ORDER RE: MOTION TO DISMISS
Defendants Oakdale Joint Unified School District, Katie Craig, Stephanie Hicks, Kathleen Jenkins, Larry Mendonca, Julie Minabe, Rhonda Duarte, Shauna Rico and Cinnamon Simpson have filed a motion to dismiss the second and third causes of action in the first amended complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). For reasons discussed below, Defendants' motion to dismiss the second cause of action shall be granted without leave to amend; Defendants' motion to dismiss the third cause of action shall be denied.
II. FACTS AND PROCEDURAL BACKGROUND
On December 15, 2011, plaintiffs D.C., by and through his guardian ad litem, T.C., and T.C., individually ("Plaintiffs"), filed their first amended complaint (FAC) against defendants Oakdale Joint Unified School District ("OJUSD"), Katie Craig, Stephanie Hicks, Kathleen Jenkins, Larry Mendonca, Julie Minabe, Rhonda Duarte, Shauna Rico, Cinnamon Simpson (collectively, "Defendants") and Does 1 through 10, asserting causes of action for (1) violation of the Individuals with Disabilities Education and Improvement Act (IDEA), 20 U.S.C. §§ 1415 et seq., (2) violation of the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101 et seq., (3) violation of Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. §§ 794 et seq. and (4) violation of 42 U.S.C. § 1983. The first three causes of action were asserted against OJUSD, the fourth against the individual defendants. On December 15, 2011, Defendants filed a motion to dismiss the second and third causes of action in the FAC. On January 16, 2012, Plaintiffs filed their opposition to Defendants' motion. On January 23, 2012, Defendants filed their reply to Plaintiffs' opposition.
A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Where the plaintiff fails to allege "enough facts to state a claim to relief that is plausible on its face," the complaint may be dismissed for failure to allege facts sufficient to state a claim upon which relief may be granted. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007); see Fed. R. Civ. P. 12(b)(6). "A claim has facial plausibility," and thus survives a motion to dismiss, "when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1940, 173 L.Ed.2d 868 (2009). On a Rule 12(b)(6) motion to dismiss, the court accepts all material facts alleged in the complaint as true and construes them in the light most favorable to the plaintiff. Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005). However, the court is not required to accept conclusory allegations, allegations contradicted by exhibits attached to the complaint or matters properly subject to judicial notice, unwarranted deductions of fact or unreasonable inferences. Daniels-Hall v. National Educ. Ass'n, 629 F.3d 992, 998 (9th Cir. 2010). "Dismissal with prejudice and without leave to amend is not appropriate unless it is clear . . . the complaint could not be saved by amendment." Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003).
A party may also move to dismiss a claim for lack of subject-matter jurisdiction. Fed. R. Civ. P. 12(b)(1). "When subject matter jurisdiction is challenged under Federal Rule of [Civil] Procedure 12(b)(1), the plaintiff has the burden of proving jurisdiction in order to survive the motion." Tosco Corp. v. Communities for a Better Environment, 236 F.3d 495, 499 (9th Cir. 2001) (abrogated on other ground by Hertz Corp. v. Friend, 130 S.Ct. 1181, 1186, 175 L.Ed.2d 1029 (2010)). " 'Unless the jurisdictional issue is inextricable from the merits of a case, the court may determine jurisdiction on a motion to dismiss for lack of jurisdiction under Rule 12(b)(1) . . . .' " Robinson v. U.S., 586 F.3d 683, 685 (9th Cir. 2009) (internal citations omitted). "A Rule 12(b)(1) jurisdictional attack may be facial or factual. In a facial attack, the challenger asserts that the allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction. By contrast, in a factual attack, the challenger disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction." Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). In evaluating a factual attack on jurisdiction, a district court may 'hear evidence regarding jurisdiction' and 'resolv[e] factual disputes where necessary.' '[N]o presumptive truthfulness attaches to plaintiff's allegations.' " Robinson, supra, 586 F.3d at 685. Because mootness "pertain[s] to a federal court's subject-matter jurisdiction under Article III, [it is] properly raised in a motion to dismiss under" Rule 12(b)(1), not 12(b)(6). White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000).
1. Plaintiffs' second cause of action (violation of the ADA) --As a threshold matter, Defendants move to dismiss the second cause of action for violation of the ADA. Under this cause of action, Plaintiffs, incorporating previous allegations by reference, allege as follows:
"58. [OJUSD's] conduct violated the ADA in that Plaintiff D.C. who is a student with a qualified disability, was either not provided programs, services and activities that were provided to non-disabled students, or was provided programs, services and activities that were not equal to, and are inferior to the services provided to students who are not disabled. Plaintiff D.C. was in fact physically and emotionally harmed by Defendants' employees who used unnecessary and harmful restraint techniques which amounts to disability discrimination."
Plaintiffs further allege:
"59. [OJUSD's] conduct violated and continues to violate the ADA and unless restrained from doing so, Defendants will continue to violate said law. Said conduct, unless enjoined, will continue to inflict injuries for which Plaintiffs have no adequate remedy at law. Although Plaintiff does not currently reside within the bounds of Oakdale Joint Unified School District, it is possible that he may return to the city of Oakdale to live in the future and again attend a public school within Oakdale Joint Unified School District. Plaintiff's grandfather lives within the bounds of Oakdale Joint Unified School District, further increasing the likelihood of returning to Oakdale in the near future . . . . [¶] 60. Consequently, Plaintiffs are entitled to injunctive relief pursuant to Section 308 of the ADA (42 U.S.C. Section 12188)." Defendants contend the claim should be dismissed because the request for injunctive relief pursuant to the ADA is moot, given plaintiff D.C. no longer lives or attends school within OJUSD.
"The case or controversy requirement of Article III restricts federal court jurisdiction to 'disputes capable of judicial resolution.' " Smith v. T-Mobile USA Inc., 570 F.3d 1119, 1122 (9th Cir. 2009) (quoting U.S. Parole Comm'n v. Geraghty, 445 U.S. 388, 396, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980)). "Like standing, the case or controversy requirement . . . also underpins the mootness doctrine. Whereas standing is evaluated by the facts that existed when the complaint was filed, '[m]ootness inquiries, however, require courts to look to changing circumstances that arise after the complaint is filed.' " American Civil Liberties Union of Nevada v. Lomax, 471 F.3d 1010, 1016 (9th Cir. 2006) (quoting Clark v. City of Lakewood, 259 F.3d 996, 1006 (9th Cir. 2001)). "To maintain an extant claim, a litigant must continue to have a personal stake in the outcome of the suit throughout 'all stages of federal judicial proceedings.' " Abdala v. I.N.S., 488 F.3d 1061, 1063 (9th Cir. 2007) (quoting United States v. Verdin, 243 F.3d 1174, 1177 (9th Cir. 2001)). "A case becomes moot, and incapable of judicial resolution, 'when the issues presented are no longer "live" or the parties lack a legally cognizable interest in the outcome.' " Smith, supra, 570 F.3d at 1122 (citing Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969)). Thus, "where there is 'no reasonable . . . expectation that the alleged violation will recur,' and where 'interim relief or events have completely and irrevocably eradicated the effects of the alleged violation,' the case is moot." America Cargo Transport, Inc. v. U.S., 625 F.3d 1176, 1179 (9th Cir. 2010) (quoting County of Los Angeles v. Davis, 440 U.S. 625, 613, 99 S.Ct. 1379, 59 L.Ed.2d 242 (1979)).
In its previous order granting Defendants' motion to dismiss the second cause of action in Plaintiffs' original complaint with leave to amend, the Court observed: "Plaintiffs have conceded that they no longer reside within the boundaries of [OJUSD]. Thus, Plaintiffs have not established that there is a present harm that D.C. will be subjected to the restraint techniques. Therefore, the Court concludes that Plaintiffs' request for an injunction in their second cause of action is moot. In any amended complaint, Plaintiffs may attempt to establish why there still is a present case or controversy with respect to their second cause of action." D.C. ex rel. T.C. v. Oakdale Joint Unified School Dist., slip copy, 2011 WL 5828187, at *2 (E.D.Cal. November 18, 2011). Having reviewed the FAC in its entirety, the Court finds Plaintiffs have failed to rectify the mootness issue. By their own admission, Plaintiffs have moved outside the geographical bounds of OJUSD, and D.C. no longer attends school in OJUSD. As a result, there can be no present case or controversy between D.C. and OJUSD regarding Defendants' alleged use of improper restraint techniques. To the extent Plaintiffs seek to enjoin OJUSD from providing disabled students with programs, services and activities that are not equal or inferior to those provided to non-disabled students, the request for relief is likewise moot, as D.C., having ...