance. Lovell v. Chandler, 303 F.3d 1039, 1052 (9th Cir. 2002).

Defendant argues that counts one and two of Plaintiff's amended complaint, both of which are styled as claims under § 504 of the Rehabilitation Act, should be dismissed. Defendant's argument is twofold: first, Defendant argues that the amended complaint fails to specify the benefit or program from which Plaintiff was allegedly excluded; second, Defendant argues that Plaintiff fails to allege sufficient facts to support the conclusion that any exclusion was solely by reason of Plaintiff's alleged disability.

The Seventh Circuit addressed similar arguments in Grzan v. Charter Hospital of Northwest Indiana, 104 F.3d 116 (7th Cir. 1997). There, the plaintiff brought a Rehabilitation Act claim against the hospital where she was admitted as a psychiatric patient. Id. at 118. The crux of the plaintiff's claim was that "she received poor treatment, defective treatment, and thereby different and unequal treatment from the hospital" based on "the actions of a counselor who, because she suffered from diagnosed depression, personality disorder, and posttraumatic stress disorder, was able to entice her into entering into a sexual relationship to the detriment of her psychiatric recovery." Id. at 121. On appeal, the hospital argued that the plaintiff failed to allege two elements of a prima facie case of disability discrimination under the Rehabilitation Act: "(1) that she was 'otherwise qualified,' and (2) that she received discriminatory treatment solely because of her handicap." Id. at 120. In affirming the district court's dismissal of the action, the Seventh Circuit agreed that the plaintiff could not satisfy the "solely by reason of" disability element, emphasizing that § 504 "does not cover discrimination among similarly handicapped persons. The word solely provides the key: the discrimination must come from the handicap and from the handicap alone. If others with the same handicap do not suffer the discrimination, then the discrimination does not result 'solely by reason of [the] handicap.'" Id. at 121 (quoting Johnson by Johnson v. Thompson, 971 F.2d 1487, 1493-94 (10th Cir. 1992), cert. denied, 507 U.S. 910 (1993)).

The decision in Ward v. Kaiser Foundation Hospital, No. C-06-2645, 2006 WL 2529479 (N.D. Cal. Aug. 31, 2006), also turned on the "solely by reason of" disability element. There, the plaintiff-doctor brought a Rehabilitation Act claim against the defendant-hospital, alleging that he was denied certain hospital privileges based on his past history of alcohol dependency and voluntary participation in an extended program of alcohol rehabilitation. Id. at *1. The defendant moved to dismiss, arguing that the "solely by reason of" disability element was not met because the plaintiff alleged in his complaint that the decision to deny hospital privileges was based "largely" upon his history of alcohol dependency, as opposed to solely. Id. at *4. Ward disagreed and concluded that the plaintiff's allegations were sufficient to permit an inference that he was denied hospital privileges solely on the basis of his alcoholism. Id. In so holding, Ward emphasized that the plaintiff did "not allege any specific facts indicating that the [d]efendant had a mixed motive" which would have precluded such a finding. Id. ³

3 Although the court finds Ward's "mixed motive" analysis instructive, as discussed further below, it also notes that the Ward decision predated Twombly and Iqbal. It is questionable whether an allegation that one was discriminated against based "largely" upon his or her disability would survive under the more stringent Twombly/ Iqbal pleading requirements.

In this case, even accepting as true all of Plaintiff's factual allegations and drawing all reasonable inferences in his favor, the court is still compelled to find that Plaintiff failed to state a claim under § 504 of the Rehabilitation Act. Nowhere does the amended complaint allege what Plaintiff's disabilities are. There is no clear allegation anyone employed by Defendant knew of the disabilities. Cf. Bezi v. Camacho, No. 11-0677, 2012 WL 5519386, at *19 (C.D. Cal. Sept. 27, 2012) (dismissing Rehabilitation Act claim since the plaintiff "failed to sufficiently allege that defendants knew that she was disabled.") (emphasis added); Boldin v. Wingfield, No. 6:10-cv-00010, 2010 WL 3766325, at *3 (W.D. Va. Sept. 16, 2010) (dismissing pro se litigant's Rehabilitation Act claim because she failed to allege "some nexus" between the accommodation sought and her disability), aff'd, 403 Fed. Appx. 830 (4th Cir. 2010).

Paragraph 33 of the amended complaint does fairly allege that Plaintiff's service-related disabilities, whatever they are, "were always used to propel the rumors of impending danger to [P]laintiff's children." (FAC ¶ 33.) There are no allegations that anyone employed by Defendant "propelled" these rumors. Nor are there any allegations that the differences in the manner in which Defendant dealt with Plaintiff, as compared to other parents Plaintiff refers to in paragraphs 23 and 24, were solely due or indeed due at all to Plaintiff's disabilities. I also note there are no allegations that the other unidentified parents in paragraphs 23 and 24 were or were not disabled themselves. For these reasons, Defendant's motion to dismiss Plaintiff's Rehabilitation Act claims is granted. However, while it is difficult to see how Plaintiff could develop proof of such allegations if he were to amend and attempt to allege, on a good faith basis, sufficient facts to avoid a motion to dismiss, as a pro se, he deserves the opportunity to do so having been advised here of the deficiencies of his current amended complaint. Plaintiff has thirty (30) days from the entry of this order to file a second amended complaint curing these problems if he can do so in good faith, consistent with Rule 11(b).

B. Section 1983 Claim(s)

In order to establish a § 1983 claim, "a plaintiff must show that an individual acting under the color of state law deprived him of a right, privilege, or immunity protected by the United States Constitution or federal law." Levine v. City of Alameda, 525 F.3d 903, 905 (9th Cir. 2008). It is well settled that the term "person" includes municipalities. Monell v. Dep't of Soc. Serv. of N.Y., 436 U.S. 658, 694 (1978). Liability may attach to a municipality, such as a school district, "if the plaintiff can show that an authorized final policy-maker undertook or ratified unconstitutional action, or that a district employee violated constitutional rights pursuant to an expressly adopted official policy or a longstanding practice or custom." Zandberg v. Edmonds High School Dist., No. C08-0570-JCC, 2009 WL 973348, at *6 (W.D. Wash. Apr. 9, 2009), aff'd, 378 Fed. Appx. 714 (9th Cir. 2010).

Plaintiff's § 1983 claim appears to be premised primarily on his allegation that Defendant interfered with his Fourteenth Amendment right to familial association. Parents have "a fundamental liberty interest in the companionship and society of his or her child and . . . the state's interference with that liberty interest without due process of law is remediable under [§] 1983." Crowe v. County of San Diego, 608 F.3d 406, 441 (9th Cir. 2010) ; Rosenbaum v. Washoe County, 663 F.3d 1071, 1079 (9th Cir. 2011) (per curiam) ("The substantive due process right to family integrity or to familial association is well established. A parent has a 'fundamental liberty interest' in companionship with his or her child.") This liberty interest is not reserved for parents with full legal and physical custody; rather, it extends to parents with no legal or physical custody, but merely visitation rights, "even though such a parent's right is unambiguously lesser in magnitude than that of a parent with full legal custody." James v. Rowlands, 606 F.3d 646, 651 (9th Cir. 2010) (citation and internal quotation marks omitted). Plaintiff therefore has a protected liberty interest in the companionship and society of his children regardless of the extent to which he does or does not have legal or physical custody.

Defendant asserts that the standard for deprivation of the substantive due process right to familial companionship is conduct which "shocks the conscience." It appears the Ninth Circuit cases on this point are inconsistent, an observation echoed by the district court in Palmer v. Arizona, No. 2:09-cv-01791, 2012 WL 1648404, at *5 (D. Ariz. May 10, 2012). For example, in Crowe, the Ninth Circuit said there was "no support in the relevant case law" for the assertion that the correct standard is whether the § 1983 defendant's conduct "shocked the conscience," choosing instead to apply an "unwarranted interference" standard. Crowe, 608 F.3d at 441 n.23 (citation omitted). Nearly a year and a half later, in Rosenbaum, the Ninth Circuit cited the Supreme Court's decision in Richin v. California, 342 U.S. 165, 172-73 (1952), for the proposition that the harmful conduct must "shock the conscience" or "offend the community's sense of fair play and decency" in order to amount to a violation of substantive due process. Rosenbaum, 663 F.3d at 1079. As in Palmer, this court will apply the standard enunciated in the per curiam opinion in Rosenbaum.

Rosenbaum provided two examples of cases where the plaintiff stated a plausible claim under § 1983 for violation of the substantive due process right to family integrity: Lee v. City of Los Angeles, 250 F.3d 668, 685-86 (9th Cir. 2001) (plaintiff-mother's "mentally disabled son was mistaken for another person, falsely arrested, caused to be extradited to New York from California, and imprisoned; the police department misinformed her of his whereabouts on several occasions until he was finally released two years later"), and Kelson v. City of Springfield, 767 F.2d 651, 653-55 (9th Cir. 1985) ("parents . . . stated a cause of action for a violation of their right to companionship and society of a child where their teenage son had committed suicide at school.") Rosenbaum, 663 F.3d at 1079.

By contrast, the Rosenbaum court concluded, at the summary judgment stage, that the facts of that case did "not come close to rising the level of conduct that 'shocks the conscience.'" Id. The record in Rosenbaum indicated that Herschel Rosenbaum was approached by police officers as he stood outside a fair selling free promotional tickets that he had received from a radio station. Id. at 1073. The officers arrested Mr. Rosenbaum—who was wearing a t-shirt with the radio station's logo and had his two children standing beside him—for abuse, neglect or endangement of a child, and obtaining money under false pretenses. Id. While escorting the children across the street to the car where their mother was waiting, the officers told the children their father was going to jail because what he did "was wrong." Id. Although Mr. Rosenbaum spent eights hours in jail, the charges were ultimately dropped since there was no scalping law in Nevada and no other charge applied to his conduct. Id. at 1073-74. In concluding that the Rosenbaums' substantive due process right to family integrity was not violated, the Ninth Circuit distinguished Lee and Kelson, stating:

Unlike Lee or Kelson, Rosenbaum was not separated from his children for any extended period of time; rather, the children were walked across the street to their mother who was waiting in their car. It is true that [the arresting officer] -- and perhaps other officers' -- words to the children were inappropriate and even offensive. The children's father had not in fact done anything 'wrong' and [the arresting officer] likely exacerbated an already traumatic experience for this four year old and eight year old. And yet we do not hold that the inappropriate conduct amounts to a constitutional violation.
. . . [I]n this instance, the officers' conduct does not 'shock the conscience.'

Id. at 1079-80.

Accepting Plaintiff's factual allegations in paragraphs 3-14, 16-22 and 26-27 as true, which I must do at this stage, Plaintiff has alleged a plausible substantive due process claim. It is clear Plaintiff has a liberty interest at stake here, and the proof at trial or summary judgment will ultimately determine whether the alleged deprivation of that interest rises to the level of a federal constitutional violation. Whether facts develop to support a "shocks the conscience" standard or something that no reasonable juror would be shocked by must await discovery.

Plaintiff does not clearly allege a claim he was deprived of a federal constitutional right to participate in his children's education. Plaintiff's allegations of Defendant's failure to provide him with information pertaining to his children's education, notice of school-related events, and other notices apparently routinely given to parents, (FAC ¶¶ 5, 25, 28, 30-31, 37, 39), seem to suggest Plaintiff is pursuing such a claim. If Plaintiff intends to allege a claim for unconstitutional denial of his participation in his children's education, the court directs his attention to the most closely analogous federal decision on this issue: Crowley v. McKinney, 400 F.3d 965 (7th Cir. 2005), cert. denied, 546 U.S. 1033 (2005).⁴

4 Research did not reveal any cases from the Ninth Circuit addressing similar allegations.
--------

There, a noncustodial father, Daniel Crowley, appealed the dismissal of his § 1983 suit against the principal of his children's school, and the school district itself. Crowley, 400 F.3d at 967. Although the mother had custody of the children, the divorce decree provided Crowley with equal access to education records and required the parents to "direct the children's school authorities to promptly advise each of them of the children's grades and progress in school and of all school meetings, functions and activities that are open to attendance by parents." Id. Crowley had long been critical of the school's principal and superintendent, and complained to them about his son being bullied and about the school's failure to provide him "with notices, records, correspondence and other documents that custodial parents receive." Id. As a result, Crowley claimed he had to "rely on his children telling him about matters such as upcoming school events or injuries suffered at school, and only hear[d] about incidents such as a gun being brought to Hiawatha School through third parties." Id. Crowley unsuccessfully attempted to remedy the problems by providing the school with 100 self-addressed envelopes for correspondence and volunteering to be a playground monitor. Id. In two unrelated incidents, the school also refused to tell Crowley whether his son was at school that day and forbade him to attend a book fair. Id. at 968.

On appeal, the claim that Crowley "presse[d] hardest" was that the school interfered with his substantive due process right to participate in his children's education. Id. In dissecting the constitutional viability of such a claim, Judge Posner made several observations that apply in the present case:

It is difficult for a school to accommodate the demands of parents when they are divorced. The school does not know what rights each of the parents has. It knows which parent has custody, because that parent's address is the student's address, but unless it consults
the divorce decree it won't know what rights the other parent has. And since physical and legal custody are different the school will not even know whether the parent with whom the child lives has joint or, as here, sole custody.
These difficulties are compounded by the scope of the federal constitutional right that Crowley is claiming. It is one thing to say that parents have a right to enroll their children in a private school that will retain a degree of autonomy and thus be free to teach a foreign language, or evolution, or human sexual biology, without prohibition by the state. It is another thing to say that they have a constitutional right to school records, or to be playground monitors, or to attend school functions. Schools have valid interests in limiting the parental presence -- as, indeed, do children, who in our society are not supposed to be the slaves of their parents. . . .
Federal judges are ill equipped by training or experience to draw the line in the right place, and litigation over where to draw it would be bound to interfere with the educational mission. It would do so not only by increasing schools' legal fees but also and more ominously by making school administrators and teachers timid because fearful of being entangled in suits by wrathful parents rebuffed in their efforts to superintend their children's education. Interests of constitutional weight and dignity are on both sides of the ledger because academic freedom, which is an aspect of freedom of speech, includes the interest of educational institutions, public as well as private, in controlling their own destiny and thus in freedom from intrusive judicial regulation. . . .
The intrusion on public education to which Crowley is inviting the federal judiciary is magnified when the right of participation in a child's public-school education is claimed by a noncustodial parent. . . . It does not follow that a public school is to be charged with knowledge of the contents of the divorce decrees of its students' divorced parents or that it must allow itself to be dragged into fights between such parents . . . .

Id. at 969-70 (internal citations omitted).

After expressing great doubt as to whether Crowley had a federal constitutional right to participate in his children's education at the level of detail claimed, Judge Posner affirmed the district court's dismissal of Crowley's substantive due process claim, stating:

[T]he complaint makes clear that the [superintendent]'s (and hence the school district's) participation in [the principal]'s acts was limited to not doing anything about them [despite being the policymaker for the school district and having knowledge of the acts of which Crowley complains]. Inaction by a public agency is insufficient participation in a subordinate's misconduct to make the agency liable in a suit under 42 U.S.C. § 1983 unless the policymaking level at the agency has deliberately decided to take no action against, and thus in effect to condone, to ratify, the misconduct and so adopt it as the agency's (unofficial) policy. And that is not alleged.

Id. at 971-72 (citing Berry v. Baca, 379 F.3d 764, 767 (9th Cir. 2004)).

Here, Plaintiff alleges that he "brought all of his concerns directly to the attention" of the school superintendent, Michael Carter, in December 2010. (FAC ¶ 19.) Initially, on December 7, 2010, Plaintiff sent Mr. Carter an email "about the constant behavior of the administrative staff (as well as several teachers), constantly interfering with [P]laintiff's legal right to be a participating parent in the life of his children." (FAC ¶ 20.) Four days later, Plaintiff met with Mr. Carter and explained how "school staff had for years, intentionally interfered in accessing his children, and repeatedly ignored his parental rights." (FAC ¶ 22.) Plaintiff does not allege that Mr. Carter took any action to rectify the situation, nor does he allege that Mr. Carter "deliberately decided to take no action against, and thus in effect to condone, to ratify, the misconduct and so adopt it as . . . [Defendant]'s (unofficial) policy." Crowley, 400 F.3d at 971-72. The only defendant is the school district and under Monell, 436 U.S. at 694, Plaintiff must show that "(1) [Defendant] acted under color of state law, and (2) if a constitutional violation occurred, [that] the violation was caused by an official policy or custom of [Defendant]." Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1139 (9th Cir. 2012). If Plaintiff intends to allege that Defendant's deprived him of a constitutional right to participate in his children's educations, he has failed to allege a factual basis to support that claim.

C. Supplemental Jurisdiction

Pursuant to 28 U.S.C. § 1367, "when a district court dismisses on the merits . . . federal claim[s] over which it ha[s] original jurisdiction, it may then decline to exercise supplemental jurisdiction over the remaining state claims, subject to the factors set forth in § 1367(c)(1)-(4)." Herman Family Revocable Trust v. Teddy Bear, 254 F.3d 802, 806 (9th Cir. 2001). The court's discretionary authority under § 1367(c) can be invoked by a party asking for dismissal of state-law claims or on the court's own initiative. Acri v. Varian Assocs., Inc., 114 F.3d 999, 1001 n.3 (9th Cir. 1997) (en banc). However, federal courts "have no sua sponte obligation to ensure that the discretionary retention of supplemental jurisdiction, to which no one has objected, [is] prudent." Id. at 1001.

In this case, the court is not required to conduct a § 1367(c) analysis because Defendant has not objected to the court's retention of supplemental jurisdiction over Plaintiff's remaining state-law claims for defamation, and intentional and negligent infliction of emotional distress. Nevertheless, because there is authority for the proposition that balance of factors under § 1367(c)(1)-(4) weigh in favor of a federal decision on the merits where it is clear how the supplemental claims can be decided, see Timm v. Mead Corp, 32 F.3d 273 (7th Cir. 1994), and because Plaintiff might be able to amend his federal claims and cure the deficiencies described, the court will retain jurisdiction of Plaintiff's state-law claims.

Defendant argues that Plaintiff's remaining state-law tort claims should be dismissed because Plaintiff does not allege that he filed the tort claims notice required under ORS 30.275(2)(b). The Oregon Tort Claims Act ("OTCA") is "the exclusive remedy for pursuing a tort claim against a public body or claims against public employees acting with the course and scope of their employment." Gonzales v. Deschutes County, No. 09-932-CL, 2011 WL 4501053, at *3 (D. Or. Sept. 28, 2011). The OTCA requires notice within 180 days of the alleged loss or injury. OR. REV. STAT. § 30.275(2)(b). "Proof of giving the required notice is an essential element of a plaintiff's case-in-chief," Vineyard v. Soto., No. 10-1481-AC, 2011 WL 3705001, at *4 (D. Or. July 21, 2011), and complaints that fail to allege that notice was given in accordance with the OTCA are subject to dismissal. Brinkley v. Oregon Health Scis. Univ., 94 Or. App. 531, 537 (1988), rev. denied, 307 Or 571 (1989).

Nothing in Plaintiff's amended complaint indicates that he has complied with the OTCA's notice requirement. Accordingly, Plaintiff's state-law claims for defamation, and intentional and negligent infliction of emotional distress are dismissed, but with leave to amend if he can in good faith allege timely tort claim notice. See FED. R. CIV. P. 11(b).

Conclusion

For the reasons stated, Defendant's motion (Docket No. 31) to dismiss is GRANTED in part and DENIED in part. The motion is GRANTED in part and DENIED in part with respect to Plaintiff's federal claims, and GRANTED in its entirety with respect to Plaintiff's state-law tort claims. The motion is DENIED to the extent Defendant argues that this court lacks subject matter jurisdiction. Plaintiff is granted leave to amend to the extent that he, in good faith, and consistent with Rule 11(b), can allege claims that otherwise cure the deficiencies described above. Plaintiff has thirty (30) days from the date of this Order to file a second amended complaint. In the event Plaintiff fails to timely amend his pleadings, all claims alleged against Defendant will be deemed dismissed with prejudice.

IT IS SO ORDERED.

____________________

DENNIS J. HUBEL

United States Magistrate Judge