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McElroy v. Tracy Unified School Dist.

May 11, 2009

G.J. MCELROY, A MINOR, BY AND THROUGH HIS PARENTS AND GUARDIANS AD LITEM, GEORGE MCELROY AND GIA MCELROY, PLAINTIFFS,
v.
TRACY UNIFIED SCHOOL DISTRICT, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge

MEMORANDUM AND ORDER

Plaintiffs G.J. McElroy ("G.J."), a minor, along with his parents George and Gia McElroy (collectively "Plaintiffs"), bring this action against sixteen named defendants for claims arising under 42 U.S.C. § 1983, 42 U.S.C. § 1988, § 504 of the Rehabilitation Act or 1973, the Americans with Disabilities Act ("ADA") at 42 U.S.C. § 12132, and state law claims of assault and battery, negligence, and intentional infliction of emotional distress.

Presently before the Court are three different Motions to Dismiss brought on behalf of private entity Defendants in this matter, including 1) Applied Behavior Consultants ("ABC") and its employee Michelle Max; 2) Valley Mountain Regional Center ("VMRC") along with VMRC employees Tara Sizemore-Ayres and Jirii Sakata; and 3) Kristi Miklusicak (hereinafter collectively referred to as "Private Defendants" unless otherwise specified). Because they raise similar arguments, the Private Defendants' Motions will be considered collectively below, with any difference between the three Motions noted as necessary.

BACKGROUND

According to Plaintiffs' Complaint, Defendants provided G.J., an eight-year old boy with Landau Kleffner's Syndrome,*fn1 educational care between 2002 and 2007 related to his special needs. Initially, the educational care was provided by various Defendants at G.J.'s residence. Plaintiffs claim that the home providers furnishing these services improperly grabbed, held, restrained and isolated G.J. during the special education sessions they provided.

G.J. eventually enrolled in public school for the 2005-2006 academic year, and was placed in the first grade at an elementary school within the boundaries of Defendant Tracy Unified School District.

Plaintiffs allege that in March of 2006, G.J. was removed from his classroom and placed in a tent located within a barricaded portion of the school cafeteria. Defendants claimed the tent provided G.J. with a needed "soothing sensory environment." The following month, after discovering what had transpired in this regard, G.J.'s parents removed him from public school and sought injunctive relief. G.J. did not thereafter return to school, and received no further services from Defendants.

On January 14, 2007, Plaintiffs filed a Complaint with this Court, and on June 8, 2007 the action was stayed until Plaintiffs exhausted their administrative remedies as required by the Individuals with Disabilities Education Act, 20 U.S.C. § 1400, et seq. ("IDEA"). Approximately one month later, on July 6, 2007, Plaintiffs and Defendant Tracy Unified School District completed the administrative remedies available under the IDEA. Plaintiffs then filed a First Amended Complaint ("FAC") with this Court on April 14, 2008. The FAC contained seven causes of action for violation of 42 U.S.C. § 1983, 42 U.S.C. § 1988, § 504 of the Rehabilitation Act of 1973, and the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq. ("ADA"), in addition to state law claims alleging assault and battery, negligence, and intentional infliction of emotional distress. Private Defendants challenged the FAC on numerous grounds, including Motions to Dismiss under Rule 12(b)(6). Those Motions resulted in the Court dismissing certain causes of action against the Private Defendants, without prejudice, by its Memorandum and Order dated October 29, 2008 (hereinafter referred to as "October 29 Order").

Plaintiffs then proceeded, on December 11, 2008, to file a Second Amended Complaint ("SAC") in an effort to rectify the deficiencies that were the subject of the previously filed Motions to Dismiss. In the SAC, Plaintiffs continue to name numerous Defendants, including both private and public entities.*fn2 All three Private Defendants then proceeded to file the Motions to Dismiss now before the Court, which are brought both pursuant to Rule 12(b)(6) and Rule 12(b)(1).*fn3 Private Defendants assert that Plaintiffs' most recent attempt to assert viable claims against them pursuant to 42 U.S.C § 1983 and § 504 of the Rehabilitation Act still fails. Additionally, in the absence of viable federal claims, Private Defendants urge the Court to decline to exercise supplemental jurisdiction over the remaining state law claims and to dismiss those claims under Rule 12(b)(1).

STANDARD

A. 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 ...


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