G. v. Mariposa County Unified School District ( 2020 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 11 T.G., A MINOR CHILD; BY AND THROUGH Case No. 1:19-cv-01201-NONE-EPG HIS GUARDIAN AD LITEM TERESA 12 GROSS, FINDINGS AND RECOMMENDATIONS Plaintiff, THAT PETITION FOR MINOR’S 13 COMPROMISE BE APPROVED v. 14 (ECF Nos. 13, 15) MARIPOSA COUNTY UNIFIED SCHOOL 15 DISTRICT, OBJECTIONS, IF ANY, DUE WITHIN FOURTEEN DAYS Defendants. 16 17 On August 30, 2019, Plaintiff T.G., a minor child, by and through his guardian ad litem 18 Teresa Gross (“Plaintiff”), commenced this case by filing an action against Mariposa County 19 Unified School District (the “District”). (ECF No. 1). On April 6, 2020, Plaintiff filed a petition 20 for approval of minor’s compromise. (ECF No. 13). That petition was supplemented with a joint 21 statement on May 6, 2020. (ECF No. 15). On May 13, 2020, the Court heard oral argument on the parties’ petition for approval of compromise of a minor’s claim under Title VI of the Civil Rights 22 Act of 1964. (ECF No. 16). Daniel Shaw (Shaw Firm) appeared on behalf of Plaintiff T.G., a 23 minor. Teresa Gross, T.G.’s mother and guardian ad litem, also attended. Kristi Marshall 24 (Whitney, Thompson & Jeffcoach, LLP) appeared on behalf of Defendant Mariposa County 25 Unified School District (the “District”). For the reasons described below, the Court 26 RECOMMENDS that the petition be APPROVED. 27 \\\ 1 I. BACKGROUND 2 A. Plaintiff’s complaint 3 Plaintiff’s complaint alleged the following: 4 During the 2017-2018 school year, T.G., a mixed-race child with African American heritage, was a five-year-old child who attended an elementary school in the District. T.G. also 5 had significant speech and language deficits. As alleged by Plaintiff, T.G. was a happy, outgoing 6 and friendly child before the incidents bringing about this case. But T.G. became the target of 7 race-based bullying. He was called “poop,” “bitch,” and “asshole” by his bullies, who also made 8 fun of his hair. When T.G.’s parents reported the incidents to his teacher, the teacher failed to 9 follow the District’s policy and report the incident to her superiors. Over the course of the year, 10 T.G.’s behavior changed. He no longer wanted to play or attend school, and he called himself 11 names. Then T.G. was slapped by a bully at school; the slap left a mark. When T.G.’s parents 12 spoke to the teacher again, she again did not report the bullying to her superiors. 13 The bullying escalated. T.G.’s bully called him a “nigger” at school and continued to hit 14 him, call him “bitch,” shove him, and otherwise physically assault him, and the bully also 15 encouraged others to do the same. Along with the physical harms, T.G. also suffered 16 psychological harms, including nightmares and reduced appetite. 17 Ms. Gross met with T.G.’s principal to report the incidents. The principal responded, 18 “well you did move your family to a rural area,” and told Ms. Gross that racism was more 19 acceptable in Mariposa County because there are fewer African Americans there.1 The racial 20 bullying continued, leading T.G.’s parents to pull him out of school. 21 B. The District’s Defenses 22 The District argues that it was not put on full notice of the alleged problem, that the school took reasonable steps to work with the student and parents based on the facts it knew at the time, 23 that the damages were not caused by the complained-of behavior, and that res judicata applies to 24 Plaintiff’s claims. 25 26 27 1 At oral argument, the District did not concede that the principal made those comments. The District noted that the principal denied having said so and that two reviews of the situation did not conclude whether she made those comments. At oral argument, the District represented to the Court that the principal understands being in a rural 1 C. Update Regarding T.G. Since Filing Complaint 2 According to the Joint Summary in Support of Plaintiff’s Petition for Approval of Minor’s 3 Compromise, (ECF No. 15), and as further discussed at oral argument, T.G. has since improved. 4 Now age seven, he remains a student in the school district, but at a different school with a different principal.2 He received psychotherapy for about one year, at a cost of $6,051.82, for 5 which there is an outstanding $4,538.87 lien. Before reaching the tentative settlement, the District 6 added a training program aimed at racial issues with bullying. 7 D. Terms of the Proposed Settlement 8 As a result of the proposed settlement, Defendant will pay $90,500. Of that, 9 approximately $6,000 will be spent to create a special needs trust under 42 U.S.C. § 10 1396p(d)(4)(A) and California Probate Code § 3600 et seq. Plaintiff’s counsel represented that 11 the trust will be monitored by a state court. The attorney setting up the trust is experienced in 12 these matters and will ensure that it is set up in a way that will best benefit T.G., particularly in 13 light of the nature of T.G.’s injuries. 14 Another $4,538.87 will be spent to pay off the medical lien. This will leave approximately 15 $80,000 in trust for T.G. 16 In addition, T.G.’s attorney in this case will receive $17,000. His attorney for the special 17 education dispute will receive $12,500. These amounts are in addition to the amounts described 18 above, and will not be deducted from T.G.’s portion of the settlement. 19 The proposed settlement fully resolves all claims that were raised or could have been 20 raised up to February 10, 2020 between T.G. and the District. It also resolves the parties’ 21 separate, special education dispute with the Office of Administrative Hearings. That dispute lead 22 to T.G.’s current individualized education plan to deal with several of his learning disabilities. 23 II. DISCUSSION 24 A. Legal Standards 25 District courts have a special duty to safeguard the interests of litigants who are minors. 26 Robidoux v. Rosengren, 638 F.3d 1177, 1181 (9th Cir. 2011). This special duty is derived from 27 1 Federal Rule of Civil Procedure 17(c), which provides that “a district court ‘must appoint a 2 guardian ad litem—or issue another appropriate order—to protect a minor or incompetent person 3 who is unrepresented in an action.’” Id. (quoting FED. R. CIV. P. 17(c)). “In the context of 4 proposed settlements in suits involving minor plaintiffs, this special duty requires a district court 5 to ‘conduct its own inquiry to determine whether the settlement serves the best interests of the 6 minor.’” Id. (quoting Dacanay v. Mendoza, 573 F.2d 1075, 1080 (9th Cir.1978)). 7 As part of the inquiry, the district court is required to evaluate “whether the net amount 8 distributed to each minor plaintiff in the settlement is fair and reasonable, in light of the facts of 9 the case, the minor's specific claim, and recovery in similar cases.” Id. at 1182. “So long as the 10 net recovery to each minor plaintiff is fair and reasonable in light of their claims and average 11 recovery in similar cases, the district court should approve the settlement as proposed by the 12 parties.” Id. The duty to safeguard the interests of minors in settlement has been codified in this 13 Court’s Local Rule 202. See CAED-LR 202. In relevant part, Local Rule 202(e) provides: 14 Whenever money . . . is recovered on behalf of a minor . . . the money . . . will be 15 (1) disbursed to the representative pursuant to state law upon a showing that the representative is duly qualified under state law, (2) disbursed otherwise pursuant to 16 state law, or (3) disbursed pursuant to such other order as the Court deems proper for the protection of the minor . . . 17 B. Application 18 To determine whether the settlement is fair and reasonable, the Court will first turn to the 19 amount distributed to the minor. The Court makes this determination “in light of the facts of the 20 case, the minor’s specific claim, and recovery in similar cases.” Robidoux, 638 F.3d at 1182. The 21 Court determines that the settlement amount is fair and reasonable under Robidoux for three 22 reasons. 23 First, the settlement is particularly large compared to Plaintiff’s bill for one year of 24 psychotherapy, which was, after negotiation, $4,538.87. 25 Second, other cases with some factual similarities resulted in far smaller payments from 26 the school districts. See Robidoux, 638 F.3d at 1182 (noting “recovery in similar cases” is a 27 relevant factor in determining whether a proposed settlement is fair and reasonable to the minor). \\\ 1 Plaintiff points the Court to two cases in his petition, each of which was decided before 2 Robidoux but had substantially smaller payments from the school districts. (ECF No. 13, at 5-6). 3 Pankey v. Visalia Unified School District, No. 1:06-cv-355-SMS (E.D. Cal. March 29, 2006), 4 concerned two seventeen-year-olds who alleged racial discrimination by their school. The size of 5 the settlement there was significantly smaller: after fees, each minor received $13,524.65. 6 Pankey, ECF No. 21. But the case was settled before Robidoux, and the Court did not seem to 7 undertake a fairness and reasonableness analysis. Id., ECF No. 27. 8 In Randolph v. Grossmont Union High School District, No. 08-cv-1371 (S.D. Cal. July 9 29, 2008), plaintiff Randolph, an African American high school student, alleged he was attacked 10 at school by a racist member of a gang and sued both the district and the attacker, Zahorik. He 11 further alleged that the district knew Zahorik was the member of a racist gang and was slow to 12 respond to Randolph after Zahorik attacked him. Randolph, Complaint, ECF No. 1. The court 13 there determined the $57,500 ($40,010 of which went to the plaintiff) settlement reflected 14 Grossmont’s “fair and proportionate share of its proportionate liability when taking into account 15 the rough approximation of [Randolph’s] total recovery.” Id. ECF No. 70. 16 The Court located one other case: T.V. v. Sacramento City Unified School District, 2:15- 17 cv-889, 2018 WL 3869171 (E.D. Cal. Aug. 15, 2018). There, six minor Hispanic students were 18 denied entrance into a program at their elementary school and were subjected to race-based peer 19 harassment. The Court approved the settlement, where the minors split a $43,925 settlement after 20 attorneys’ fees, and their settlements ranged from $683 to $14,584.50. 21 The proposed settlement here provides for a substantially larger settlement than the others 22 cited above. 23 Comparison with these cases is somewhat misleading, however, because the proposed 24 settlement covers more than just the allegations in the complaint. As described above, it also 25 includes settlement of parties’ separate, special education dispute with the Office of 26 Administrative Hearings. The Court does not have a detailed understanding of those proceedings 27 or the recoveries that could have been at stake in them. \\\ 1 Nevertheless, with the information available to this Court, the comparison of the 2 settlement amount with these other settlements appears to support that this settlement amount is 3 fair and reasonable. 4 The third reason convincing the Court that the settlement is fair and reasonable is the 5 nature of the negotiations. This was an arm’s length transaction and involved a private mediation. 6 Plaintiff was represented by his guardian ad litem and counsel. Plaintiff’s counsel represented to 7 the Court that an experienced attorney will set up the trust in such a way to maximize its benefit 8 for Plaintiff. 9 In light of all these factors, and in consideration of the legal standards described above, 10 the Court recommends approving the proposed settlement. 11 C. Order Regarding Use of Funds 12 Given the fact that the settlement amount reflects a compromise of both the educational 13 disputes and the underlying litigation, the Court wishes to confirm its understanding regarding the 14 appropriateness of the use of at least some of these funds as a remedy for the racial bullying 15 described in the complaint. 16 This issue was discussed extensively on the record. The Court expressed its concern that 17 the described use of the funds appeared to only encompass educational issues, which while 18 worthy, did not directly address the remedy for the allegations in this case. All parties and 19 counsel confirmed on the record that they understood the settlement funds could be used for 20 targeted programs that would seek to remedy the damage done from the underlying incidents, 21 including racial bullying and the resulting low racial self-esteem. However, it did not appear that 22 any party or counsel had fully researched the issue and proposed any specific use directed to this 23 purpose. 24 Thus, while the Court does not seek to modify the terms of the settlement, which provide 25 for a procedure for approval of use of the funds, it is the Court’s understanding in recommending 26 approval of this settlement that funds will be used in part for the purpose of remedying the effects 27 of racial bullying. Based on the Court’s very limited research, it appears that the work done in 1 Racial socialization is the process by which society transmits messages to youth about the significance and meaning of their race and ethnicity and associated values and norms 2 (Hughes, Hagelskamp, Way, & Foust, 2009; Hughes et al., 2006; Neblett et al., 2009). Racial socialization is a strategy for raising healthy children in a society where being 3 Black often has negative connotations (Hughes et al., 2009; Smalls, 2010; White-Johnson, Ford, & Sellers, 2010). Primary racial socialization themes include cultural pride, 4 preparation for bias, egalitarianism, self-worth, and responding appropriately to negative messages (Bowman & Howard, 1985; Hughes et al., 2006). Cultural pride messages are 5 those that emphasize the history and accomplishments of African Americans, whereas 6 preparation for bias messages prepare youth for racial discrimination experiences and provide strategies for coping with them. Egalitarian messages stress interracial equality, 7 while self-worth messages emphasize positive views of oneself. Finally, negative messages focus on stereotypical views of African Americans. A growing body of research 8 on racial socialization dimensions and practices shows that the racial socialization of African American children is an important part of preventing the negative effects of living 9 in a society where racist experiences and discrimination may occur (Johnson, 10 2001; McMahon & Watts, 2002). Racial socialization plays an important role in promoting positive identity development for African American youth (Seaton, Yip, 11 Morgan-Lopez, & Sellers, 2012). 12 Although researchers have identified several racial socialization themes, empirical studies demonstrate that socialization messages related to cultural pride and preparation for bias 13 relate most consistently to youth outcomes (see Hughes et al., 2006, for a review). … 14 Naidi Okeke-Adeyanju, Lorraine C. Taylor, et al., Celebrating the Strengths of Black Youth: 15 Increasing Self-esteem and Implications for Prevention (NIH Public Access author manuscript), 16 https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4152398/. Such use may involve travel3 to the 17 extent it involves exposure to other people and places that facilitate a positive racial self-esteem. 18 III. CONCLUSION AND RECOMMENDATION 19 The Court has reviewed the complaint, the petition for approval of minor’s compromise, 20 the parties’ joint statement in support of the petition, and has conducted a hearing. (ECF Nos. 1, 21 13, 15, 16). The record indicates that the proposed settlement is fair and reasonable to the minor. 22 Accordingly, the Court HEREBY RECOMMENDS that Plaintiff’s Petition for Approval 23 of Minor’s Compromise, (ECF No. 13), be GRANTED 24 These findings and recommendations are submitted to the district judge assigned to this 25 action, pursuant to 28 U.S.C. § 636(b)(1)(B). Within fourteen (14) days of service of these 26 findings and recommendations, any party may file written objections with the Court and serve a 27 3 One non-exclusive example of such an activity is a visit to the National Museum of African American History and wOow 4:40 VV VLCU LINN ES MMO OIRO eee TOY UME ODO 1 | copy on all parties. Such a document should be captioned “Objections to Magistrate Judge’s 2 | Findings and Recommendations.” The district judge will review the magistrate judge’s findings 3 | and recommendations pursuant to 28 U.S.C. § 636(b)(1)(C). The parties are advised that failure to 4 | file objections within the specified time may waive the right to appeal the district judge’s 5 | order. Wilkerson v. Wheeler, 772 F. 3d 834, 839 (9th Cir. 2014); Martinez v. Ylst, 951 F.2d 1153 6 | (9th Cir. 1991). 7 g IT IS SO ORDERED. 9] Dated: _May 22, 2020 [see hey 10 UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 □□□□□□□□□□□□□□□□□□□□□ hmmm