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D.K. v. Solano County Office of Education

October 2, 2009

D.K., BY AND THROUGH HIS CONSERVATOR, G.M.; G.M., INDIVIDUALLY; M.W., BY AND THROUGH HER GUARDIANS AD LITEM, L.W. AND B.W.; B.W. AND L.W., INDIVIDUALLY, PLAINTIFFS,
v.
SOLANO COUNTY OFFICE OF EDUCATION (SCOE), DEE ALACRÓN, SUPERINTENDENT; THE SOLANO COUNTY BOARD OF EDUCATION; BENICIA UNIFIED SCHOOL DISTRICT (BUSD); THE BUSD BOARD OF EDUCATION: JEANNE STEINMANN, ANDRE STEWART, ROSIE SWITZER, BONNIE WEIDEL, DANA DEAN; PATRICK HOLLAND, PRINCIPAL; JOANN SEVERSON, VICE-PRINCIPAL ; KARLA BUCKLEY; SANDRA PEREZ; SHANNON INGERSOLL; RUTH GARCIA; ET AL., DEFENDANTS.



The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge

MEMORANDUM AND ORDER

Plaintiffs D.K., G.M., M.W., L.W., and B.W. seek injunctive and monetary relief from Defendants Solano County Office of Education ("SCOE") and Superintendent Dee Alarcón ("Superintendent Alarcón"); Solano County Board of Education ("SCBE") and its individual board members ("Solano Board Members"); Benicia Unified School District ("BUSD"); Superintendent Janice Adams ("Superintendent Adams") and Director of Special Services Clare Davies; BUSD Board of Education ("BBOE") and its individual members ("Benicia Board Members"); Patrick Holland, Principal of Benicia High School ("Principal Holland"); JoAnn Severson, Vice-Principal of Benicia High School ("Vice-Principal Severson"); Karla Buckley, Teacher; Sandra Perez, Class Room Aide; Shannon Ingersoll, Class Room Aide; and Ruthie Garcia, Class Room Aide, for claims arising under 42 U.S.C. §§ 12101, et seq. ("ADA"), Section 504 of the Rehabilitation Act ("Rehabilitation Act"), 42 U.S.C. § 1983, California Civil Code §§ 51, et seq. ("Unruh Act"), and California Government Code §§ 11135, et seq. Non-statutory state law claims of intentional infliction of emotional distress, battery, assault, false imprisonment, and negligent supervision are also alleged.

Presently before the Court is BUSD, BBOE, Benicia Board Members, Superintendent Janice Adams, Director of Special Services Clare Davies, Principal Patrick Holland, and Vice-Principal JoAnn Severson's (collectively "BUSD Defendants") Motion to Dismiss Plaintiffs' Third Amended Complaint pursuant to Fed. R. Civ. Proc. 12(b)(6)*fn1 on grounds that Plaintiffs fail to state a claim upon which relief may be granted for Plaintiffs' First, Second, Third, Fourth, and Ninth Claims. On June 15, 2009, Defendants SCOE, Superintendent Alarcón, SCBE, and Solano Board Members (collectively "SCOE Defendants") joined in parts IV (B) and (C)(2) of the Motion to Dismiss. On August 17, 2009, Defendant Mary Ellen Haddock ("Defendant Haddock") also joined in parts IV (B) and (C)(2) of the Motion to Dismiss. For the reasons set forth below, the Motions will be granted in part and denied in part.*fn2

BACKGROUND

Plaintiff D.K. ("DK") is a nineteen-year old student who lives within the school district boundary of BUSD and SCOE. He has multiple disabilities, which include epilepsy, cerebral palsy, and, physical and developmental disabilities along with cognitive impairment. DK currently attends the SCOE special education program at BUSD's Benicia High School. Plaintiff G.M. ("GM") is DK's parent and also an employee of SCOE.

The second named Plaintiff, M.W. ("MW"), is a twenty-year old student who lives within the school district boundary of BUSD and SCOE. She has multiple disabilities, which include cognitive impairment and a psychosis allegedly resulting from Defendants' abuse. MW also attends the SCOE special education program at BUSD's Benicia High School. Plaintiffs L.W. ("LW") and B.W. ("BW") are MW's parents and guardians ad litem.

DK and MW attended Benicia High School special education classes from August 2004 to present. During this period of time, Plaintiffs allege that DK's teacher, Karla Buckley ("Buckley"), and class room aide, Sandra Perez ("Perez"), physically abused DK by covering his hands in glue as punishment for his disability related behavior, then watched in amusement. Plaintiffs further allege that Buckley and Perez physically abused DK by forcing him to walk on his injured foot. Buckley and Perez allegedly made DK walk on his foot despite knowledge of DK's recent surgery because Buckley and Perez have a personal animus toward DK due to his disability related behaviors. Plaintiffs also claim that Buckley and Perez restrained DK by tying him to his wheelchair, reclined it, then left the wheelchair in an inverted position for an extended period of time. Plaintiffs further allege that Buckley and Perez subjected DK to sub-human and humiliating conditions by permitting him to sit in his own feces. Plaintiffs claim that DK's other class room aides, Shannon Ingersoll ("Ingersoll") and Ruthie Garcia ("Garcia"), failed to intervene during the above described incidents.

Plaintiffs allege that Buckley and Perez also abused MW. Plaintiffs assert that MW's medications have a noted effect of making her drowsy. As punishment for sleeping, Buckley and Perez allegedly forced MW to stand atop a chair for prolonged periods of time in front of her classmates. Plaintiffs claim that on at least one occasion, MW fell from the chair and injured herself. Plaintiffs also allege that Buckley and Perez repeatedly taunted and ridiculed MW by offering her rewards, then revoking them without reason. Plaintiffs assert that MW developed a psychosis because of these actions.

On or around March 6, 2007, GM received a phone call from North Bay Regional Center ("Regional Center") which allegedly informed her that DK had been abused by Buckley and Perez. Plaintiffs assert that GM contacted SCOE to obtain more information and was told that an investigation was being conducted, that Buckley and Perez had been terminated, and that DK was not hurt.

On March 7, 2007, Plaintiffs claim that GM contacted the Regional Center and was told of numerous instances of abuse. On or around April 23, 2007, SCOE purportedly told GM that she could no longer visit DK's classroom without receiving permission from her county supervisor. Plaintiffs assert that SCOE knew of the alleged abuses and purposefully concealed the incidents by refusing to inform the parents of children with disabilities.

Plaintiffs filed the present action on March 7, 2008. They attempt to bring this action on their own behalf and on behalf of all persons similarly situated. The class which Plaintiffs represent is composed of all parents of children with disabilities and their children with disabilities attending Benicia High School who have been denied their right to full and equal access to the facilities, programs, services and activities because of past abusive conduct concerning the discipline of children with disabilities.

On May 26, 2009, after two prior motions to dismiss, Plaintiffs filed their Third Amended Complaint ("TAC"). BUSD Defendants now move to dismiss the First, Second, Third, Fourth, and Ninth Claims in Plaintiffs' TAC pursuant to Rule 12(b)(6). SCOE Defendants have joined the motion to dismiss with regards to the Third, Fourth, and Ninth Claims. Defendant Haddock has joined the motion to dismiss with regards to the Ninth Claim.

STANDARD

A. Judicial Notice

Generally, the scope of review on a Rule 12(b)(6) motion to dismiss is limited to the contents of the complaint. Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006). However, "[t]he Ninth Circuit has held that, 'on a motion to dismiss a court may properly look beyond the complaint to matters of public record and doing so does not convert a Rule 12(b)(6) motion to one for summary judgment.'"

Davis v. Sutley, No. EDCV 0701415-CBM (RNB), 2008 WL 1817262, at *2 (C.D. Cal. Apr. 17, 2008) (quoting Mack v. South Bay Beer Distributors, Inc., 798 F.2d 1279, 1282 (9th Cir. 1986) ("a court may take judicial notice of records and reports of administrative bodies"). Furthermore, a court may consider evidence on which the complaint "necessarily relies" if (1) the complaint refers to the documents; (2) the document is central to the plaintiff's claim; and (3) no party questions the authenticity of the copy attached to the 12(b)(6) motion. Marder, 450 F.3d at 448. While the court may take judicial notice of undisputed matters of public record, the court may not take judicial notice as to the validity or truth of disputed facts stated in those public records. Hunt v. Rodriguez, No. CIV S-06-0141 MCE GGH P., 2009 WL 173070, at *3 (E.D. Cal. Jan. 26, 2009).

B. Motion to Dismiss

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 or her "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, 127 S.Ct. 1955, 1964-65 (2007) (internal citations and quotations omitted). Factual allegations must be enough to raise a right to relief above the speculative level. Id. at 1965 (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).

ANALYSIS

A. Judicial Notice

BUSD Defendants request the Court to take judicial notice of the following documents pursuant to Fed. R. Evid. 201 (authorizing judicial notice of adjudicative facts "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned"): (1) the June 23, 2007 Government Claim served by Plaintiff DK; (2) the September 7, 2007 Government Claim served by Plaintiff MW. (Defs.' RJN 2.)

To the extent that BUSD Defendants are requesting that the Court take judicial notice of the contents of the Plaintiffs' government tort claims, BUSD Defendants' request is granted because (1) Plaintiffs' TAC explicitly refers to the documents in question as Paragraph 7 states: "Plaintiffs timely filed Tort Claims Notices under Government Code section 910 et seq. Defendants rejected the Tort Claims Notices for all Plaintiffs on October 22, 2007...."; (2) such documents are central to Plaintiffs' claims as the timely filing and subsequent rejection of government tort claims is a prerequisite to the filing of a civil complaint; and (3) Plaintiffs, nor any other party, question the authenticity of such documents. However, to the extent that BUSD Defendants are requesting that the Court take judicial notice of the truth of the factual allegations contained therein, such request is denied.

B. Section 504 of the Rehabilitation Act, the Unruh Civil Violations of the Americans with Disabilities Act, Rights Act, ...


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