LAWRENCE J. O'NEILL, Chief District Judge.
Doneshia Neil ("Neil"),
In the fall of 2014,
Shortly after transferring to Downey High School, Neil was accused of being involved in a fight and suspended for leaving school by Defendant Chilles allegedly without notice or an opportunity to be heard. (Id. ¶¶ 37-38). Neil steadfastly denied any involvement in the incident. (Id.) On February 6, 2015, while Neil was suspended, her mother was informed by Chilles by voicemail that Neil could not return to Downey High School, and that she could either enroll at TOPS or return to Beyer High School. (Id. ¶ 39). Plaintiff contacted Defendant Galas to try to re-enroll Neil at Beyer High School, but was unsuccessful. (Id.)
At some time on February 6, 2015,
Plaintiff has filed three prior complaints in this action, each with varying Defendants and causes of action.
In the TAC, Plaintiff Cyprian now names five defendants in their individual capacities — Park, Galas, Carvalho, Baum, and Chilles — and does not bring any claims individually but only as Neil's successor in interest. (ECF No. 40). The TAC states a single cause of action pursuant to § 1983. In sum and substance, the § 1983 claims include: 1) violation of Neil's equal protection rights on the basis of her race; 2) violation of Neil's Fourteenth Amendment procedural due process rights in the disciplinary proceedings resulting in suspensions and expulsion; and 3) violation of Neil's Fourteenth Amendment right to substantive due process resulting in her suicide. Plaintiff alleges federal question jurisdiction pursuant to 28 U.S.C. § 1331 and 1343(a)(3) and (4). Venue is proper in this Court.
Now before the Court is the Defendants' motion to dismiss the single cause of action set forth in the TAC pursuant to § 1983 for violation of Neil's Fourteenth Amendment rights. (ECF No. 42). Defendants' motion also includes a motion to strike certain portions of the TAC. (Id. at 8). Plaintiff opposed Defendants' motion. (ECF No. 43). Defendants submitted a reply. (ECF No. 44). Defendants' motion is now ripe for review, and is suitable for disposition without oral argument. See Local Rule 230(g).
As recited in the Court's prior orders, a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) challenges the sufficiency of the allegations set forth in the complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). A 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." Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990). In determining whether a complaint states a claim upon which relief may be granted, the Court accepts as true the allegations in 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).
Under Rule 8(a), a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief," in order to "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A plaintiff is required to allege "enough facts to state a claim to relief that is plausible on its face." Id. at 570. "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, 556 U.S. 662, 678 (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).
While Rule 8(a) does not require detailed factual allegations, "it demands more than an unadorned, the defendant-unlawfully-harmed-me accusation." Iqbal, 556 U.S. at 678. A pleading is insufficient if it offers mere "labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Twombly, 550 U.S. at 555; see also Iqbal, 556 U.S. at 678 ("Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice."). Moreover, it is inappropriate to assume that the plaintiff "can prove facts that it has not alleged or that the defendants have violated the . . . laws in ways that have not been alleged[.]" Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983). 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. In other words, the complaint must describe the alleged misconduct in enough detail to lay the foundation for an identified legal claim.
"Dismissal without leave to amend is proper if it is clear that the complaint could not be saved by amendment." Kendall v. Visa U.S.A., Inc., 518 F.3d 1042, 1051 (9th Cir. 2008). To the extent that the pleadings can be cured by the allegation of additional facts, the Court will afford the plaintiff leave to amend. Cook, Perkiss and Liehe, Inc. v. N. Cal. Collection Serv. Inc., 911 F.2d 242, 247 (9th Cir. 1990).
The TAC contains one cause of action which states claims under § 1983 for violations of Neil's Fourteenth Amendment rights to equal protection, procedural due process, and substantive due process. Defendants argue all these claims should be dismissed because Plaintiff has not shown that Defendants acted with deliberate indifference. (ECF No. 42-1 at 2).
To state a claim under § 1983, plaintiff must allege that: (1) the defendant was acting under color of state law at the time the complained of act was committed; and (2) the defendant's conduct deprived plaintiff of rights, privileges, or immunities secured by the Constitution or laws of the United States. Jensen v. City of Oxnard, 145 F.3d 1078, 1082 (9th Cir. 1998). There is no dispute that the Defendants were acting under the color of state law. The Court addresses the applicable law for each of Plaintiff's § 1983 claims below and whether cognizable claims are stated for equal protection, procedural due process, and substantive due process violations.
The Fourteenth Amendment provides that "[n]o state shall . . . deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV, § 1. The Equal Protection Clause "is essentially a direction that all persons similarly situated should be treated alike." Green v. City of Tucson, 340 F.3d 891, 896 (9th Cir. 2003) (internal citation omitted). "To establish a § 1983 equal protection violation, the plaintiff[ ] must show that the defendants, acting under color of state law, discriminated against [her] as [a] member[ ] of an identifiable class and that the discrimination was intentional." Flores v. Morgan Hill Unified Sch. Dist., 324 F.3d 1130, 1134 (9th Cir. 2003). Race and sexual orientation are identifiable classes for equal protection purposes. See Washington v. Davis, 426 U.S. 229, 239 (1976) ("The central purpose of the Equal Protection Clause of the Fourteenth Amendment is the prevention of official conduct discriminating on the basis of race."); Flores, 324 F.3d at 1137 (sexual orientation is an identifiable class for equal protection purposes). School officials are prohibited from intentionally treating students disparately on the basis of their protected status. See Reese v. Jefferson Sch. Dist. No. 14J, 208 F.3d 736, 740 (9th Cir. 2000). The Ninth Circuit has "held that § 1983 claims based on Equal Protection violations must plead intentional unlawful discrimination or allege facts that are at least susceptible of an inference of discriminatory intent." Monteiro v. Tempe Union High Sch. Dist., 158 F.3d 1022, 1026 (9th Cir. 1998).
While the allegations in the TAC still remain convoluted, the crux of Plaintiff's equal protection claim is that Neil was unconstitutionally treated differently on account of her race in the disciplinary decision to suspend her, and at least one other African American student, but not the two Caucasian students involved in the incident on January 12, 2015 at Beyer. (TAC ¶¶ 22-24).
In contrast, there is no factual content alleged in the TAC that indicates the suspension and expulsion decisions at Downey were motivated by race or other identifiable class besides conclusory allegations. (TAC ¶ 36). Correspondingly, these conclusory allegations do not provide sufficient factual content to support an equal protection claim against Defendants Chilles and Baum, who were the principal and assistant principal at Downey. See, e.g., Iqbal, 556 U.S. at 678. Additionally, with respect to Defendant Park, the only allegations concerning his personal conduct in relation to Neil's Beyer suspension are conclusory statements. (TAC ¶¶ 27, 31, 35). The TAC states that Park "was aware of the unconstitutional suspension policies at Beyer that led to [Neil's] suspension[,] failed to intervene on her behalf, and was deliberately indifferent to his duties to intercede on behalf of [Neil] to prevent her unlawful suspension." (TAC ¶ 35). As stated in the Court's prior order, such generalized allegations are not sufficient to establish a supervisor's liability. Vivanco v. California Dep't of Corr. & Rehab., No. 117CV00434LJOBAM, 2017 WL 2547026, at *4 (E.D. Cal. June 13, 2017) ("General allegations that do not establish a link between the conduct alleged and specific defendants do not meet the minimal pleadings required to defend against a Rule 12(b)(6) motion" and allegations of what Defendants "in general knew or did" lacks the requisite specificity); (ECF No. 39 at 13-17, n. 22). A supervisor may be liable under Section 1983 upon a showing of (1) personal involvement in the constitutional deprivation or (2) a sufficient causal connection between the supervisor's wrongful conduct and the constitutional violation. Henry A. v. Willden, 678 F.3d 991, 1003-04 (9th Cir. 2012) (citing Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011)). The TAC does not allege sufficient facts to hold Park liable for equal protection violations because it does not allege personal involvement in the suspension decision and, apart from conclusory statements, does not plead that Park's conduct caused the alleged constitutional violation.
Correspondingly, the motion to dismiss Plaintiff's claims for equal protection violations is DENIED as to Defendants Galas and Carvalho and GRANTED as to Defendants Park, Baum, and Chilles.
The TAC also alleges that Neil's procedural due process rights were violated when disciplinary actions were taken without notice and an opportunity for Neil to tell her side of the story. (TAC ¶ 47(a)). The Due Process Clause of the Fourteenth Amendment provides that no State shall "deprive any person of life, liberty, or property, without due process of law." U.S. Const. amend. XIV, § 1. To establish a violation of procedural due process, Plaintiff must first identify a valid liberty or property interest protected by the Constitution. Hewitt v. Grabicki, 794 F.2d 1373, 1380 (9th Cir. 1986). A student's right to a public education is a property interest protected by the Due Process Clause. Goss v. Lopez, 419 U.S. 565, 574 (1975).
"Students facing temporary suspension have interests qualifying for protection of the Due Process Clause," and such due process requires, "in connection with a suspension of 10 days or less, that the student be given oral or written notice of the charges against [her]" and, if the student denies the charges, "an opportunity to present [her] side of the story." Goss, 419 U.S. at 581. What is required by procedural due process often depends on the specific circumstance but generally due process requires notice and a hearing. See id. at 578; Mathews v. Eldridge, 424 U.S. 319, 334 (1976) ("Due process is flexible and calls for such procedural protections as the particular situation demands"). For shorter suspensions, contemporaneous notice and hearing is sufficient, as is an informal discussion with the student of the alleged misconduct shortly after it has occurred. Goss, 419 U.S. at 582. As a general rule, notice and hearing should precede removal of the student from school. Id. When a student is faced with expulsion, due process protections require more formal procedures than a short suspension. Id. at 584; Wynar v. Douglas Cty. Sch. Dist., 728 F.3d 1062, 1073 (9th Cir. 2013) (holding that student received adequate due process before being expelled where student received written notice of the charges against him, a list of possible witnesses, a hearing, and the right to be represented by an advocate of his choosing to present evidence and question witnesses).
The TAC's allegations concerning the procedural due process violations are not altogether clear. With respect to Plaintiff's first suspension from Beyer, the TAC alleges in one instance that it was three days and in another that it was five days. (TAC ¶¶ 24, 27). The number of days Neil was out of school between the January 12, 2015 incident and when Defendant Galas called Plaintiff Cyprian on January 21, 2015 and told her Neil could not return to school separately indicates at least eight days of potential suspension. (TAC ¶¶ 24, 29). Regardless of how many days the suspension actually was, the allegations in the complaint indicate that Neil was given notice of the conduct for which she was being suspended when she was escorted to Defendant Galas's office following the incident and informed of her suspension. (TAC ¶ 23). It is not clear whether Neil was given an opportunity to tell her side of the story in Gala's office.
With respect to the allegations concerning Neil's suspension from Downey, the TAC's allegations are not much clearer. The TAC states that Neil was suspended for leaving school and appears to admit that she did in fact leave school. (TAC ¶ 37). Yet the TAC goes on to state that she was unconstitutionally suspended without notice or a hearing. (Id.). It appears Plaintiff was notified of this suspension by voicemail after the fact. (Id.). The TAC then goes on to allege that a day after Neil's suspension from Downey, Plaintiff Cyprian received a voicemail notifying her that Neil could not return to Downey — i.e., was presumably expelled. (Id. ¶ 39). If true, the failure to provide Neil with notice and a hearing prior to her expulsion may amount to a violation of her procedural due process rights. As such, viewing the allegations in the TAC in the light most favorable to Plaintiff, the TAC plausibly indicates that Neil's procedural due process rights were violated when she was suspended and expelled from Downey without prior notice or a hearing. (Id.).
Although the allegations concerning the Beyer suspension and potential expulsion are unclear and questionable as to whether they allege procedural due process violations, the Downey suspension and expulsion raise a plausible inference for a procedural due process violation. Correspondingly, Defendant's motion to dismiss the procedural due process claim is DENIED.
The TAC alleges that Neil's substantive due process rights under the Fourteenth Amendment were violated in that she was deprived of her right to bodily integrity due to the unconstitutional discipline, suspension and expulsion. (TAC ¶ 47). It appears that Plaintiff is again arguing that Defendants are liable for the violation of Neil's substantive due process rights in this case for failing to prevent Neil's suicide. (ECF No. 43 at 12). This Court previously dismissed these substantive due process claims in the context of Plaintiff's Cyprian's right to a familial relationship with her daughter. (ECF No. 39 at 7-10). The Court further noted that the standard for evaluating whether Neil's individual substantive due process rights were violated was equivalent and as such Neil's substantive due process claims were legally infirm as well. (Id. at n.16). Plaintiff does not allege additional facts in the TAC that remediates the legal infirmity noted in the Court's prior order.
Substantive due process "forbids the government from depriving a person of life, liberty, or property in such a way that `shocks the conscience' or `interferes with the rights implicit in the concept of ordered liberty.'" Corales v. Bennett, 567 F.3d 554, 568 (9th Cir. 2009) (quoting Nunez v. City of Los Angeles, 147 F.3d 867, 871 (9th Cir.1998)). The "cognizable level of executive abuse of power" for a substantive due process violation is egregious conduct which "shocks the conscience and violates the decencies of civilized conduct." Cty. of Sacramento v. Lewis, 523 U.S. 833, 846 (1998) (internal quotation marks omitted). Mere negligence or liability grounded in tort does not meet the standard for a substantive due process violation. Id. at 848-49. To the extent that Plaintiff attempts to state a substantive due process claim with respect to Defendants' disciplinary decisions violating her substantive due process rights (TAC ¶ 47), Plaintiff has not alleged conduct which is egregious enough to shock the conscience with respect to any of these Defendants.
To the extent that Plaintiff alleges that Defendants violated her right to bodily security by failing to prevent her suicide, the Court addressed this theory of liability in its prior order and dismissed such claims. (ECF No. 39 at 7-10). "It is well established that the Constitution protects a citizen's liberty interest in her own bodily security." Kennedy v. City of Ridgefield, 439 F.3d 1055, 1061 (9th Cir. 2006). It is also well established that the public has no constitutional right to sue state actors who fail to protect them from infliction of a private harm. Id. The danger creation exception is an exception to this general rule and it requires that the state action affirmatively placed an individual in danger and was then deliberately indifferent to that known danger. Id. at 1062-64. Generally, a school district or state official's "failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause." Harry A. v. Duncan, 234 F. App'x 463, 464 (9th Cir. 2007) (quoting DeShaney v. Winnebago County Dep't of Soc. Servs., 489 U.S. 189, 197 (1989)). Because Defendants did not actually inflict the ultimate harm, Plaintiff must establish that defendants acted with deliberate indifference in failing to prevent the known danger of Neil's suicide. See Duncan, 234 F. App.'x 463, 465. To demonstrate deliberate indifference to the risk of a suicide, a plaintiff must show: "(1) an unusually serious risk of harm, (self-inflicted harm in a suicide case), (2) defendants' actual knowledge of (or, at least, willful blindness to) that elevated risk, and (3) defendants' failure to take obvious steps to address that known, serious risk." L.W. v. Grubbs, 92 F.3d 894, 900 (9th Cir. 1996) (quoting Manarite v. City of Springfield, 957 F.2d 953, 956 (1st Cir. 1992)); see also Duncan, 234 F. App'x 463, 465.
Plaintiff has not alleged facts that demonstrate that Defendants were deliberately indifferent to an "unusually serious risk of harm," i.e., Plaintiff's suicide. Like the SAC, Plaintiff's TAC includes one paragraph with a factual allegation that Defendant Galas was told by Neil's friend that Neil talked about killing herself a week prior (following her first suspension) and that Galas notified Plaintiff Cyprian of the fact on January 26, 2015. (TAC ¶ 34).
Nor do the allegations in the TAC show that Plaintiff's suicide was a foreseeable consequence of harsh school discipline. See Corales v. Bennett, 567 F.3d 554, 572 (9th Cir. 2009) (holding that student committing suicide was unforeseeable result of harsh school discipline, was extraordinary, and thus that Plaintiffs (student's parents) failed to establish proximate cause with respect to the negligence claim on summary judgment);
The Plaintiff has had several opportunities to amend the complaint and has failed to allege sufficient facts to support a substantive due process violation under the Fourteenth Amendment. Therefore, the substantive due process claim is DISMISSED WITHOUT LEAVE TO AMEND.
Without citing to any supporting authority, Defendants argue that the Court should strike certain portions of the TAC. (ECF No. 42-1 at 8). The Defendants request that any reference in the TAC to Plaintiff Cyprian's individual claims be stricken because she has not stated any cause of action individually. (Id. (citing TAC ¶¶ 5-6, 41)). Additionally, the Defendants request that "several redundant, immaterial, and impertinent requests in [the] prayer for relief" should be stricken, including a request for punitive damages against entities no longer parties to this litigation, and certain requests for injunctive relief which seek to impose obligations on unnamed "school officials" of a district that is not a party to the action. (Id. (citing TAC at p. 21, d(i-iv))). Plaintiff does not address Defendants motion to strike in its opposition. (ECF No. 43).
Federal Rule of Civil Procedure 12(f) permits a court, either on its own or on a party's motion, to "strike from a pleading an 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. . . ." Whittlestone, Inc. v. Handi-Craft Co., 618 F.3d 970, 973-74 (9th Cir. 2010) (internal quotation and citation omitted). When a court considers a motion to strike, it "must view the pleading in a light most favorable to the pleading party." In re 2TheMart.com, Inc. Sec. Lit., 114 F.Supp.2d 955, 965 (C.D. Cal. 2000). A court must deny the motion to strike if there is any doubt whether the allegations in the pleadings might be relevant in the action. Id. at 965-966; Walters v. Fid. Mortg. of CA, 730 F.Supp.2d 1185, 1196 (E.D. Cal. 2010) ("A motion to strike should not be granted unless it is absolutely clear that the matter to be stricken could have no possible bearing on the litigation"); Colaprico v. Sun Microsystems, Inc., 758 F.Supp. 1335, 1339 (N.D. Cal. 1991), on reconsideration, No. CIV. 90-20610 SW, 1991 WL 207480 (N.D. Cal. July 1, 1991) (same). Additionally, "[m]otions to strike are disfavored and infrequently granted." Neveu v. City of Fresno, 392 F.Supp.2d 1159, 1170 (E.D. Cal. 2005); Dorros v. JP Morgan Chase Bank, N.A., No. CV1008319DMGPJWX, 2011 WL 13217681, at *4 (C.D. Cal. July 22, 2011) ("Courts generally view Rule 12(f) motions with disfavor and grant them infrequently . . . because of the limited importance of the pleadings in federal practice"); see also BJC Health Sys. v. Columbia Cas. Co., 478 F.3d 908, 917 (8th Cir. 2007) ("Striking a party's pleading . . . is an extreme and disfavored measure").
Defendants' request to strike paragraphs 5, 6, and 41 of the TAC
With respect to the request to strike the portion of the prayer for relief requesting punitive damages, it appears Defendants misread subsection (b) when they state that "the prayer seeks to impose punitive damages against entities that are no longer parties to the lawsuit." (ECF No. 42-1 at 8) (emphasis added). The portion of subsection actually states that "punitive damages are not sought against Stanislaus County. . . ." (ECF No. 40 at p. 21) (emphasis added). Defendants' motion to strike does not address the propriety of punitive damages against the existing Defendants. Therefore, the motion to strike this subsection is denied.
Lastly, Defendants request to strike the specific requests in the prayer for relief pertaining to injunctive relief in section d(i-iii) by arguing that these requests "seek[] to impose obligations upon unnamed `school officials' of a district that is not even a party to the action." (ECF No. 42-1 at 8). Additionally, Defendants state that section d(iv) is "devoid of any legitimate basis or authority" because it requests that a non-governmental agency monitor the individual defendants who are sued in their individual capacities. (Id.). Defendants do not provide any supporting citation or further elaboration for this argument. In addition, injunctive relief is available under § 1983. Rizzo v. Goode, 423 U.S. 362, 378 (1976) ("Section 1983 by its terms confers authority to grant equitable relief as well as damages. . . .") (internal quotation omitted). More importantly, Defendants have not shown that Rule 12(f) is an appropriate mechanism to strike a claim for certain damages because the subject matter of the request is not "redundant, immaterial, impertinent, or scandalous." See Whittlestone, Inc., 618 F.3d at 974-75 ("We . . . hold that Rule 12(f) does not authorize district courts to strike claims for damages on the ground that such claims are precluded as a matter of law"). The extent to which the specific requests are applicable or enforceable against the specifically named Defendants versus the unnamed school district is not clear particularly because Defendants have not bothered to brief the issue beyond the two sentences quoted above. However, given that motions to strike are highly disfavored and Defendants have not shown it is "absolutely clear that the matter to be stricken could have no possible bearing on the litigation," the Court denies Defendants motion to strike sections d (i-iv) of the prayer for relief. Walters, 730 F. Supp. 2d at 1196; (ECF No. 40 at 21).
For the reasons set forth above, the Court hereby ORDERS:
IT IS SO ORDERED.
