The opinion of the court was delivered by: Anthony W. Ishii Chief United States District Judge
ORDER ON DEFENDANTS' MOTION TO DISMISS AND ORDER REMANDING CALIFORNIA CIVIL CODE § 51.9 CLAIM TO THE FRESNO COUNTY SUPERIOR COURT
This case was removed from the Fresno County Superior Court on the basis of federal question jurisdiction. Plaintiff Krista Garcia ("Garcia"), through her guardian ad litem, alleges fourteen causes of action against Clovis Unified School District ("CUSD") and its employees Douglas Burns ("Burns"), Barry Jager ("Jager"), Greg Bass ("Bass"), Anna-Maura Cervantes ("Cervantes"), and Mai Yia Moua ("Moua"). Garcia's claims stem from conduct by her former teacher Burns and CUSD's reaction to Burns's conduct. CUSD moves to dismiss each cause of action alleged against it under Federal Rule of Civil Procedure 12(b)(6). For the reasons that follow, CUSD's motion will be granted in part and denied in part.
From the complaint,*fn1 during the 2007-2008 school year: Garcia was a student at Reyburn Middle School ("the School"), Jager was the principal of the School, Moua was the eighth grade guidance counselor at the School, Burns was a teacher (apparently math) at the School, and Bass and Cervantes were employees of CUSD. See Complaint at ¶ 11.
In early November 2007 (hereinafter "the November Incident"), during Burns's math class, Garcia was walking back to her chair when she was approached from behind by Burns.
See id. at ¶ 12. Burns lifted Garcia upside down and completely off the ground. See id. "Burns held Garcia, including on or about her buttocks, 'feeling her,' positioning her head directly in his groin area and proceeded to shake her up and down several times, in front of the entire class." Id. After Burns put her down, Garcia put her head down until class was over. See id. at ¶ 13. Garcia's classmates encouraged her to report the incident "to the office." Id. Garcia then immediately went to "the office" and reported the incident to "an administrator/assistant," believed to be the eighth grade secretary. See id. The secretary stated that she would contact Garcia's mother and report the matter to other personnel; she then instructed Garcia to return to class. See id.
Garcia did not tell her mother about this incident until April 2008, and CUSD never contacted Garcia's mother to advise or discuss this incident. See id. at ¶ 14. Garcia states on information and belief that CUSD made no official report or took any action regarding Burns and the November Incident. See id. at ¶ 15.
After the November Incident, Garcia felt humiliated and fearful whenever she had to be around Burns and tried to avoid him as much as possible. See id. at ¶ 16. However, Garcia remained enrolled in Burns's math class. See id.
Apparently no further incidents occurred until March 2008 (hereinafter "the March Incident"). Garcia was waiting outside on School grounds for her mother to pick her up from classes. See id. at ¶ 17. Garcia was waiting with her brother and some of his friends, who were also students at the School. See id. Burns approached the group and had a crossing sign in his hand. See id. at ¶ 18. Burns spoke to Garcia about seeing her in class and then, as he turned to walk away, he deliberately turned and "forcefully struck" Garcia with the sign on her buttocks. See id. Burns then left, but laughed out loud as he walked away.*fn2 See id. Garcia was scared and confused, and her brother pulled her next to him. See id. at ¶ 19. Garcia did not tell her mother about this incident until April 2008, and continued to try to avoid Burns because she continued to feel fearful and humiliated. See id.
On April 1, 2008, Garcia attended a school attendance review board ("SARB") meeting at the CUSD office. See id. at ¶ 20. Garcia, her mother, Bass, Cervantes, Moua, and "others" were present at this meeting. See id. During the course of the SARB meeting, Garcia broke down and cried and gave a brief account of the November and March Incidents with Burns. See id. at ¶ 21. An unidentified administrator stated, in essence, that the meeting was not the time or place to discuss the Incidents. See id. Bass stated that it was the appropriate time and place. After more discussion, the unidentified administrator again stated that this was not the time or place to discuss such matters. See id. Garcia's mother attempted to get specifics as to whom she needed to contact and when was the proper time to discuss the Incidents. See id. She was told to schedule a meeting with Jager. See id. On information and belief, Garcia alleges that no action was taken with respect to Burns and the Incidents disclosed by Garcia at the meeting. See id. Garcia requested to be removed from Burns's classroom and "was moved at this time." Id. at ¶ 22.
From April 2 through April 11, 2008, Garcia's mother attempted to schedule a meeting with Jager. See id. at ¶ 23. On April 11, 2008, Jager and Garcia's mother met. See id. at ¶ 24. Jager stated that he was very concerned, that he and CUSD considered the reports by Garcia to be very serious, and that the matter was being dealt with appropriately. See id. Jager also told Garcia's mother that she would likely hear from other individuals and/or agencies in the near future, including law enforcement. See id.
On information and belief, Jager entered Burns's classroom and had a conversation with him about the March Incident. See id. at ¶ 25. Other children reported to Garcia that Burns told Jager that Burns was in the cross walk and "used the sign to 'hurry' [Garcia] out of the street." Id. On information and belief, Jager took no other action regarding Burns. Id.
From May 2008, to the end of the school year, Burns continued to stare and leer at Garcia "from head to toe" and to laugh and snicker at her when he saw her on campus. Id. at ¶ 27. Although Garcia tried to avoid Burns, she could not do so. See id. Garcia's attorneys wrote to CUSD regarding Garcia's complaints. See id. ¶ 28. Thereafter, CUSD removed Burns from the classroom. See id. Burns had continued to teach math class until May 2008, when he was removed. See id. at ¶ 26. On information and belief, Burns addressed his students prior to leaving his classroom. See id. at ¶ 29. Burns told his students that he was leaving because Garcia was suing him for hurrying her across the street with a crossing sign. See id. "Thereafter, students in the class harassed and retaliated against [Garcia]." Id.
Garcia filed this lawsuit in the Fresno County Superior Court in November 2008. Defendants removed in December. In her complaint, Garcia alleges the following causes of action: (1) assault, (2) battery, (3) false imprisonment, (4) intentional infliction of emotional distress, (5) sexual harassment under California Civil Code § 51.9, (6) violations of California education code §§ 201(c), (f) and 212.5 (7) negligence per se through California Penal Code § 11166, (8) negligent supervision, (9) negligent training, (10) negligent hiring/retention, (11) violation 20 U.S.C. § 1681(a) ("Title IX"), and (12) two violations of 42 U.S.C. § 1983 by Burns and CUSD respectively.
Federal Rule of Civil Procedure 8(a) sets the pleading standard for claims for relief. "Under the liberal rules of pleading, a plaintiff need only provide a 'short and plain statement of the claim showing that the pleader is entitled to relief.'" Sagana v. Tenorio, 384 F.3d 731, 736 (9th Cir. 2004) (quoting Fed. R. Civ. P. 8(a)). This rule does "not require a claimant to set out in detail the facts upon which he bases his claim." Conley v. Gibson, 355 U.S. 41, 47 (1957). The pleadings need only give the opposing party fair notice of a claim and the claim's basis. Conley, 355 U.S. at 47; Sagana, 384 F.3d at 736; Fontana v. Haskin, 262 F.3d 871, 877 (9th Cir. 2001).
47). The pleadings are also to "be construed as to do substantial justice," and "no technical forms of pleading . . . are required." Fed. Rules Civ. Pro. 8(e)(1), 8(f); Sagana, 384 F.3d at 736; Fontana, 262 F.3d at 877.
Under Federal Rule of Civil Procedure 12(b)(6), a claim may be dismissed because of the plaintiff's "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). A dismissal under Rule 12(b)(6) may be based on the lack of a cognizable legal theory or on the absence of sufficient facts alleged under a cognizable legal theory. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001); Balistreri v. Pacifica Police Dep't., 901 F.2d 696, 699 (9th Cir. 1988).In reviewing a complaint under Rule 12(b)(6), all allegations of material fact are taken as true and construed in the light most favorable to the non-moving party. Marceau v. Balckfeet Hous. Auth., 540 F.3d 916, 919 (9th Cir. 2008); Vignolo v. Miller, 120 F.3d 1075, 1077 (9th Cir. 1999). The Court must also assume that general allegations embrace the necessary, specific facts to support the claim. Smith v. Pacific Prop. and Dev. Corp., 358 F.3d 1097, 1106 (9th Cir. 2004); Peloza v. Capistrano Unified Sch. Dist., 37 F.3d 517, 521 (9th Cir. 1994). But, the Court is not required "to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1056-57 (9th Cir. 2008); Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). Courts will not "assume the truth of legal conclusions merely because they are cast in the form of factual allegations." Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003). Furthermore, Courts will not assume that plaintiffs "can prove facts which [they have] not alleged, or that the defendants have violated . . . laws in ways that have not been alleged." Associated General Contractors of California, Inc. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983). As the Supreme Court has recently explained:
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. Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).
Bell Atl. Corp. v. Twombly, 127 S.Ct. 1955, 1964-65 (2007). Thus, to "avoid a Rule 12(b)(6) dismissal, a complaint need not contain detailed factual allegations; rather, it must plead 'enough facts to state a claim to relief that is plausible on its face." Weber v. Department of Veterans Affairs, 521 F.3d 1061, 1065 (9th Cir. 2008) (quoting Twombly, 127 S.Ct. at 1974).
If a Rule 12(b)(6) motion to dismiss is granted, "[the] district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts." Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc). In other words, leave to amend need not be granted when amendment would be futile. Gompper v. VISX, Inc., 298 F.3d 893, 898 (9th Cir. 2002).
I. SIXTH, SEVENTH & TWELFTH CLAIMS (Violations of California Education Code §§ 201(c), 212.5 and Title IX)
CUSD argues, inter alia, that a person of sufficient authority was not informed of Burns's conduct until the April 1 meeting. Because it had no knowledge of the November and March Incidents until April, CUSD cannot be liable for them.
After April 1, there were no physical confrontations with Burns and staring and leering do not constitute sexual harassment. Further, CUSD was not "deliberately indifferent" to Garcia. The complaint shows that CUSD took immediate action to end the harassment when it removed Garcia from Burns's class and when it later removed Burns from teaching. That leering may have occurred or that the steps taken by CUSD may not have been successful does not in and of itself show deliberate indifference.
Finally, although Garcia alleges that other students harassed and retaliated against her, no facts are pled that either describe the retaliation and harassment or show that CUSD had knowledge of the retaliation and harassment.
Garcia argues that if it is assumed that CUSD did not have knowledge of Burns's conduct prior to the April 1 meeting, additional instances of sexual harassment after the November and March Incidents were reported to CUSD -- Burns's repeated leering and staring at Garcia. Further, Burns used other students to harass and retaliate against Garcia. CUSD had knowledge of the harassment but was deliberately indifferent to her. Garcia could not avoid Burns, who was always on campus, and the harassment was so severe and pervasive that it deprived her of access to educational benefits and opportunities.
Legal Standard -- Title IX*fn3
Title IX provides in part that: "No person . . . shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance . . ." 20 U.S.C. § 1681(a). Title IX encompasses sexual harassment of a student by a teacher and is enforceable through an implied private right of action for damages against a school district. Franklin v. Gwinnett County Pub. Sch., 503 U.S. 60, 75- 76 (1992). In a teacher-on-student Title IX sexual harassment case, the student must show that the harassing conduct was so severe or pervasive that the student was deprived of access to the education benefits or opportunities provided by the school. See Stanley v. Trustees of the Cal. State Univ., 433 F.3d 1129, 1137 (9th Cir. 2006). However, damages for a teacher's sexual harassment of a student may not be recovered "unless an official of the school district who at a minimum has authority to institute corrective measures on the district's behalf has actual notice of, and is deliberately indifferent to, the teacher's misconduct." Gebser v. Lago Vista Independent School Dist., 524 U.S. 274, 277 (1998); Bostic v. Smyrna School Dist., 418 F.3d 355, 360 (3rd Cir. 2005). The Supreme Court "expressly declined to impose liability on 'principles of respondeat superior or constructive notice,' instead demanding actual notice to an official of the defendant." Oden v. N. Marianas College, 440 F.3d 1085, 1089 (9th Cir. 2006) (citing Gebser, 524 U.S. at 285). Accordingly, for a student to proceed on a claim against a school district for teacher-on-student harassment under Title IX, the student must establish: (1) she or he was subjected to a sexually hostile environment or quid pro quo sexual harassment; (2) she or he provided actual notice of the situation to an "appropriate person," who was, at a minimum, an official of the educational entity with authority to take corrective action and to end discrimination; and (3) the institution's response to the harassment amounted to "deliberate indifference." Klemencic v. Ohio State University, 263 F.3d 504, 510 (6th Cir. 2001).
A school's response amounts to "deliberate indifference" when it is "clearly unreasonable in light of the known circumstances" such that the "official decision . . . [is] not to remedy the violation." Oden, 440 F.3d at 1089 (citing Gebser, 524 U.S. at 290). "Deliberate indifference" is a high standard and requires conduct that is beyond mere negligence. See Baynard v. Malone, 268 F.3d 228, 236 (4th Cir. 2001); Doe v. Dallas Indep. Sch. Dist., 220 F.3d 380, 383-84 (5th Cir. 2000); see also Oden, 440 F.3d at 1089 ("Nonetheless the record fails to demonstrate that the delay was more than negligent, lazy, or careless."); Williams v. Paint Valley Local Sch. Dist., 400 F.3d 360, 367 (6th Cir. 2005). Deliberate indifference is a fact sensitive inquiry. See Doe, 220 F.3d at 384; cf. Oden, 440 F.3d at 1089. "Deliberate indifference must, at a minimum, cause students to undergo harassment or make them liable or vulnerable to it." Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 645 (1999); Stanley, 433 F.3d at 1137. Although courts have indicated that continuing to utilize the same response after it has been shown to be ineffective, or not responding at all, or utilizing a "minimalist response" may demonstrate "deliberate indifference," see Escue v. Northern Okla. College, 450 F.3d 1146, 1155-56 (10th Cir. 2006); Vance v. Spencer County Public School Dist., 231 F.3d 253, 261-62 (6th Cir. 2000), a school is not deliberately indifferent simply because the response did not remedy the harassment or because the school did not utilize a particular discipline. See Escue, 450 F.3d at 1155; Williams, 400 F.3d at 367; Baynard, 268 F.3d at 236; Willis v. Brown Univ., 184 F.3d 20, 26 (1st Cir. 1999); cf. Oden, 440 F.3d at 1089.*fn4
After reviewing the Complaint, the Court believes that the facts pled by Garcia do not show deliberate indifference. Garcia does not dispute CUSD's contention that the first time CUSD had notice of the November and March Incidents was at the April 1, 2008 meeting.*fn5 At the meeting, Garcia requested to be removed from Burns's class and that request was granted. See Complaint at ¶¶ 20-22; cf. Peck v. W. Aurora Sch. Dist. 129, 2006 U.S. Dist. LEXIS 67145, *4-*9 (N.D. Ill. Aug. 30, 2006) (holding that several instances of conduct alleged in the complaint showed deliberate indifference by the school district including refusing to honor the student's request to be removed from the teacher's class without receiving a failing grade). This response would eliminate the regular and prolonged contact that Garcia would have with Burns in his math class. As such, in the spectrum of possible remedial conduct, it was not one that naturally would cause Garcia to undergo harassment by Burns or make her liable or vulnerable to it. See Davis, 526 U.S. at 645; Stanley, 433 F.3d at 1137.
Garcia contends that Burns's harassing conduct continued after April 1 because Burns would "leer and stare" at her. However, that an initial response does not remedy or prevent harassment from occurring is not, in and of itself, sufficient grounds for liability. See Williams, 400 F.3d at 367; Baynard, 268 F.3d at 236; Willis, 184 F.3d at 26. Garcia's allegations show that after she complained to CUSD (albeit through her attorneys) about Burns's leering and staring, CUSD responded. After Garcia complained about this conduct, CUSD removed Burns from the classroom altogether. See Complaint at ¶¶ 27-28. The Complaint shows that CUSD did not fail to respond to Garcia's additional complaints. CUSD took further corrective action beyond its initial response of removing Garcia from Burns's classroom. In other words, once it received word that further harassing conduct was occurring, CUSD tried a different course of corrective conduct. Cf. Vance, 231 F.3d at 261-62 (holding that deliberate indifference may be shown by continuing to utilize the same failed responses to complaints of harassment). Removing Burns from any classroom duties is a form of punishment and it was done as result of Garcia's complaints. See Complaint at ¶¶ 28-29. It is not a response that naturally would cause Garcia to undergo harassment by Burns or make her liable or vulnerable to it. See Davis, 526 U.S. at 645; Stanley, 433 F.3d at 1137.
With respect to any claims of retaliation and harassment by other students, there are insufficient facts pled. In fact, there are no facts alleged in the Complaint that describe conduct by other students. Without some facts that describe the harassment/retaliation by other students, Garcia is simply alleging a legal conclusion, which is not sufficient. See Twombly, 127 S.Ct. at 1964-65; Warren, 328 F.3d at 1139. Further, Garcia does not allege that CUSD was aware of the harassment by the other students. A school district is liable in damages for student-on-student harassment "only where they are deliberately indifferent to sexual harassment, of which they have actual knowledge, that is so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities and benefits provided by the school." Davis, 526 U.S. at 650 (emphasis added). If CUSD did not have actual knowledge of harassment by the other students, then CUSD cannot be liable. Without allegations that at least somewhat describe the conduct by other students, and without allegations that CUSD actually knew of the harassment by the other students, Garcia has failed to allege a claim for student-on-student harassment/retaliation. See id.
Garcia's opposition focuses more on the allegations that harassment continued after the initial complaint was made on April 1; it does not adequately address whether CUSD was deliberately indifferent. The key is not whether the harassment ended, rather the key is CUSD's response once it actually learned that harassment continued to occur. Williams, 400 F.3d at 367; Baynard, 268 F.3d at 236; Willis, 184 F.3d at 26 (". . . if it learns that its measures have proved inadequate, it may be required to take further steps to avoid liability."). The allegations of the complaint show that each time CUSD was informed of Burns's conduct, it took different corrective action and the Court does not see how the corrective conduct exposed Garcia to harassment or made her vulnerable to it. The Complaint affirmatively shows that CUSD was not deliberately indifferent to Garcia with respect to Burns. The Court has significant doubt whether Garcia can correct the deficiency with respect to her claim of teacher-on-student harassment. However, since the Court will be dismissing other claims with leave to amend, out of an abundance of caution, the Court will dismiss both the teacher-on-student and student-on-student claims with leave to amend.*fn6
II. SEVENTH CAUSE OF ACTION (Violation of California Education Code §§ 201(f), 212.5 -- "Failure to Prevent")
CUSD argues that a claim of failure to prevent is a legal conundrum since a school district is liable only if it has actual knowledge of discrimination that has occurred and responds in a deliberately indifferent manner. However, the Tenth Circuit has noted that there can be no liability for failure to prevent harassment unless there is a school policy of indifference. Garcia fails to allege such a policy, and thus, fails to state a claim.
Garcia does not respond to this ...