I.V. v. Vacaville Unified School District ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 I.V., a minor by and through her guardian Case No. 2:19-cv-00273-KJM-DB ad litem Ron V., 12 Plaintiff, 13 ORDER v. 14 VACAVILLE UNIFIED SCHOOL 15 DISTRICT, et al., 16 Defendants. 17 18 Plaintiff, a minor with autism, brings this suit through her guardian ad litem 19 against Vacaville Unified School District (“VUSD”), the district Superintendent, Jane Shamieh, 20 and her school’s bus driver, Kim Klopson, alleging civil rights violations as well as several state 21 law claims. VUSD and Shamieh move to dismiss several of plaintiff’s claims against them, and 22 Klopson separately moves to dismiss claims against her. For the reasons below, the court 23 GRANTS in part and DENIES in part the motion brought by VUSD and Shamieh and DENIES 24 Klopson’s motion to dismiss. 25 I. BACKGROUND 26 This case arises out of an incident that took place on February 6, 2018, while 27 plaintiff, an eight-year-old with Autism Spectrum Disorder, was being transported to school on a 28 VUSD-provided bus driven by defendant Klopson. Am. Compl. ¶¶ 2, 19, ECF No. 11. Because 1 the bus was equipped with a video camera, the events of the morning are alleged in plaintiff’s 2 amended complaint in detail and are summarized below. Id. ¶ 20. 3 Soon after plaintiff boarded the bus, Klopson began scolding her for kicking the 4 seat in front of her, though no one was seated there. Id. ¶ 21. Plaintiff alleges that repetitive 5 movements like the kicking are a common manifestation of plaintiff’s autism. Id. Klopson again 6 scolded plaintiff when plaintiff turned around to look toward the back of the bus, id., and Klopson 7 threatened to make her sit at the back of the bus on the way home from school if she did not 8 behave, id. ¶ 22. Plaintiff explains disrupting a daily routine in this way is likely to cause an 9 autistic child emotional distress, and the threat did, in fact, cause plaintiff to become visibly upset. 10 Id. ¶¶ 22–23. When the bus arrived at plaintiff’s school, Klopson continued to scold plaintiff “in 11 an abusive and angry manner” when plaintiff occasionally stood up at her seat. Id. ¶ 24. 12 The incident escalated when Klopson again threatened to change plaintiff’s seat on 13 the bus and, “for no apparent reason,” “ripped [plaintiff’s] backpack away” and placed it on a seat 14 at the front of the bus. Id. ¶ 25. This caused plaintiff to become visibly distressed and agitated, in 15 response to which Klopson said “temper tantrums don’t work either.” Id. When plaintiff’s para- 16 educator arrived to pick plaintiff up and take her to class, Klopson instructed plaintiff to pick up 17 her backpack at the front of the bus. Id. ¶ 26. However, plaintiff remained in her seat, because 18 “[f]rom Plaintiff’s viewpoint, this instruction was in direct conflict with her daily routine and 19 what she had been instructed” to do by her parents and teachers. Id. These conflicting 20 instructions caused plaintiff to make non-verbal sounds and “cry[] in distress.” Id. Klopson 21 “responded by threatening to send plaintiff to the principal’s office for her ‘bad’ behavior.” Id. 22 When plaintiff’s para-educator offered to help get plaintiff off the bus, Klopson stated “I’ve got 23 this,” and again ordered plaintiff to get her backpack and exit the bus. Id. ¶¶ 26–27. 24 The incident further escalated when Klopson responded to plaintiff’s inaction by 25 “hover[ing] over [plaintiff] and viciously scold[ing] her for acting like a baby,” then, as plaintiff 26 became increasingly agitated, “pinning Plaintiff down onto her seat and stating, ‘you can get 27 away with this at home, but not on my bus.’” Id. ¶ 27. When plaintiff’s response remained 28 unchanged, Klopson “lifted Plaintiff up from her seat and dropped her onto the aisle floor [] then 1 pulled Plaintiff up by her jacket and dropped her a second time.” Id. ¶ 28. Plaintiff “began to 2 scream for Klopson to ‘please stop it,’” but Klopson continued, eventually “violently throwing 3 Plaintiff onto the bus seat yelling at her ‘get up’ and then dragging her down the bus aisle by her 4 clothing allowing her sweater to come off in the process.” Id. Klopson then closed the door to 5 the bus, while the two were still inside, “pinned Plaintiff down on the stairs,” and taunted her 6 until, nearly six minutes later, Klopson released plaintiff, at that point highly distressed and 7 crying, from the bus. Id. ¶ 30. Plaintiff alleges that neither her para-educator, nor any other 8 VUSD faculty, staff, or administrators, took any action while this was occurring. Id. ¶ 32. 9 Later that morning, plaintiff’s para-educator reported the incident to the school 10 principle, who launched an investigation. Id. ¶ 35. During the school day, plaintiff began 11 complaining of back pain and, upon examination, the school nurse discovered plaintiff had 12 several abrasions and welts on her lower back. Id. Nevertheless, plaintiff was kept at school for 13 the remainder of the day and sent home on the bus. Id. Plaintiff’s parents were not informed of 14 the incident until plaintiff had been sent home. Id. 15 Ultimately, VUSD reported the incident to the Vacaville Police Department and 16 Klopson was charged with felony child abuse. Id. ¶¶ 37–38. At the time plaintiff filed her 17 complaint and at the time this court heard defendants’ motions to dismiss, Klopson’s criminal 18 case was ongoing. Id. ¶ 40. Defendant Shamieh made a public statement in response to the 19 incident, saying “[t]here are no words to express why anyone would mistreat a child in that way” 20 and “[n]o child should ever have to experience something like that, especially at school.” Id. 21 ¶ 39. 22 Plaintiff filed a complaint against VUSD, Shamieh in her individual capacity, and 23 Kim Klopson in her individual capacity. The operative first amended complaint alleges thirteen 24 claims, including violation of § 1983 against all defendants (claim one); discrimination in 25 violation of the Americans with Disabilities Act (ADA) against VUSD (claim two); 26 discrimination in violation of the Rehabilitation Act against VUSD (claim three); negligence 27 against all defendants (claim four); discrimination in violation of the Unruh Act against VUSD 28 (claim nine), the Bane Act against VUSD and Klopson (claim ten), and California Education 1 Code section 200 against VUSD (claim eleven); and negligent infliction of emotional distress 2 against Shamieh and Klopson (claim thirteen). See generally Am. Compl. VUSD and Shamieh 3 move to dismiss all three claims against Shamieh, namely the first, fourth, and thirteenth claims, 4 as well as the first, second, third, ninth, and tenth claims against VUSD. VUSD Mot. to Dismiss 5 (“VUSD MTD”), ECF No. 17-1, at 5. Klopson separately moves to dismiss the first and tenth 6 claims against her. Klopson Mot. to Dismiss (“Klopson MTD”), ECF No. 19-1, at 6. Plaintiff 7 opposes both motions, ECF Nos. 21 (“VUSD Opp’n”), 24 (“Klopson Opp’n”), and defendants 8 have replied, ECF Nos. 25, 26. The court resolves both motions to dismiss below. 9 II. LEGAL STANDARD 10 Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a party may move to 11 dismiss a complaint for “failure to state a claim upon which relief can be granted.” A court may 12 dismiss “based on the lack of cognizable legal theory or the absence of sufficient facts alleged 13 under a cognizable legal theory.” Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 14 1990). 15 Although a complaint need contain only “a short and plain statement of the claim 16 showing that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2), in order to survive a motion 17 to dismiss this short and plain statement “must contain sufficient factual matter . . . to ‘state a 18 claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting 19 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A complaint must include something 20 more than “an unadorned, the-defendant-unlawfully-harmed-me accusation” or “‘labels and 21 conclusions’ or ‘a formulaic recitation of the elements of a cause of action.’” Id. (quoting 22 Twombly, 550 U.S. at 555). Determining whether a complaint will survive a motion to dismiss 23 for failure to state a claim is a “context-specific task that requires the reviewing court to draw on 24 its judicial experience and common sense.” Id. at 679. Ultimately, the inquiry focuses on the 25 interplay between the factual allegations of the complaint and the dispositive issues of law in the 26 action. See Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). 27 In making this context-specific evaluation, this court must construe the complaint 28 in the light most favorable to the plaintiff and accept as true the factual allegations of the 1 complaint. Erickson v. Pardus, 551 U.S. 89, 93–94 (2007). This rule does not apply to “a legal 2 conclusion couched as a factual allegation,” Papasan v. Allain, 478 U.S. 265, 286 (1986) quoted 3 in Twombly, 550 U.S. at 555, nor to “allegations that contradict matters properly subject to 4 judicial notice” or to material attached to or incorporated by reference into the complaint. 5 Sprewell v. Golden State Warriors, 266 F.3d 979, 988–89 (9th Cir. 2001). 6 III. DISCUSSION 7 A. Excessive Force Claims 8 Plaintiff alleges two claims based on a theory of excessive force: a § 1983 claim 9 against all defendants for violations of the Fourth and Fourteenth Amendment (claim one), and a 10 Bane Act claim against VUSD and Klopson (claim ten). 11 1. Section 1983 Claim Against All Defendants 12 Section 1983 provides a cause of action for people who believe their federal rights 13 have been violated by someone acting under color of state law. Gomez v. Toledo, 446 U.S. 635, 14 639 (1980) (citing 42 U.S.C. § 1983). Plaintiff’s § 1983 claim against all defendants is based on 15 the unreasonable seizure clause of the Fourth Amendment,1 and the substantive due process 16 clause of the Fourteenth Amendment.2 Am. Compl. ¶¶ 44–45. Defendants do not challenge 17 plaintiff’s assertion that the individual defendants acted under color of state law when they 18 committed the allegedly unlawful actions as a public school bus driver and superintendent. 19 However, the parties disagree over whether plaintiff has sufficiently stated additional claims 20 against Klopson, VUSD or Shamieh. 21 a. Fourteenth Amendment Due Process Claim 22 Though plaintiff brings her § 1983 claim under both the Fourth and Fourteenth 23 Amendments, because the claim is one for excessive force it is more aptly analyzed under the 24 Fourth Amendment. In Beecham v. Roseville City Sch. Dist., No. 215CV01022KJMEFB, 2018 25 26 1 “No state shall . . . deprive any person of life, liberty, or property, without due process of law[.]” U.S. Const. amend. XIV, § 1. 27 2 “The right of the people to be secure in their persons . . . against unreasonable searches and 28 seizures, shall not be violated[.]” U.S. Const. amend. IV. 1 WL 1941670, at *5–6 (E.D. Cal. Apr. 25, 2018), reinstatement denied, No. 2:15-CV-01022 KJM 2 EFB, 2018 WL 4699989 (E.D. Cal. Oct. 1, 2018), this court examined the evolution of this type 3 of claim against a school official for using force against a student. Based on a similar claim of 4 physical abuse made by several young children with autism, this court applied the Fourth 5 Amendment rather than the Fourteenth when the complaint referenced both amendments in one 6 claim under § 1983, concluding that “[o]n balance, there appears to be a trend toward analyzing 7 all teacher-student excessive force claims under the Fourth Amendment, even where the alleged 8 abuse does not restrict the student’s movement.” Id. at 6 (citing Hugunin v. Rocklin Unified Sch. 9 Dist., No. 2:15–CV–00939–MCE–DB, 2017 WL 202536, at *4 (E.D. Cal. Jan. 17, 10 2017) (surveying Ninth Circuit precedent and explaining why Fourth Amendment should apply to 11 teacher-student excessive force claims generally); see also E.H. v. Brentwood Union Sch. Dist., 12 No. C13–3243 TEH, 2013 WL 5978008, at *2 (N.D. Cal. Nov. 4, 2013) (noting “use of force” 13 allegations against students “must be analyzed under the Fourth Amendment”)). 14 Although plaintiff expressly alleges a substantive due process claim under the 15 Fourteenth Amendment in her complaint, Am. Compl. ¶ 44, in her opposition to Klopson’s 16 motion to dismiss, she concedes she is “not basing her 1983 claim on an alleged violation of the 17 Fourteenth Amendment Due Process Clause.” Klopson Opp’n at 8. Plaintiff confirmed this 18 concession at hearing. To the extent plaintiff’s § 1983 claim against any defendant was pleaded 19 as a claim for a violation of the Fourteenth Amendment due process clause, it is DISMISSED. 20 b. Fourth Amendment Claim 21 i. Claim Against Defendant Klopson 22 The Fourth Amendment applies to excessive force claims based on the actions of 23 public school officials. New Jersey v. T.L.O., 469 U.S. 325, 336–37 (1985); Preschooler II v. 24 Clark County School Bd., 479 F.3d 1175, 1180–81 (9th Cir. 2007). Defendant Klopson argues 25 plaintiff’s Fourth Amendment claim should be dismissed, because Klopson’s conduct was not “a 26 ‘seizure’ [] pursuant to a criminal investigation or an administrative inspection.” Klopson MTD 27 at 8 (citing United States v. Attson, 900 F.2d 1427 (9th Cir. 1990)). Klopson relies on Attson, in 28 which the Ninth Circuit held the Fourth Amendment only applies to individuals who are not law 1 enforcement officers if their conduct is intended to “elicit a benefit for the government in either 2 its investigative or administrative capacities.” Attson, 900 F.2d at 1431. 3 Plaintiff points out the Eleventh Circuit has recognized Attson was effectively 4 overruled by Soldal v. Cook County, Ill., 506 U.S. 56 (1992). Klopson Opp’n at 7 (citing Jane 5 Doe I v. Valencia Coll. Bd. of Trustees, 838 F.3d 1207, 1212 (11th Cir. 2016) (recognizing 6 “Attson is not good law” in light of the reasoning in Soldal). In Soldal, the Court reasoned that 7 whether or not conduct constituted a “seizure” for Fourth Amendment purposes was unrelated to 8 the official’s purpose behind that conduct. Soldal, 506 U.S. at 69 (“The right against 9 unreasonable seizures would be no less transgressed if the seizure of the house was undertaken to 10 collect evidence, verify compliance with a housing regulation, effect an eviction by the police, or 11 on a whim, for no reason at all.”). Defendants do not argue the Fourth Amendment would not 12 apply to Klopson’s conduct if, in fact, Attson has been overruled. 13 Because Attson is Ninth Circuit precedent that has yet to be expressly overruled, 14 the court finds no reason to treat the decision as overruled here. Klopson’s conduct fits within the 15 categories Attson carves out for Fourth Amendment application. “The Attson decision did not 16 suggest that all ‘noncriminal, noninvestigatory’ examinations fall outside the protection of the 17 Fourth Amendment.” Dubbs v. Head Start, Inc., 336 F.3d 1194, 1205 (10th Cir. 2003). Rather, 18 Fourth Amendment protections also “extend to searches conducted for ‘administrative’ 19 purposes.’” Id. The Ninth Circuit has recognized that a school administrator is “performing an 20 administrative function” when “disciplining [a student] and maintaining order in the school.” 21 Doe ex rel. Doe v. Hawaii Dep’t of Educ., 334 F.3d 906, 909 (9th Cir. 2003). Defendants argue 22 this holding is limited to school administrators, such as school principals. However, the Attson 23 decision did not turn on the job title of the state actor, but rather on the purpose behind the actor’s 24 conduct: 25 In order for us to determine whether non-law enforcement 26 governmental conduct can be considered a “search” or “seizure” under the fourth amendment, it is therefore necessary for us to 27 ///// 28 ///// 1 evaluate whether such conduct has as its purpose the intention to elicit a benefit for the government in either its investigative or 2 administrative capacities. 3 Attson, 900 F.2d at 1431; see also Wallace by Wallace v. Batavia Sch. Dist. 101, 68 F.3d 1010, 4 1013 (7th Cir. 1995) (finding teacher’s disciplinary actions subject to Fourth Amendment); cf. 5 Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 924 (9th Cir. 2001) (holding 6 municipal bus driver subject to Fourth Amendment, because he “acted with the intent to assist the 7 government in its investigatory or administrative purposes, and not for an independent purpose” 8 when preventing plaintiff from riding without identification (internal quotation marks and 9 citations omitted)); but see Soldal, 506 U.S. at 69 (“[T]he reason why an officer might enter a 10 house or effectuate a seizure is wholly irrelevant to the threshold question whether the 11 Amendment applies.”); DiBenedetto v. Diaz, No. 117CV01605DADMJS, 2018 WL 692104, at 12 *3 (E.D. Cal. Feb. 1, 2018) (applying Attson test to conduct by postal worker, analyzing 13 reasonable expectations of plaintiff in light of defendant’s position as well as defendant’s 14 purpose). Plaintiff alleges Klopson’s use of excessive force against plaintiff was a reaction to 15 what Klopson allegedly called plaintiff’s “‘bad’ behavior.” Am. Compl. ¶ 26. Taking the factual 16 allegations in plaintiff’s complaint as true, the purpose of Klopson’s alleged conduct was to 17 “discipline[e] [a student] and maintain[] order in the school” bus, which, according to Doe ex rel 18 Doe is an “administrative function.” Doe ex rel. Doe, 334 F.3d at 909. Accordingly, plaintiff has 19 sufficiently pleaded the alleged conduct was for an administrative purpose, and therefore the 20 Fourth Amendment’s protection against unreasonable seizures applies to Klopson’s conduct, 21 regardless of whether Attson has been overruled. 22 Furthermore, plaintiff has alleged sufficient facts to state a plausible claim that her 23 Fourth Amendment right against unreasonable seizures was violated. As mentioned above, this 24 court has recognized a district court split on the issue, but found the weight of authority counsels 25 in favor of applying the Fourth Amendment to excessive force cases in schools even where the 26 conduct at issue does not restrain a child’s movement. Beecham, 2018 WL 1941670, at *6. 27 Under that framework, plaintiff has sufficiently alleged a “seizure” occurred, because Klopson’s 28 conduct towards plaintiff, coupled with her authoritative role, constituted the use of “some form 1 of physical force or show of authority” that would have caused a reasonable eight-year-old 2 student in plaintiff’s shoes to “believe[] [] [s]he was not free to leave.” Pearson v. Cent. Curry 3 Sch. Dist. No. 1, No. 6:15-CV-1353-AA, 2015 WL 5665457, at *2 (D. Or. Sept. 22, 2015) 4 (quoting United States v. Summers, 268 F.3d 683, 686 (9th Cir. 2001)). Whether Klopson’s 5 conduct was “unreasonable in light of the child’s age and disability and the context of the events,” 6 Preschooler II, 479 F.3d at 1180, is a fact-intensive inquiry best left to the factfinder, Beecham, 7 2018 WL 1941670, at *6. At this stage, plaintiff’s complaint sets forth facts that are sufficient to 8 state a claim for an unreasonable seizure in violation of the Fourth Amendment, including 9 plaintiff’s age and disability as well as Klopson’s physical handling of plaintiff in response to 10 plaintiff’s seemingly innocent behavior. See id. (denying defendant’s motion for summary 11 judgment upon finding “a reasonable juror could find that striking, pushing, slapping and kicking 12 three and four-year-old special needs students on campus constitutes excessive force in violation 13 of the Fourth Amendment”). 14 Accordingly, Klopson’s motion to dismiss the § 1983 claim for violation of the 15 Fourth Amendment is DENIED. 16 ii. Claim Against Defendant Shamieh 17 Defendant Shamieh states, correctly, that she cannot be held liable for Klopson’s 18 constitutional violations under § 1983 purely on the basis of respondeat superior. See Monell v. 19 Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978). Rather, as plaintiff argues, “under § 1983, a 20 supervisor is liable for the acts of [her] subordinates if the supervisor . . . knew of the violations 21 [of subordinates] and failed to act to prevent them.” Preschooler II, 479 F.3d at 1182 (alteration 22 in original); VUSD Opp’n at 13; see also Hydrick v. Hunter, 669 F.3d 937, 942 (9th Cir. 2012) 23 (explaining plaintiff must “allege sufficient facts to plausibly establish the defendant’s knowledge 24 of and acquiescence in the unconstitutional conduct of his subordinates.” (internal quotation 25 marks and citation omitted)). 26 Plaintiff alleges on information and belief that Shamieh “was aware of prior 27 discrimination and abuse” committed by Klopson and “did nothing to prevent such abuse from 28 reoccurring.” VUSD Opp’n at 5; Am. Compl. ¶ 50 (“On information and belief, KLOPSON had 1 previously used excessive, unreasonable, and unnecessary physical force to seize other disabled 2 students on several different occasions and Defendants . . . abdicated their duty to report and 3 discipline KLOPSON when they first became actually or constructively aware of the alleged 4 abuses.”). Plaintiff argues this assertion is supported by the fact that no school staff present at the 5 incident responded to Klopson’s actions against plaintiff while those actions were happening, 6 supporting an inference “VUSD employees were habituated to the misconduct.” VUSD Opp’n at 7 10. 8 These sparse pleadings, which rely heavily on plaintiff’s “information and belief,” 9 do not satisfy the plausibility requirement under Twombly and Iqbal. However, at hearing, 10 plaintiff represented she could plead additional facts to bolster her claim against Shamieh if given 11 leave to amend. 12 Accordingly, defendant Shamieh’s motion to dismiss the § 1983 claim against her 13 is GRANTED with leave to amend. 14 iii. Claim Against Defendant VUSD 15 In her opposition, plaintiff agreed to dismiss her § 1983 claim against VUSD. 16 VUSD Opp’n at 14. Accordingly, this claim is hereby DISMISSED without leave to amend. 17 2. Bane Act Claim 18 California’s Bane Act, California Civil Code § 52.1, provides that a person “whose 19 exercise or enjoyment” of constitutional rights has been interfered with “by threat, intimidation, 20 or coercion” may bring a civil action for damages and injunctive relief. Id. The essence of such a 21 claim is that “the defendant, by the specified improper means . . . tried to or did prevent the 22 plaintiff from doing something he or she had the right to do under the law or force the plaintiff to 23 do something he or she was not required to do.” Austin B. v. Escondido Union Sch. Dist., 149 24 Cal. App. 4th 860, 883 (2007). The elements of an excessive force claim under § 52.1 are 25 essentially the same as under § 1983, Chaudhry v. City of Los Angeles, 751 F.3d 1096, 1105 (9th 26 Cir. 2014), though a Bane Act claim additionally requires a showing of “a specific intent to 27 violate the arrestee’s right to freedom from unreasonable seizure,” Reese v. Cty. of Sacramento, 28 888 F.3d 1030, 1043 (9th Cir. 2018) (citation omitted). “[R]eckless disregard for a person’s 1 constitutional rights is evidence of a specific intent to deprive that person of those rights.” Reese, 2 888 F.3d at 1043 (quoting United States v. Reese, 2 F.3d 870, 885 (9th Cir. 1993)). 3 Here, plaintiff has sufficiently pleaded an excessive force claim against defendant 4 Klopson and defendants do not challenge whether plaintiff has sufficiently pleaded specific 5 intent. Furthermore, because California law permits respondeat superior liability for Bane Act 6 violations, plaintiff’s claim against Klopson is sufficient to state a claim against VUSD. K.T. v. 7 Pittsburg Unified Sch. Dist., 219 F. Supp. 3d 970, 982 (N.D. Cal. 2016) (citing Gant v. Los 8 Angeles Cnty., 772 F.3d 608, 623 (9th Cir. 2014); Cal. Gov’t Code § 815.2(a)3); Am. Compl. ¶ 5 9 (alleging Klopson was, at all relevant times, an employee of VUSD). 10 Defendants argue plaintiff’s Bane Act claim should be dismissed because plaintiff 11 fails to allege defendants’ actions prevented her from exercising her right to attend school. 12 VUSD MTD at 14; Klopson MTD at 9. Defendants cite Austin B. v. Escondido Union School 13 Dist., 149 Cal. App. 4th at 883, in which the court dismissed a Bane Act claim brought by 14 students alleging their teacher abused them, because “there is no evidence of acts . . . that actually 15 caused a loss of [plaintiff’s] right to an education . . . .” Id. Plaintiffs correctly point out, 16 however, that the underlying constitutional right at issue in Austin B. was plaintiffs’ right to a free 17 public education under the California Constitution. Id. at 881; VUSD Opp’n at 19. Here, by 18 contrast, plaintiff alleges defendants interfered with her Fourth Amendment right to be free from 19 unreasonable seizures. Am. Comp. ¶¶ 44, 46. Accordingly, the omission of facts stating 20 defendants prevented plaintiff from attending public school does not affect the sufficiency of 21 plaintiff’s Bane Act claim. 22 On reply, VUSD and Shamieh argue plaintiff’s Bane Act claim fails because 23 plaintiff has not alleged a violation of “any state constitutional right which is separate and distinct 24 from federal protections,” citing Reynolds v. County of San Diego, 84 F.3d 1162 (9th Cir. 1996) 25 overruled on other grounds by Acri v. Varian Assocs., Inc., 114 F.3d 999 (9th Cir. 1997). VUSD 26 Reply at 7. Defendants misread Reynolds. There, the issue was whether the court properly 27 3 “A public entity is liable for injury proximately caused by an act or omission of an employee of 28 the public entity within the scope of his employment[.]” Cal. Gov’t Code § 815.2(a). 1 granted defendant’s summary judgment motion as to plaintiff’s Bane Act claim based on 2 qualified immunity, which only applies to claims for federal constitutional violations. Id. at 1170; 3 Reynolds v. Cty. of San Diego, 858 F. Supp. at 1074. Because the Bane Act claim in that case 4 was based only on federal constitutional violations, the court’s qualified immunity analysis also 5 applied to the Bane Act claim, which is why the court required a constitutional right separate 6 from federal protections for the claim to survive. Reynolds is not applicable here, where 7 defendants have not raised qualified immunity as a defense. 8 Additionally, on reply, VUSD and Shamieh argue the Bane Act claim requires a 9 showing of “threats, intimidation or coercion separate from the coercion inherent in the search 10 and seizure itself.” Sandoval v. Cty. of Sonoma, No. 11-CV-05817-TEH, 2016 WL 612905, at *3 11 (N.D. Cal. Feb. 16, 2016), aff’d, 912 F.3d 509 (9th Cir. 2018); VUSD Reply at 7. However, 12 Sandoval, and the Ninth Circuit precedent on which Sandoval relies, Lyall v. City of Los Angeles, 13 807 F.3d 1178 (9th Cir. 2015), did not address an excessive force claim. In a footnote, the court 14 in Sandoval highlights this distinction saying, “The law is notably different when it comes to 15 excessive force Bane Act claims— ‘[a] Plaintiff bringing a Bane Act excessive force [claim] need 16 not allege a showing of coercion independent from the coercion inherent in the use of force.’” 17 Sandoval, 2016 WL 612905, at *3 n.2 (quoting Rodriguez v. City of Modesto, No. 10-CV-1370, 18 2013 WL 6415620, at *13 (E.D. Cal. Dec. 9, 2013)). 19 Furthermore, the Ninth Circuit specifically addressed a Bane Act claim based on 20 excessive force in Reese v. Cty. of Sacramento, and again clarified that the Bane Act does not 21 “require[] coercion independent from the constitutional violation.” 888 F.3d at 1045. Plaintiff 22 has sufficiently alleged Klopson used “threats, intimidation or coercion” against plaintiff in 23 saying that Klopson used force against her during the incident on the school bus. This challenge 24 to plaintiff’s claim is also unsuccessful. 25 For the foregoing reasons, defendants’ motions to dismiss plaintiff’s Bane Act 26 claim are DENIED. 27 //// 28 //// 1 B. Disability Discrimination Claims 2 Plaintiff brings four disability discrimination claims against VUSD: an ADA Title 3 II claim and a Rehabilitation Act claim (claims 2 and 3); an Unruh Act claim (claim nine); and a 4 California Education Code section 220 claim (claim 11). 5 1. ADA and Rehabilitation Act Section 504 Claims Against VUSD (claims 2 and 3) 6 7 ADA Title II and Rehabilitation Act Section 504 (“§ 504”) both prohibit public 8 entities from discriminating against people with disabilities by denying them access to or 9 participation in that entity’s benefits, services, and programs. See ADA Title II, 42 U.S.C. 10 § 12132 (“[N]o qualified individual with a disability shall, by reason of such disability, be 11 excluded from participation in or be denied the benefits of the services, programs, or activities of 12 a public entity, or be subjected to discrimination by any such entity.”); Rehabilitation Act § 504, 13 29 U.S.C. § 794 (“[N]o otherwise qualified handicapped individual in the United States . . . shall, 14 solely by reason of his handicap, be excluded from participation in, be denied the benefits of, or 15 be subjected to discrimination under any program or activity receiving Federal financial 16 assistance.”). A discrimination claim under either statute requires plaintiff to show that, although 17 she is otherwise entitled to a specific entity’s services or programs or activities, that entity 18 discriminated against her or denied her services based on her qualifying disability. See Zukle v. 19 Regents of Univ. of California, 166 F.3d 1041, 1045 (9th Cir. 1999); see also Vinson v. Thomas, 20 288 F.3d 1145, 1152 n.7 (9th Cir. 2002) (“[T]here is no significant difference in the analysis of 21 rights and obligations created by the two Acts” (citation omitted)). 22 a. Respondeat Superior Liability 23 VUSD argues plaintiff cannot state a claim against it, because VUSD cannot be 24 held liable for the actions of its employee, defendant Klopson. The crux of VUSD’s argument is 25 that the Ninth Circuit’s holding in Duvall v. County of Kitsap, 260 F.3d 1124, 1138 (9th Cir. 26 2001), that respondeat superior liability is available under the ADA and § 504, is no longer good 27 law after Barnes v. Gorman, 536 U.S. 181 (2002). Barnes held the remedies available under the 28 1 ADA and § 504 are identical to those available under Title VI. 536 U.S. at 185. Therefore, 2 defendants argue, respondeat superior liability is not available under the ADA and § 504 because 3 such liability is not available under Title VI. VUSD MTD at 12–13 (citing Oden v. N. Marianas 4 College, 440 F.3d 1085, 1089 (9th Cir. 2006); Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 5 274, 285 (1998) (Title IX); United States v. County of Maricopa, Arizona, 889 F.3d 648, 652 (9th 6 Cir. 2018) (Title VI)). Furthermore, the Court in Barnes explained that contract principles apply 7 to determine the scope of liability under the ADA and § 504, and therefore a public entity cannot 8 be held liable “for its failure to comply with vague language describing the objectives of the 9 statute.” Barnes, 536 U.S. at 186–87. 10 Duvall remains good law in the Ninth Circuit until its holding is overruled by the 11 Supreme Court, or the Ninth Circuit, en banc, overrules it. See Koerner v. Grigas, 328 F.3d 1039, 12 1050 (9th Cir. 2003) (“In the absence of intervening Supreme Court precedent, one panel cannot 13 overturn another panel[.]” (citation omitted)). Barnes only expressly addressed whether punitive 14 damages were available under the ADA and § 504, not respondeat superior, so it did not overrule 15 the holding in Duvall. District courts in the Ninth Circuit and other Courts of Appeal continue to 16 follow Duvall. See, e.g., K.T., 219 F. Supp. 3d at 981 (“Duvall makes abundantly clear that, 17 when a plaintiff brings a direct suit under the ADA or the Rehabilitation Act, a public entity is 18 liable in respondeat superior for the acts of its employees.”); E.H. v. Brentwood Union Sch. Dist., 19 No. C13-3243 TEH, 2013 WL 5978008, at *5 (N.D. Cal. Nov. 4, 2013) (same); Delano-Pyle v. 20 Victoria Cty., Tex., 302 F.3d 567, 574 (5th Cir. 2002) (collecting cases from Fourth, Seventh, 21 Ninth and Eleventh Circuits finding respondeat superior liability for ADA and § 504 claims). 22 This court declines to accept defendants’ invitation to speculate regarding what the Ninth Circuit 23 may do in the future; until the Ninth Circuit or the Supreme Court overrules Duvall, respondeat 24 superior liability remains available for ADA and § 504 cases in this Circuit. Therefore, if 25 plaintiff adequately pleads an ADA and § 504 claim against Klopson, her claims against VUSD 26 survive. 27 ///// 28 ///// 1 b. Prima Facie Claims Under ADA & Section 504 2 The elements of an ADA claim are: 3 (1) the plaintiff is an individual with a disability; 4 (2) the plaintiff is otherwise qualified to participate in or receive the benefit of some public entity’s services, programs, or activities; 5 (3) the plaintiff was either excluded from participation in or denied 6 the benefits of the public entity's services, programs, or activities, or was otherwise discriminated against by the public entity; and 7 (4) such exclusion, denial of benefits, or discrimination was by 8 reason of the plaintiff's disability. 9 Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002) (citation omitted). Plaintiff has alleged she 10 has autism and was denied the benefits of her public school when Klopson singled plaintiff out 11 for abuse and harassment “because of her disability and in response to behaviors related to her 12 disability.” See Am. Compl. ¶¶ 65–66, 69. These allegations are sufficient to state ADA and 13 § 504 claims against Klopson, and defendants do not argue otherwise. See Roe ex rel. 14 Preschooler II v. Nevada, 332 F. Supp. 2d 1331, 1341 (D. Nev. 2004) (denying motion to dismiss 15 ADA and § 504 claim with similar facts), aff’d in part, rev’d in part on other grounds and 16 remanded sub nom. Preschooler II, 479 F.3d 1175. 17 In order to recover monetary damages under the ADA or § 504, “a plaintiff must 18 prove intentional discrimination on the part of the defendant,” which requires a showing of 19 “deliberate indifference.” Duvall, 260 F.3d at 1138. “Deliberate indifference,” in turn, requires 20 (1) “knowledge that a harm to a federally protected right is substantially likely” and (2) “a failure 21 to act upon that likelihood.” Id. at 1139. Plaintiff alleges Klopson knew plaintiff was disabled 22 and her actions would likely deprive plaintiff of “equal and meaningful access to education and 23 exacerbate behaviors related to her disability.” Am. Compl. ¶ 69. This is sufficient to state a 24 claim for monetary damages against Klopson, and Klopson does not argue otherwise. 25 c. Conclusion 26 Accordingly, plaintiff has stated a prima facie claim against Klopson for monetary 27 damages under the ADA and § 504, and therefore she has stated a claim against VUSD, 28 ///// 1 Klopson’s employer, under the doctrine of respondeat superior. See Duvall v. County of Kitsap, 2 260 F.3d at 1138. 3 2. Unruh Act Claim Against VUSD (claim 9) 4 Plaintiff also brings an Unruh Act claim against VUSD. See Cal. Civ. Code § 5 51(f).4 Plaintiff’s Unruh Act claim is derivative of her ADA disability discrimination claim. 6 Cohen v. City of Culver City, 754 F.3d 690, 701 (9th Cir. 2014) (“[A] violation of the ADA 7 constitutes a violation of the Unruh Act.” (citation omitted)); Munson v. Del Taco, Inc., 46 Cal. 8 4th 661, 670 (2009) (same); see also VUSD MTD at 14 (citing Cohen, 754 F.3d 690). 9 Accordingly, analysis of the Unruh Act claim mirrors that of the ADA claim, and, for the reasons 10 described above, VUSD’s motion to dismiss plaintiff’s Unruh Act claim is also DENIED. 11 3. VUSD’s Motion for Permission to Petition for Interlocutory Appeal 12 VUSD moves for permission to petition for interlocutory appeal “should the court 13 rely on Duvall with respect to plaintiff’s second, third, and ninth claims.” VUSD MTD at 16. 14 The resolution of such a request is dictated by 28 U.S.C. § 1292(b), which provides: When a district judge, in making in a civil action an order not 15 otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is 16 substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate 17 termination of the litigation, he shall so state in writing in such order. 18 Id. “Even where all of these elements are met, district courts retain discretion to deny permission 19 for interlocutory appeal.” In re Empire Land, LLC, No. EDCV 16-00831 DDP, 2017 WL 20 6453286, at *1 (C.D. Cal. Dec. 15, 2017) (citation omitted). Here, there is not “substantial 21 ground” for difference of opinion, because Duvall remains good law in this Circuit as long as it 22 has not been directly overruled, as explained above. Moreover, since the Barnes decision in June 23 2002, several circuits and other district courts within the Ninth Circuit have treated Duvall as 24 good law. See K.T., 219 F. Supp. 3d at 981; E.H., 2013 WL 5978008, at *5; Delano-Pyle, 302 25 26 4 “All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, 27 marital status, or sexual orientation are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.” Cal. 28 Civ. Code § 51(f). 1 F.3d at 574 (collecting cases). Accordingly, an interlocutory appeal to the Ninth Circuit, based on 2 a speculative hope the Circuit might rule in defendants’ favor in the future, is unwarranted here. 3 Defendants’ motion in this respect is DENIED. 4 4. Claim for Violation of Education Code Section 220 Against VUSD (claim 11) 5 6 Section 220 of the California Education Code prohibits discrimination based on 7 protected characteristics, including disability, in any “program or activity conducted by an 8 educational institution that receives, or benefits from, state financial assistance or enrolls pupils 9 who receive state student financial aid.” See Cal. Educ. Code § 220. To succeed on a section 220 10 claim, plaintiff must show she suffered “severe, pervasive and offensive harassment” on the basis 11 of disability, which effectively deprived her of equal access to educational benefits and 12 opportunities. Smith v. Tobinworld, No. 16-CV-01676-RS, 2016 WL 3519244, at *8 (N.D. Cal. 13 June 28, 2016); Donovan v. Poway Unified Sch. Dist., 167 Cal. App. 4th 567, 579 (2008). She 14 must also show VUSD acted with deliberate indifference in the face of “actual knowledge” of 15 such harassment. Smith, 2016 WL 3519244, at *8. 16 In challenging plaintiff’s section 220 claim, VUSD again argues that “[n]o facts 17 are pled regarding actual notice or a deliberately indifferent response by VUSD once it learned of 18 the alleged conduct by Klopson.” VUSD MTD at 15. As explained above, plaintiff has not 19 pleaded enough facts to create a plausible inference that VUSD had notice of past instances of 20 abuse. See Am. Compl. ¶¶ 50, 70. However, plaintiff has represented that she is able to amend 21 the complaint to add such facts. Accordingly, VUSD’s motion to dismiss on this basis is 22 GRANTED with leave to amend. 23 C. Negligence & Negligent Infliction of Emotional Distress (NIED) Against 24 Defendant Shamieh (claim 13) 25 In response to defendants’ argument that plaintiff’s NIED claim is redundant of 26 her negligence claim, VUSD MTD at 15, plaintiff has agreed to “merge” her negligence claim 27 against all defendants with her NIED claim, VUSD Opp’n at 20. At hearing, plaintiff explained 28 ///// 1 she is only proceeding with a claim for negligence. Accordingly, the court analyzes both 2 plaintiff’s claims against Shamieh as one claim for negligence. 3 Shamieh argues she is immune from liability for any state law claims under 4 California Government Code section 820.8, which provides that “[e]xcept as otherwise provided 5 by statute, a public employee is not liable for an injury caused by the act or omission of another 6 person.” Id.; VUSD MTD at 8. However, section 820.8 only immunizes Shamieh from a claim 7 based on vicarious liability, it does not “exonerate[] a public employee from liability for injury 8 proximately caused by his own negligent or wrongful act or omission,” Cal. Gov’t Code § 820.8. 9 See Turano v. Cty. of Alameda, No. 17-CV-06953-KAW, 2019 WL 501479, at *4 (N.D. Cal. Feb. 10 8, 2019); Baston v. Yett, No. 116CV01564 LJO EPG, 2017 WL 6016945, at *5 (E.D. Cal. Dec. 5, 11 2017), report and recommendation adopted, 2017 WL 6558164 (E.D. Cal. Dec. 22, 2017). 12 Therefore, if plaintiff properly pleads a negligence claim against Shamieh, section 820.8 does not 13 protect Shamieh from liability. See Baston, 2017 WL 6016945, at *5. 14 “In order to establish negligence under California law, a plaintiff must establish 15 four required elements: (1) duty; (2) breach; (3) causation; and (4) damages.” Ileto v. Glock Inc., 16 349 F.3d 1191, 1203 (9th Cir. 2003) (citation omitted). Defendants do not challenge plaintiff’s 17 pleading of any of these elements in their motions to dismiss, but simply argue plaintiff “has not 18 pled any facts that Superintendent Shamieh had any involvement with anything alleged in this 19 case.” VUSD MTD at 7. Plaintiff alleges Shamieh had a duty to plaintiff based on her role as 20 supervisor of VUSD staff, and she was negligent by failing to take action to prevent Klopson 21 from abusing plaintiff after Shamieh became aware Klopson had abused other students in the 22 past, thereby causing plaintiff’s injuries here. See Am. Compl. ¶¶ 6, 50–51, 86, 89, 91–92. As 23 explained above, plaintiff’s allegations against Shamieh are scant, and rely primarily on 24 plaintiff’s “information and belief.” See id. ¶ 50. But again, at hearing, plaintiff represented she 25 can add facts to bolster these claims if given leave to amend. 26 Accordingly, Shamieh’s motion to dismiss plaintiff’s negligence claim is 27 GRANTED with leave to amend. 28 ///// 1 D. Punitive Damages against Shamieh 2 Plaintiff has requested punitive damages against Shamieh based on her § 1983 3 claim and her negligence claim. See id. ¶¶ 59, 183. In her opposition to VUSD’s motion to 4 dismiss, plaintiff has stipulated to the dismissal of her punitive damages claim against Shamieh. 5 VUSD Opp’n at 20. Therefore, all plaintiff’s punitive damages claims against Shamieh are 6 DIMISSED. 7 IV. CONCLUSION 8 For the foregoing reasons, it is hereby ORDERED: 9 1. VUSD and Shamieh’s motion to dismiss is GRANTED with respect to 10 plaintiff’s: § 1983 claim against VUSD and Shamieh; negligence claim against Shamieh; section 11 200 claim against VUSD; and punitive damages claim against Shamieh. Those claims are hereby 12 DISMISSED. The motion is otherwise DENIED. 13 2. The court GRANTS plaintiff leave to amend, subject to Federal Rule of 14 Civil Procedure 11, her § 1983 claim under the Fourth Amendment against Shamieh; negligence 15 claim against Shamieh; and section 200 claim against VUSD. Plaintiff’s § 1983 claim against 16 VUSD and punitive damages claim against Shamieh are dismissed without leave to amend. 17 3. VUSD and Shamieh’s request for permission to petition for interlocutory 18 appeal is DENIED. 19 4. Klopson’s motion to dismiss is DENIED. 20 This resolves ECF Nos. 17 and 19. 21 IT IS SO ORDERED. 22 DATED: February 19, 2020. 23 24 25 26 27 28