The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge
Plaintiffs D.K., G.M., M.W., L.W., and B.W. seek injunctive and monetary relief from Defendants Solano County Office of Education ("SCOE") and Superintendent Dee Alarcón ("Superintendent Alarcón"); Solano County Board of Education ("SCBE") and its individual board members ("Solano Board Members"); Benicia Unified School District ("BUSD"), Superintendent Janice Adams and Director of Special Services Clare Davies; BUSD Board of Education ("BBOE") and its individual members ("Benecia Board Members"); Karla Buckley, Teacher; Sandra Perez, Class Room Aide; Shannon Ingersoll, Class Room Aide; and Ruthie Garcia, Class Room Aide, for claims arising under 42 U.S.C. §§ 12101, et seq. ("ADA"), section 504 of the Rehabilitation Act, 42 U.S.C. § 1983, California Civil Code §§ 51 and 54, and California Government Code §§ 11135, et seq. Declaratory relief and non-statutory state law claims of intentional infliction of emotional distress, negligent infliction of emotional distress and battery are also alleged.
Presently before the Court are two Motions to Dismiss: (1) Karla Buckley's and Sandra Perez's Motion to Dismiss ("Buckley's Motion"), and (2) Shannon Ingersoll's and Ruthie Garcia's Motion to Dismiss ("Ingersoll's Motion"). Both move to dismiss Plaintiffs' First Amended Complaint pursuant to Fed. Civ. P. 12(b)(6)*fn1 on grounds that Plaintiffs fail to state a claim upon which relief may be granted.
Specifically, Buckley's Motion seeks to dismiss Plaintiffs' Third, Fourth, Fifth, Seventh, Ninth, Tenth, and Eleventh Causes of Action against Karla Buckley and Sandra Perez. Ingersoll's Motion seeks to dismiss Plaintiffs' Third, Fourth, Fifth, Seventh, Ninth, Tenth and Eleventh Causes of Action against Shannon Ingersoll and Ruthie Garcia. For the reasons set forth below, the Motions will be granted in part and denied in part.*fn2
Plaintiff D.K. ("DK") is a nineteen-year old student who lives within the SCOE school district. He has multiple disabilities, which include epilepsy, cerebral palsy, and, physical and developmental disabilities along with cognitive impairment. DK currently attends a county special education program at Benicia High School. Plaintiff G.M. ("GM") is DK's parent and also an employee of SCOE.
The second named Plaintiff, M.W. ("MW"), is a twenty-year old student who lives within the SCOE school district. She has multiple disabilities, which include cognitive impairment and a psychosis allegedly resulting from Defendants' abuse. MW also attends the county special education program at Benicia High School. Plaintiffs L.W. ("LW") and B.W. ("BW") are MW's parents and guardians ad litem.
DK and MW attended Benicia High School special education classes from August 2004 to present. During this period of time, Plaintiffs allege that DK's teacher, Karla Buckley ("Buckley"), and class room aide, Sandra Perez ("Perez"), physically abused DK by covering his hands in glue as punishment for his disability related behavior, then watching in amusement. Plaintiffs further allege that Buckley and Perez physically abused DK by forcing him to walk on his injured foot. Buckley and Perez allegedly made DK walk on his foot despite knowledge of DK's recent surgery because Buckley and Perez have a personal animus towards DK due to his disability related behaviors. Plaintiffs also claim that Buckley and Perez restrained DK by tying him to his wheelchair, reclined it, then left the wheelchair in an inverted position for an extended period of time. Plaintiffs further allege that Buckley and Perez subjected DK to sub-human and humiliating conditions by permitting him to sit in his own feces. Plaintiffs claim that DK's other class room aides, Shannon Ingersoll ("Ingersoll") and Ruthie Garcia ("Garcia"), failed to intervene during the above described incidents.
Plaintiffs allege that Buckley and Perez also abused MW. Plaintiffs assert that MW's medications have a noted effect of making her drowsy. As punishment for sleeping, Buckley and Perez allegedly forced MW to stand atop a chair for prolonged periods of time in front of her classmates.
Plaintiffs claim that on at least one occasion, MW fell from the chair and injured herself. Plaintiffs also allege that Buckley and Perez repeatedly taunted and ridiculed MW by offering her rewards, then revoking them without reason. Plaintiffs assert that MW developed a psychosis because of these actions.
On or around March 6, 2007,Plaintiff GM, DM's parent and conservator, received a phone call from North Bay Regional Center ("Regional Center") which allegedly informed her that DK had been abused by Buckley and Perez. Plaintiffs assert that GM contacted SCOE to obtain more information and was told that an investigation was being conducted, that Buckley and Perez had been terminated, and that DK was not hurt.
On March 7, 2007, Plaintiffs claim that GM contacted the Regional Center and was told of numerous instances of abuse. On or around April 23, 2007, SCOE purportedly told GM that she could no longer visit DK's classroom without receiving permission from her county supervisor. Plaintiffs assert that SCOE knew of the alleged abuses and purposefully concealed the incidents by refusing to inform the parents of children with disabilities.
Plaintiffs attempt to bring this action on their own behalf and on behalf of all persons similarly situated. The class which Plaintiffs represent is composed of all parents of children with disabilities and their children with disabilities attending Benecia High School who have been denied their right to full and equal access to the facilities, programs, services and activities because of past abusive conduct concerning the discipline of children with disabilities.
Plaintiffs filed the present action on March 7, 2008. On March 26, 2008, Plaintiffs filed the First Amended Complaint now before the Court. Defendants Buckley, Perez, Ingersoll and Garcia now move to dismiss Plaintiffs' First Amended Complaint pursuant to Rule 12(b)(6).
On a motion to dismiss for failure to state a claim under Rule 12(b)(6), all allegations of material fact must be accepted as true and construed in the light most favorable to the nonmoving party. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). Federal Rule of Civil Procedure 8(a)(2) requires only "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." Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed. 2d 80 (1957). 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. Bell Atl. Corp. v. Twombly, 127 S.Ct. 1955, 1964-65 (2007) (internal citations and quotations omitted). Factual allegations must be enough to raise a right to relief above the speculative level.
Id. at 1965 (citing 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004) ("The pleading must contain something more... than... a statement of facts that merely creates a suspicion [of] a legally cognizable right of action").
If the court grants a motion to dismiss a complaint, it must then decide whether to grant leave to amend. The court should "freely give" leave to amend when there is no "undue delay, bad faith[,] dilatory motive on the part of the movant...undue prejudice to the opposing party by virtue of...the amendment, [or] futility of the amendment...." Fed. R. Civ. P. 15(a); Foman v. Davis, 371 U.S. 178, 182 (1962). Generally, leave to amend is only denied when it is clear that the deficiencies of the complaint cannot be cured by amendment. DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992).
1. Government Torts Claim Act
Defendants argue that to the extent the claims are brought against Buckley and Perez in their official capacity, Plaintiffs' Third, Fourth, Fifth, Seventh, Ninth, Tenth and Eleventh Causes of Action must be dismissed because Plaintiffs have not alleged facts sufficient to show compliance with the Government Torts Claims Act. (Buckley's P. & A. 5-6.) Plaintiffs urge that they satisfy the Government Torts Claims Act because they have pled compliance. (Pls.' Opp. to Buckley's Motion 9.)
Before bringing a suit against a public entity, the Government Tort Claims Act requires the timely presentation of a written claim and a rejection in whole or part. Cal. Gov. Code § 905; Mangold v. California Pub. Utils. Comm'n, 67 F.3d 1470, 1477 (9th Cir. 1995) (citing Snipes v. City of Bakersfield, 193 Cal. Rptr. 760, 762 (Cal. App. 5th Dist. 1983)). A plaintiff must allege facts demonstrating either compliance with the Government Tort Claims Act requirement or an excuse for noncompliance as an essential element of the cause of action. State of California v. Superior Court (Bodde), 32 Cal. 4th 1234, 1243-44 (Cal. 2004). Failure to allege compliance or an excuse for noncompliance constitutes a failure to state a cause of action and results in a dismissal of such claims. See Id.
In the instant case, Plaintiffs allege that they "filed an administrative tort claim against Defendants" and that "Defendants have rejected this claim." (Pls.' Am. Compl. ¶ 12.) At this stage, all allegations of material fact must be accepted as true and construed in the light most favorable to the Plaintiffs. If true, Plaintiffs have satisfied the Government Tort Claims Act requirement and have alleged this fact in their complaint. Accordingly, Defendants' ...