PHYLLIS J. HAMILTON, District Judge.
Defendants' motion to dismiss the first cause of action alleged in the second amended complaint ("SAC"), and to strike certain allegations in the SAC, came on for hearing before this court on April 8, 2015. Plaintiffs appeared by their counsel Todd Boley and Zoya Yarnyka; defendant Dina Holder appeared by her counsel Eric Bengston; and the remaining defendants appeared by their counsel Christopher Vincent. Having read the parties' papers and carefully considered their arguments and the relevant legal authority, the court hereby GRANTS the motion to dismiss and DENIES the motion to strike.
Plaintiffs are six minors who were formerly enrolled at Loma Vista Elementary School ("Loma Vista") and/or Kray Elementary School ("Kray"), within the Brentwood Union School District ("BUSD") in Brentwood, California, and their guardians ad litem and parents. Listed as plaintiffs in the SAC are Michael Garedakis, Tamara Garedakis, and M.G., a minor by and through his guardian ad litem Michael Garedakis; Yolanda Jackson and A.G., a minor by and through her guardian ad litem Yolanda Jackson; Lawrence Gullo, Danielle Gullo, and B.G., a minor, by and through his guardian ad litem Danielle Gullo; Kathryn McGuire and M.R., a minor, by and through his guardian ad litem Kathryn McGuire; Viviana Rose and B.R., a minor, by and through his guardian ad litem Viviana Rose; and Ahmad Razaqi, Dania Razaqi, and E.R., a minor, by and through his guardian ad litem Dania Razaqi.
Defendants are BUSD, Dina Holder ("Holder" — formerly employed by BUSD as a teacher at Loma Vista until May 2010, and then at Kray); Lauri James ("James" — former principal of Loma Vista); Jean Anthony ("Anthony" — former Director of Special Education at BUSD); Margo Olson ("Olson" — Director of Special Education and Interventions at BUSD); Margaret Kruse ("Kruse" — Assistant Superintendent at BUSD); Merrill Grant ("Grant" — former Superintendent at BUSD); and Brian Jones ("Jones" — principal of Kray). Plaintiffs allege that Holder subjected the minor plaintiffs — each of whom has been diagnosed with autism, Down's syndrome, or some other developmental disorder — to verbal and physical abuse while they were in her classroom. At the time of the alleged abuse, the minor plaintiffs ranged in age from three to about six years. Some were nonverbal and all had difficulties with communication.
Holder was a special education teacher in BUSD schools from 1996 to 2012. Plaintiffs assert that as early as 2008, defendants James, Jones, Olson, Anthony, Kruse, and Grant were aware that Holder was subjecting students in her classrooms to physical and verbal abuse. Holder eventually resigned from BUSD as part of terms of a settlement reached in a lawsuit filed in this court,
Plaintiffs filed the original complaint in this case on October 28, 2014. On December 15, 2014, plaintiffs filed the first amended complaint ("FAC") pursuant to stipulation. On January 30, 2015, plaintiffs filed the second amended complaint ("SAC"), apparently pursuant to an informal agreement among the parties.
The SAC includes a lengthy account of a series of incidents involving special education students during the period 2008-2010, including allegations regarding three students who are not plaintiffs in the present lawsuit — LL, who was a student in Holder's class during the 2007-2008 school year,
As for the minors who are plaintiffs in the present action, plaintiffs allege that MG (diagnosed with Autism-nonverbal), who was in Holder's class during the 2008-2009 school year, came home with red marks on his arms several times, became agitated and reluctant to go to school, and began to throw tantrums after being enrolled in Holder's classroom. Plaintiffs assert further that MG became "sexually aroused by the sight of toes" as a result of a "game" played by the adults in Holder's classroom when he was 3 or 4 years old, and that he remains "fixated on feet," which plaintiffs claim makes it impossible for his parents to take him into public places. SAC ¶ 68-75.
Plaintiffs allege that AG (diagnosed with Downs Syndrome), who was in Holder's class during 2008-2009, 2010-2011, and 2011-2013 school years, became unhappy and withdrawn after being placed in Holder's class, and developed imaginary friends and began seeing monsters, and later told her mother that Holder was "mean" and "hit kids." SAC ¶¶ 79-88.
Plaintiffs assert that BG (diagnosed with Autism Spectrum-like symptoms, with speech delays), who was in Holder's class in 2009-2011, became more sensitive to yelling and more aggressive after starting in Holder's classroom, hitting not only himself but also others. He also allegedly became prone to lying on the floor and hiding his head, and later communicated that Holder would yell at the class and tell them to shut up. SAC ¶¶ 91-95.
Plaintiffs allege that MR (diagnosed with Autism Spectrum), who was in Holder's class in 2008-2010, arrived home from school with a large bruise on his arm, and at other times had "bruises and scratches." He also allegedly became more aggressive (including towards family members) and started having nightmares after starting in Holder's classroom, and started diving under the table whenever he heard a loud noise, and that he "observed other children being verbally and physically abused by Holder." SAC ¶¶ 98-104.
Plaintiffs assert that BR (diagnosed with Pervasive Developmental Delay and Autism), who was in Holder's class for the 2010-2011 school year, had done well in kindergarten with a different teacher. However, after starting first grade in Holder's classroom, he began acting fearful and aggressive, eventually telling his mother that Holder had "grabbed him at the shoulder and neck and shoved him into a chair because he wasn't listening," and on other occasions arrived home with large bruises on his arm. SAC ¶¶ 107-113.
Finally, plaintiffs allege that ER (diagnosed with Autism with delays in speaking and making eye contact), who was in Holder's class from December 2011 to April 2012, began exhibiting behavioral changes almost immediately after being placed in Holder's classroom. He allegedly "observed other children being subjected to physical and verbal abuse by Holder," eventually told his mother that Holder had screamed at him and called him "stupid," and also became more aggressive and sad and lost language skills. SAC ¶¶ 114-121.
Plaintiffs also assert that Holder, James, Jones, Olson, Kennedy, Kruse, and Grant "[i]ntentionally interfer[ed] with the parent-child relationship by inflicting abuse on and concealing information regarding the physical and emotional trauma inflicted on" the minor plaintiffs. SAC ¶ 125. They allege that "due to the abuse inflicted by Holder, the minor [p]lainiffs have lost trust in their parents, and this bond is now irreparably damaged."
In the SAC, plaintiffs allege causes of action for (1) violation of the Fourth and Fourteenth Amendments to the United States Constitution, under 42 U.S.C. § 1983; (2) discrimination in violation of Title II of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12131, et seq.; (3) discrimination in violation of § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 701, et seq.; (4) violation of California Civil Code § 52.1; (5) battery; (6) intentional infliction of emotional distress; (7) negligence; (8) negligent supervision; (9) violation of mandatory duty to report suspected child abuse, imposed under California Penal Code § 11166; (10) violation of California Civil Code § 51; and (11) violation of California Education Code § 220.
Defendants seek an order dismissing the first cause of action for violation of constitutional rights, and also seek an order striking certain allegations in the SAC.
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests for the legal sufficiency of the claims alleged in the complaint.
To survive a motion to dismiss for failure to state a claim, a complaint generally must satisfy only the minimal notice pleading requirements of Federal Rule of Civil Procedure 8, which requires that a complaint include a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2)
A complaint may be dismissed under Rule 12(b)(6) for failure to state a claim if the plaintiff fails to state a cognizable legal theory, or has not alleged sufficient facts to support a cognizable legal theory.
The allegations in the complaint "must be enough to raise a right to relief above the speculative level[,]" and a motion to dismiss should be granted if the complaint does not proffer enough facts to state a claim for relief that is plausible on its face.
Defendants seek an order dismissing the first cause of action, which is brought by the minor plaintiffs M.G., A.G., B.G., M.R., B.R., and E.R. against Holder, James, Jones, Olson, Anthony, Kruse, and Grant. At least part of the first cause of action is also asserted by the parents of the minor plaintiffs.
Plaintiffs assert claims under the Fourth and Fourteenth Amendments. In the Fourth Amendment portion of the claim, plaintiffs allege that Holder used excessive force against the minor plaintiffs; and that James, Jones, Olson, Anthony, Kruse, and Grant "failed to act" in response to allegations of serious child abuse by Holder, and "acted with deliberate indifference" to the risk of harm posed by Holder's actions against the minor plaintiffs. In the Fourteenth Amendment portion of the claim, plaintiffs allege that Holder, James, Olson, Anthony, Kruse, and Grant violated the due process rights of the minor plaintiffs and their parents, by intentionally interfering with the parent-child relationship, and with the plaintiffs' rights to provide and receive nurture, support, and comfort regarding highly traumatic events.
Defendants argue that the excessive force portion of the claim should be dismissed for failure to state a claim because plaintiffs have not alleged that an actionable search or seizure occurred. They contend that the SAC does not adequately allege that Holder engaged in an unlawful seizure, because there are no facts showing that Holder's actions sufficiently limited the minor plaintiffs' freedom of movement, and no allegations showing that any force used resulted in restrictions beyond those inherent in every-day school attendance. They also assert the allegations against James, Jones, Olson, Anthony, Kruse, and Grant are deficient because plaintiffs allege only that those defendants failed to act, and plead no facts showing that such a failure to act could be considered an unlawful search or seizure.
As for the substantive due process portion of the claim, defendants contend that the SAC fails to state a claim because plaintiffs have not identified a sufficient interference with a fundamental right that is actionable under the Fourteenth Amendment, and because the allegations in the SAC do not shock the conscience. In particular, defendants argue that plaintiffs do not allege any interference with custody sufficient to state a substantive due process claim, and that the alleged violation of the parents' right to care for, comfort, and nurture their children is not an interference with custody, and is not a recognized right that would support a due process claim. They argue that plaintiffs are attempting to impose a constitutional duty on teachers and school personnel to inform parents of alleged physical and emotional trauma suffered in the classroom, but they assert that no court has found such a duty or a corresponding constitutionally-recognized liberty interest of either a parent or a child.
In opposition, plaintiffs contend that the SAC pleads facts showing that Holder violated the minor plaintiffs' rights by subjecting them to daily verbal and physical assaults. They assert generally that Holder "abused" the minor plaintiffs, that the children saw their classmates being "abused," and that Holder has been "observed by numerous persons using unnecessary physical force" (including incidents in which she allegedly kicked, slapped, and shook small children). Plaintiffs argue further that school and BUSD officials and supervisors were "deliberately indifferent" to the risk of harm to students in Holder's classroom. They claim that employees and parents reported to supervisors (including the principal and Olson) that Holder was physically abusing students, but nothing was done to prevent further abuse.
Plaintiffs also contend that the SAC adequately pleads ample facts in support of their substantive due process claim, including that the minor plaintiffs' interactions with parents and siblings have become more "violent and riddled with conflict." As examples, they argue that MG's family is still unable to engage in family activities outside the home because of his fixation on women's toes; that AG has detached herself emotionally and has found imaginary friends, "which impedes her interaction with reality;" that BG became "very sensitive" to yelling and began hitting himself and other family members; that MR started hitting family members and diving under the table at the sound of a loud noise; that BR started imagining that "superheroes" would come to his rescue, "which impeded his interaction with reality," and also became aggressive towards family members; and that ER became more aggressive towards his family, especially his younger brother, making interactions difficult.
As for defendants' argument that the alleged abuse does not "shock the conscience," plaintiffs respond that official conduct that has the effect of depriving parents of their liberty interest in the companionship and society of their children is by definition something that "shocks the conscience." Morever, they note, the question whether conduct "shocks the conscience" depends on context, and is fact-dependent. They claim that the fact that the BUSD employees had knowledge of Holder's prior actions (actions taken towards students who are not plaintiffs in this case), but nevertheless allowed her to continue teaching special-needs children, shows that they were covering up the unlawful conduct, which they believe in itself shocks the conscience.
The court finds that the motion must be GRANTED. As a general matter, the allegations as to the minor plaintiffs are too vague and ambiguous to support a constitutional claim. While the SAC describes in great detail the abusive actions taken by Holder during the period 2007-2010 against three students (LL, KG, and JP), who are not plaintiffs in this action,
It is not entirely clear whether the excessive force claim should be analyzed under the Fourth Amendment or under the Due Process Clause of the Fourteenth Amendment. Defendants appear to object only to having a claim for "excessive force" under both the Fourth and Fourteenth Amendments (although they also object to having a Fourth Amendment claim at all because there are no allegations of any search or seizure). Plaintiffs' position is that they intended to assert an excessive force claim under the Fourth Amendment, not the Fourteenth Amendment.
The Fourth Amendment proscribes "unreasonable searches and seizures." U.S. Const. amend. IV;
"The consequences of a teacher's force against a student at school are generally analyzed under . . . the Fourth Amendment, although historically courts applied substantive due process analysis. . . ."
Four years later, in
In
As part of its analysis, the court noted that as early as 1977, the Supreme Court stated that public school students have a constitutional due process right "to be free from, and to obtain judicial relief for, unjustified intrusions on personal security."
In 1989, however, the Supreme Court held in
In this context, the court in
Whether brought under the Fourth or the Fourteenth Amendment, the excessive force claim fails to state a claim. The Fourth Amendment portion of the first cause of action alleges excessive force, but the facts alleged do not show either a search or a seizure of any of the minor plaintiffs. Nor do the facts support a Fourteenth Amendment excessive force claim. The SAC does not allege facts showing that any defendant other than Holder used excessive force, and as to Holder, it does not clearly allege facts showing that she used excessive force against any of the minor plaintiffs.
The SAC alleges that MG came home with "red marks" on his arms, but there is no allegation that the red marks were caused by something Holder did (as opposed to the actions of someone else in the classroom). AG told her mother that Holder was "mean" and "hit kids," but there is no allegation that Holder hit AG. BG communicated that Holder "yelled at the class" and told students to "shut up," but there is no allegation that Holder used physical force against BG. MR arrived home from school with a large bruise on his arm, and at other times had "bruises and scratches," but there is no allegation that Holder herself used physical force against him.
As for the school official defendants, plaintiffs assert that they are individually liable for Fourth Amendment violations in that they were deliberately indifferent to the rights of the minor plaintiffs to be free from abuse, and to the rights of the parents to be kept informed about the alleged abuse, knowing that Holder posed a risk to the children, and by not reporting or remediating the alleged abuse when they became aware of it. The court interprets this as a claim of supervisory liability under § 1983.
Vicarious liability is inapplicable to a § 1983 claim. Thus, a plaintiff must plead that each state official, through the official's own individual actions, has violated the Constitution.
Here, however, plaintiffs have not alleged facts showing that Holder or the BUSD defendants violated their constitutional rights.
As for the Fourteenth Amendment claim of interference with parent-child relationships, the court finds that plaintiffs have not stated a claim. It is clear that parents and children have a constitutional right "to live together without governmental interference."
The SAC fails to state a Fourteenth Amendment due process claim for interference with parent-child relationships because the alleged interference does not rise to a level that is subject to protection under substantive due process. Not all actions that allegedly affect the parent-child relationship can support a constitutional claim.
In that case, the plaintiff E.H. was a student at Loma Vista in BUSD. He was physically restrained after he ran away from school (29 times), and on several other occasions was dragged or pulled into the school office by teachers or aides. The plaintiff asserted a substantive due process claim based on alleged interference with the parent-child relationship, but the court dismissed the claim, finding that such a right is considered impaired only in situations such as the death of a child, the loss of parental rights, or the loss of contact with or custody of the child.
In the present case, plaintiffs have cited a number of cases involving substantive due process violations based on impairment of the parent-child relationship, but all those cases involve substantially greater deprivations than the "loss of trust" alleged here. For example, the deprivation alleged in
The deprivations and ill effects plaintiffs allege in the SAC are not nearly as severe as those in
The court finds that the SAC does not allege facts sufficient to state an actionable claim for interference with parent-child relationships. Specifically, as in
Federal Rule of Civil Procedure 12(f) provides that the court "may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Fed. R. Civ. P. 12(f). The function of a 12(f) motion to strike is to avoid the expenditure of time and money that must arise from litigating spurious issues by dispensing with those issues prior to trial. . . ."
Motions to strike are not favored and "should not be granted unless it is clear that the matter to be stricken could have no possible bearing on the subject matter of the litigation."
In this motion, defendants seek an order striking certain allegations in six paragraphs of the SAC, relating to the criminal charges brought against Holder in February 2011, and the subsequent plea and sentence, and also relating to the 2013 settlement of the
First, defendants assert that the allegations relating to the
In response, plaintiffs argue that the references to the
The court finds that the motion must be DENIED. The materiality of some of the allegations may be slight, but there is nothing here that is not a matter of public knowledge. Most of the cases cited by defendants are from courts outside the Ninth Circuit, and all predate the Ninth Circuit's 2010 decision in
In addition, Rule 12(f) applies to pleadings, but defendants' arguments here are focused on "evidence." While defendants may certainly seek an order precluding evidence in the event that the case goes to trial, the Federal Rules of Evidence are not at issue in a motion to strike pleadings under Rule 12(f).
In accordance with the foregoing, defendants' motion to dismiss the first cause of action under § 1983 is GRANTED. The SAC does not allege facts showing that any defendant other than Holder used excessive force, and as to Holder, it does not clearly allege facts showing that she used excessive force against any of the minor plaintiffs. While shouting at developmentally disabled children and calling them "stupid" is reprehensible, it does not rise to the level of a constitutional violation. Thus, the § 1983 excessive force claim against Holder must be dismissed. And having failed to state an excessive force claim against Holder, plaintiffs cannot maintain a claim of supervisory liability. As for the Fourteenth Amendment claim of interference with familial relations, the court finds no allegations of interference with custody sufficient to state a substantive due process claim of interference with the parent-child relationship.
As plaintiffs did not provide any information as to how they would amend the complaint, were amendment allowed, the court dismisses this claim without leave to amend. Should discovery on the battery cause of action result in evidence regarding the use of force by Holder, plaintiffs can seek leave to amend to add the § 1983 claim back into the case. Defendants' motion to strike is DENIED.
