The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
MEMORANDUM DECISION ON AND MOTION TO STRIKE FIRST DEFENDANTS' MOTION TO DISMISS AMENDED COMPLAINT (Doc. 18)
On August 19, 2009, Maria G. Herrera ("Plaintiff") filed this action for damages and injunctive relief against Defendants Thomas Giampetro ("Giampetro"), Rosemary Montemayor ("Montemayor"), and the Monso-Sultana Joint Union Elementary School District ("District"). (Doc. 1, Original Complaint). Plaintiff filed a First Amended Complaint ("FAC") on December 30, 2009. (Doc. 16).
Before the court is Defendants' motion to dismiss the FAC pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc 18). Plaintiff filed opposition ("Opposition") to Defendants' motion to dismiss on March 1, 2010. (Doc. 20). Defendants filed a reply ("Reply") to Plaintiff's opposition on March 8, 2010. (Doc. 22).
In August 2003, Plaintiff enrolled her son E.G. in kindergarten at Monson-Sultana Elementary School ("Elementary School"). (FAC at 3). A few days after E.G. commenced kindergarten, E.G.'s teacher, Michelle Banda ("Banda"), and another employee of the District, Melissa Valdez ("Valdez"), began trying to convince Plaintiff to withdraw E.G. from the Elementary School and to enroll him the following year. (FAC at 3). Banda and Valdez told Plaintiff that E.G. was immature, had difficulty holding a pencil and writing his name, and required more attention than Banda could provide given the number of children in her class. (FAC at 3). Plaintiff volunteered to help in the classroom, and was permitted to do so for a few days. (FAC at 4).
Sometime after Plaintiff began volunteering in E.G.'s classroom, Banda reiterated her belief to Plaintiff that she should withdraw E.G. from the class. (FAC at 4). Plaintiff met with Giampietro-- the District's Superintendent and the Elementary School's Principal-- and Giampietro told Plaintiff he agreed with Banda and Valdez that it would be better for E.G. to stay home for one more year before returning to kindergarten. (FAC at 4). Plaintiff reluctantly withdrew E.G. from the Elementary School. (FAC at 4).
Plaintiff re-enrolled E.G. at the Elementary School in August 2004. (FAC at 4). Because Plaintiff began to suspect that E.G. might have autism, she met with Giampietro and told him E.G. needed help. (FAC at 4). Giampietro failed to act on Plaintiff's request. (FAC at 4).
On or about September 2005, with the assistance of E.G.'s first-grade teacher, Plaintiff approached Giampietro about obtaining a special education assessment for E.G. (FAC at 4). Gaimpietro referred Plaintiff to Victor Carillo ("Carillo"), the District's school pyschologist at the time. (FAC at 4). Carillo failed to act promptly. (FAC at 4). Plaintiff met with Carillo repeatedly and requested that he set up an assessment for E.G. (FAC at 5). On or about February 22, 2006, approximately six months after Plaintiff first requested assistance from Carillo, Carillo presented Plaintiff with a plan to assess E.G.'s eligibility for special education services. (FAC at 4). Plaintiff signed the assessment plan the same day she received it. (FAC at 4).
Carillo completed his assessment of E.G. on or about March 7, 2006. (FAC at 4). Carillo's assessment supported the conclusion that E.G. was eligible for special education services. (FAC at 5). Although federal and California law each provide that an Individualized Educational Plan ("IEP") team meeting should be convened within sixty days of a parent's signing of an assessment plan, an IEP team meeting for E.G. was not convened until May 19, 2009. (FAC at 6).
The IEP team found that E.G. was eligible for special education services based on a disability of autism, and an IEP was created for E.G. which called for him to be included in a regular education classroom while receiving certain accommodations. (FAC at 5). The accommodations called for in E.G.'s IEP took the form of a series of "Tips for working with [E.G.]." (FAC at 5). E.G.'s IEP called for accommodations such as allowing him to take breaks during the day to stay regulated and to return to the classroom once he calmed down. (FAC at 5). Plaintiff signed the IEP on the same day she received it. (FAC at 5). Due to the Defendants' delays, E.G. did not receive any special education services while in the first grade. (FAC at 5).
E.G. commenced second grade at the Elementary School during the 2006-2007 school year. (FAC at 5). School personnel regularly failed to comply with E.G.'s IEP, causing E.G. to grow agitated and create classroom disruptions. (FAC at 5). The District imposed detentions and suspensions on E.G. in response to his disruptive actions, prompting Plaintiff to call multiple IEP team meetings to request compliance with E.G.'s IEP. (FAC at 5). Plaintiff also requested modification of E.G.'s IEP. (FAC at 5). On or about January 2007, a District employee told Petitioner that during a conversation with Montemayor, Montemayor said "Mr. [Giampietro] is going to have a hard time with [Plaintiff] because [she] is not stupid." (FAC at 6).
On or about February 13, 2007, Plaintiff filed a compliance complaint against the district with the California Department of Education ("CDE"). (FAC at 6). On April 13, 2007, the CDE found that the District had failed to timely develop an IEP plan for E.G. and failed to implement the IEP. (FAC at 6).
Sometime in February 2007, E.G.'s IEP team developed a new IEP for him which included a Positive Behavioral Intervention Plan ("PBIP"). (FAC at 6). A PBIP is a plan that is developed when a student exhibits a serious behavior problem that significantly interferes with the implementation of the goals of his IEP. (FAC at 6). A PBIP includes an objective and measurable description of the targeted maladaptive behavior and replacement positive behavior. (FAC at 6). It also includes a detailed description of the behavioral interventions to be used and the circumstances for their use. FAC at 6. Plaintiff signed the IEP & PBIP on March 6, 2007. (FAC at 6). E.G.'s PBIP provided in relevant part as follows: "Verbally de-escalate [E.G.]. Do not make physical contact with him, because it will only result in escalation. In an absolute crisis situation when [E.G.] or someone else is in immediate danger then make physical contact as limited as possible. Ex. Grasp his hands and state the expectation for you to release. Abide by what you state. Include having him demonstrate self control via speech and/or breathing before you release." (FAC at 6-7).
On March 13 and again on March 20, 2007, incidents occurred in which District personnel failed to follow E.G.'s IEP and PBIP in response to E.G.'s disruptive behavior. (FAC at 7). During the March 20 incident, E.G. climbed onto a counter with a pair of scissors and ultimately had to be restrained by adults. (FAC at 7). When E.G. became agitated during class On March 21, 2007, District personnel failed to adhere to E.G.'s IEP and PBIP once again, causing E.G. to become so upset that he engaged in a violent outburst. (FAC at 7). E.G. swung a yard stick, overturned a desk, and threw chairs and desks in the classroom. (FAC at 7). Two adults in the classroom who were untrained in emergency behavioral interventions "prone contained" E.G. by forcibly restraining him on the floor. (FAC at 7). Prone containment is a dangerous intervention that risks asphyxiating the person subjected to it, and applicable guidelines prohibit untrained persons from employing prone containment. (FAC at 7). District personnel called the county sheriff's department in connection with the incident and suspended E.G. for three days. (FAC at 7).
Plaintiff did not return E.G. to the Elementary School as a full-time student for the remainder of the academic year because she feared for E.G.'s safety. (FAC at 7). Instead, at an IEP meeting on April 17, 2007, the IEP team agreed that E.G. would undergo independent study at home for the remainder of the year. (FAC at 7). Plaintiff requested that E.G. receive services at his grandmother's home on days when Plaintiff was working. (FAC at 7). E.G.'s grandmother, Maria Barragan ("Barragan"), lives in the town of Cutler, which is in a different school district than the Elementary School. (FAC at 7). The District arranged for the Cutler-Orosi Joint Unified School District to provide E.G. with certain educational services. (FAC at 7). E.G. received approximately one hour of home instruction per day for the remainder of the school year. (FAC at 8). Some services were provided by the District at Plaintiff's home in Sultana, other services were provided by the Cutler-Orosi District at Barragan's home in Cutler. (FAC at 8).
On or about January 2007, Plaintiff assisted Adriana Alvarez ("Alvarez") by acting as a translator during a meeting with Giampietro and Carillo in which Alvarez requested a special education assessment for Alvarez's niece, A.R.A. (FAC at 10). Giampietro and Carillo refused to assess A.R.A. on the grounds that Alvarez was not A.R.A's parent and therefore had no right to request an assessment. (FAC at 10). In fact, as A.R.A.'s legal guardian, Alvarez was lawfully entitled to refer A.R.A. for a special education assessment. (FAC at 10). On or about February 15, 2007, with Plaintiff's help, Alvarez filed a compliance complaint with the CDE. (FAC at 10). The CDE determined that the District was out of compliance for failing to initiate a special education assessment for A.R.A. (FAC at 10-11). Ultimately, A.R.A was assessed and found eligible for special education services on account of mental retardation and language impairment. (FAC at 11).
E.G. returned to the Elementary School for the 2007-2008 school year as a full-time student in the third grade. (FAC at 8). On September 17, 2007, another incident occurred in which E.G.'s autistic behaviors disrupted the classroom, and District personnel failed to follow the procedures required by E.G.'s IEP and PBIP. (FAC at 8). Barragan picked E.G. up from school and noticed scratches and bruises on E.G.'s body. (FAC at 8). The District suspended E.G. from school. (FAC at 8). Plaintiff and the District agreed to amend the IEP so that E.G. would no longer be a full-time student. (FAC at 8). The amended IEP provided for one hour of on-campus instruction per week and one weekly session with the school psychologist. (FAC at 8).
In mid-November 2007, Plaintiff attempted to enroll E.G. in a day care program in Sultana. (FAC at 8). A few days after Plaintiff's initial contact with the day care's operator, the operator called Plaintiff to inform her that she would not accept E.G. because District employees had told the operator how "terrible" E.G. was. (FAC at 8). In February 2008, Plaintiff enrolled E.G, in an on-line charter school for the remainder of the academic year. (FAC at 8).
Plaintiff filed a second compliance complaint against the district with the CDE on February 28, 2008, alleging numerous violations of state and federal law during the period from March 6, 2007 through September 18, 2007. (FAC at 8). On April 16, 2008, in response to Plaintiff's second CDE Complaint, investigators interviewed at least five District employees including Giampietro; the Elementary School's Vice-Principal, Bill Fulmer; E.G.'s former third-grade teacher, Denise Bese; the school nurse, Shannon Coats; and E.G.'s former classroom aide, Eren Ortiz. (FAC at 9). Plaintiff alleges that there is "likely...evidentiary support" for the notion that Montemayor was aware of the investigation and that it was prompted by Plaintiff's CDE complaint. (FAC at 9). After completing its investigation, the CDE charged the District with seven violations of law and awarded E.G. 36 days of compensatory education. (FAC at 9). At an IEP meeting on June 27, 2008, the IEP team agreed that the CDE-ordered compensatory education would be satisfied through 180 hours of tutoring services at a cost of sixty dollars per hour. (FAC at 9).
On or about August 11, 2008, in response to a request by the District, the Housing Authority of Tulare County ("Housing Authority") sent the District a list of the names and addresses of Housing Authority tenants residing within District boundaries. (FAC at 11). Absent from this list were Barragan and her adopted son, D.H. (FAC at 13). D.H. is Plaintiff's nephew and is also Barragan's grandson, and Montemayor was aware of the close family relationship between Plaintiff, Plaintiff's children, Ms. Barragan, and D.H. (FAC at 11-12). D.H. had attended the Elementary School since the 2006-2007 school year. (FAC at 12). Although he lived outside of the District, D.H. was able to enroll at the Elementary School because Barragan falsely used Plaintiff's address in D.H.'s enrollment documents. (FAC at 12-13). However, the District had reason to know that D.H. did not in fact live at Plaintiff's address, because among other indicators known to the District, D.H.'s address on all documents submitted to the District in support of his enrollment in the free school lunch program showed Ms. Barragan's home address in Cutler. (FAC at 12).
On August 22, 2008, Montemayor called Barragan and asked her to come to the Elementary School for a meeting with Giampietro. (FAC at 11). Barragan, who speaks only Spanish, met with Giampietro on August 22, 2008. (FAC at 13). Montemayor acted as a translator for Barragan. (FAC at 13). Giampietro asked Barragan if she lived with Plaintiff in Sultana. (FAC at 13). Fearful that D.H. might lose his place in the District and at the Elementary School, Ms. Barragan stated falsely that she lived with Plaintiff from Monday to Friday each week. (FAC at 13). Giampetro then stated that he could have Plaintiff kicked out of her house because it was illegal for Barragan to live with Plaintiff. (FAC at 13). Barragan, concerned for Plaintiff, explained that, in fact, she did not live with Plaintiff but simply took care of Plaintiff's children at Plainitff's home from time to time. (FAC at 13). At the conclusion of the August 22 meeting, Giampietro mandated that Barragan take D.H. out of the Elementary school and enroll him in ...