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McElroy v. Tracy Unified School District

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


May 15, 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.

Per the Court's Order (Docket No. 115) electronically filed May 12, 2009, the court granted in part and denied in part 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).

The Court now supplements that Order as to Defendant Tara Sisemore-Ayres only. Defendant Sisemore-Ayres' Motion to Dismiss Plaintiff's Third Cause of Action, arising under 42 U.S.C. § 1983, is granted with leave to amend because 1) Plaintiff did not allege any direct wrong-doing by Defendant Sisemore-Ayres; and 2) Defendant Sisemore-Ayres is not a Public Defendant.

Accordingly, Defendant Ayres' Motion to Dismiss (Docket No. 88) is GRANTED with leave to amend. As per the Court's original Order (Docket No. 115), Plaintiffs are directed to file any amended complaint in accordance with the directives of this Memorandum and Order not later than twenty (20) days following the date that original Memorandum and Order was electronically filed with the Court.

IT IS SO ORDERED.

20090515

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