The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge
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 ("§ 1983"), § 504 of the Rehabilitation Act or 1973 29 U.S.C. § 794 ("§ 504"), the Americans with Disabilities Act at 42 U.S.C. § 12132 ("ADA"), and state law claims for assault and battery, negligence, intentional infliction of emotional distress, and violations of the Unruh Civil Rights Act at California Civil Code § 51 ("the Unruh Act").
Plaintiffs' claims arise in the context of special education services provided to G.J., and range from claims against private entities and individuals, to allegations levied against Tracy Unified School District and its Board of Education ("TUSD"), the entity responsible for operating the public school where G.J. was eventually placed, and finally to allegations against the San Joaquin County Office of Education ("SJCOE"), which was charged with administering special education programs within the County, and the San Joaquin Local Plan Area 5 ("SELPA"), an entity entrusted with supervising the distribution of federal and statute funds necessary to operate special education programs and services.
Presently before the Court are two Motions to Dismiss brought on behalf of both TUSD and its administrators and specialists on the one hand, and SJCOE, SELPA and its director, Sandee Kludt, on the other. The Motions are brought, pursuant to Federal Rule of Civil Procedure 12(b)(6),*fn1 on grounds that the complaint fails to state claims upon which relief can be granted. Because the two Motions raise similar arguments, they will be considered collectively below, with any differences noted as necessary.
According to Plaintiffs' Complaint, Defendants provided G.J., an eight-year old boy with Landau Kleffner's Syndrome, 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 was mainstreamed into public school for the 2005-2006 academic year, and was enrolled in the first grade at the Louis Bohn Elementary School, a school within the boundaries of Defendant Tracy Unified School District.
According to Defendants, the negative challenges arising from G.J.'s behavioral challenges thereafter escalated to the point that the TUSD was forced to obtain an order from the San Joaquin County Superior Court changing G.J.'s educational placement to a more soothing sensory environment where his behavior could be better controlled.
Consequently, 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. The following month, after discovering what had happened, 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. After Defendants filed two separate Motions to Dismiss, this Court issued an Order on November 21, 2008 ("November 21 Order") that dismissed the FAC without prejudice and granted leave to amend. On December 10, 2008, Plaintiffs filed a Second Amended Complaint ("SAC") that contains seven causes of action for violations of §§ 1983, 504 and the ADA, in addition to state law claims alleging assault and battery, negligence, intentional infliction of emotional distress, and violations of the Unruh Act.*fn2
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 (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, 2007 U.S. LEXIS 5901, 20-22 (U.S. 2007) (internal citations and quotations omitted). Factual allegations must be enough to raise a right to relief above the speculative level.
Id. at 21 (citing 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-36 (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).
A. California Tort Claims Act
Plaintiffs Still Fail to Allege Compliance with the This Court's November 21 Order dismissed Plaintiffs' state law claims for assault and battery, negligence, and intentional infliction of emotional distress because Plaintiffs failed to allege compliance with the California Tort Claims Act, California Government Code § 900, et seq. ("CTCA"). The CTCA requires a plaintiff suing a public entity to present the entity with a claim for damages prior to filing a complaint for damages. Cal. Gov't Code §§ 910, 911.2. The presentation requirement applies even when a plaintiff is seeking individual liability against a public employee for an act or omission committed in his or her official capacity. Briggs v. Lawrence, 230 Cal. App. 3d 605, 613 (6th Dist. 1991) (imposing the CTCA presentation requirement on a plaintiff suing a public defender in his individual capacity even though the office was immune from liability); see also Garcia v. Adams, 2006 WL 403838 at *9 (E.D. Cal. 2006) (dismissing a complaint against a public employee for plaintiff's failure to serve the public entity employer). The Plaintiffs' SAC does not allege compliance with the CTCA. Accordingly, for a second time, Plaintiffs' failure to allege compliance with the CTCA requires dismissal of all state law claims.
Defendants request that the SAC be dismissed with prejudice because of Plaintiffs' repeated failure to plead compliance with the CTCA. Generally, courts shall freely grant leave to amend after dismissal of a complaint. Fed. R. Civ. P. 15(a).
A court faced with a request to deny leave to amend must consider (1) whether leave to amend would cause undue delay, (2) whether the plaintiff is acting with bad faith or a dilatory motive, (3) any undue prejudice to the opposing party, and (4) whether granting leave to amend would be futile. Foman v. Davis, 371 U.S. 178, 182 (1962). All of these factors are not of equal weight, and the Ninth Circuit has recognized that prejudice to the opposing party is the most important. Jackson v. Bank of Hawaii, 902 F.2d 1385, 1387 (1990). The Ninth Circuit has also stated that dismissal with prejudice is only appropriate if it is clear to the district court that the complaint could not be saved by amendment. Eminence Capital, LLC v. Aspeon, 316 F.3d 1048, 1052 (9th Cir. 2003); see also McMullen v. Fluor Corp., 81 Fed. Appx. 197, 199 (9th Cir. 2003) (leave to amend should be granted so long as plaintiff offers in good faith to cure the deficiencies of the complaint).
Defendants argue that dismissal with prejudice is appropriate because Plaintiffs did not comply with the directive of the November 21 Order to allege compliance with the CTCA. (Mem. of P. & A. in Supp. of Mot. to Dismiss Pls.' Second Am. Compl. 5-6, Dec. 19, 2009 [hereinafter TUSD Motion]; Defendants San Joaquin County Office of Education et al. Mot. to Dismiss Second Am. Compl. 4-6, Dec. 22, 2008 [hereinafter SCJCOE Motion].) As a result, Defendants argue that the litigation has suffered from undue delay, and will further be delayed because they will assert their rights regarding compliance with the CTCA upon the filing of another amended complaint. (TUSD Motion 5-6.)
Defendants also claim that granting leave to amend will prejudice their case because further delay will result in "fading of memories" and "the potential inability to locate witnesses." (Reply Mem. of P. & A. in Supp. of Mot. to Dismiss ...