United States District Court, N.D. California
ORDER GRANTING MOTIONS TO DISMISS
PHYLLIS J. HAMILTON, District Judge.
Defendants' motions to dismiss the first amended complaint came on for hearing before this court on September 24, 2014. Plaintiff appeared by her counsel Andrea Tytell, and defendants appeared by their counsel Marguerite Meade. Having read the parties' papers and carefully considered their arguments and the relevant legal authority, the court hereby GRANTS the motions as follows and for the reasons stated at the hearing.
This is a case alleging claims under federal and state disability and civil rights laws, and common law tort claims. Plaintiff Adrianne Pantell brings this action as guardian ad litem for DP, a minor. Plaintiff seeks damages, attorney's fees, and costs.
Named as defendants are Antioch Union School District ("AUSD"); Board of Education of the AUSD ("AUSD Board"); Dr. Donald Gill ("Gill"), Superintendent of AUSD; David Wax ("Wax"), the former Director of Special Education for AUSD; Wendy Aghily ("Aghily"), Program Specialist for Contra Costa SELPA; Tobinworld, a non-public school; Mike Williams ("Williams"), Vice President and Behaviorist for Tobinworld; Sara Forghani ("Forghani"), Principal of Tobinworld; Teresa Turner ("Turner"), Teacher at Tobinworld; and three Teacher's Aides at Tobinworld - Charee Mosley ("Mosley"), Ashley Curtin ("Curtin"), and Stephanie Brown ("Brown").
DP, who is plaintiff's son, allegedly suffers from an emotional disturbance that qualifies him for special education services. FAC ¶ 7. From January 7, 2013 to February 1, 2013, DP was enrolled at Tobinworld, a California-certified, non-profit, non-public school located in Antioch. FAC ¶¶ 14, 31. Tobinworld offers special education and behavioral services to children and young adults with severe behavior problems (those who are autistic or developmentally disabled). FAC ¶ 14. Tobinworld was approved by AUSD to provide special education and related services to DP, and he attended Tobinworld under a contract between Tobinworld and AUSD. FAC ¶¶ 14, 32.
The events that form the basis of the complaint are alleged to have occurred on Monday, January 28, 2013 and Friday, February 1, 2013. FAC ¶ 31. Plaintiff alleges that on both January 28 and February 1, DP was restrained in an upright position by Curtin, Mosley, and Brown (possibly for disruptive behavior, although the complaint is not clear). In addition, his feet were allegedly kicked out from under him, which caused him to fall to the floor. Williams and Turner are also alleged to have participated in the restraint on January 28. FAC ¶¶ 33, 35, 42.
Plaintiff asserts that on both these occasions, DP was then forced by Curtin, Mosley, and Brown to lie face down, and those same three individuals placed folders wrapped in plastic against his face, which impeded his ability to breathe. FAC ¶¶ 35, 42. Plaintiff alleges that this was particularly distressful to DP on the January 28 occasion, because he had also sustained a bloody nose when he fell. FAC ¶ 35. DP was also allegedly restrained more than once on those days, was not permitted to use the restroom, was denied food, and was not allowed to play outside on either day. As a result of the repeated restraints, DP allegedly suffered bruises. FAC ¶¶ 35, 38-40, 42, 43.
Plaintiff asserts that during January 2013, she "gave actual notice" of the restraints and inappropriate interventions that she claims were condoned and directed by Wax, Aghily, Williams, Turner, and Forghani, and that said "actual notice" was tendered to AUSD and AUSD Board, as well as to Gill, Wax, and Aghily, all of whom who allegedly failed to intervene on behalf of DP. FAC ¶ 44.
Plaintiff filed the original complaint on March 25, 2014. Defendants moved to dismiss, and on July 9, 2014, plaintiff filed a first amended complaint ("FAC"). The FAC asserts eight causes of action - (1) assault and battery (against Curtin, Mosley, Brown, Williams, Turner, Aghily, and Forghani); (2) negligence (against all defendants); (3) violation of substantive due process, under 42 U.S.C. § 1983 (Gill, Wax, Aghily, Williams, Forghani, Turner, Mosley, Curtin, and Brown, in their individual capacities only); (4) discrimination in violation of California Civil Code § 51 (Unruh Act) (AUSD, Gill, Wax, Aghily, Williams, Forghani, Turner, Mosley, Curtin, and Brown in their individual capacities only); (5) discrimination in violation of § 504 of the Rehabilitation Act, 29 U.S.C. § 701, et seq. (AUSD and AUSD Board); (6) violation of Title II of the Americans With Disabilities Act ("ADA"), 42 U.S.C. § 12101, et seq. (AUSD and AUSD Board) (7) intentional infliction of emotional distress or "IIED" (all defendants); and (8) negligent infliction of emotional distress or "NIED" (all defendants).
Now before the court are three motions to dismiss -
(1) Motion of AUSD and AUSD Board to dismiss the claims asserted against them for lack of subject matter jurisdiction and/or for failure to state a claim;
(2) Motion of AUSD individual defendants (Gill and Aghily) to dismiss the claims asserted against them for lack of subject matter jurisdiction and/or for failure to state a claim; and
(3) Motion of Tobinworld defendants (Tobinworld, Williams, Forghani, Turner, Mosley, Curtin, and Brown) to dismiss the claims asserted against them for failure to state a claim.
A. Legal Standards
1. Dismissal for lack of subject matter jurisdiction
Federal courts are courts of limited jurisdiction, possessing only that power authorized by Article III of the United States Constitution and statutes enacted by Congress pursuant thereto. See Bender v. Williamsport Area Sch. Dist. , 475 U.S. 534, 541 (1986). Thus, federal courts have no power to consider claims for which they lack subject-matter jurisdiction. See Chen-Cheng Wang ex rel. United States v. FMC Corp. , 975 F.2d 1412, 1415 (9th Cir. 1992). The court is under a continuing duty to dismiss an action whenever it appears that the court lacks jurisdiction. Id .; see also Spencer Enters., Inc. v. United States , 345 F.3d 683, 687 (9th Cir. 2003); Attorneys Trust v. Videotape Computers Prods., Inc. , 93 F.3d 593, 594-95 (9th Cir. 1996). The ...