The opinion of the court was delivered by: Anthony W. Ishii Chief United States District Judge
ORDER ON DEFENDANTS' MOTION TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT (Doc. Nos. 38, 39)
This case was removed from the Fresno County Superior Court on the basis of federal question jurisdiction. Plaintiff Krista Garcia ("Garcia"), through her guardian ad litem, alleges numerous causes of action against Clovis Unified School District ("CUSD") and its employees Douglas Burns ("Burns"), Barry Jager ("Jager"), Greg Bass ("Bass"), Ann-Maura Cervantes ("Cervantes"), and Mai Yia Moua ("Moua"). Garcia's claims stem from conduct by her former teacher Burns and CUSD's reaction to Burns's conduct. On April 16, 2009, the Court issued an order that granted in part and denied in part CUSD's motion to dismiss. See Court's Docket Doc. No. 35 (hereinafter "Prior Order"). On May 6, 2009, Garcia filed a first amended complaint ("FAC"). CUSD has now filed motions under Rules 12(b)(6), 12(e), and 12(f). For the reasons that follow, CUSD's motions will be granted in part and denied in part.
From the FAC,*fn1 during the 2007-2008 school year: Garcia was a student at Reyburn Middle School ("the School"), Jager was the principal of the School, Moua was the eighth grade guidance counselor at the School, Burns was a teacher (apparently math) at the School, and Bass and Cervantes were employees of CUSD. See FAC at ¶ 11.
In early November 2007 (hereinafter "the November Incident"), during Burns's math class, Garcia was walking back to her chair when she was approached from behind by Burns.
See id. at ¶ 12. Burns lifted Garcia upside down and completely off the ground. See id. "Burns held Garcia, including on or about her buttocks, 'feeling her,' positioning her head directly in his groin area and proceeded to shake her up and down several times, in front of the entire class." Id. After Burns put her down, Garcia put her head down until class was over. See id. at ¶ 13. Garcia's classmates encouraged her to report the incident "to the office." Id. Garcia then immediately went to "the office" and reported the incident to "an administrator/assistant," believed to be the eighth grade secretary. See id. The secretary stated that she would contact Garcia's mother and report the matter to other personnel; she then instructed Garcia to return to class. See id. Garcia did not tell her mother about this incident until April 2008, and CUSD never contacted Garcia's mother to advise of or discuss this incident. See id. at ¶ 14. Garcia remained enrolled in Burns's math class until April 1, 2008. See id. at ¶ 20.
Apparently no further incidents occurred until March 2008 (hereinafter "the March Incident"). Garcia was waiting outside on School grounds for her mother to pick her up from classes. See id. at ¶ 15. Garcia was waiting with her brother and some of his friends, who were also students at the School. See id. Burns approached the group and had a crossing sign in his hand. See id. at ¶ 16. Burns spoke to Garcia about seeing her in class and then, as he turned to walk away, he deliberately turned and "forcefully struck" Garcia with the sign on her buttocks.*fn2 See id. Burns then left, but laughed out loud as he walked away. See id. Garcia was scared and confused, and her brother pulled her next to him. See id. at ¶ 17. Garcia did not tell her mother about this incident until April 2008. See id. Although she remained in Burns's class until April 1, 2008, Garcia tried to avoid Burns because she felt fearful and humiliated. See id.
On April 1, 2008, Garcia attended a school attendance review board ("SARB") meeting at the CUSD office. See id. at ¶ 18. Garcia, her mother, Bass, Cervantes, Moua, and "others" were present at this meeting. See id. During the meeting, Garcia and her mother informed CUSD personnel about the November and March Incidents. See id. Garcia broke down and cried and gave a brief account of the November and March Incidents with Burns. See id. at ¶ 19. An unidentified administrator stated, in essence, that the meeting was not the time or place to discuss the Incidents. See id. Unidentified defendants then attempted to stop Garcia from providing or reporting further information about the incidents. See id. A counselor, believed to be Bass, stated that it was the appropriate time and place. See id. After more discussion, the unidentified administrator tried to prevent further reporting and again stated that this was not the time or place to discuss such matters. See id. Garcia's mother attempted to get specifics as to whom she needed to contact and when was the proper time to discuss the Incidents. See id. She was told to schedule a meeting with Jager.*fn3 See id. Garcia requested to be removed from Burns's classroom and "was moved at this time."*fn4 Id. at ¶ 20.
From April 2 through April 11, 2008, Garcia's mother attempted to schedule a meeting with Jager. See id. at ¶ 21. On April 11, 2008, Jager and Garcia's mother met. See id. at ¶ 22. Jager stated that he was very concerned, that he and CUSD considered the reports by Garcia to be very serious, and that the matter was being dealt with appropriately. See id. Jager also told Garcia's mother that she would likely hear from other individuals and/or agencies in the near future, including law enforcement. See id.
On information and belief, Jager entered Burns's classroom and had a conversation with him about the March Incident. See id. at ¶ 23. Other children reported to Garcia that Burns told Jager that Burns was in the cross walk and "used the sign to 'hurry' [Garcia] out of the street." Id.
CUSD investigated the March Incident and obtained written statements from Garcia and her brother. See id. at ¶ 25. Garcia and her brother wrote that Burns came up to Garcia, Burns smacked her on the buttocks with the stop sign, and that Garcia was very upset. See id. By e-mail dated April 9, 2008, Jager wrote to another CUSD administrator:
I have a unique situation to run past you and get your advice. I have a student claiming that a teacher 'smacked her on the butt with a stop sign,' the one used for crossing the street. Please advise. Should this be looked into by our campus officer? I don't want to overlook this issue and the fact that they brought this to our attention two months after it apparently happened according to the girl and her . . . brother.
Id. at ¶ 26. Burns was also asked to give a statement. Burns wrote:
I walked into the crosswalk to stop traffic and to allow students to cross. [Garcia] stopped in the middle of the crosswalk to visit and would not move quick enough as the cars started to backup, so I told [Garcia] to hurry-up and I patted her from the back with a stop sign (she had her backpack on her back) to try and make her walk faster and to get out of the road. [She] and her brother walked across the street on the way to class.
Id. at ¶ 27. By e-mail dated April 11, 2008, Jager wrote to Bass and Cervantes:
I just want to touch base with you as to the next step in this process of her complaint. I do have statements from the student and her brother. I will have one from the teacher too. Just wanted to make sure I follow through completely.
Please advise as to my next step. I am meeting with Terrant this morning and will be sure to update the two of you.
Id. at ¶ 28. By e-mail dated April 16, 2008, Jager wrote: "I have her statement, brother's statement, and the teacher's statement. I met with the mom on Friday and she was pleased that we are doing what we are doing. Student was [sic] working mom. I just don't want to let anything fall through the cracks. Advise?" Defendants' Exhibit A.*fn5 By e-mails dated April 17, 2008, Jager asked Cervantes, "Do you feel that the teacher should not have done that?" FAC at ¶ 29. Jager then e-mailed, "It was wrong and it was addressed internally. The information given would not indicate harassment. I just don't want this to back fire if we don't follow through. I would appreciate your advice and guidance. Mom was actually very thankful I met with her Friday." Defendants' Exhibit A; see FAC at ¶ 29. Cervantes responded, "Sounds like its over -good work." Id. Burns continued to teach math class until May 2008. See id. at ¶ 30.
From May 2008, to the end of the school year, Burns continued to stare and leer at Garcia "from head to toe" and to laugh and snicker at her when he saw her on campus. Id. at ¶ 31. Although Garcia tried to avoid Burns, she could not do so. See id. Garcia continued to suffer severe emotional distress as a result of Burns' conduct. See id. Garcia's mother contacted CUSD, including Jager and Cervantes, and requested counseling for Garcia. See id. at ¶ 31.
Garcia's mother retained counsel and counsel wrote to CUSD's superintendent on May 15, 2008, to advise of what had occurred. See id. at ¶ 32. Thereafter, on May 16, 2008, and as a result of the letter, CUSD removed Burns from the classroom and CUSD initiated an investigation of Burns's conduct. See id.; Plaintiff's Exhibit 3. On May 16, 2008, CUSD sent a letter to Burns that informed Burns that he was placed on administrative leave with pay pending an investigation into allegations of his misconduct. See Plaintiff's Exhibit 3. The letter states that placement on administrative leave is not intended as a punishment or a reflection of any determination of the merits of the allegations against Burns. See id. The letter also directed Burns to remain off of CUSD property and to not return to his place of employment until authorized to return by CUSD. See id. The letter concludes by stating that it will be placed in Burns's personnel file and that Burns has the right to respond to the letter. See id.
On information and belief, Burns addressed his students prior to leaving his classroom. See id. at ¶ 29. Burns told his students that he was leaving because Garcia was suing him for hurrying her across the street with a crossing sign. See id. "Thereafter, students in the class taunted, harassed and retaliated against [Garcia]." Id. CUSD permitted Burns to return to his classroom and speak in an inflammatory fashion to his students, encouraging those students to retaliate against Garcia because of her complaints against Burns. See id. at ¶ 42.
By letter dated September 3, 2008, CUSD notified Garcia's mother regarding their investigation. See id. at ¶ 34; Defendants' Exhibit B. The letter described the following findings: (1) witnesses confirmed that Burns picked Garcia up, the witnesses denied that he held her by the buttocks or with her face in his groin, and that witnesses reported that both Burns and Garcia were laughing during the incident; (2) Ms. Wood (the eighth grade secretary) stated that Garcia never reported the November Incident to her, and the first time CUSD learned of the November Incident was from Garcia's counsel's letter of May 15, 2008; (3) witnesses provided conflicting statements about where on Garcia's body that Burns struck her with the stop sign; (4) at the SARB meeting, Garcia stated that she had been grabbed but did not identify who touched her or how she was touched, the form Garcia completed stated that Burns struck her in the buttocks, and School personnel found conflicting stories; (5) Burns denied staring and leering at Garcia, and when CUSD received counsel's May 15 letter, Burns was immediately placed on administrative leave and had no further contact with Garcia; and (6) the investigation did not substantiate Garcia's allegation that she was harassed by students after Burns was placed on administrative leave. See id. The letter concluded that there was insufficient evidence to find that Burns had sexually harassed, assaulted, battered, falsely imprisoned, or intentionally inflicted emotional distress against Garcia.*fn6 See id.
On September 5, 2009, CUSD sent a similar letter to Burns regarding the investigation. See FAC at ¶ 36; Plaintiff's Exhibit 5. The letter identifies three allegations concerning Garcia: the November Incident, the March Incident, and staring and leering.*fn7 See id. The letter summarized its findings: (1) witnesses confirmed that Burns picked Garcia up and held her upside down in class, witnesses denied that he held her by the buttocks or with her face in his groin, and witnesses reported that both Burns and Garcia were laughing during the incident; (2) witnesses provided conflicting statements about where on Garcia's body that Burns struck her with the stop sign, but the investigation confirmed that Burns touched Garcia with the stop sign; and (3) the investigation did not substantiate that Burns stared or leered at Garcia since Burns was on administrative leave after May 16 and was not on campus and thus, could not have stared or leered after this date.*fn8 See id. The letter concluded that there was insufficient evidence to find that Burns had sexually harassed Garcia (or ABC), but that CUSD was concerned about Burns's decision-making and judgment surrounding the incidents. See id.
On September 12, 2008, Burns received a Notice of Unprofessional Conduct. See FAC at ¶¶ 37-38; Plaintiff's Exhibit 6. In pertinent part, the notice provides:
Pursuant to [statutes],*fn9 this letter constitutes notice of and directive to correct your unprofessional conduct. Under these statutes, the District is required to provide a permanent certificated employee with such notice at least forty-five (45) days prior to initiating disciplinary proceedings for dismissal and/or suspension on the grounds of unprofessional conduct. . . . .
This formal notice is designed to provide you with sufficient information to understand the nature of your unprofessional conduct. Further, this notice is to illustrate to you specific instances of such behavior with such particularity as to provide you with an opportunity to correct these faults and overcome the grounds for discipline based on unprofessional conduct.
Your unprofessional conduct is based more specifically on the following:
1. In or about November 2007, during class, you picked up a female student, held her upside down facing away from you, and shook her up and down. Although both you and the student were laughing during this incident, it was very unprofessional to engage in such conduct with students.
2. In or about January 2008, using your finger, you touched a female student on the shirt above her breast area. Although you have denied this incident, both the student and another witness confirmed the incident occurred.
3. In or about March 2008, you used a hand-held stop sign to tap a student either on the back or buttocks as she crossed a crosswalk. Accounts of the incident vary, but you acknowledged tapping the student on the back. This was the same student whom you picked up in November 2007. Again, such conduct is inappropriate and unprofessional.
The above described actions constitute unprofessional conduct on your part as a [CUSD] employee/teacher. Within the next 45-days, you are directed to eliminate this unprofessional conduct. In an effort to assist you in overcoming these deficiencies, you will be expected to comply with the following directives:
1. Cease picking up students. You should not pick up a student unless it is necessary to avoid harm or injury to the student.
2. Do not hit, tap, or touch students with any object. Use verbal directives with students. Do not use objects, including stop signs, to move them or in an effort to make them follow your directions.
3. Review [CUSD] Regulation No. 2111 concerning sexual harassment. Although an investigation of your misconduct did not substantiate allegations of sexual harassment, you should review the policy to understand how your actions may be viewed by others.
4. Conduct yourself in a professional manner in your interactions with students. Use good judgment when exercising your authority. It is not appropriate to physically pick up a student, touch students on their clothing, or to use a stop sign or other object to make a student follow your directions. Treat all students with respect and courtesy.
In sum, your above noted performance has been unprofessional. At the conclusion of the 45-day remediation period, your site administrator will reevaluate your performance to determine if you have abided by the directives outlined above. [CUSD] is willing to assist you in overcoming these deficiencies. However, please be advised that [CUSD] insists that you correct these deficiencies and improve you conduct immediately. Your failure to do so may result in your dismissal and/or other discipline in accordance with the provisions of the Education Code.
Plaintiff's Exhibit 6.*fn10
Based on an incident involving Lincoln Elementary school during "the early 1990's," Garcia alleges that CUSD has a standard practice of covering up sexual and other misconduct by teachers. See FAC at ¶ 40. As a result of this standard practice, CUSD engaged in a deliberately indifferent investigation of Krista's complaints, which was designed and intended to cover up sexual and other misconduct by predatory teachers. See id. at ¶¶ 41, 43. "CUSD has a district policy of indifference to and tolerance for sexual harassment by teachers to minor students." Id. at ¶ 44.
Garcia filed this lawsuit in the Fresno County Superior Court in November 2008. Defendants removed in December 2008. In the FAC, Garcia alleges the following causes of action: (1) assault, (2) battery, (3) false imprisonment, (4) intentional infliction of emotional distress, (5) violations of California education code §§ 201(c), (f) and 212.5, (6) negligence per se through California Penal Code § 11166, (7) negligent supervision, (8) negligent training, (9) negligent hiring/retention, (10) violation 20 U.S.C. § 1681(a) ("Title IX"), and (11) violation of 42 U.S.C. § 1983 by Burns.
Federal Rule of Civil Procedure 8(a) sets the pleading standard for claims for relief. "Under the liberal rules of pleading, a plaintiff need only provide a 'short and plain statement of the claim showing that the pleader is entitled to relief.'" Sagana v. Tenorio, 384 F.3d 731, 736 (9th Cir. 2004) (quoting Fed. R. Civ. P. 8(a)). This rule does "not require a claimant to set out in detail the facts upon which he bases his claim." Conley v. Gibson, 355 U.S. 41, 47 (1957). The pleadings need only give the opposing party fair notice of a claim and the claim's basis. Conley, 355 U.S. at 47; Sagana, 384 F.3d at 736; Fontana v. Haskin, 262 F.3d 871, 877 (9th Cir. 2001). 47). The pleadings are also to "be construed as to do substantial justice," and "no technical forms of pleading . . . are required." Fed. Rules Civ. Pro. 8(e)(1), 8(f); Sagana, 384 F.3d at 736; Fontana, 262 F.3d at 877.
Under Federal Rule of Civil Procedure 12(b)(6), a claim may be dismissed because of the plaintiff's "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). A dismissal under Rule 12(b)(6) may be based on the lack of a cognizable legal theory or on the absence of sufficient facts alleged under a cognizable legal theory. Johnson v. Riverside Healthcare Sys., 534 F.3d 1116, 1121 (9th Cir. 2008); Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). In reviewing a complaint under Rule 12(b)(6), all allegations of material fact are taken as true and construed in the light most favorable to the non-moving party. Marceau v. Balckfeet Hous. Auth., 540 F.3d 916, 919 (9th Cir. 2008); Vignolo v. Miller, 120 F.3d 1075, 1077 (9th Cir. 1999). The Court must also assume that general allegations embrace the necessary, specific facts to support the claim. Smith v. Pacific Prop. and Dev. Corp., 358 F.3d 1097, 1106 (9th Cir. 2004); Peloza v. Capistrano Unified Sch. Dist., 37 F.3d 517, 521 (9th Cir. 1994). But, the Court is not required "to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1056-57 (9th Cir. 2008); Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). Although they may provide the framework of a complaint, legal conclusions are not accepted as true and "[t]hreadbare recitals of elements of a cause of action, supported by mere conclusory statements, do not suffice." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949-50 (2009); see also Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003). Furthermore, Courts will not assume that plaintiffs "can prove facts which [they have] not alleged, or that the defendants have violated . . . laws in ways that have not been alleged." Associated General Contractors of California, Inc. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983). As the Supreme Court has recently explained:
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. Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Thus, to "avoid a Rule 12(b)(6) dismissal, "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Iqbal, 129 S.Ct. at 1949; see Twombly, 550 U.S. at 570; see also Weber v. Department of Veterans Affairs, 521 F.3d 1061, 1065 (9th Cir. 2008). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S.Ct. at 1949. As the Supreme Court has explained:
The plausibility standard is not akin to a 'probability requirement,' but it asks more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are 'merely consistent with' a defendant's liability, it stops short of the line between possibility and plausibility of 'entitlement to relief.' . . .
Determining whether a complaint states a plausible claim for relief will . . . be a context specific task that requires the reviewing court to draw on its judicial experience and common sense. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the ...