United States District Court, N.D. California
ORDER GRANTING MOTION TO DISMISS RE: DKT. NO.
William H. Orrick United States District Judge
former and current students of Yvette Felarca at the Berkeley
Unified School District (“BUSD”), bring this
action against BUSD, two of its school administrators, and
its outside counsel, Marleen Sacks, for violating the
students' constitutional rights under the First and
Fourteenth Amendments and their civil rights under Title VI
of Civil Rights Act of 1964. These claims stem from the
manner in which defendants investigated potential
professional misconduct by Felarca. Sacks now moves to
dismiss claims alleged by plaintiffs Vargas, X.M., and B.L.
Vargas and X.M. concede that they have not alleged any facts
at all regarding Sacks, and do not oppose the motion.
B.L.'s only allegations in the First Amended Complaint
regarding Sacks are that he was pulled from his classroom,
was sent back to his classroom by Sacks without an interview,
and feared that he might be interviewed in the future. These
facts do not demonstrate Article III standing for B.L.'s
claims against Sacks; B.L. has not suffered an injury in fact
and cannot plausibly allege a constitutional violation. There
is no need for oral argument; I GRANT Sacks's motion.
case arises out of an investigation into the potential
misconduct of Yvette Felarca, a teacher at King Middle School
in Berkeley who teaches both English Language Development
(“ELD”) and History. On June 26, 2016, in her
free time, Felarca participated in a violent and widely
publicized political protest in Sacramento with members of
the group By Any Means Necessary that was intended to
“shut-down” a separate protest held by a neo-Nazi
group. First Amended Complaint (“FAC”) ¶ 27
(Dkt. No. 68); see RJN Ex. 5 (Dkt. No. 31-6) (CNN
article “At least 10 injured - some stabbed - at
California rally, authorities say”). Following the
Sacramento protest, BUSD started receiving threats and calls
from members of the public calling for Felarca's
dismissal, apparently because of her controversial political
and protest activity. RJN Ex. 2 (Berkeleyside.com article)
(Dkt. No. 31-3).
September 21, 2016, Sacks, an attorney for the school
district, began conducting interviews of some of
Felarca's current and former students about her conduct
in and out of the classroom. Id. ¶ 29. These
students were pulled from class. At the beginning of these
interviews, they were told that they could not tell their
friends, teachers, or anyone else about the interviews.
Id. ¶ 32. B.L., an immigrant student from the
Ivory Coast, was pulled from class for an interview but,
after reporting to the principal's office and waiting, he
was sent back to class by Sacks, who told him she would
interview him alone later. Id. ¶ 37. B.L.
alleges that he was confused and felt like he was in trouble.
was placed on paid administrative leave later that day and
remained on leave for the next six weeks. Id. ¶
40. B.L.'s father complained about the student interviews
at a School Board meeting that evening. Id. ¶
38. Later, BUSD contacted B.L.'s father and “told
him that any political protests that B.L. participated in
were not sanctioned by the District.” Id.
¶ 39. Over the course of the next several weeks, Sacks
and school officials interviewed, or indicated they intended
to interview, many of Felarca's current and former
students. Id. ¶ 41. These interviews were
disproportionately conducted with Felarca's ELD students,
who are largely immigrant students and non-native English
speakers. Id. ¶¶ 41, 63, 74.
filed this action on November 16, 2016, alleging a slew of
federal and state claims. Dkt. No. 1. I granted
defendants' motion to strike plaintiff's state claims
under California's “anti-SLAPP” statute,
California Code of Civil Procedure § 425.16. Dkt. No.
63. I granted in part and denied in part defendants'
motion concerning the federal claims, and gave leave to
amend. Id. Plaintiffs filed their First Amended
Complaint, Dkt. No. 68, and Sacks moves to dismiss claims
alleged against her by plaintiffs Vargas, X.M., and B.L. Dkt.
MOTION TO DISMISS
Federal Rule of Civil Procedure 12(b)(6), a district court
must dismiss a complaint if it fails to state a claim upon
which relief can be granted. To survive a Rule 12(b)(6)
motion to dismiss, the plaintiff must allege “enough
facts to state a claim to relief that is plausible on its
face.” See Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007). A claim is facially plausible when the
plaintiff pleads facts that “allow the court to draw
the reasonable inference that the defendant is liable for the
misconduct alleged.” See Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (citation omitted). There must be
“more than a sheer possibility that a defendant has
acted unlawfully.” Id. While courts do not
require “heightened fact pleading of specifics, ”
a plaintiff must allege facts sufficient to “raise a
right to relief above the speculative level.” See
Twombly, 550 U.S. at 555, 570.
deciding whether the plaintiff has stated a claim upon which
relief can be granted, the Court accepts the plaintiff's
allegations as true and draws all reasonable inferences in
favor of the plaintiff. See Usher v. City of Los
Angeles, 828 F.2d 556, 561 (9th Cir. 1987). However, the
court is not required to accept as true “allegations
that are merely conclusory, unwarranted deductions of fact,
or unreasonable inferences.” See In re Gilead Scis.
Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008).
court dismisses the complaint, it “should grant leave
to amend even if no request to amend the pleading was made,
unless it determines that the pleading could not possibly be
cured by the allegation of other facts.” See Lopez
v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000). In making
this determination, the court should consider factors such as
“the presence or absence of undue delay, bad faith,
dilatory motive, repeated failure to cure deficiencies by
previous amendments, undue prejudice to ...