Opinion
CASE NO. CV F 10-1317 LJO SMS.
November 16, 2010
ORDER ON DEFENDANT'S MOTION TO DISMISS (Doc. 15)
INTRODUCTION
Plaintiffs W.A., by and through his guardian ad litem ("Student"), and S.A. and J.A. individually (collectively "plaintiffs") appeal an education due process hearing pursuant to 20 U.S.C. § 1415(i)(2)(A). By notice on October 14, 2010, defendants Patterson Joint Unified School District ("District"), Carli Briones, and Dave Hodge (collectively "defendants") moved to dismiss plaintiffs' complaint pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6). Defendants argue that plaintiffs failed to exhaust their administrative remedies and fail to state a claim for a violation of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., ("ADA"), and Section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794 ("Section 504"), and the Fourth Amendment to the United States Constitution. For the reasons discussed below, this Court GRANTS in part and DENIES in part defendants' motion.
BACKGROUND
Student is a minor child who is eligible for special education and related services because he has autism. Student resides within the District boundaries, and attended District schools during all relevant times. Plaintiffs allege, inter alia, that Student was harmed by the use of improper restraints by his teacher Carli Briones ("Ms. Briones") and another District employee.Ms. Briones was Student's teacher during the 2007-2008 school year. At the beginning of the school year, Student engaged in a 30-minute aggressive episode in which he followed Ms. Briones around the classroom while hitting and kicking her. At the time, Ms. Briones was not trained in restraint techniques and the classroom aide, Yoland Ledezma ("Ms. Ledezma") was not trained in Applied Behavioral Analysis ("ABA") techniques.
A behavior support plan ("BSP") was developed for Student on August 8, 2007 following the 30-minute aggressive episode. The BSP was not approved of or provided to Student's parents until the due process hearing held in February and March 2010. S.A., Student's mother, expressed her concerns that Student did not have a behavior intervention plan ("BIP"), to District's director of special education Dave Hoge ("Mr. Hoge") in an October 19, 2007 email.
In November 2007, instead of performing a functional assessment analysis ("FAA") to determine the reason behind Student's behaviors and provide a BIP, District developed a second BSP that allowed the use of District-approved restraints as a consequence to Student's aggressive behaviors. When the BSP was presented to S.A., District did not explain what types of restraints would be used, nor did the District explain that the parents were waiving their son's rights under the Hughes Bill to certain procedural safeguards, including the filing of behavior emergency reports ("BERs") and holding an individualized education program ("IEP") meeting with parents and staff within two days of restraint to discuss whether any modifications were necessary to the IEP and, if so, whether an FAA would be conducted. S.A. agreed to the proposed BSP.
Ms. Briones and another District employee performed restraints on Student on December 17, 2007, January 8-10, 2008, January 15-18, 2008, and January 21, 2008.
In April 2008, W.A. was restrained twice while he was a student at Sierra Vista, a non-public school District contracted with and placed him in pursuant to an IEP.
Plaintiffs allege that during the 2007-2008, 2008-2009, and 2009-2010 school years, District failed to offer Student an appropriate placement, support and services, failed to conduct appropriate assessments, failed to comply with all of the IDEA's procedural requirements, and failed to comply with the Hughes Bill. Plaintiffs filed a request for due process with the California Office of Administrative Hearings ("OAH") on November 4, 2009. This followed a request for due process filed by the District on November 2, 2009.
The OAH held a hearing regarding both complaints on February 1-4, February 8-9, February 16-17, and March 3, 2010. In an April 27, 2010 decision, the administrative law judge ("ALJ") answered the following questions by way of a ruling:
Student's Issues
1) During the 2007-2008 school year, after November 2, 2007, did the District deny Student a free appropriate education ("FAPE") because: a) The BSP of November 16, 2007 did not address Student's behavioral deficits? b) The District failed to conduct a timely FAA and develop a BIP from November 16, 2007 through April 4, 2008 which were required to address Student's increased noncompliance, elopement, and aggression, which impeded his learning? c) The District did not comply with the Hughes Bill requirements because it used inappropriate physical restraints and aversive interventions on Student, did not prepare BERs, did not notify parents of emergency interventions, and did not convene IEP meetings to discuss the emergency interventions, even though Student had "serious behavior problems"? 2) Did District deny Student a FAPE during SY 2007-2008, SY 2008-2009, and SY 2009-2010 by failing to conduct timely occupational therapy ("OT") pragmatic language, and inclusion assessments? 3) Did the April 4, 2008 IEP deny Student a FAPE because: a) It did not contain appropriate reading, math, self-help, pragmatic, expressive and receptive language, fine motor, sensory integration, behavior and social skill goals to meet Student's unique needs? b) Contained an offer of placement at a non-public school, Sierra Vista, which was not reasonably calculated to meet Student's unique needs in the least restrictive environment ("LRE")? c) District predetermined Student's placement, which denied his parents the opportunity to participate meaningfully in the educational decision-making process? d) District unilaterally reduced Student's speech and language OT services? e) District failed to offer appropriate behavior support and services, including not providing Student with an appropriate FAA and BIP? 4) From April 2008 through June 2009, was Student denied a FAPE because staff at Sierra Vista did not implement Student's April 4, 2008 IEP or BIP? 5) Did the August 26, 2008 IEP deny Student a FAPE because: a) District's offer of placement at Teel Middle School ("Teel"), including transportation, was not adequate to meet his unique needs in the LRE? b) District failed to offer appropriate behavior support and services, including not providing Student with an appropriate FAA and BIP? c) District predetermined Student's placement and failed to consider information presented by Mother at the IEP meeting? 6) Did the IEP of October 6, 2008 deny Student a FAPE because: a) District's offer of placement at Teel, including transportation, was not adequate to meet his unique needs in the LRE? b) District predetermined Student's placement and limited his parents' ability to observe possible placements, which denied his parents the opportunity to participate meaningfully in the educational decision-making process? c) District failed to offer appropriate behavior support and services, including not providing Student with an appropriate FAA and BIP? 7) Did the IEPs of November 24, 2008, and December 11, 2008, deny Student a FAPE because: a) District did not propose an appropriate educational placement, which necessitated that Student remain in home/hospital instruction? b) District failed to offer appropriate behavior support and services, including not providing Student with an appropriate FAA and BIP? 8) Did the IEP of December 11, 2008 deny Student a FAPE because: a) It did not contain appropriate reading, math, self-help, pragmatic, expressive, and receptive language, fine motor, sensory integration, and social skill goals to meet Student's unique needs? b) District unilaterally ceased providing Student with home/hospital instruction after his IEP meeting? 9) During SY 2008-2009, did the District deny Student a FAPE by failing to consider information from Student's private assessors and not inviting private assessors to the IEP meetings? 10) Did the IEP meeting of March 13, 2009 deny Student a FAPE because: a) District's offer of placement at Teel, including transportation, was not adequate to meet his unique needs in the LRE? b) District failed to offer appropriate behavior support and services, including not providing Student with an appropriate FAA and BIP? 11) Did the April 29, 2009 IEP, as modified on July 29, 2009, deny Student a FAPE because: a) It did not contain appropriate reading, math, self-help, pragmatic, expressive, and receptive language, fine motor, sensory integration, and social skill goals to meet Student's unique needs? b) District's offer of placement at Teel, including transportation, was not adequate to meet his unique needs in the LRE? c) District brought an attorney to attend the IEP meeting of April 29, 2009, despite parents' objection to his presence, which denied parents the opportunity to participate meaningfully in the educational decision-making process? d) District predetermined Student's placement and limited parents' ability to observe other possible placements, which denied his parents the opportunity to participate meaningfully in the educational decision-making process? e) District failed to offer appropriate behavior support and services, including not providing Student with an appropriate FAA and BIP?
District's Issues
1) During SY 2007-2008 through April 4, 2008, did the District provide Student with a FAPE because the District met Student's unique needs at Apricot Valley Elementary School ("Apricot Valley") and took reasonable actions to return Student to a classroom after his parents removed him from Apricot Valley? 2) Was the IEP of April 4, 2008 reasonably calculated to provide Student with meaningful educational progress in the LRE? 3) During SY 2008-2009, did the District provide Student with a FAPE because the District could meet Student's unique needs at Sierra Vista, and took reasonable actions to return Student to a classroom after his parents removed him from Sierra Vista? 4) Was the IEP of October 6, 2008 reasonably calculated to provide Student with meaningful educational progress in the LRE? 5) During SF 2009-2010, did the District provide Student with a FAPE because the District could meet Student's unique needs at Teel? The ALJ found that Student fully prevailed on Student Issue 1(c) and District Issue 1. W.A. partially prevailed on Student Issues 2, 3(a), 3(d), 4, 8(a), and 11(a) and District Issues 2, 4, and 5. District prevailed fully on Student Issues 1(a), 2(b), 3(b), 3(c), 3(e), 5(a), 5(b), 5(c), 6(a), 6(b), 6(c), 7(a), 7(b), 8(b), 9, 10(a), 10(b), 11(b), 11(c), 11(d), and 11(e) and District Issue 3. District partially prevailed on Student issues 2, 3(a), 3(d), 4, 8(a) and 11(a) and District Issues 2, 4, and 5.Plaintiffs filed this appeal on July 22, 2010. In their first cause of action, Plaintiffs assert a violation of the IDEA, 20 U.S.C. § 1415 against District, to appeal all of the issues on which they did not prevail fully. Plaintiffs also assert the following causes of action: violation of the ADA, 42 U.S.C. § 12101 et seq., against District (second cause of action); violation of Section 504 of the Rehabilitation Act against District (third cause of action); and violation of 42 U.S.C. § 1983 ("Section 1983) and Fourth Amendment against Ms. Briones and Mr. Hodge in their individual capacities (fourth cause of action). Plaintiffs base their ADA and Section 504 claims on allegations of disability discrimination. Plaintiffs base their Fourth Amendment claim on allegations that the restraints were an illegal seizure.
Defendants moved to dismiss on October 14, 2010. Defendants argue that Plaintiffs have failed to exhaust their administrative remedies as to any federal claims, and specifically their ADA, Section 504, and Fourth Amendment causes of action, because they did not raise the issues of disability discrimination and illegal seizure in the administrative hearing. In addition, Defendants argue that Plaintiffs fail to plead facts to establish a prima facie claim for their ADA, Section 504, and Fourth Amendment claims. Plaintiffs opposed the motion on November 2, 2010. Plaintiffs argue that they have exhausted all administrative remedies through the OAH administrative hearing. In addition, plaintiffs argue that they were not required to exhaust remedies as to their ADA, Section 504, and Section 1983 claims, and they have stated a claim for those causes of action. Defendants replied on November 8, 2010. This Court found this motion suitable for a decision without a hearing, vacated the November 16, 2010 hearing pursuant to Local Rule 230(g) and issues the following order.
DISCUSSION Failure to Exhaust Administrative Remedies Standard of Review
Defendants argue that this Court lacks subject matter jurisdiction over Plaintiffs' ADA, Section 504 and Fourth Amendment claims, because Plaintiffs failed to exhaust administrative remedies as to those claims. When a motion to dismiss "attacks the substance of the complaint's jurisdictional allegations" the Court considers the motion under Fed.R.Civ.P. 12(b)(1) standards. Corrie v. Caterpillar, 503 F.3d 974, 980 (9th Cir. 2007). "Under such circumstances, the Court may expand its review and rely on affidavits or any other evidence properly before the court." Id. (citing Thornhill Publ'g Co. v. Gen Tel. Elec. Corp., 594 F.2d 730, 733 (9th Cir. 1979)). "Where the jurisdictional issue is separable from the merits of the case, the judge may consider the evidence presented with respect to the jurisdictional issue and rule on that issue, resolving factual disputes if necessary." Thornhill, 594 F.2d at 733 (citing Berardelli v. Castle Cooke, Inc., 587 F.2d 37 (9th Cir. 1978)).
To determine whether jurisdiction is proper, the Court first considers whether District's motion is a facial or factual attack on subject matter jurisdiction. "In a facial attack, the challenger asserts that the allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction. By contrast, in a factual attack, the challenger disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction." Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). Here, the Court is presented with a factual jurisdictional attack, because District disputes the truth of Plaintiff's allegations that the issue was raised in the administrative proceeding. See id.; Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004). Moreover, in support of its position, District converted "the motion to dismiss into a factual motion by presenting affidavits or other evidence properly brought before the court." Safe Air, 373 F.3d at 1039. Accordingly, this Court "may consider the evidence presented with respect to the jurisdictional issue and rule on that issue, resolving factual disputes if necessary." Thornhill, 594 F.2d at 733. This Court "need not presume the truthfulness of the plaintiff's allegations" in a factual jurisdictional attack. Safe Air, 373 F.3d at 1039 (citing White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). Rather, in opposing District's challenge, Plaintiffs must "furnish affidavits or other evidence necessary to satisfy its burden of establishing subject matter jurisdiction." Savage v. Glendale Union High Sch., 343 F.3d 1036, 1039 n. 2 (9th Cir. 2003).
Exhaustion Required
Plaintiffs must exhaust their administrative remedies before bringing federal claims regarding a denial of publicly funded special education. The IDEA provides an administrative appeal procedure "to be pursued before seeking judicial review." Hoeft v. Tuscon Unified School Dist., 967 F.2d 1298, 1302 (9th Cir. 1992); see also, Robb v. Bethel School Dist. #403, 308 F.3d 1047, 1050 (9th Cir. 2002). Although the IDEA is not the exclusive remedy for children with disabilities, the exhaustion requirement of the IDEA explicitly applies to "other Federal laws protecting the rights of children with disabilities," including Section 504. 20 U.S.C. § 1415 ( l) ("[B]efore filing the civil action under [title V of the Rehabilitation Act of 1973] seeking relief that is also available under this subchapter, the procedures . . . of this section shall be exhausted to the same extent as would be required had the action been brought under this subchapter."). This exhaustion requirement applies to Section 504 claims, J.G. v. Douglas County Sch. Dist., 552 F.3d 786, 802 (9th Cir. 2008), ADA claims, Christopher S. v Stanislaus County Office of Educ., 384 F.3d 1205 (9th Cir. 2004), and claims brought pursuant to 42 U.S.C. § 1983. Blanchard v Morton Sch. Dist., 420 F3d 918 (9th Cir. 2005). This Court lacks subject matter jurisdiction over federal claims Plaintiff failed to raise in the relevant administrative procedure. Id.; Robb, 308 F.3d 1047, 1050 (9th Cir. 2002).
Where administrative remedies do not provide adequate relief, however, and a plaintiff seeks money damages, a plaintiff may not be required to exhaust administrative remedies before raising a federal claims in a civil action. Smith v. Barton, 914 F.2d 1330, 1333 (9th Cir. 1990); see also, Mark H. v. Lemahieu, 513 F.3d 922, 935 n. 11 (9th Cir. 2008). The "IDEA requires that when a plaintiff files an action that seeks relief under another statute, and that relief is also available under IDEA, he or she must follow IDEA exhaustion procedures." J.G., 552 F.3d at 802 (citing 20 U.S.C. § 1415( l)). The IDEA allows claim "with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education" to be heard. 20 U.S.C. § 1415(b)(6). Thus, the "dispositive question . . . is whether [the student] is seeking remedy for injuries that could be redressed to any degree by the IDEA's administrative procedures." Blanchard v. Morton Sch. Dist., 420 F.3d 918, 921 (9th Cir. 2005).
Although a plaintiff is required to exhaust administrative remedies, the "IDEA's exhaustion requirement is not . . . a rigid one." Porter v. Bd. of Trustees of Manhattan Beach, 307 F.3d 1064, 1069 (9th Cir. 2002). Plaintiffs need not seek a due process hearing "where resort to the administrative process would either be futile or inadequate." Hoeft, 967 F.3d at 1303. To fall within the futility exception to the exhaustion requirement, a party must allege futility or inadequacy of IDEA administrative procedures, and bears the burden of proof on this issue. See Robb, 308 F.3d at 1050 n. 2. If the plaintiff seeks a remedy for an injury that could not be redressed by the IDEA's administrative procedures, then the claim falls outside of the IDEA's comprehensive reach, and exhaustion is unnecessary. See Robb, 308 F.3d at 1050. On the other hand, if the injury could be redressed "to any degree" by the IDEA's administrative procedures-or if the IDEA's ability to remedy an injury is unclear-then exhaustion is required. Kutatsi v. Las Virgenes Uni. Sch. Dist., 494 F.3d 1162, 1168 (9th Cir. 2007).
ADA and Section 504
Plaintiffs base their ADA and Section 504 claims on alleged disability discrimination, a claim not raised in the administrative proceeding. In their second cause of action, Plaintiffs allege that the defendants' conduct "violated the ADA in that Plaintiff W.A. who is a student with a qualified disability, was either not provided programs, services and activities that were provided to non-disabled students, or was provided programs, services, and activities that were not equal to, and are inferior to the services provided to students who are not disabled." Compl. ¶ 39. Plaintiffs contend that Student "was physically and emotionally harmed" by the District's employees who used "unnecessary and harmful restraint techniques which amounts to disability discrimination." Id. In addition, Student's parents "suffered from emotional distress due to the actions of the District and its employees that constituted disability discrimination." Id. In their third cause of action, plaintiffs allege that District "unlawfully discriminated against Plaintiff on the sole basis of disability." Compl. ¶ 46. Plaintiffs further allege that "[s]olely by reason of his disability, Plaintiff has been excluded from participation in, denied the benefit of, and subjected to discrimination in his attempts to receive full and equal access to the facilities, programs, services, and activities offered by Defendants." Compl., ¶ 47.
Although plaintiffs raised nearly 30 detailed sub-issues in the administrative proceeding, plaintiffs failed to raise the issue of disability discrimination. As such, this Court lacks jurisdiction to consider plaintiffs' causes of action based on their disability discrimination claims. As the Ninth Circuit explained in a similar case:
Appellants went through the administrative process but did not argue that the District discriminated against [them]. Appellants argue that their lack of exhaustion is not fatal to their claim because their [disability discrimination] claim could not be heard in an IDEA due process hearing. Nevertheless, § 1416(b)(6) allows claims "with respect to any matter relating to the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to be heard. 20 U.S.C. § 1415(b)(6) (emphasis added). Further, the parents of Mark H. presented their Rehabilitation Act claim during the administrative process, even though the hearing officer did not rule on the issue. Appellants also could have argued their discrimination claim in the hearing . . . [T]his claim should have been dismissed without prejudice for lack of jurisdiction.J.G. v. Douglas County Sch. Dist., 552 F.3d 786, 803 (9th Cir. 2008). Where, as here, "the parties are still litigating their educational issues and the administrative process might have been used in an attempt to gain a remedy for their alleged injury," exhaustion is required. Id. at n. 12. Because plaintiffs failed to raise their disability discrimination allegations in the administrative proceeding, this Court lacks jurisdiction over claims based on these allegations. Accordingly, this Court dismisses plaintiffs' second and third causes of action.
Fourth Amendment
Plaintiffs Fourth Amendment cause of action is asserted against Mr. Briones and Mr. Hodge individually. Plaintiffs allege that the acts and omissions of these defendants, "under color of law . . . deprived Plaintiff of his rights under the United States Constitution." Compl. ¶ 53. Specifically, plaintiffs allege that defendants deprived Student of his "constitutional right to be free from unreasonable government seizures . . . [b]y repeatedly using physical restraints on W.A. when they were not necessary or approved." Compl. ¶ 54. Plaintiffs' Fourth Amendment claim is based, in part, on defendants alleged failure to "adhere to the Hughes Bill requirements for use of restraints." Id.
Plaintiffs challenged defendants' use of restraints and alleged failure to comply with the Hughes Bill related to the use of restraints in the administrative proceeding. In Student's Issue 1(c), plaintiffs asserted that:
[t]he District did not comply with the Hughes Bill requirements because it used inappropriate physical restraints and aversive interventions on Student, did not prepare BERs, did not notify parents of emergency interventions, and did not convene IEP meetings to discuss the emergency interventions, even though Student had "serious behavior problems"?
As set forth above, plaintiffs were not required to assert a Fourth Amendment claim, but were required to assert the allegations upon which that claim rest at the administrative level. See, J.G., 552 F.3d at 803; J.W. v. Fresno Uni. Sch. Dist., 570 F. Supp. 2d. 1212, 1220 (E.D. Cal. 2008). Because plaintiffs raised the issue at the administrative level, they satisfied the exhaustion requirement as to the allegations of improper restraint. Plaintiffs exhausted their administrative remedies as to the allegations on which they base their Fourth Amendment claim, brought against defendants pursuant to Section 1983. Accordingly, defendants' motion to dismiss this cause of action for lack of jurisdiction is denied.
Failure to State a Claim Standard of Review
A motion to dismiss pursuant to Fed R. Civ. P. 12(b)(6) is a challenge to the sufficiency of the pleadings set forth in the complaint. A Fed.R.Civ.P. 12(b)(6) dismissal is proper where there is either a "lack of a cognizable legal theory" or "the absence of sufficient facts alleged under a cognizable legal theory." Balisteri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990). In considering a motion to dismiss for failure to state a claim, the court generally accepts as true the allegations of the complaint, construes the pleading in the light most favorable to the party opposing the motion, and resolves all doubts in the pleader's favor. Lazy Y. Ranch LTD v. Behrens, 546 F.3d 580, 588 (9th Cir. 2008).
To survive a motion to dismiss, the plaintiff must allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1974 (2007). "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." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). "The plausibility standard is not akin to a `probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (quoting Twombly, 550 U.S. at 556). "Where a complaint pleads facts that are `merely consistent with' a defendant's liability, it `stops short of the line between possibility and plausibility for entitlement to relief." Id. (quoting Twombly, 550 U.S. at 557).
"While a complaint attacked by a Rule 12(b)(6) motion to dismiss 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." Twombly, 550 U.S. 554,127 S. Ct. 1955, 1964-65 (internal citations omitted). Thus, "bare assertions . . . amounting to nothing more than a `formulaic recitation of the elements' . . . are not entitled to an assumption of truth." Iqbal, 129 S. Ct. at 1951 (quoted in Moss v. United States Secret Serv., 2009 U.S. App. LEXIS 15694, *14 (9th Cir. 2009)). A court is "free to ignore legal conclusions, unsupported conclusions, unwarranted inferences and sweeping legal conclusions cast in the form of factual allegations." Farm Credit Services v. American State Bank, 339 F.3d 765, 767 (8th Cir. 2003) (citation omitted).
Moreover, a court "will dismiss any claim that, even when construed in the light most favorable to plaintiff, fails to plead sufficiently all required elements of a cause of action." Student Loan Marketing Ass'n v. Hanes, 181 F.R.D. 629, 634 (S.D. Cal. 1998). In practice, "a complaint . . . must contain either direct or inferential allegations respecting all the material elements necessary to sustain recovery under some viable legal theory." Twombly, 550 U.S. at 562, 127 S.Ct. at 1969 (quoting Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1106 (7th Cir. 1984)).
Fourth Amendment
Defendants argue that plaintiffs' Fourth Amendment claim must be dismissed because they enjoy qualified immunity. Qualified immunity protects section 1983 defendants "from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Squaw Valley Dev. Co. v. Goldberg, 375 F.3d 936, 943 (9th Cir. 2004), overruled on other grounds, Action Apt. Assoc., Inc. v. Santa Monica Rent Control Bd., 509 F.3d 1020 (9th Cir. 2007). The "heart of qualified immunity is that it spares the defendant from having to go forward with an inquiry into the merits of the case. Instead, the threshold inquiry is whether, assuming that what the plaintiff asserts the facts to be is true, any allegedly violated right was clearly established." Kelley v. Borg, 60 F.3d 664, 666 (9th Cir. 1995). The issue of qualified immunity is "a pure question of law." Elder v. Holloway, 510 U.S. 510, 514, 114 S.Ct. 1019 (1994); Romero v. Kitsap County, 931 F.2d 624, 627-628 (9th Cir. 1991).
"In analyzing whether School Officials are entitled to qualified immunity," the Court addresses two questions. Preschooler II v. Clark County Sch. Bd. of Trs., 479 F.3d 1175, 1179 (9th Cir. 2007). First, the Court considers, "taken in a light most favorable to the party asserting the injury, the party has established a violation of a federal right." Id. If this "threshold inquiry is satisfied," the Court next considers "whether the School Officials' conduct violated `clearly established statutory or constitutional rights of which a reasonable person would have known." Id. "The judges of the district courts and the courts of appeals should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand." Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 818 (2009). In discussing Pearson, the Ninth Circuit Court of Appeals explained that "lower courts are no longer required to consider whether a constitutional violation occurred before considering whether the right in question was `clearly established.'" Moss v. U.S. Secret Service, 572 F.3d 962, 968 n. 5 (9th Cir. 2009).
Clearly Established Right
The "contours" of the allegedly violated right "must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. . . . [I]n the light of preexisting law the unlawfulness must be apparent." Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034, 3039 (1987). "The question is what the officer reasonably understood his powers and responsibilities to be, when he acted under clearly established standards." Saucier v. Katz, 533 U.S. 194, 208, 121 S.Ct. 2151 (2001).
"To determine that the law was clearly established, we need not look to a case with identical or even `materially similar' facts." Serrano v. Francis, 345 F.3d 1071, 1077 (9th Cir. 2003), cert. denied, 543 U.S. 825, 125 S.Ct. 43 (2004). "Rather, the `standard is one of fair warning: where the contours of the right have been defined with sufficient specificity that a state official had fair warning that [his] conduct deprived a victim of his rights, [he] is not entitled to qualified immunity.'" Serrano, 345 F.3d at 1077 (quoting Haugen v. Brosseau, 339 F.3d 857, 873 (9th Cir. 2003)). "[O]fficials can still be on notice that their conduct violates established law even in novel factual circumstances." Hope v. Pelzer, 536 U.S. 730, 741, 122 S.Ct. 2508 (2002).
"[T]he right of a student to be free from excessive force at the hands of teachers employed by the state was clearly established as early as 1990." Preschooler II v. Clark County Sch. Bd. of Trs., 479 F.3d 1175, 1178 (9th Cir. 2007) (quoting Doe v. State of Hawaii Dep't of Educ., 334 F.3d 906, 910 (9th Cir. 2003)). Because plaintiffs allege that he was a victim of excessive force based on the repeated, unreasonable use of restraints, the allegations are based on a clearly established right. Accordingly, plaintiffs' complaint satisfies this prong.
Violation of Federal Right
Next, the Court considers whether the conduct rises to the level of a violation of Student's Fourth Amendment right to be free from unreasonable seizures by the school officials. The Court begins with the principle that "excess force by a [school official] against a student violate[s] the student's constitutional rights." P.B. v. Koch, 96 F.3d 1298, 1302-03 (9th Cir. 1996). Whether the use of force by a teacher is a constitutional violation is analyzed under the "reasonableness" rubric of the Fourth Amendment. Doe, 334 F.3d at 908-09. The Court considers the reasonableness of the school official's actions "in light of the age and sex of the student and the nature of the infraction." Id.
Based on the allegations of the complaint, this Court cannot determine the reasonableness of defendants' actions in light of the circumstances. Although the Court knows the age and sex of Student, and that Student suffers from a disability, the allegations against the defendants do not describe the circumstances surrounding the incidents in which Ms. Briones and another District employee performed restraints on Student. on December 17, 2007, January 8-10, 2008, and January 15-18, 2008. In its evaluation, the Court must "look objectively at the specific circumstances of the school and child." Preschooler II, 479 F.3d at 1181. In the complaint, plaintiffs allege that defendants "performed a two person prone restraint" on Student on the days in question. Assertions that defendants performed physical restraints on Student do not establish a violation of Student's constitutional right, however, as "state law explicitly allows school officials to physically restrain students when the student poses an immediate danger to himself or others." Alex G. v. Bd. of Trs., 387 F. Supp. 2d. 1119, 1125 (E.D. Cal. 2005) (citing Cal. Code Regs. Tit. 5 § 3052(I)). This Court's reasonableness determination is made difficult by the lack of details, particularly in light of Student's admitted history of violence in school. Accordingly, the performance of physical restraints may have been reasonable under the circumstances. Where, as here, defendants bear the burden to demonstrate reasonableness, and this Court must view the allegations in a light most favorable to the plaintiffs, however, this Court cannot grant defendants' motion to dismiss based on qualified immunity. Accordingly, defendants' motion to dismiss based on qualified immunity is denied without prejudice.
Although plaintiffs' allegations against defendants are nondescript, the allegations surrounding the January 21, 2008 incident are detailed. Plaintiffs' allege that on that date, Student refused to comply with the directive to work on a reading assignment. Because he did not comply, two District employees "dragged [Student] to the hallway and performed a wall restraint and prone restraint on him." Compl. ¶ 26. Because the named-defendants are not alleged to be involved in this incident, this Court does not consider its reasonableness.
CONCLUSION AND ORDER
For the reasons discussed above, this Court:
1. GRANTS in part and DENIES in part defendants' motion to dismiss; and
2. DISMISSES plaintiffs' second (ADA) and third (Section 504) causes of action.