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McElroy v. Tracy Unified School Dist.


September 17, 2009


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, 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.

Presently before the Court is a Motion to Dismiss brought on behalf of private entity Defendants Valley Mountain Regional Center ("VMRC") and Tara Sizemore-Ayres ("Ayres").


According to Plaintiffs' Complaint, Defendants provided G.J., an eight-year old boy with Landau Kleffner's Syndrome,*fn1 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 enrolled in public school for the 2005-2006 academic year, and was placed in the first grade at an elementary school within the boundaries of Defendant Tracy Unified School District.

Plaintiffs allege that 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. Defendants claimed the tent provided G.J. with a needed "soothing sensory environment."

The following month, after discovering what had transpired in this regard, 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. The FAC contained seven causes of action for violation of 42 U.S.C. § 1983, 42 U.S.C. § 1988, § 504 of the Rehabilitation Act of 1973, and the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq. ("ADA"), in addition to state law claims alleging assault and battery, negligence, and intentional infliction of emotional distress. Private Defendants challenged the FAC on numerous grounds, including Motions to Dismiss under Rule 12(b)(6)*fn2. Those Motions resulted in the Court dismissing certain causes of action against the Private Defendants, without prejudice, by its Memorandum and Order dated October 29, 2008 (hereinafter referred to as "October 29 Order").

Plaintiffs then proceeded, on December 11, 2008, to file a Second Amended Complaint ("SAC") in an effort to rectify the deficiencies that were the subject of the previously filed Motions to Dismiss. In the SAC, Plaintiffs continue to name numerous Defendants, including both private and public entities. The SAC continued to identify VMRC as a Public Defendant and therefore subject to 42 U.S.C. § 1983. Private Defendants challenged the SAC on numerous grounds, including Motions to Dismiss under Rule 12(b)(6) and Rule 12(b)(1). VMRC filed a Motion to Dismiss under Rule 12(b)(6). By its Memorandum and Order dated May 11, 2009 (hereinafter referred to as "May 11th Order"), the Court granted VMRC's Motion to Dismiss with leave to amend.

On May 28, 2009, Plaintiff's filed their Third Amended Complaint ("TAC" )in an effort to rectify the deficiencies that were the subject of the previously filed Motions to Dismiss. In the TAC, Plaintiffs continue to name VMRC in their 42 U.S.C. § 1983 Claim. Additionally, they have now also named Ayres in that claim. VMRC and Ayres proceeded to file the Motion to Dismiss now before the Court, which is brought pursuant to Rule 12(b)(6), asserting that Plaintiff's TAC fails to bring a viable claim against them pursuant to 42 U.S.C. § 1983. VMRC and Ayres ask the Court to dismiss Plaintiff's Third Claim on that basis.


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, 2 L.Ed. 2d 80 (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. 235-236 (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).


To state a cause of action under 42 U.S.C. § 1983, a plaintiff must "demonstrate a deprivation of a right secured by the Constitution or laws of the United States, and that the defendant acted under color of state law. Kirtley v. Rainey, 326 F.3d 1088, 1092 (9th Cir. 2003) (citing West v. Atkins, 487 U.S. 42, 48 (1988)). Generally, private entities such as VMRC and Ayres are not liable under § 1983 unless they act under color of state law. See Lugar v. Edmondson Oil Co., 457 U.S. 922, 936 (1982). The fact that a private entity receives governmental funding, and has to comply with governmental regulation, is not enough, in and of itself, to constitute the action required to state a viable claim under § 1983. Morse v. North Coast Opportunities, Inc., 118 F.3d 1338, 1341 (9th Cir. 1997), citing Rendell-Baker v. Kohn, 457 U.S. 830, 838 (1982).

In determining whether a private entity has acted under color of state law, federal courts have articulated four distinct tests: the "joint action" test, the "public function" test, the "nexus" test, the "symbiotic relationship" test. See Brantwood Acad. V. Tennessee Secondary Sch. Athletic Assoc., 531 U.S. 288, 296 (2001); Brunette v. Humane Society of Ventura County, 294 F.3d 1205, 1211 (9th Cir. 2002).

If the activities of a private entity or individual are "inextricably intertwined" with those of the government, the resulting interdependence makes both the public and private actors liable under the "joint action" test given their status as joint participants in the challenged activity. See Mathis v. Pac. Gas and Elec. Co., 75 F.3d 498, 503 (9th Cir. 1996); Parks Sch. Of Bus., Inc. v. Symington, 51 F.3d 1480, 1486 (9th Cir. 1995); Collins v. Womancare, 878 F.2d 1145, 1154 (9th Cir. 1989). Allegations of a conspiracy or substantial cooperation between actors is sufficient to show the requisite interdependence. Brunette, 294 F.3d at 1211. The private party must be a "willful participant" with the governmental agents in the unconstitutional behavior. Dennis v. Sparks, 449 U.S. 24, 27 (1980); Brunette, 294 F.3d at 1211. Simply acting like a governmental entity, however, is not sufficient to confer liability on a private entity when benefits do not flow directly to the State. Symington, 51 F.3d at 1486.

In its May 11 Order the Court granted VMRC's previous Motion to Dismiss on grounds that Plaintiff's Third Cause of Action, as articulated in the SAC, applied only to VMRC as a Public Defendant, despite the Court's earlier determination that VMRC is in fact a private entity. "Since the SAC does not attempt on its face to include VMRC as a Defendant to the § 1983 claim as a Private Defendant acting under color of state law any claim in that regard is not properly before the court at this time."

May 11 Order, 10:3-10.

Plaintiffs' TAC adequately addresses this distinction. VMRC is no longer identified as a Public Defendant in the TAC, as it had been in the SAC. Instead, VMRC is specifically named along with ABC, Play and the individually named Defendants.*fn3

Plaintiffs no longer refer to VMRC as a California governmental entity, but rather as a "California entity." TAC, ¶ 30.

As the Court stated in its May 11 Order, VMRC's earlier Motion to Dismiss was granted because, on its face, the SAC's Third Cause of Action applied only to VMRC as a Public Defendant, a description for which it did not qualify. The TAC now establishes that VMRC and Ayers are subject to private liability.

Plaintiffs' TAC alleges in their Third Claim for Relief that VMRC and Ayres violated provisions of § 1983. At Paragraph 76, the Third Claim alleges that said Defendants "created and maintained several unsafe, unreasonable and dangerous conditions for G.J.", including "restraining, secluding, and isolating" him, "erecting a pup tent in the school cafeteria barricaded by garbage cans", "failing to maintain a system of policies and procedures to ensure G.J.'s safety and well being at school and at home", and "allowing long and repeated episodes of head banging". TAC, 20:23-21:12. In addition to these factual allegations, the TAC further alleges that each Defendants' actions "occurred pursuant to the customs, policies, and usage as promulgated and implemented by [the Public Defendants]" (Id. at 20:4-6), and, at least with respect to erection of the pup tent, that "Defendants and each of them conspired and agreed to place G.J. in an environment akin to that of a "circus side show." Id. at 6:9-14. Finally, the TAC specifically alleges that VMRC and Ayres had direct knowledge of these circumstances. Id. at ¶¶ 30-31.

At least for purposes of a Motion to Dismiss under Rule 12(b)(6) for failure to state a viable claim, these allegations must be accepted as true and construed in the manner most favorable to Plaintiffs, even if recovery may ultimately be remote and unlikely. See Bell Atlantic Corp. v. Twombly, 127 S.Ct. at 1965; Pareto v. F.D.I.C., 139 F.3d 696, 699 (9th Cir. 1998).

Given that standard, the Court believes that the TAC does adequately plead a § 1983 claim against Private Defendants VMRC and Ayres under a "joint action" theory. Defendants' Motion to Dismiss accordingly fails.


For the foregoing reasons, Defendants' Motion to Dismiss Plaintiffs' Third Cause of Action is DENIED.*fn4


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