FINDINGS AND RECOMMENDATIONS
This matter came before the court on June 22, 2012, for hearing of defendants' motion to dismiss plaintiff's second amended complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Plaintiff Richard Davis, who is proceeding pro se in this action, appeared on his own behalf. Attorney Lynn Garcia appeared on behalf of defendants. Oral argument was heard, and defendants' motion was taken under submission.
Upon consideration of the briefing on file, the parties' arguments at the hearing, and the entire file, the court will recommend that defendants' motion to dismiss be granted.
Plaintiff commenced this action on May 9, 2011, by paying the required filing fee and filing his original complaint. (Doc. No. 1.) On June 3, 2011, before a responsive pleading had been filed, plaintiff filed an amended complaint. (Doc. No. 8.) On June 27, 2011, counsel for defendants filed a motion to dismiss the first amended complaint. (Doc. No. 18.) On February 22, 2012, the undersigned granted defendants' motion to dismiss the first amended complaint and granted plaintiff leave to file a second amended complaint. (Doc. No. 32.)
Plaintiff filed his second amended complaint on April 27, 2012. (Sec. Am. Compl. (Doc. No. 44-1.)) Therein, plaintiff alleges that defendant Folsom Cordova Unified School District, ("District"), and twelve individuals employed by the District who are also named as defendants, discriminated and retaliated against plaintiff and his daughter with respect to his daughter's participation in the cheerleading program at Vista del Lago High School.*fn1 The second amended complaint alleges claims for retaliation in violation of the First Amendment, violation of the Equal Protection Clause of the Fourteenth Amendment, violation of the Due Process Clause of the Fourteenth Amendment and retaliation in violation of Title IX. (Id. at 1-2.*fn2
Counsel for defendants filed the motion to dismiss now pending before
the court on May 17, 2012. (MTD (Doc. No. 47.)) Plaintiff filed his
opposition on June 4, 2012, (Pl.'s Opp.'n (Doc. No. 48)), and
defendants filed a reply on June 14, 2012. (Reply (Doc. No. 51.)) On
June 18, 2012, plaintiff filed an unauthorized sur-reply.*fn3
(Doc. No. 52.)
The second amended complaint alleges as follows.*fn4 Prior to these events, plaintiff's daughter Danielle had been a decorated and accomplished cheerleader for the Vista del Lago Cheerleading Squad. (Sec. Am. Compl. (Doc. No. 44-1) at 8.) In January of 2009, plaintiff emailed John Dixon, Vista del Lago's Principal and Robert Reed, the school's Athletic Director, regarding plaintiff's concerns about Darcy Amiss, the school's new Cheer Advisor, possibly holding cheerleaders to higher academic standards than male athletes in other sports and "threatening comments" made by Ms. Amiss to "a few of the cheer squad members." (Id. at 9.) Although Principal Dixon and Director Reed assured plaintiff that Ms. Amiss could not "make good on her threat," in April of 2009, higher academic standards for cheerleaders at Vista Del Lago High School were implemented. (Id.) As a result, an African American cheerleader, and "[t]wo other girls" failed to make the team. (Id. at 9-10.) Plaintiff "never thought it was about race but just childish behavior by Ms. Amiss." (Id. at 9.) Plaintiff's daughter Danielle, however, did make the team. (Id. at 10.) Nonetheless, that same month plaintiff "filed a Title IX complaint" with Principal Dixon on behalf of the three girls who failed to make the team. (Id.)
On May 7, 2009, plaintiff "[a]ppealed" to Patrick Godwin, the District Superintendent, with respect to his Title IX complaint. (Id.) Plaintiff then filed an addendum to his complaint on May 21, 2009, "to include Folsom High School," a copy of which all District Board Members received. (Id.) Superintendent Godwin responded to plaintiff's Title IX complaint on June 18, 2009. (Id.) Having not received a satisfactory response, plaintiff filed a Title IX complaint with the California Department of Education on June 23, 2009. (Id. at 11.)
Approximately two weeks later plaintiff's daughter was not allowed to compete for the "flyer" position on the cheerleading team and her practice time was limited by Ms. Amiss and Melanie Heimburg, the team's coach. (Id.) Plaintiff spoke with Ms. Amiss on July 8, 2009, to express his concerns about the treatment his daughter had received. (Id.) Ms. Amiss indicated that she had read plaintiff's emails to Dixon and Reed about her and "was not happy" with plaintiff. (Id.) Ms. Amiss later sent a "hostile email" to plaintiff's wife "about [his] family." (Id. at 12.)
Thereafter, plaintiff's daughter attended a four day cheer stunt camp at the University of California, Davis, but was "not allowed to participate in stunting." (Id.) On July 30, 2009, plaintiff "filed a Title IX retaliation complaint" concerning his daughter's treatment at the camp and "sent it to Dr. Dixon and Mr. Reed." (Id. at 13.) Sometime in the middle of August, Principal Dixon informed plaintiff that he had finished his investigation and found "no sign of differential treatment" at the cheer camp. (Id.) Dixon, however, "deliberately chose not to interview the alleged victim," plaintiff's daughter, which Dixon knew "would emotionally upset" plaintiff. (Id.)
Although plaintiff continued to voice his concerns about how his daughter was being treated, his daughter's participation in cheerleading continued to be limited. As a result, plaintiff's family refused to attend events where the cheer squad would perform because they "couldn't go to the games to watch [Danielle] be publicly punished." (Id. at 15-16.) Although plaintiff himself did attend Vista Del Lago games, he sat alone because he feared that if the defendants saw other parents sitting with him their daughters would be similarly punished by defendants. (Id at 16.) As a result, each week plaintiff sat alone at Vista Del Lago High School events feeling publicly embarrassed and humiliated. (Id.)
In September of 2009, plaintiff emailed a local tv station about his situation and, on September 9, 2009, the station broadcasted a story "on the discrimination in Folsom, at both Folsom High and Vista del Lago High." (Id.) According to plaintiff "viewers were outraged" that the cheerleaders were required to have a 2.5 grade point average while participation in all other extracurricular activities at the schools required only that the student participants maintain a 2.0 grade point average. (Id.)
On or around September 15, 2009, a varsity cheerleader was ill. (Id.) Instead of allowing plaintiff's daughter to practice, coach Heimburg, "pulled up a junior varsity flyer," preventing plaintiff's daughter from practicing. (Id.) Thereafter, plaintiff sent an email to Principal Dixon and Director Reed complaining about the incident. (Id. at 16-17.)
Sometime in the middle of September of 2009, plaintiff's daughter emailed Principal Dixon and requested a meeting with her parents, coach Heimburg and Dixon. (Id. at 17.) At the meeting, plaintiff complained that his daughter never got a chance to tell her side of the story about an incident that occurred at a cheerleading camp. (Id.) Principal Dixon stated that plaintiff's daughter could say anything she wanted but that her words "are not going to change our minds." (Id.) That meeting represented the worst "of all of the public humiliation [plaintiff] had to endure" and he never spoke to Dixon again. (Id. at 18.)
Sometime in late October of 2009, the District decided to change the minimum grade point average requirement for participants in cheerleading from 2.5 to 2.0 and allowed two of the girls who were previously cut to rejoin the team. (Id.) On November 4, 2009, the California Department of Education "rule[d] against" plaintiff's Title IX complaint. (Id.)
On December 7, 2009, plaintiff's daughter Danielle left school early due to illness. (Id. at 19.) Plaintiff's wife received an email from Ms. Amiss at 7:19 p.m. declaring a new absentee policy and twenty-one minutes later received an email from coach Heimburg stating that Danielle would be benched for the next game pursuant to the new policy. (Id.) As a result of the benching, Danielle could not wear her cheer uniform to school on game day. (Id.) Although plaintiff "wasn't at the school to witness it," he nonetheless "knew first hand what it felt like." (Id.) Thereafter, plaintiff's daughter quit cheerleading. (Id. at 19.)
Plaintiff, however, began writing letters to the District Board of Supervisors complaining about the treatment he and his daughter had received. (Id.) Despite their knowledge that plaintiff was suffering "retaliation for speaking out on discrimination . . . . not one of the individual Board Members . . . acted responsibly" and the Board failed to "speak out" against the retaliation suffered by plaintiff and his daughter. (Id. at 20-21.)
LEGAL STANDARDS APPLICABLE TO DEFENDANTS' MOTION
The purpose of a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure is to test the legal sufficiency of the complaint. N. Star Int'l v. Ariz. Corp. Comm'n, 720 F.2d 578, 581 (9th Cir. 1983). "Dismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). A plaintiff is required to allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
In determining whether a complaint states a claim on which relief may be granted, the court accepts as true the allegations in the complaint and construes the allegations in the light most favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989). In general, pro se complaints are held to less stringent standards than formal pleadings drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). However, the court need not assume the truth of legal conclusions cast in the form of factual allegations. United States ex rel. Chunie v. Ringrose, 788 F.2d 638, 643 n.2 (9th Cir. 1986). While Rule 8(a) does not require detailed factual allegations, "it demands more than an unadorned, the defendant-unlawfully-harmed-me accusation." Iqbal, 556 U.S. at 678. A pleading is insufficient if it offers mere "labels and conclusions" or "a formulaic recitation of the elements of a cause of action." Twombly, 550 U.S. at 555. See also Iqbal, 556 U.S. at 676 ("Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice."). Moreover, it is inappropriate to assume that the plaintiff "can prove facts which it has not alleged or that the defendants have violated the . . . laws in ways that have not been alleged." Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983).
In ruling on the motion, the court is permitted to consider material which is properly submitted as part of the complaint, documents that are not physically attached to the complaint if their authenticity is not contested and the plaintiff's complaint necessarily relies on them, and matters of ...