The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court
Order Granting in Part and Denying in Part Defendants' Motion for Summary Adjudication [Doc. No. 84]; Denying Plaintiff's Ex Parte Application for Continuance [Doc. No. 101]
Plaintiff Jessica Schroeder, by and through her parent and guardian Marina Laneri Schroeder, has filed a complaint under 42 U.S.C. § 1983 against Defendants San Diego Unified School District ("District"), the Board of Education of the San Diego Unified School District ("Board), Kimberly Chambers, Michael Jiminez,, and Sue Skinner, alleging they violated her right to due process under the Fourteenth Amendment. Plaintiff also alleges a cause of action for negligence against these Defendants. Plaintiff's claims arise out of a peer tutor's sexual abuse of Jessica in the Spring of 2006, while she was a student in Ms. Chambers ILS classroom at Serra High School within the District.
All Defendants move for summary adjudication of Plaintiff's claim under § 1983, as well as her claim for punitive damages. Plaintiff has filed an opposition, and Defendants have filed a reply. Along with her opposition, Plaintiff also filed an ex parte application for a continuance under Fed. R. Civ. Proc. 56(f), to allow her an opportunity to conduct limited discovery regarding the District's receipt of federal funds for special education programs. Defendant has filed an opposition to that ex parte application.
Upon review of the materials, for the reasons explained herein, the Court GRANTS IN PART AND DENIES IN PART Defendants' motion. In addition, the Court DENIES Plaintiff's ex parte application for a continuance of the summary adjudication motion.
Plaintiff initially filed her complaint on July12, 2007, alleging causes of action against the District and Ms. Chambers under 42 U.S.C. § 1983, Title II of the Americans with Disabilities Act, the California Unruh Civil Rights Act, and California Civil Code § 51.9, as well as negligence. Plaintiff's mother, Marina Laneri Schroeder, asserted a claim for intentional infliction of emotional distress against the District and Ms. Chambers. Plaintiff also alleged a claim for battery against Fernando Ortiz, the student who sexually abused her, and alleged Fernando's parents, Henry and Sylvia Ortiz, were vicariously liable for their son's actions.
Defendants Fernando, Henry, and Sylvia Ortiz filed answers to the complaint on September 14, 2007. Defendants, the District and Ms. Chambers, moved to dismiss the complaint for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6). By order filed November 26, 2007, the Court denied Defendants' motion.
On November 11, 2008, Plaintiff moved the Court for leave to file an amended complaint. The Court granted that motion and on February 5, 2009, Plaintiff filed her amended complaint. Plaintiff's amended complaint deleted all claims against Fernando, Henry, and Sylvia Ortiz, and also deleted Marina Laneri Schroeder's individual claim. Plaintiff added two new Defendants, Michael Jimenez and Sue Skinner. Plaintiff deleted all of her claims under the ADA and California Civil Code, and alleged only claims under § 1983 as well as negligence.
Defendants now move for summary adjudication of Plaintiff's claim under § 1983 and her claim for punitive damages.
At the time of the incident in the Spring of 2006, Jessica was an 18-year old severely mentally retarded young woman with the functional ability of a young child. [Amended Complaint, ¶ 3; Deposition of Lauren Basteyns ("Basteyns Depo."), Exhibit A to Plaintiff's Notice of Lodgment ("NOL") in Support of Response to Motion for Summary Adjudication, 21:5-11; Deposition of Kimberly Chambers ("Chambers Depo."), Exhibit B to NOL, 16:24-17:23.] Jessica was a student in Kimberly Chambers' Integrated Life Skills ("ILS") class at Serra High School within the District. [Chambers Depo., 16:8-13.] The purpose of this class is to teach students with a low level of mental functioning certain basic skills, such as buying groceries and riding the bus, so that they can function in society. [Deposition of Michael Jimenez ("Jimenez Depo."), Exhibit F to NOL, 19:8-17.] Ms. Chambers, as the ILS teacher, was responsible for the personal safety practices and procedures in that classroom. [Chambers Depo. 99:22-100:1.]
Fernando Ortiz, who was also a student at Serra High School, was first assigned to be a "peer tutor" in Ms. Chambers' classroom in the fall semester of 2005. [Deposition of Susan Skinner ("Skinner Depo."), Exhibit K to NOL, 50:21-51:7.] Ortiz had been suspended right after school began in the fall of 2005 for making derogatory statements on MySpace about a special education student.*fn2 [Id., 51:19-23; Jimenez Depo, 103:8-23.] Upon his return to school, Ortiz attended a conference with his mother, school counselor Sue Skinner and vice-principal Michael Jimenez. At that conference, Mr. Jimenez suggested Ortiz should serve as a peer tutor in the ILS classroom so Ortiz would gain a greater understanding of how to help those who were not as fortunate as him. [Skinner Depo., 53:1-57:15; Jimenez Depo., 104:3-105:12; Deposition of Fernando Ortiz ("Ortiz Depo."), Exhibit J to NOL, 32:1-33:22.] Everyone at the meeting agreed it would be a good idea, so Ms. Skinner physically made the change to Ortiz's schedule, putting him in the ILS classroom as a peer tutor during sixth period. [Skinner Depo., 53:17-21, 57:20-58:2.] Ortiz worked in the ILS room, where Plaintiff was a student, for only a week or two before he was expelled for gambling at school. [Ortiz Depo., 40:8-13; 50:7-16; 153:17-22; Skinner Depo., 42:17-43:5.]
Ortiz returned to Serra High School for the spring semester of 2006. Ortiz asked Ms. Skinner if he would still be a peer tutor during sixth period, and she indicated it was necessary for him to still be included in the peer tutor program. Therefore, Ortiz again became a peer tutor in the ILS classroom. [Ortiz Depo., 157:3-20.]
Ortiz was in Ms. Chambers' room acting as a peer tutor on the afternoon of April 17, 2006. [Chambers Depo., 100:12-13.] Along with Ms. Chambers, there were four additional adults present in the room, Carlos Long, Linde Forte, Sharon Webber, and Brenda Lucas. [Chambers Depo., 110:24-111:11.] There was also another student peer tutor present, Stephanie. [Chambers Depo., 101:8-11.] Close to the end of the school day, Stephanie approached Ms. Chambers and told her she saw Ortiz in class that day with Jessica's hand on his "thighs and private parts" and that she had seen it "a couple times." [Chambers Depo., 107:10-24.] Stephanie reported later that she saw Ortiz and Jessica sitting at a table, and Jessica was trying to complete a puzzle. [Declaration of Stephanie Legorreta ("Legorreta Decl."), Exhibit Q to NOL, ¶ 8.] She saw Ortiz unzip his pants, pull out his penis, and then reach over and take Jessica's hand and place it on his penis. [Id.] Ortiz moved Jessica's hand up and down on his penis over a period of almost 30 minutes. [Id.] Ortiz does not deny he sexually abused Jessica.*fn3 [Ortiz Depo., 106:2- 107:22.] Ortiz admits the abuse occurred while others were in the room engaging in a bowling activity, and that he had Jessica masturbate him a couple minutes at a time, off and on, over a period of about 30 minutes. [Ortiz Depo., 110:1-113:2.] After Stephanie reported the incident to Ms. Chambers, Ms. Chambers reported the incident to Mr. Jimenez. [Jimenez Depo., 125:25.] Mr. Jimenez interviewed Stephanie the next morning, and then called the school police. [Id., 126:7-15]. Ortiz was arrested and charged.
Prior to being chosen as a peer tutor, and in addition to his suspension related to the MySpace content, Ortiz had incurred a number of disciplinary infractions while a high school student*fn4 in the District. During his ninth grade year, Ortiz was disciplined for cheating, "illegal activity," fighting, disturbing his class, making threats against another student and being argumentative. [Declaration of Fernando Ortiz ("Ortiz Decl."), Exhibit P to NOL, ¶ 5; San Diego Unified School District Disciplinary Record Document Summary ("Disciplinary Record")*fn5 ,
Exhibit R5 to NOL, entries 7-12.] In the tenth grade, Ortiz was suspended on one occasion for sexually harassing two girls on a school bus*fn6 and on another occasion for having beer at school [Disciplinary Record, entries 13 and 14.] Ortiz was also later expelled from school for selling bottles of alcohol on the school campus, conduct for which he was arrested. [Ortiz Depo., 24:7-19.] Ortiz was later readmitted to school, however, because Serra High School did not have a representative attend the expulsion hearing. [Id., 23:10-24:6.] Ortiz was again suspended in the tenth grade for breaking into his teacher's computer and changing his grades. [Disciplinary Record, entries 15 and 16; Ortiz Depo., 150:14-17; Chambers Depo., 92:25-93:3.] Ortiz was also suspended a couple of times his junior year for fighting at school and for stealing chemicals from the chemistry lab. [Ortiz Depo., 150:24-151:4.]
At his deposition, Ortiz testified that he received little training regarding how to work with Jessica in the ILS classroom. [Ortiz Depo 55:2-56:4.] Ortiz and the other peer tutors were "quite often" left alone in the ILS classroom with Jessica and other special needs students without any adult in the room. [Ortiz Depo. 57:4-23; 58:8-9.] On at least two occasions, Ortiz was left alone in the classroom with Jessica and another ILS student with no one else present. [Ortiz Depo. 58:20-25.] Ortiz testified Ms. Chambers provided very little supervision to him throughout the Spring semester. [Ortiz Depo. 60:8-61:2; 70:10-15.] For example, Ortiz frequently left the classroom with another ILS student, Kyle, during which time he would go smoke marijuana on school grounds. [Ortiz Depo. 67:20-68:9.]
At the time school officials made the decision to place Ortiz in the ILS classroom as discipline for his derogatory MySpace comments, Mr. Jimenez was "familiar with what [Ortiz] had done at Serra High School in terms of getting involved in inappropriate behavior." [Jimenez Depo. 107:5-7.] Mr. Jimenez was not aware Ortiz had a prior incident of sexual harassment while at Serra High School. [Id. 108:1-12.] Mr. Jimenez had access to Ortiz's entire disciplinary history with the District through his computer, but did not look at that information before he decided to place Ortiz in the ILS classroom. [Id. 106:20-22,108:6-111:19.]
At the time she participated in the decision to place Ortiz in the ILS classroom as a peer tutor, and when she made the change to Ortiz's schedule, Ms. Skinner did not know of Ortiz's prior incident of sexual harassment while at Serra High School, or much of anything about Ortiz's disciplinary history. [Skinner Depo., 54:13-16.] Ms. Skinner had access to the school district's computer system containing disciplinary records. [Id. 14:14-15:13.] Through that system she could query regarding a student's disciplinary history for the current year, but she would have to request someone else obtain information regarding prior years. [Id.] Ms. Skinner did not do any investigation regarding Ortiz's disciplinary background prior to changing Ortiz's schedule to put him in the ILS classroom, or prior to placing him back in the classroom when he returned from suspension at the beginning of the spring semester. [Id. 55:5-8.]
Ms. Chambers was in charge of the peer tutor program in the ILS classroom in the spring semester of 2006. [Skinner Depo. 40:21-25.] As the ILS teacher, Ms. Chambers had an opportunity to veto the decision to place Ortiz in her classroom as a peer tutor or request a check of his disciplinary history. [Skinner Depo. 55:19-56:3.] At the time Ortiz was assigned to Ms. Chambers' ILS classroom as a peer tutor, Ms. Chambers did not know anything about his disciplinary history except that he was returning to school after having been suspended. [Chambers Depo. 73:6-75:4; 84:11-85:15.] At the time of her deposition, Ms. Chambers was shocked to learn of Ortiz's disciplinary history. Ms. Chambers believed it would have been helpful if she had the information when Ortiz began working in her classroom. [Chambers Depo. 85:13-25; 95:9-96:14.]
Ex Parte Application for Continuance
As an initial matter, Plaintiff's counsel requests a continuance of the summary adjudication motion under Fed. R. Civ. Proc. 56(f) to allow him to conduct additional discovery regarding the District's receipt of federal funds for special education. In particular, in his opposition to the Defendants' motion, Plaintiff implies the District's receipt of federal special education funding could act as a waiver of Eleventh Amendment immunity. Plaintiff argues the Defendants failed to raise the immunity defense in their answer, such that when they did assert it in the summary adjudication motion, he was unable to conduct discovery in a timely manner to address the immunity issue.
As explained in detail below in the discussion of Defendants' Eleventh Amendment immunity, Plaintiff in this case has not alleged any cause of action under any federal statute which conditions the receipt of federal special education funds upon a waiver of the state agency's sovereign immunity. Thus, as a matter of law as explained below, regardless of whether the District received federal funds under the IDEA (the particular statute the Plaintiff identifies in his application), receipt of such funds would not act as a waiver of the Defendants' immunity in this case. Therefore, the Court DENIES Plaintiff's ex parte application to continue this motion to permit additional discovery.
Summary Adjudication Standard
Pursuant to Fed. R. Civ. Proc. 56(a), a party may move for summary adjudication on less than all of the claims in the case. Summary judgment is appropriate on a particular claim where the pleadings and other evidence show "that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. Proc. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A material issue of fact is a question the trier of fact must answer to determine the rights of the parties under the applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
A dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248. Summary judgment may be granted in favor of a defendant on an ultimate issue of fact where the defendant carries its burden of "pointing out to the district court that there is an absence of evidence to support the nonmoving party's case." Celotex, 477 U.S. at 325; see Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1106 (9th Cir. 2000).
The moving party bears "the initial responsibility of informing the district court of the basis for its motion." Celotex, 477 U.S. at 323. To satisfy this burden, the moving party must demonstrate that no genuine issue of material fact exists for trial. Id. at 322. However, the moving party is not required to negate those portions of the non-moving party's claim on which the non-moving party bears the burden of proof. Id. at 323. To withstand a motion for summary judgment, the non-movant must then show that there are genuine factual issues which can only be resolved by ...