United States District Court, E.D. California
S.V., a minor, by and through her Guardian ad Litem, CLAUDIA VALENCIA, Plaintiff,
DELANO UNION ELEMENTARY SCHOOL DISTRICT; ROSALINA RIVERA; ANA RUIZ; MICHELLE PELAYO and DOES 1 through 100, inclusive, Defendants.
ORDER GRANTING MOTION TO DISMISS; ORDER REQUIRING
PLAINTIFF TO SHOW CAUSE RE AMENDMENT OF COMPLAINT (ECF NO.
LAWRENCE J. O'NEILL UNITED STATES CHIEF DISTRICT JUDGE
case was removed from the Superior Court for the County of
Kern on the basis of federal question jurisdiction. (ECF No.
1 at 2). Defendants moved to dismiss the fifth cause of
action's conspiracy claims (ECF No. 7), and the Court
granted the motion with leave to amend. (ECF No. 17).
Plaintiff then filed the first amended complaint on September
1, 2017 (ECF No. 18) (“FAC”). Plaintiff, who is a
student with an intellectual disability, was enrolled as a
student in Delano Union Elementary School District
(“District”), participating in both special
education as well as non-special education classes. (FAC
¶ 13). The complaint alleges that one of Plaintiff's
teachers, Michelle Pelayo, “threaten[ed],
discriminate[d] [against], humiliate[d], and degrade[d]
students.” (Id. ¶ 15(a)). It is also
alleged that other Defendants, including the District,
Superintendent Rosalina Rivera, and Principal Anna Ruiz,
“knew or reasonably should have known that Defendant
Pelayo had been, and/or was aggressive, discriminatory,
threatening, and/or abusive toward students, ” and that
these Defendants were “deliberately indifferent and/or
inadequately and improperly responded, failed to respond,
controlled, supervised, monitored, disciplined, warn[ed] and
or [took] adequate precautions” in connection with
Pelayo's conduct. (Id. ¶ 15(b)).
FAC, like the original complaint, alleges six causes of
action. The FAC contains the same factual allegations as the
original complaint but differs only with regard to the
allegations contained as part of the fifth cause of action.
In the original complaint, the fifth cause of action only
alleged civil conspiracy pursuant to 42 U.S.C. §§
1983 (“§ 1983”) and 1988 (“§
1988”), as well as conspiracy under California Code of
Civil Procedure Section 377.30 (§ 377.30) against the
individual defendants, Rivera, Ruiz, and Pelayo. (ECF No. 1,
Ex. A ¶¶ 48-50). The FAC's fifth cause of
action contains the same conspiracy claims as the original
complaint but also includes additional claims for
“Violation of the Equal Protection and Excessive Force
Clauses” of the Fourteenth Amendment against the same
Defendants. (FAC ¶¶48-50).
the Court for decision is Defendants' motion to dismiss
the conspiracy claims contained in the fifth cause of action
in the FAC. (ECF No. 21). Plaintiff filed an opposition (ECF
No. 25) and Defendants replied. (ECF No. 26). The matter was
taken under submission on the papers pursuant to Local Rule
230(g). Additionally, Plaintiff has added claims to the fifth
cause of action that were not included in the original
complaint without requesting leave to do so. While Defendants
do not address the propriety of such additions, the Court
does so in this Order.
MOTION TO DISMISS CONSPIRACY CLAIMS
Order entered on August 14, 2017, the Court granted
Defendant's motion to dismiss the fifth cause of action
asserting conspiracy claims under 42 U.S.C. §§
1983, 1988 and California law. (ECF No. 17) (“prior
Order”). In the prior Order, the Court found the
allegations were insufficient to support a civil conspiracy
claim. (Id. at 6-7). The FAC does not contain any
additional factual allegations that were not contained in the
original complaint. The only new allegation concerning the
alleged conspiracy is the below paragraph:
to Rule 11(b)(3) of the Federal Rules of Civil Procedure,
Plaintiff asserts that the following allegation will likely
have evidentiary support after a reasonable opportunity for
further investigation or discovery: At all relevant times
herein, Defendants RIVERA, RUIZ, and DOES 51 through 100,
agreed with, had a meeting of the minds with, entered into,
communicated pursuant to, and performed an agreement and
civil conspiracy with Defendants PELAYO and DOES 1 through
50, inclusive, to cause the wrongful conduct, acts,
omissions, injuries and damages alleged herein to occur. (FAC
same reasons discussed in the Court's prior Order, this
is insufficient to state civil conspiracy claims. (ECF No.
As Plaintiff has made no substantive changes to the FAC,
Plaintiff's first amended complaint has failed to remedy
the deficiencies of her original complaint with regard to the
civil conspiracy claims.
Plaintiff's first amended complaint fails to state
conspiracy claims for the exact same reason as did the
original complaint. Thus, the Court GRANTS Defendants'
motion to dismiss the fifth cause of action's civil
conspiracy claims under federal and California law. As
Plaintiff already had the opportunity to amend her complaint,
but failed to plead any additional facts with regard to a
civil conspiracy, the Court does not grant Plaintiff further
leave to amend such claim.
PLAINTIFF'S NEW CLAIMS IN THE FIFTH CAUSE OF
Rule 15(a) of the Federal Rules of Civil Procedure, a party
may amend the party's pleading once as a matter of course
before a responsive pleading is served. Fed.R.Civ.P. 15(a).
Otherwise, a party may amend only by leave of the court or by
written consent of the adverse party and the court should
freely give leave when justice so requires. Id.
“In general, if an amendment that cannot be made as of
right is served without obtaining the court's leave or
the opposing party's consent, it is without legal effect
and any new matter it contains will not be considered unless
the amendment is resubmitted for the court's
approval.” Larry O. Crother, Inc. v. Lexington Ins.
Co., No. 2:11-CV-00138-MCE, 2011 WL 1084201, at *1 (E.D.
Cal. Mar. 21, 2011) (quoting Alan Wright & Arthur R.
Miller, 6 Fed. Prac. & Proc. Civ. § 1484 (3d ed.)).
Court granted Plaintiff leave to amend the complaint for the
limited purpose of amending the allegations concerning the
civil conspiracy claims in the fifth cause of action
as those were the only claims contained therein. (ECF No.
17). However, Plaintiff did not clarify or add further facts
to support the civil conspiracy claims but instead added
claims of “Violation of the Equal Protection and
Excessive Force Clauses” of the Fourteenth Amendment.
(FAC ¶¶48-50). The extent to which such a theory is
cognizable in this case is unclear. However, Plaintiff did
not request, and the Court did not consent to, additional
amendments to the complaint to assert the claims that are now
included as part of the fifth cause of action. “[W]here
a prior court order granted limited leave to amend, District
Courts in this circuit generally strike new claims or parties
contained in an amended complaint when the plaintiff did not
seek leave to amend.” Jameson Beach Prop. Owners
Ass'n v. United States, No. 2:13-CV-01025-MCE-AC,
2014 WL 4925253, at *3 (E.D. Cal. Sept. 29, 2014);
Coppola v. Smith, 19 F.Supp.3d 960, 971 (E.D. Cal.
2014) (identifying procedural deficiency where the amended
complaint included a new legal “theory” and the
order only granted leave to amend the complaint “to
refine and address the identified deficiencies” in a
particular claim); Ketab Corp. v. Mesriani &
Assocs., No. 214CV07241RSWLMRW, 2015 WL 8022874, at *8
(C.D. Cal. Dec. 4, 2015) (“in cases like this one,
where leave to amend is given to cure deficiencies in certain
specified claims, courts have held that new claims alleged
for the first time in the amended pleading should be
dismissed or stricken.”); Benton v. Baker
Hughes, No. CV 12-07735 MMM MRWX, 2013 WL 3353636, at *3
(C.D. Cal. June 30, 2013), aff'd sub nom. Benton v.
Hughes, 623 F. App'x 888 (9th Cir. 2015) (the
court's “order granted [the plaintiff] leave to
amend only to address the deficiencies in his existing causes
of action identified in its order” and “did not
grant [the plaintiff] leave to add new claims” and thus
plaintiff's “new claims” exceeded “the
scope of the leave to amend granted” and were
Court finds that the additional claims included in the fifth
cause of action in the FAC do not comply with the limitations
on amendment provided in the Court's prior Order which
only addressed the deficiencies regarding the civil
conspiracy claims contained therein. (ECF No. 17).
Nonetheless, in an abundance of caution and because other,
similar claims survive in this case, the Court will provide
Plaintiff an opportunity to demonstrate that amendment to
include claims for ...