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Mccue et al v. South Fork Union Elementary School

February 7, 2011

MCCUE ET AL.,
PLAINTIFFS,
v.
SOUTH FORK UNION ELEMENTARY SCHOOL, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Oliver W. Wanger United States District Judge

MEMORANDUM DECISION REGARDING PLAINTIFF'S THIRD AMENDED DEFENDANTS' MOTION TO DISMISS COMPLAINT

(Doc. 25).

I. INTRODUCTION.

Plaintiffs proceed with this civil rights action pursuant to 42 U.S.C. § 1983 against various Defendants. Plaintiffs filed a third amended complaint ("TAC") on October 29, 2010. (Doc. 41). Defendants filed a motion to dismiss the TAC on November 12, 2010. (Doc. 42). Plaintiffs filed opposition to the motion to dismiss on January 17, 2011. (Doc. 47). Defendants filed a reply on January 24, 2011. (Doc. 48).

II. RELEVANT FACTUAL BACKGROUND.

Plaintiff P.M. was a student at South Fork Elementary School ("the School") at all times relevant to this action. The School is part of the South Fork Union School District ("the District"). Plaintiffs Lawrence and Darlene McCue are P.M.'s parents ("the McCues"). Moving Defendants Shannon Damron, Sabine Mixion, Robin Shive, and Karen Zurin were teachers and administrators at the School all times relevant to this action.

P.M. is allergic to nuts. On December 12, 2006, the McCues met with the School's Principal, Robin Shive ("Shive"), to request accommodations for P.M.'s nut allergy from the School. Shive advised the McCues that the only accommodation the School could provide was for P.M. to sit at a nut free table in the cafeteria for lunch. During the remainder of the 2006-2007 school year, there were several additional meetings between the McCues and the District in which the McCues requested that the School stop serving nuts or products containing nuts. Shive repeatedly stated that neither the District nor the School would stop serving nuts. Plaintiffs contend the refusal to ban nuts and nut products from the District constituted a failure to make reasonable accommodation for P.M. as required by the Individuals with Disabilities Education Act.

At the beginning of the 2007-2008 school year, the McCues again met with Shive to request accommodations for P.M. Shive advised the McCues that the School could no longer have a "nut free" table, but that P.M. could eat his lunch in the office to keep him safe. The McCues were dissatisfied with Shive's proposition and continued to request further accommodation.*fn1

On February 28, 2008, the School held an event at which all of the schools students were present on the play ground at one time. During this event, P.M. was served a cookie containing peanut butter by "South Fork Elementary School." The complaint does not allege who gave P.M. the cookie. P.M. had an allergic reaction to the cookie and required medical treatment. Plaintiffs subsequently contacted the State Board of Education to report the February 28, 2008 incident. The State Board of Education reprimanded Defendants Shive, Damron, Zurin, Mixion, and the School District.

According to the complaint, Shive and Zurin retaliated against Plaintiffs by refusing to make accommodations for P.M. and by attempting to remove P.M. from the District. Plaintiffs further allege that Defendants engaged in conduct that they knew or should have known would result in P.M. being wrongfully taken from the McCues. Plaintiffs allege that Defendants made knowingly false statements to doctors at Mattel Children's Hospital to encourage filing of a report with Child Protective Services. Plaintiffs further allege that Defendants had knowledge that the County had a well established pattern, practice, and custom of violating constitutional rights under the First, Fourth, and Fourteenth Amendments of the United States Constitution.

After receiving a referral for potential child endangerment from a doctor at Mattel Children's Hospital, the Kern County Sheriff's Department initiated an investigation into P.M.'s medical condition. Before the investigation was complete, Child Protective Services ("CPS") and James D. Stratton ("Stratton") made the decision to remove P.M. from the McCue's parents.

On or about March 6, 2008, CPS, the Kern County Sheriff's Department, and Stratton arrived at the School and removed P.M., without providing notice to the McCues. That evening, Stratton informed the McCues that P.M. was removed from their custody because "Darlene took too good a [sic] care of P.M. and was at the school with P.M. too much." (TAC at 11). No Defendant sought a warrant or court order authorizing P.M.'s removal.

After P.M.'s removal from the McCues' custody, P.M. was transferred out of the District to a school located in Bakersfield, California. Shive continued to disclose confidential information to Mattel Children's Hospital.

The morning after P.M. was removed from the McCue's custody, Shive called Plaintiff an intimated that she had caused P.M.'s removal in order to retaliate against the McCue's for reporting the cookie incident to the State Board of Education.

On March 10, 2008, Damron, P.M.s teacher, told her entire class that P.M. had been taken by Child Protective Services, would not be returning to school, and was safe. The McCue's began receiving letters from ...


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