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Doe v. Butte Valley Unified School Dist.


August 5, 2009



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 Rule of Civil Procedure 12(b)(6),*fn1 defendants Edward Traverso and Grayce Kelly now move to dismiss the civil rights claim alleged in plaintiff's Fourth Amended Complaint ("FAC") for failure to state a claim upon which relief can be granted.

I. Factual and Procedural Background Plaintiff is a minor and a student at Picard Day

School, which is part of the Butte Valley Unified School District ("Butte Valley"). (FAC ¶ 3.) At all times relevant to plaintiff's claims, 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," which included forced oral copulation and other sex acts. (Id. ¶ 7(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. (Id. ¶ 6.) After filing a claim with Butte Valley pursuant to the Government Tort Claims Act, plaintiff initiated this action to hold Butte Valley, Traverso, and Kelly liable for 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 a Third Amended Complaint ("TAC") on January 30, 2009, and February 24, 2009, respectively. Defendants subsequently filed a motion to dismiss the TAC on March 12, 2009, which the court granted in part and denied in part.

Plaintiff filed his FAC on May 22, 2009, alleging a civil rights claim pursuant to 42 U.S.C. § 1983 against defendants Traverso and Kelly, a sexual discrimination claim pursuant to 20 U.S.C. § 1681(a) against Butte Valley, and a state law negligence claim against defendants Traverso and Kelly. Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, defendants Traverso and Kelly now move to dismiss plaintiff's § 1983 claim for failure to state a claim upon which relief can be granted.*fn2

II. Discussion

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). This "plausibility standard," however, "asks for more than a sheer possibility that a defendant has acted unlawfully," and where a complaint pleads facts that are "merely consistent with" a defendant's liability, it "stops short of the line between possibility and plausibility." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 556-57).

Although § 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). Here, the federal rights that plaintiff seeks to vindicate stem from the Due Process and Equal Protection Clauses of the Fourteenth Amendment.

A. Due Process "The substantive component of the Due Process Clause

forbids the government from depriving a person of life, liberty, or property in such a way that... interferes with rights implicit in the concept of ordered liberty." Engquist v. Or. Dep't of Agric., 478 F.3d 985, 996 (9th Cir. 2007) (quoting Squaw Valley Dev. Co. v. Goldberg, 375 F.3d 936, 948 (9th Cir. 2004)). "It is well established," moreover, that substantive due process "protects a citizen's liberty interest in her own bodily security." Kennedy v. City of Ridgefield, 439 F.3d 1055, 1061 (9th Cir. 2006) (citing Ingraham v. Wright, 430 U.S. 651, 673-74 (1977); Wood v. Ostrander, 879 F.2d 583, 589 (9th Cir. 1989)).

In this case, defendants cite DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989), to argue that the "failure to protect an individual from harm at the hands of a private party generally does not constitute a violation of the due process clause." (Mem. Supp. Mot. Dismiss 2:19-20.) While acknowledging DeShaney's central holding, the Ninth Circuit has also recognized that "[t]his general rule is modified by two exceptions: (1) the 'special relationship' exception; and (2) the 'danger creation' exception." L.W. v. Grubbs, 974 F.2d 119, 121 (9th Cir. 1992). The former instructs that "[a]fter the state has created a special relationship with a person, as in the case of custody or involuntary hospitalization," courts may "impose[] liability under a due process theory, premised on an abuse of that special relationship," id. (citing Youngberg v. Romeo, 457 U.S. 307, 314-325 (1982)), while the latter exception provides for liability "where state action creates or exposes an individual to a danger which he or she would not have otherwise faced." Kennedy, 439 F.3d at 1061 (citing DeShaney, 489 U.S. at 197; Wood, 879 F.2d at 589-90).

In his FAC, plaintiff alleges that "[a]t all material times... JOHN DOE[] was a student in KELLY[']s class and had a special relationship with the defendants, and each of them." (FAC ¶ 5.) Aside from this legal conclusion, the only facts supporting any "special relationship" in this case are those which indicate that defendants Kelly and Traverso were plaintiff's teacher and school-district superintendent, respectively. (See FAC ¶ 3.) Plaintiff, however, has cited no cases--and the court is aware of none--that accord any "special" status to these relationships for purposes of DeShaney's special relationship exception. In contrast, defendants have cited several cases from other circuits that expressly reject this proposition. See, e.g., Walton v. Alexander, 44 F.3d 1297, 1304-05 (5th Cir. 1995); Dorothy J. v. Little Rock Sch. Dist., 7 F.3d 729, 732 (8th Cir. 1993); D.R. by L.R. v. Middle Bucks Area Vocational Technical Sch., 972 F.2d 1364, 1371 (3d Cir. 1992). These cases focus their analysis on whether "the state, through its affirmative acts, held [the plaintiff] at [school] involuntarily," Walton, 44 F.3d at 1297, and conclude that "compulsory attendance laws [do] not liken school children to prisoners and the involuntarily committed." Middle Bucks, 972 F.2d at 1372.

In his opposition, plaintiff attempts to distinguish these cases by emphasizing that the site of his alleged molestation is a "community day school" created pursuant to California statute in order to "serve mandatory and other expelled students, students referred by a School Attendance Review Board, and other high-risk youths." (Opp'n 2:1-3) (quoting Cal. Dep't of Ed., Community Day Schools, Specifically, plaintiff asserts that, pursuant to the California statute governing community day schools, plaintiff came to attend Picard Day School through an "involuntary transfer". (Id. at 2:16-18 (quoting Cal. Educ. Code § 48662(a)) (emphasis added).) Plaintiff contends, therefore, that his relationship with defendants was analogous to "the case of custody or involuntary hospitalization." Grubbs, 974 F.2d 119, 121 (9th Cir. 1992) (emphasis added).

As an initial matter, the court questions whether this vague description of the nature of plaintiff's school is sufficient to determine whether DeShaney's special relationship exception is applicable. Cf., e.g., Middle Bucks, 972 F.2d at 1371-72 (requiring a comprehensive review of the a state's compulsory education regime to determine whether a special relationship existed for purposes of DeShaney); see also Iqbal, 129 S.Ct. at 1950 ("[O]nly a complaint that states a plausible claim for relief survives a motion to dismiss.... [W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged--but it has not "show[n]"--"that the pleader is entitled to relief." (citing Fed. Rule Civ. Proc. 8(a)(2)) (citation omitted) (third alteration in original)). Indeed, the fact that plaintiff's attendance at Picard Day School is "involuntary" does not, standing alone, distinguish it from traditional public schools. If public school attendance were truly voluntary, there would never have been any need for truant officers.

Defendants, however, do not directly confront plaintiff's special-relationship argument; instead, they correctly note that the factual contentions presented in plaintiff's opposition are wholly absent from the FAC. It would be improper, therefore, for this court to rely upon these facts in ruling on defendants' motion to dismiss. See, e.g., N. Star Int'l v. Ariz. Corp. Comm'n, 720 F.2d 578, 581 (9th Cir. 1983) ("The purpose of a motion to dismiss under rule 12(b)(6) is to test the legal sufficiency of the complaint. We need not reach issues for which there is no foundation in the complaint." (citations omitted)); Med. Benefits Adm'rs of MD, Inc. v. Sierra R.R. Co., No. 06-2408, 2007 WL 2914824, at *4 (E.D. Cal. Oct. 5, 2007) (Damrell, J.) ("[F]acts not alleged in the complaint cannot be considered, and accordingly, the court properly disregards plaintiffs' arguments based on these new facts.").

Consequently, absent these additional facts, the FAC contains only the legal conclusion that plaintiff "had a special relationship with the defendants, and each of them." (FAC ¶ 5.) And, as the Supreme Court recently affirmed in Iqbal, courts "are not bound to accept as true a legal conclusion couched as a factual allegation." 129 S.Ct. at 1949-50 (quoting Twombly, 550 U.S. at 555). Accordingly, the court must grant defendants' motion to dismiss plaintiff's § 1983 claim insofar as it is premised on a substantive due process violation through DeShaney's "special relationship" exception.

In his opposition to defendants' motion to dismiss, plaintiff also contends that his FAC satisfies DeShaney's "danger creation" exception (Opp'n 3-5), i.e., that defendants "create[d] or expose[d]" plaintiff to a danger which he "would not have otherwise faced." Kennedy, 439 F.3d at 1061. As the Ninth Circuit has explained, the "danger creation" exception arises only where state actors "knowingly take affirmative steps" to place a plaintiff at risk. Johnson v. City of Seattle, 474 F.3d 634, 640 (9th Cir. 2007) (emphasis added); Estate of Amos ex rel. Amos v. City of Page, Ariz., 257 F.3d 1086, 1091 (9th Cir. 2001) ("[C]ommon to our cases recognizing a cognizable section 1983 claim under the 'danger creation' exception is an affirmative act by the police that leaves the plaintiff 'in a more dangerous position than the one in which they found him.'" (quoting Penilla v. City of Huntington Park, 115 F.3d 707, 710 (9th Cir. 1997))). Here, the FAC does not allege a single affirmative act on behalf of defendant Kelly, plaintiff's teacher, that created or exposed plaintiff to a risk of molestation or harassment by Moes 1 and 2. Rather, the FAC generally alleges that Kelly "failed to provide plaintiff with a safe learning environment," "ignor[ed] facts," "failed to protect" plaintiff, "failed to monitor" Moes 1 and 2, and "allowed [Moes 1 and 2] to sexually molest and sexually harass" plaintiff. (FAC ¶ 7.) These allegations of inaction fall squarely within DeShaney's central holding that "the state is not liable for its omissions." Estate of Amos, 257 F.3d at 1090 (citing DeShaney, 489 U.S. at 195). As the Supreme Court explained, the Due Process Clause "forbids the State itself to deprive individuals of life, liberty, or property without 'due process of law,' but its language cannot fairly be extended to impose an affirmative obligation on the State to ensure that those interests do not come to harm through other means." DeShaney, 489 U.S. at 195. Accordingly, the court must grant defendants' motion to dismiss plaintiff's § 1983 claim insofar as it is premised on a substantive due process violation by defendant Kelly through DeShaney's "danger creation" exception.

As to defendant Traverso, the superintendent of Butte Valley, plaintiff repeats many of the same allegations of inaction averred against defendant Kelly. However, plaintiff further alleges that Traverso "placed [Moes] 1 and 2 in class with JOHN DOE... when he knew that [they] presented an unreasonable risk of harm to JOHN DOE." (FAC ¶ 8(c).) Defendants appear to acknowledge that this allegation involves affirmative conduct satisfying the "danger creation" exception (see Reply 5:4-7), and several Ninth Circuit cases applying the "danger creation" exception support this conclusion, see, e.g., Grubbs, 974 F.2d at 121-22 (finding affirmative conduct satisfying DeShaney's "danger creation" exception where state employees assigned plaintiff to work alone in a medical clinic with a violent sex-offender, who subsequently raped her); Wood, 879 F.2d at 590 (finding affirmative conduct satisfying DeShaney's "danger creation" where a police officer stopped the car in which the plaintiff was riding, arrested and removed the driver, impounded the car, and left the plaintiff stranded in a high crime area where she was subsequently raped).

In response, Traverso insists that "doing what the law requires, [i.e.,] educating 'Moes 1 & 2,' should not been seen as creating a danger." (Reply 5:14-15.) Simply asserting that an action was taken pursuant state law, however, does not relieve Traverso from compliance with the dictates of the federal Constitution. See generally Spain v. Mountanos, 690 F.2d 742, 746 (9th Cir. 1982) ("Under the Supremacy Clause of the United States Constitution, a court, in enforcing federal law, may order state officials to take actions despite contravening state laws."). Accordingly, the court will deny defendants' motion to dismiss plaintiff's § 1983 claim insofar as his claim is premised on a substantive due process violation by defendant Traverso through DeShaney's "danger creation" exception.

Plaintiff's remaining theory under the Due Process Clause avails the provision's procedural component. Specifically, plaintiff contends that defendants deprived him of his property interest in a "safe school" by "placing MOEs 1 and 2 in his class when they knew that such placement presented an unreasonable risk of harm" without first providing "due process of law prior to deprivation of that right." (Opp'n 9:3-13.) In support of this contention, plaintiff cites the California State Constitution, which states, "All students and staff of public primary, elementary, junior high, and senior high schools, and community colleges, colleges, and universities have the inalienable right to attend campuses which are safe, secure and peaceful." Cal. Const. art. I, § 28(f)(1). The court observes, however, that this aspect of plaintiff's § 1983 claim is not presented in the FAC; nowhere does plaintiff allege that he had a property interest in a safe school or that defendants' conduct amounted to a deprivation of that interest without proper procedural safeguards.

Furthermore, a review of the applicable caselaw indicates that this provision does not establish an "entitlement" cognizable in a procedural due process claim. See, e.g., Town of Castle Rock, Colo. v. Gonzales, 545 U.S. 748, 756 (2005) ("'To have a property interest in a benefit, a person clearly must have more than an abstract need or desire' and 'more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.'" (quoting Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972))). Such entitlements "are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law." Id. (quoting Paul v. Davis, 424 U.S. 693, 709 (1976)) (quotation marks omitted). Even if defined by state law, however, a benefit cannot amount to an entitlement where a state is under no obligation to provide it. See generally id. ("[A] benefit is not a protected entitlement if government officials may grant or deny it in their discretion." (citing Ky. Dep't of Corr. v. Thompson, 490 U.S. 454, 462-63 (1989))); Hohmeier v. Leyden Cmty. High Schs. Dist. 212, 954 F.2d 461, 464 (7th Cir. 1992) ("Policy 4223 does not in fact create such an entitlement because it does not impose a binding obligation on the school board to terminate employees only for cause." (emphasis added)).

Far from holding that the "Right to Safe Schools" provision establishes any obligation on behalf of the state, California courts appear to regard this provision as little more than hortatory:

[A]lthough safety and happiness are inalienable rights, this provision of the Constitution does not establish the means whereby they may be enjoyed. No case has ever held that this provision enunciating the inalienable right to obtain safety and happiness is self-executing in the sense that it gives rise, in and of itself, to... an affirmative duty on the part of the state to take particular steps to guarantee the enjoyment of safety or happiness by all citizens.

Clausing v. S.F. Unified Sch. Dist., 221 Cal. App. 3d 1224, 1237 (1990); see Leger v. Stockton Unified Sch. Dist., 202 Cal. App. 3d 1448, 1455 (1988) ("Because section 28(c) does not supply the necessary rule for its implementation, but is simply a declaration of rights, it imposes no mandatory duty upon defendants to make Franklin High School safe."). Thus, since the "Right to Safe Schools" provision imposes no duty upon the state to actually make its public schools safe, plaintiff cannot claim any "entitlement" to such an state-provided benefit. See generally Sealed v. Sealed, 332 F.3d 51, 56-57 (2d Cir. 2003) (holding that a "policy statement" in a state statute "[t]o protect children whose health and welfare may be adversely affected through injury and neglect" created "no discrete rights or reasonable expectations in any specific protective measures" amounting to an entitlement).

Accordingly, because the procedural due process aspect of plaintiff's § 1983 claim is not only absent from the FAC, but also does not pertain to any state-created entitlement, the court will dismiss this component of plaintiff's claim.

B. Equal Protection

"The purpose of the equal protection clause of the Fourteenth Amendment is to secure every person within the State's jurisdiction against intentional and arbitrary discrimination, whether occasioned by express terms of a statute or by its improper execution through duly constituted agents." Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580, 588 (9th Cir. 2008) (quoting Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam)). "The first step in equal protection analysis is to identify the [defendants'] classification of groups." Id. at 589 (quoting Country Classic Dairies, Inc. v. State of Montana, Dep't of Commerce Milk Control Bureau, 847 F.2d 593, 596 (9th Cir. 1988)) (alternation in original). "To accomplish this, a plaintiff can show that the law is applied in a discriminatory manner or imposes different burdens on different classes of people." Id. (quoting Freeman v. City of Santa Ana, 68 F.3d 1180, 1187 (9th Cir. 1995)).

To allege a violation of the Equal Protection Clause giving rise to his § 1983 claim, plaintiff provides in pertinent part:

At all material times herein, JOHN DOE was a member of a protected class of persons, to wit, a student at Picard Day School.

TRAVERSO and KELLY intentionally discriminated against JOHN DOE in his status as a student at Picard School as is alleged in paragraph 7 if the Complaint.

(FAC ¶¶ 13-14.)

Plaintiff's bare legal assertion that defendants Traverso and Kelly "intentionally discriminated" again him is insufficient to satisfy Rule 8 of the Federal Rules of Civil Procedure and cannot withstand a motion to dismiss.*fn3 See Iqbal, 129 S.Ct. at 1949-50. Further, plaintiff's unadorned incorporation of prior allegations, which already strain to support both substantive and procedural due process violations, can hardly be transposed to also state an equal protection violation. See generally Destfino v. Kennedy, No. 08-1269, 2008 WL 4810770, at *3 (E.D. Cal. Nov. 3, 2008) (O'Neil, J.) ("Under the Federal Rules of Civil Procedure, a defendant faced with a complaint which incorporates each preceding paragraph, whether relevant or not, is not expected to frame a responsive pleading." (citing Anderson v. Dist. Bd. of Trustees of Cent. Fla. Cmty. College, 77 F.3d 364, 366 (11th Cir. 1996))). Indeed, it remains unclear how any of defendant Kelly's alleged conduct could be considered discriminatory toward Picard Day School students given that she was a teacher at that school and had no occasion to "impose different burdens" on persons outside of that group.

Lazy Y Ranch, 546 F.3d at 589; (see FAC ¶¶ 3, 7).

Similarly, the allegation that Traverso "fail[ed] to provide or obtain education and training for Kelly" does not sound in unconstitutional discrimination toward plaintiff. (FAC ¶ 7(e).) The court is simply left to postulate that perhaps Traverso provided such education and training to teachers at other schools, thus indirectly discriminating against Picard Day students in some fashion. Of course, plaintiff may very well have a different theory or no theory at all, and for this reason, the Supreme Court has made clear that district courts are not free to coax a hapless complaint into compliance with federal pleading standards. See Twombly, 550 U.S. at 561-63 (abrogating language in Conley v. Gibson, 355 U.S. 41 (1957), which had suggested that a "claim would survive a motion to dismiss whenever the pleadings left open the possibility that a plaintiff might later establish some 'set of [undisclosed] facts' to support recovery" (alteration in original)).

In sum, while Federal Rule of Civil Procedure 8 only requires plaintiff to supply a "short plain statement" in his FAC, that statement must still be sufficient to "show[] that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2) (emphasis added). Plaintiff's conclusory allegation of "intentional discrimination" and his cross-reference to alleged due process violations fall short of this standard. See generally Iqbal, 129 S.Ct. at 1950 ("Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.").

Accordingly, the court will grant defendants' motion to dismiss plaintiff's § 1983 claim insofar as it relies upon violations of the Equal Protection Clause.

C. Dismissal with Leave to Amend

"Dismissal with prejudice and without leave to amend is not appropriate unless it is clear... that the complaint could not be saved by amendment." Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) (citing Chang v. Chen, 80 F.3d 1293, 1296 (9th Cir. 1996)). Although plaintiff has already filed five complaints in this action, this motion is the first instance in which plaintiff's allegations regarding the Due Process and Equal Protection Clauses have been tested. In addition, many of the alleged violations subject to dismissal are not so demonstrably meritless that amendment would be futile, but instead suffer from a lack of factual support. Defendants, moreover, have failed to show that they will be prejudiced if plaintiff is allowed to file a fifth amended complaint. See id. (holding that in determining whether to dismiss a claim without leave to amend, "the consideration of prejudice to the opposing party that carries the greatest weight").

In determining whether to grant plaintiff leave to amend, the court also considers that, four days before plaintiff filed his FAC, the Supreme Court issued its decision in Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009), which provided extensive guidance regarding Rule 8 of the Federal Rules of Civil Procedure. Although Iqbal's majority opinion itself did not intimate any seachange, jurists and legal commentators have observed that the decision marks a striking retreat from the highly permissive pleading standards often thought to distinguish the federal system from "the hyper-technical, code-pleading regime of a prior era," 129 S.Ct. at 1949. See, e.g., Moss v. U.S. Secret Serv., --- F.3d ----, No. 07-36018, 2009 WL 2052985, at *8 (9th Cir. July 16, 2009); Adam Liptak, 9/11 Case Could Bring Broad Shift on Civil Suits, N.Y. Times, July 21, 2009, at A10.

Prior to Iqbal, many courts--including this court and, apparently, the Supreme Court itself--read Rule 8 to express a "willingness to 'allow[] lawsuits based on conclusory allegations... to go forward,'" Maduka v. Sunrise Hosp., 375 F.3d 909, 912 (9th Cir. 2004) (quoting Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002)) (alteration in original). Indeed, for over half a century, district courts had been instructed that the "short plain statement" required by Rule 8 "must simply 'give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests.'" Swierkiewicz, 534 U.S. at 514 (quoting Conley, 355 U.S. at 47). Now, however, even the official Federal Rules of Civil Procedure Forms, which were touted as "sufficient under the rules and... intended to indicate the simplicity and brevity of the statement which the rules contemplate," Fed. R. Civ. Proc. 84, have been cast into doubt by Iqbal. See, e.g., Fed. R. Civ. P. Form 9 (setting forth a complaint for negligence in which the plaintiff simply states, "On June 1, 1936, in a public highway called Boylston Street in Boston, Massachusetts, defendant negligently drove a motor vehicle against plaintiff who was then crossing said highway").

Accordingly, although the court will grant in part defendants' motion to dismiss, the court will also permit plaintiff leave to amend. Plaintiff, however, is admonished to thoroughly and carefully set forth his allegations in any subsequent amended complaint, as both judicial resources and fairness to defendants preclude unlimited opportunities to amend the pleadings. See, e.g., Beard v. Lucio, No. 08-570, 2009 WL 393016, at *2 (C.D. Cal. Feb. 13, 2009) ("Although leave to amend generally is liberally allowed, Plaintiff should not expect unlimited opportunities to file a complaint that passes the Court's initial screenings." (citing McHenry v. Renne, 84 F.3d 1172, 1178-80 (9th Cir. 1996))).

IT IS THEREFORE ORDERED that defendants' motion to dismiss plaintiff's § 1983 claim be, and the same hereby is,

(1) GRANTED insofar as the claim is based on a violation of substantive due process under DeShaney's "special relationship" exception;

(2) GRANTED insofar as the claim is based on a violation of substantive due process by defendant Kelly under DeShaney's "danger creation" exception;

(3) GRANTED insofar as the claim is based on a violation of procedural due process;

(4) GRANTED insofar as the claim is based on a violation of the Equal Protection Clause; and

(5) DENIED in all other respects.

Plaintiff has thirty days from the date of this Order to file an amended complaint consistent with this Order.

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