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DOE v. PETALUMA CITY SCH. DIST.

August 30, 1993

JANE DOE, a Minor, by and through her Guardian ad Litem, JOHN DOE, Plaintiff,
v.
PETALUMA CITY SCHOOL DISTRICT, AND PETALUMA JOINT UNION HIGH SCHOOL DISTRICT, DICK CLECLAK, RICHARD HOMRIGHOUSE, KENILWORTH JUNIOR HIGH SCHOOL and ROES 1 through 50, inclusive, Defendants.



The opinion of the court was delivered by: LYNCH

 INTRODUCTION

 Plaintiff Jane Doe has filed suit concerning defendants' alleged failure to put an end to sexual harassment inflicted on her by her peers while she was a student at Kenilworth Junior High School. Defendants' motion to dismiss plaintiff's First Amended Complaint is before the court. For the reasons stated below, the court holds:

 (1) The motion to dismiss because the claims are barred by the statute of limitations is DENIED.

 (2) The motion to dismiss the Title IX claim is GRANTED (with leave to amend). The court finds that hostile environment sexual harassment claims may be brought under Title IX. To obtain damages, however, the plaintiff must prove intentional discrimination on the basis of sex on the part of an employee of the educational institution, not just that an employee or employees of the institution knew or should have known of the hostile environment and failed to take appropriate action to end it.

 (3) The motion to dismiss the Title IX claim against the individual defendants (Homrighouse and Cleclak) is GRANTED (with prejudice) because Title IX makes institutions, not individuals, liable.

 (4) The motion to dismiss the section 1983 claim against the school districts is GRANTED (with prejudice) because they are immune under the Eleventh Amendment. The motion to dismiss the section 1983 claim against Homrighouse and Cleclak on the ground of Eleventh Amendment immunity is DENIED because they have been sued in their individual capacities. The section 1983 claim against Cleclak, however, is DISMISSED (with leave to amend) to allege sufficient facts to establish section 1983 liability for him.

 (5) The motion to dismiss the section 1983 claim on the merits is GRANTED (with prejudice) to the extent that it is based on a "special relationship" theory within the meaning of DeShaney. Plaintiff may amend the section 1983 claim (against the individual defendants only) to the extent that she is claiming another theory of section 1983 liability.

 (6) The motion to dismiss the California Civil Code § 52.1 claim is GRANTED (with leave to amend) because plaintiff has failed to allege facts to show that any defendant interfered with her rights by threats, intimidation or coercion.

 (7) The motion to dismiss the intentional and negligent infliction of emotional distress claims on the ground of state law immunity is GRANTED (with prejudice) but the motion to dismiss the California Civil Code § 52.1 claim on the ground of state law immunity is DENIED.

 (8) The motion to dismiss the entire complaint against Kenilworth Junior High School on the ground that it is not a suable entity is GRANTED (with prejudice).

 BACKGROUND

 The factual allegations are drawn from plaintiff's complaint. Plaintiff Jane Doe (Jane) is a minor; she was born on December 30, 1977 and she resides in Petaluma, California. At all times relevant to this suit she was a student at Kenilworth Junior High School (Kenilworth), a public school in Sonoma County, California.

 Petaluma City School District and Petaluma Joint Union High School District (PJUHSD) control and manage the public schools in Petaluma, including Kenilworth Junior High School. PJUHSD is a recipient of federal financial assistance.

 Defendant Dick Cleclak (Cleclak) is, and at all relevant times was, the principal of Kenilworth. Defendant Richard Homrighouse (Homrighouse) is, and at all relevant times was, a counselor at Kenilworth.

 Plaintiff's Allegations

 Jane alleges that she was repeatedly subjected to sexual harassment by other students throughout seventh and eighth grades; that she informed school officials of the harassment, and that they did not respond to the harassment adequately. Most of the harassment was verbal, in the form of statements about Jane having a hot dog in her pants or that she had sex with hot dogs.

 Specifically, plaintiff alleges: In mid-Fall, 1990, when she was in seventh grade, two students, Scott and Mike, said to plaintiff, "I hear you have a hot dog in your pants." Within a few weeks, another student said something to her about her having a hot dog in her pants and that there was a rumor spreading around the school about her and hot dogs.

 Within a few days Jane reported those incidents to Mr. Homrighouse, her counselor. She told him she was upset and asked him to stop the harassment. He did nothing. Throughout the fall, students continued to make comments regarding plaintiff having sex with a hot dog and called her "hot dog." Plaintiff went to Homrighouse approximately every other week to get him to stop the harassment. He said that all he could do was warn the students. He never told plaintiff about the Title IX Student/Parent Grievance Policy, nor did he tell her about the Title IX officer for Kenilworth, Mrs. Noll (Noll).

 Later in the Fall of 1990, Jane's father, John, spoke to Homrighouse about the comments and rumors. Homrighouse told John that Jane had informed him of the comments and that he was taking care of the problem. Homrighouse did not tell Jane's father about the Title IX Grievance Policy or about the Title IX coordinator. Also in the Fall of 1990, plaintiff's mother spoke to Homrighouse a couple of times. Homrighouse said that everything was going well, that some kids just need time to adjust to junior high, and that he expected the comments to cease in a short time.

 In approximately December of 1990, John spoke to Homrighouse because Jane was being harassed by some girls (or one girl) who wanted to fight her because she had reported their harassment. Homrighouse later informed John that he had looked into the matter, spoken to the girl who wanted to fight, and gave plaintiff's father the impression that things would be all right. Nonetheless, the harassment continued.

 In the early months of 1991, during an English class, Mario and Scott (two students) were speaking to Jane and made reference to her having a hot dog in her pants. Jane reported these statements to Homrighouse. He told her that the comments were sexual harassment. He called Mario and Scott into his office and warned them.

 Jane also asked Homrighouse to do something about the girls making hot dog comments. He advised her that girls could not get into trouble for making such sexual comments because girls could not sexually harass other girls. He told her all he could do was to warn the students and that since there were so many students taunting her and calling her "hot dog" that warning all of them would be fruitless. Homrighouse did bring the girls in in groups and told Jane to work it out with them. The girls promised to stop the harassment but never did.

 Jane's father spoke to Homrighouse after the incident with Mario and Scott. Homrighouse responded by saying essentially "boys will be boys," but he told Jane's father that he had warned Mario and Scott.

 The comments continued in the Spring of 1991. Jane talked to Homrighouse about five times a month during that period. She reported being called a "hot dog bitch," "slut" and "hoe" (slang for whore) by girls who were trying to get her to fight. Homrighouse said that the could not stop the girls from talking to Jane because of their free speech rights. Homrighouse did nothing although he knew Jane was frightened and upset. Harassment by both boys and girls continued throughout the Spring of 1991, Jane continued to complain to Homrighouse, and he continued to do nothing about the harassment. Homrighouse assured Jane's mother that he was keeping an eye out for Jane. The comments continued throughout the summer of 1991, both on and off the school grounds.

 On the first day of the eighth grade, in September of 1991, a student name Dawn wanted to fight Jane. A friend of Jane's intervened and told Dawn to leave Jane alone. Jane was left alone for one week. Over the next four months, however, comments and threats were made to Jane from both boys and girls on a daily basis. Jane reported the incidents to Homrighouse on a weekly basis, as he had asked her to. She got a reputation as a tattle-tale. Going to school became increasingly emotionally difficult for Jane.

 Jane's mother called Homrighouse two or three times in the Fall of 1991 to ask for help. He responded that sooner or later the kids would mature and cease harassing Jane. He stated that there was little he could do since no one had actually hit Jane. Again, he failed to inform Jane's mother about the Title IX grievance procedure or the Title IX coordinator. Jane's father also spoke to Homrighouse three of four times during the Fall of 1991. Homrighouse stated that "boys will be boys," that he would talk to the students involved, and that things should be getting better. The harassment continued.

 On January 21, 1992, Jane was slapped by another student. The incident was reported to Noll, the Vice-Principal (and Title IX coordinator), who was in charge of discipline. She took written statements and suspended the offending student for two days.

 On February 20, 1992, a student named Dan stood up in plaintiff's English class and said, "This question is for Jane. Did you have sex with a hot dog? " The entire class laughed. The teacher made Dan apologize. Jane ran out in tears. She reported the incident to Homrighouse. Noll suspended Dan for two English classes. Noll told Jane that this was the first incident that she had been told of regarding the sexual harassment of Jane. Upon Jane's mother's insistence, Dan was suspended for two days.

 Students wrote comments about Jane, such as "Jane is a hot dog bitch," on the bathroom walls every day. Jane stopped going to the bathroom during the day.

 On February 21, 1992, John met with Cleclak, Noll, and Homrighouse. John told Cleclak that he wanted something done about the harassment of Jane. Cleclak advised John that Noll was the Title IX representative for Kenilworth. Noll stated that she had not been informed about the ongoing harassment of Jane. John asked Homrighouse why he had never informed Noll about the hot dog comments. Homrighouse responded, "I didn't advise her because I didn't feel it was important."

 On February 24, 1992, while Jane was buying lunch at the snack bar, she overheard two boys commenting about her preferring Oscar Mayer hot dogs and whether she liked them frozen or cooked. Jane reported this to Noll and a witnessed verified it. The boys were eventually suspended for two days.

 On February 28, 1992, Jane was approached by a girl who wanted to fight. Employees intervened and took Jane to Noll after Jane said she wanted to call her mother. Jane was allowed to call her mother after giving a statement. Her mother immediately came to school and told Noll that Jane would no longer attend Kenilworth.

 Jane transferred to another public school in March of 1992, but the comments continued there. Jane now attends a private girl's school. Jane sustained injuries to her body and has and will suffer severe mental and emotional distress as a result of the harassment she suffered. She has undergone medical and psychological treatment as a result of the harassment. In addition, she must now pay tuition for a private school because she could no longer endure the harassment at public school.

 Plaintiff filed a claim against all defendants pursuant to Government Code §§ 905 and 905.2. The claim was rejected on July 14, 1992. The complaint in this case was filed on January 11, 1993.

 DISCUSSION

 The Standard for Motions to Dismiss

 In considering a motion to dismiss, the court must assume that the plaintiff's allegations are true, and grant the motion only if it appears "beyond doubt" that the plaintiff can prove no set of facts entitling the plaintiff to relief. Sun Savings & Loan Ass'n v. Dierdorff, 825 F.2d 187, 191 (9th Cir. 1987); Federal Sav. and Loan Ins. Corp. v. Musacchio, 695 F. Supp. 1053, 1058 (N.D. Cal. 1988). Motions to dismiss are viewed with disfavor under this liberal standard. Intake Water Co. v. Yellowstone River Compact Comm'n, 590 F. Supp. 293 (D. Mont. 1983), aff'd, 769 F.2d 568 (9th Cir. 1985), cert. denied, 476 U.S. 1163, 106 S. Ct. 2288, 90 L. Ed. 2d 729 (1986). "Dismissal can be based on the 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). "For purposes of a motion to dismiss, the complaint is construed in the light most favorable to plaintiff and its allegations are taken as true. The court's inquiry is directed to whether the allegations constitute a statement of a claim under Rule 8(a)." 5A Wright & Miller, Federal Practice and Procedure § 1357 at 304-310 (1990) (footnotes omitted). In relevant part, Rule 8(a) provides that the complaint shall include "a short and plain statement of the claim showing that the pleader is entitled to relief. . . ."

 Plaintiff's Causes of Action

 Jane alleges violations of Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681, et seq.; the equal protection clause of the Fourteenth Amendment and her right to privacy as protected by the Fourth, Fifth, Ninth, and Fourteenth Amendments; California Civil Code § 52.1; as well as alleging intentional and negligent infliction of emotional distress.

 1. The Statute of Limitations

 Defendants argue that plaintiff's claims are time-barred. The court disagrees.

 a. The Federal Claims

 Neither Title IX nor section 1983 has its own statute of limitations. The court must look to the statute of limitations for the most closely analogous state law cause of action to determine a federal statute's limitations period when there is no applicable federal statute of limitations. Wilson v. Garcia, 471 U.S. 261, 85 L. Ed. 2d 254, 105 S. Ct. 1938 (1985). The statute of limitations for section 1983 actions is the state's personal injury statute. In California, that is Code of Civil Procedure § 340(3), which establishes a one-year period. Alexopulos v. San Francisco Unified Sch. Dist., 817 F.2d 551, 554 (9th Cir. 1987).

 The one-year statute of limitations also applies to claims under Title IX. In Taylor v. Regents of Univ. of Cal., 993 F.2d 710 (9th Cir. 1993) the Ninth Circuit applied the one-year statute of limitations to claims under Title VI, 42 U.S.C. § 2000d, which prohibits discrimination on the basis of race, color, and national origin in programs that receive federal financial assistance. Title IX is based on Title VI and is to be interpreted in a similar manner, Cannon v. University of Chicago, 441 U.S. 677, 694-96, 60 L. Ed. 2d 560, 574-75, 99 S. Ct. 1946 (1979), so the same statute of limitations should apply. This conclusion is supported by Bougher v. University of Pittsburgh, 882 F.2d 74, 77-78 (3rd Cir. 1989), in which the Third Circuit held that Pennsylvania's personal injury statute of limitations applies to Title IX claims.

 Thus, both federal claims are governed by California's one-year personal injury statute of limitations. Defendants argue that the federal claims are barred, assuming the statute of limitations for the federal claims is not tolled. The court disagrees.

 Plaintiff's complaint was filed on January 11, 1993. Absent tolling, acts or omissions that would otherwise subject defendants to liability must have been committed on or after January 11, 1992, for any of plaintiff's claims that come within the one-year statute to be cognizable. It cannot be determined from the face of the complaint that no violations of the federal statutes occurred on or after January 11, 1992. Moreover, the court concludes that the federal claims were tolled due to Jane's minority.

 Defendants argue that they responded to the incidents in January and February of 1992 and therefore those incidents may not serve as a basis for plaintiff's claims. Defendants also argue that the January and February 1992 incidents do not rise to the level of a viable claim under Title IX. Defendants cite the incidents mentioned in paragraphs 33, 34, and 37 of the complaint. Paragraph 33 concerns the January 21 incident in which Jane was slapped. The offending student was suspended for two days. Paragraph 34 concerns the February 20 incident in which Dan asked whether Jane has sex with a hot dog. Dan was suspended for two days. Paragraph 37 concerns the February 24 incident in which students commented about Jane's preferring Oscar Mayer hot dogs and wondering whether she liked them cooked or frozen. The offending students were suspended for two days. There are a number of problems with defendant's argument, although plaintiff has failed to raise them.

 First, at least some of the incidents in January and February of 1992 clearly do concern harassment on the basis of sex. Whether the court may look to other incidents of sexual harassment in determining whether a certain incident of harassment constituted sexual harassment need not be decided at this time. Second, whether defendants' response to the incidents conclusively shows that defendants did not intentionally discriminate against Jane on the basis of sex *fn1" is a question of fact that cannot be resolved on a motion to dismiss.

 Third, the complaint refers to a number of incidents of sexual harassment that occurred after January 11, 1992, but does not indicate whether the defendants responded to all of them. Paragraph 35 of the complaint (which appears to concern the time period including January and February of 1992), concerns graffiti applied on a daily basis to the bathroom walls about Jane's alleged sexual interest in hot dogs. The complaint does not indicate that any corrective action was taken regarding the graffiti.

 Paragraph 39 states that in March of 1992, Jane transferred to another public school and that the comments continued there. The court assumes that the other public school was in PJUHSD; the complaint does not indicate otherwise. Finally, paragraph 29 provides a general statement that Jane was subjected to harassment on a daily basis in the four months following the September, 1991, start of the school year and that Jane reported these incidents to Homrighouse on a weekly basis. Four months from September, 1991, is January, 1992, the month this suit was filed. The court may not presume that all of those incidents occurred prior to January 11, 1992. Moreover, the complaint does not indicate that all alleged incidents of sexual harassment that occurred in 1992 are specifically mentioned in the complaint. In fact, the general reference to sexual harassment occurring after Jane transferred to another public school indicates that the complaint does not address each incident of sexual harassment that occurred in 1992. It is therefore impossible to find on a motion to dismiss that no violations occurred after January 11, 1992.

 Tolling

 Plaintiff argues that the statute of limitations for her federal causes of action is tolled pursuant to Code of Civil Procedure § 352(a)(1) and that the defendants are estopped from raising the statute of limitations as a defense. As the Ninth Circuit stated in Alexopulos:

 
In the absence of a federal statute of limitations, federal courts borrow not only the applicable state statute, but also the rules for its tolling, unless to do so would be "'inconsistent with the federal policy underlying the cause of action under consideration.'"

 Id., 817 F.2d at 555 (quoting Board of Regents v. Tomanio, 446 U.S. 478, 485, 100 S. Ct. 1790, 1795, 64 L. Ed. 2d 440 (1980) (quoting Robertson v. Wegmann, 436 U.S. 584, 98 S. Ct. 1991, 56 L. Ed. 2d 554 (1978))).

 Section 352

 Section 352 provides:

 
(a) If a person entitled to bring an action, mentioned in Chapter 3 of this title, be, at the time of the ...

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