MEMORANDUM AND ORDER RE: MOTION TO DISMISS AND STRIKE
Plaintiff John Doe brought this action through his guardian ad litem, Nicolasa Gonzales, because two students at Picard Day School allegedly sexually molested and harassed him. Pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)(6), and 12(f), defendants Butte Valley Unified School District ("Butte Valley"), Edward Traverso, and Grayce Kelly now move to dismiss or, alternatively, strike allegations from plaintiff's Third Amended Complaint (TAC).
I. Factual and Procedural Background Plaintiff is a minor and a student at Picard Day
School, which is within the Butte Valley School District. (TAC ¶ 3.) At all times relevant to plaintiff's lawsuit, Kelly was plaintiff's teacher at Picard Day School and Traverso was the superintendent of Butte Valley. (Id. ¶¶ 3-4.) While plaintiff was attending school, two other minor students ("Moes 1 and 2") allegedly sexually molested and harassed plaintiff "over a period of weeks in February and March 2008." (Id. ¶ 6(d).)
Prior to the alleged sexual molestation and harassment of plaintiff, Moes 1 and 2 allegedly sexually molested other students on a school bus and on school property. After filing a claim with Butte Valley pursuant to the Government Claims Act, Cal. Gov't Code § 945.4, plaintiff initiated this action against Butte Valley, Traverso, and Kelly for damages based on the alleged conduct of Moes 1 and 2.
Plaintiff filed his original Complaint on January 27, 2009, and amended it as a matter of course the following day. After receiving leave from the court, plaintiff filed a Second Amended Complaint and the TAC on January 30, 2009, and February 24, 2009, respectively. In his TAC, plaintiff alleges a civil rights claim pursuant to 42 U.S.C. § 1983 against all defendants for violations of plaintiff's rights under the Equal Protection Clause, a sexual discrimination claim pursuant to 20 U.S.C. § 1681(a) ("Title IX") against Butte Valley only, and a state law negligence claim against all defendants.
Pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), defendants now move to dismiss plaintiff's TAC, contending that 1) Butte Valley and Traverso are not subject to suit under § 1983; 2) all three defendants are immune from liability on plaintiff's negligence claim; 3) plaintiff failed to comply with the Government Claims Act as to Traverso; and 4) the TAC does not state cognizable § 1983, Title IX, and negligence claims. Alternatively, defendants move to strike specific allegations from plaintiff's TAC pursuant to Rule 12(f). If the court grants any part of defendants' motion, plaintiff requests leave to file a fourth amended complaint, which defendants oppose.
On a motion to dismiss, the court must accept the allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by Davis v. Scherer, 468 U.S. 183 (1984); Cruz v. Beto, 405 U.S. 319, 322 (1972). To survive a motion to dismiss, a plaintiff needs to plead "only enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Dismissal is appropriate, however, where the plaintiff fails to state a claim supportable by a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).
Upon granting a motion to dismiss prior to issuing a scheduling order, Rule 15(a) "advises the court that 'leave shall be freely given when justice so requires,'" and the court should grant leave under Rule 15(a) "'with extreme liberality.'" Eminence Capital, L.L.C. v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). "Absent prejudice, or a strong showing of any [other relevant] factor, there exists a presumption under Rule 15(a) in favor of granting leave to amend." Id. Dismissal with prejudice and without leave to amend is not appropriate unless it is clear . . . that the complaint could not be saved by amendment." Id. Although plaintiff has already filed four complaints in this action, the case has been pending for less than three months and defendants have failed to show that they will suffer prejudice if plaintiff is allowed to file a fourth amended complaint. Accordingly, upon dismissing any claims, the court must grant plaintiff leave to amend his TAC unless the futility of amendment merits dismissing a claim with prejudice.
Pursuant to Federal Rule of Civil Procedure 12(f), "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). A "motion to strike is appropriate to address requested relief . . . which is not recoverable as a matter of law." Wilkerson v. Butler, 229 F.R.D. 166, 172 (E.D. Cal. 2005) (O'Neill, J.). When ruling on a motion to strike, the court must view the challenged pleadings in the light most favorable to the pleader. See Pillsbury, Madison & Sutro v. Lerner, 31 F.3d 924, 928 (9th Cir. 1994). Motions to strike are generally disfavored and "should not be granted unless it can be shown that no evidence in support of the allegation would be admissible, or those issues could have no possible bearing on the issues in the litigation." Gay-Straight Alliance Network v. Visalia Unified Sch. Dist., 262 F. Supp. 2d 1088, 1099 (E.D. Cal. 2001) (Wanger, J.).
While § 1983 is not itself a source of substantive rights, it provides a cause of action against any "person" who, under color of state law, deprives an individual of federal constitutional or statutory rights. 42 U.S.C. § 1983; Graham v. Connor, 490 U.S. 386, 393-94 (1989). States and arms of the states that have "traditionally enjoyed Eleventh Amendment immunity" do not constitute "persons" under § 1983 and therefore are "not subject to suit under § 1983 in either federal or state court." Howlett ex rel. Howlett v. Rose, 496 U.S. 356, 365 (1990). To determine whether a particular state entity, such as a local school district, is an arm of the state, a court must examine "the nature of the entity created by state law." Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 281 (1977); see also Belanger v. Madera Unified Sch. Dist., 963 F.2d 248, 250-51 (9th Cir. 1992) (applying the "multi-factored balancing test summarized in Mitchell v. Los Angeles Community College District, 861 F.2d 198, 201 (9th Cir. 1988)," and examining the factors "in light of the way [state] law treats the governmental agency").
"Unlike most states, California school districts have budgets that are controlled and funded by the state government rather than the local districts." Belanger, 963 F.2d at 251. Based primarily on California's "centralized control of school funding," the Ninth Circuit has held that California local school districts are arms of the state for purposes of Eleventh Amendment immunity. Because this conclusion is dependent on the state law of California, neither the Ninth Circuit's reasoning nor its holding in Belanger is discredited by the Supreme Court's conclusion that local school districts created under the laws of a different state are not arms of that state.*fn1 Accordingly, because Butte Valley is an arm of the state that is traditionally immune from suit under the Eleventh Amendment, it is not a "person" subject to suit under § 1983. The court must therefore dismiss plaintiff's § 1983 claim against Butte Valley with prejudice.
While a state officer sued in his official capacity for damages is also not a "person" under § 1983, a state officer sued in his official capacity for injunctive relief or in his individual capacity for damages is a "person" subject to § 1983 liability. Hafer v. Melo, 502 U.S. 21, 27 (1991). Although plaintiff's TAC is silent as to whether Traverso is sued in his official or individual capacity, plaintiff seeks damages and therefore can sue Traverso only in his individual capacity. See Stoner v. Santa Clara County Office of Educ., 502 F.3d 1116, 1123 (9th Cir. 2007) ("'In many cases, the complaint will not clearly specify whether officials are sued personally, in their official capacity, or both. ...