Doe v. Washoe County School District ( 2024 )

2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 * * * 6 J. DOE, a minor, by and through Jane Doe, Case No. 3:23-cv-00107-MMD-CSD 7 Plaintiff, ORDER v. 8 WASHOE COUNTY SCHOOL DISTRICT, 9 a political subdivision of the State of Nevada; DOES I–XX; and ROES I-XX, 10 Defendants. 11 12 I. SUMMARY 13 Defendant Washoe County School District (“WCSD”) moves to dismiss (ECF No. 14 32 (“Motion”)) the first amended complaint (ECF No. 31 (“FAC”)) filed by J. Doe 15 (“Plaintiff”), a minor, by and through Jane Doe.1 The Court will grant the Motion because 16 Plaintiff’s FAC fails to cure numerous deficiencies the Court2 identified in a prior order 17 dismissing the initial complaint. (ECF No. 30 (“Dismissal Order”).) The Court dismisses 18 the first through fourth causes of action with leave to amend and the fifth and sixth causes 19 of action in the FAC with prejudice. 20 II. BACKGROUND 21 Plaintiff alleges his classmates at Jerry Whitehead Elementary School 22 (“Whitehead Elementary”) in WCSD bullied and discriminated against him. (ECF No. 31 23 at 4-6.) At all times relevant to the FAC, Plaintiff was 9 to 10 years old. (Id. at 6.) 24 /// 25 26 1Plaintiff opposed (ECF No. 35) and WCSD replied (ECF No. 36). 27 2United States District Judge Larry R. Hicks issued the order the Court is referring 28 to. (ECF No. 30.) This case was later reassigned to the Court. (ECF No. 38.) The Court interchangeably refers to Judge Hicks and itself as the Court in the remainder of this 2 experienced anxiety, tachycardia, and cyclical vomiting. (Id. at 11.) Beginning “about 3 November 2021 through the present day,” Plaintiff “was subjected to a pattern and 4 practice of systematic bullying based on his perceived sexual orientation, gender 5 identity[,] and disabilities . . . includ[ing] daily taunting by students, mocking his clothing, 6 accessories, behavior, and belittling him based upon his perceived sexual orientation and 7 gender identity.” (Id. at 7, 10.) As early as March 2019, Plaintiff’s parents reported the 8 bullying to WCSD. (Id. at 7.) Unidentified “faculty and/or staff” ignored “said reports.” (Id.) 9 On February 23, 2022, a “minor student aggressor” allegedly attacked Plaintiff in 10 the bathroom at Whitehead Elementary. (Id. at 6.) The student choked Plaintiff, chased 11 him with a pencil, and threatened to stab him. (Id.) The student allegedly continued this 12 behavior at a “park adjacent to the school.” (Id.) On August 29, 2022, the Second Judicial 13 District Court of Nevada issued a temporary protection order (“TPO”) against the minor 14 student aggressor. (Id. at 8.) A hearing was set to determine whether to extend the TPO 15 otherwise it would expire on September 27, 2022—the same day as the hearing.3 (ECF 16 No. 32-1 at 2.) 17 The TPO prohibited the minor student aggressor from threatening, physically 18 injuring, harassing, contacting Plaintiff, or coming within 100 yards of his residence. (Id. 19 at 2-4.) While the TPO further prohibited the student from coming within 100 yards of 20 Whitehead Elementary, it expressly provided an exception allowing the student to attend 21 3Under the doctrine of incorporation by reference, the Court considers the TPO 22 document without converting WCSD’s motion to dismiss into a motion for summary judgment. Normally, if a district court considers evidence outside the pleadings when 23 addressing a motion to dismiss under Federal Rule of Procedure 12(b)(6), the court must convert the motion to dismiss into a motion for summary judgment under Federal Rule of 24 Civil Procedure 56 and give the nonmoving party an opportunity to respond. See United States v. Ritchie, 342 F.3d 903, 907 (9th Cir. 2003) (citing FED. R. CIV. P. 12(b)). However, 25 a court may consider documents incorporated by reference into a complaint without converting a motion to dismiss into a motion for summary judgment if the plaintiff 26 refers extensively to the document(s) or when the document forms the basis of the plaintiff’s claims. See id. at 907-08. Here, Plaintiff references the TPO extensively 27 throughout the FAC, and Plaintiff brings the claims in the FAC with the TPO as a basis for those claims. Thus, the doctrine of incorporation by reference applies, and the Court 28 considers the TPO document in resolving the Motion without converting WCSD’s Motion 2 he had no contact with Plaintiff. (Id. at 5.) Plaintiff alleges that WCSD allowed the bullying 3 “to persist over the next four months” by refusing to enforce the terms of the TPO or 4 “follow mandated protocols regarding adequate and reasonable mitigation of the 5 situation.” (ECF No. 31 at 8-9.) Instead, unidentified WCSD faculty and administrators 6 retaliated against Plaintiff “for disclosing to his parents the conditions at school.” (Id. at 7 8.) WCSD failed to report any of the incidents for investigation. (Id. at 9.) As the “pervasive 8 acts continued, [Plaintiff] was subject[ed] to additional physical and sexual assault and 9 battery by the minor student abuser” and “additional discrimination on the basis of his sex 10 and disability by” unidentified WCSD employees. (Id.) 11 Plaintiff and Jane Doe, in her individual capacity as well as in her capacity as 12 Plaintiff’s guardian, sued WCSD, the Washoe County School District Board of Trustees, 13 and Washoe County School District Superintendent Dr. Susan Endfeld. (ECF No. 1 at 4.) 14 On a stipulation, the Court dismissed the Board and Superintendent as defendants, 15 leaving WCSD as the only Defendant. (ECF No. 27 at 2.) 16 The Court subsequently granted WCSD’s motion to dismiss the initial complaint. 17 (ECF No. 30 at 13.) The Court dismissed with prejudice both Jane Doe in her individual 18 capacity as a party to this action and the first cause of action requesting declaratory relief. 19 (Id. at 3-5.) The Court further dismissed without prejudice the second through seventh 20 causes of action with leave to amend to cure the deficiencies described in the Dismissal 21 Order. (Id. at 5-13.) Plaintiff then filed the FAC. (ECF No. 31.) 22 In the FAC, Plaintiff alleges: (1) violation of the Equal Protection Clause of the 23 Fourteenth Amendment; (2) violation of the Procedural Due Process Clauses of the Fifth 24 and Fourteenth Amendments; (3) Monell4 liability; (4) discrimination in violation of Title IX 25 of 20 U.S.C. § 1681 (“Title IX”); (5) negligence; and (6) intentional infliction of emotional 26 distress (“IIED”). (Id. at 14-30.) 27 28 4 2 WCSD seeks dismissal under Rule 12(b)(6), contending the FAC contains the 3 same deficiencies identified in the Court’s Dismissal Order.5 (ECF No. 32 at 10-11.) The 4 Court agrees and will dismiss Plaintiff’s fifth and sixth causes of action with prejudice.6 5 However, Plaintiff outlines new theories of liability in the first and second causes of action 6 (ECF No. 31 at 14-20), another Monell claim under the third cause of action (Id. at 21- 7 23), and an altered Title IX claim in his fourth cause of action (Id. at 23-25). The Court will 8 address these theories in turn. 9 A. Monell Claims 10 Under Monell, “[a] government entity may not be held liable under 42 U.S.C. 11 § 1983, unless a policy, practice, or custom of the entity can be shown to be a moving 12 force behind a violation of constitutional rights.” Dougherty v. City of Covina, 654 F.3d 13 892, 900 (9th Cir. 2011) (citing Monell, 436 U.S. at 694). “In order to establish liability for 14 governmental entities under Monell, a plaintiff must prove ‘(1) that [the plaintiff] possessed 15 a constitutional right of which he was deprived; (2) that the municipality had a policy; (3) 16 that this policy amounts to deliberate indifference to the plaintiff’s constitutional right; and, 17 (4) that the policy is the moving force behind the constitutional violation.’” Id. at 900 18 19 5One of these deficiencies is the party’s name. The Court dismissed Jane Doe, in her individual capacity, with prejudice in the Dismissal Order. (ECF No. 30 at 13.) In 20 response to WCSD’s Motion, Plaintiff asserts he amended the initial complaint in conformity with the Dismissal Order. (ECF No. 35 at 3-6.) However, deficiencies as to 21 Jane Doe that the Court described in the Dismissal Order are still present in the FAC, such as referring to “Plaintiff” in both the plural and singular (ECF No. 31 at 1, 2, 18, 23, 22 25, 27, 28, 29, 30) and including Jane Doe as a plaintiff despite her being dismissed in the Dismissal Order (Id. at 28). The Court reminds Plaintiff that these deficiencies must 23 be cured if he chooses to file a second amended complaint. 24 6Plaintiff asserts nearly the exact same negligence per se claim that the Court dismissed. (ECF Nos. 31 at 25-28; 1 at 7-8.) Plaintiff’s IIED claim is likewise identical in 25 all meaningful ways to the claim asserted in the initial complaint that the Court dismissed. (ECF Nos. 31 at 28-30; 1 at 29-30.) The Court will therefore dismiss these claims with 26 prejudice because Plaintiff repeatedly failed to cure pertinent deficiencies described in the Dismissal Order (ECF No. 30 at 10-12), and no amendments elsewhere in the FAC 27 provide sufficient factual allegations to support a negligence per se or IIED claim. See Leadsinger, Inc. v. BMG Music Publ’g, 512 F.3d 522, 532 (9th Cir. 2008) (noting that a 28 court may deny leave to amend when a party repeatedly fails to cure deficiencies by 2 A plaintiff must include plausible factual allegations showing that the municipal defendant 3 had actual or constructive notice that its inaction would likely result in a constitutional 4 violation. See Tsao v. Desert Palace, Inc., 698 F.3d 1143, 1145 (9th Cir. 2012). 5 In the first and second causes of action, Plaintiff attempts to plead facts supporting 6 the policy element of a Monell claim based upon a theory that WCSD has policies of 7 inaction.7 (ECF No. 31 at 14-20.) For the third cause of action, Plaintiff bases Monell 8 liability on a theory that a WCSD official with final policymaking authority ratified the 9 alleged violations of Plaintiff’s constitutional rights. (Id. at 21-23.) These claims fail 10 because the FAC does not contain sufficient factual matter, accepted as true, to support 11 the elements of a Monell claim. The Court will accordingly dismiss these causes of action 12 with leave to amend. 13 1. First Cause of Action 14 In his first cause of action, Plaintiff claims that WCSD violated his rights under the 15 Equal Protection Clause by “allow[ing] the perpetual harassment and abuse to continue 16 at school.” (Id. at 14.) Plaintiff contends that WCSD “demonstrated deliberate 17 indifference” by “refusing to report instances of abuse and harassment.” (Id. at 17.) But 18 Plaintiff’s allegations are sparse and lack sufficient facts to state a claim; he provides only 19 one example of WCSD allegedly ignoring a report of bullying beyond broad accusations 20 lacking requisite factual context, which alone is insufficient to support the existence of a 21 policy. (Id. at 6-7.) Plaintiff also contends that WCSD “demonstrated deliberate 22 indifference . . . by refusing to follow the requirements in the ordered TPO.” (Id. at 17.) 23 However, Plaintiff does not allege in the FAC that a court extended the TPO beyond 24 September 27, 2022, nor does Plaintiff allege requisite factual context. For example, the 25 FAC does not state the way WCSD refused to follow the requirements in the TPO issued 26 27 7Plaintiff’s first and second causes of action are Section 1983 claims against WCSD. (ECF No. 31 at 14-20.) Section 1983 claims brought against a municipal entity 28 are recognized as Monell claims. See, e.g., City of Los Angeles v. Heller, 475 U.S. 796, 2 Plaintiff’s rights under the Equal Protection Clause. Instead, Plaintiff simply alleges that 3 WCSD ignored the TPO, allowing the bullying “to persist over the next four months.” (Id. 4 at 9.) Without more than these vague assertions, the FAC does not contain sufficient 5 allegations, accepted as true, to avoid dismissal.8 6 2. Second Cause of Action 7 Plaintiff then alleges that WCSD violated his rights under the Due Process Clause 8 by “fail[ing] to comply with [WCSD] Policies.”9 (Id. at 19.) Plaintiff lists the titles of anti- 9 bullying policies and regulations implemented by WCSD and alleges that WCSD’s failure 10 to punish the minors bullying Plaintiff created an environment where this treatment 11 became acceptable. (Id.) Yet without more than vague allegations, Plaintiff again fails to 12 sufficiently allege the requisite deliberate indifference. For example, Plaintiff does not 13 allege sufficient facts upon which a reasonable factfinder could determine which of the 14 listed policies and regulations WCSD failed to implement, how, where, or when it failed 15 to do so, or how WCSD had notice that any such failure would likely result in a violation 16 of Plaintiff’s rights under the Due Process Clause. 17 Additionally, while the FAC contains allegations relating to the singular bathroom 18 incident, it does not describe any other occurrences of harassment, allege the existence 19 of other aggressors, or allege any additional incidents of bullying in the FAC that would 20 support Plaintiff’s claim that WCSD’s “failure to mitigate and discipline the offending 21 minors in accordance with [WCSD] Board policies, allowed the pervasive abuse to 22 23 8Plaintiff also includes a factually impossible assertion that unidentified faculty and staff at WCSD ignored a report provided by Plaintiff’s parents in March 2019, concerning 24 bullying that began occurring “about November 2021.” (ECF No. 31 at 7, 10.) 25 9In the FAC, Plaintiff, for the first time, asserts his second cause of action against WCSD under the Procedural Due Process Clause of both the Fifth Amendment to the 26 United States Constitution and the Fourteenth Amendment. (ECF No. 31 at 18-20.) 27 However, Plaintiff’s second cause of action fails as a matter of law insofar as Plaintiff relies on the Due Process Clause because WCSD is not a federal government entity, and 28 the Due Process Clause applies to and restricts only the federal government. See Geneva Towers Tenants Org. v. Federated Mort. Inv., 504 F.2d 483, 487 (9th Cir. 1974). 2 19.) Again, Plaintiff does not allege the requisite factual matter. 3 3. Third Cause of Action 4 Finally, Plaintiff attempts to plead facts supporting the policy element of a Monell 5 claim in his third cause of action based on a theory that a WCSD official with final 6 policymaking authority ratified the alleged violations of Plaintiff’s constitutional rights. (Id. 7 at 21-23.) A plaintiff may establish the policy element of a Monell claim by demonstrating 8 that the individual tortfeasor “was an official with final policy-making authority or such an 9 official ratified the unconstitutional decision or action and the basis for it.” Gordon v. Cnty. 10 of Orange, 6 F.4th 961, 973 (9th Cir. 2021) (citations omitted). But before a municipal 11 employer may be held liable under a theory that an official with final policymaking authority 12 ratified the unconstitutional decision or action and the basis for it, the plaintiff must 13 demonstrate that the named official had final policymaking authority for purposes of 14 municipal liability. See Cortez v. County of Los Angles, 294 F.3d 1186, 1188-89 (9th 15 Cir. 2002). 16 Plaintiff fails to plausibly allege that a WCSD official with final policymaking 17 authority ratified the alleged violations of Plaintiff’s constitutional rights and the basis for 18 those violations, though Plaintiff claims that unknown policy makers allowed “for the 19 pervasive and blatant violation of student’s constitutional rights.” (ECF No. 31 at 21.) But 20 Plaintiff does not name a policy maker and admits that he cannot identify any for purposes 21 of the claim. (Id.) Moreover, Plaintiff does no more than provide vague, conclusory 22 allegations that “WCSD have [sic] ratified, condoned, approved, and encouraged the use 23 [of] retaliatory acts by its administrators, faculty, and teachers.” (Id. at 22.) Plaintiff’s third 24 cause of action accordingly does nothing more than set forth a series of legal conclusions 25 void of the requisite factual allegations. (Id. at 21-23.) This does not suffice. 26 In sum, Plaintiff’s FAC fails to allege sufficient facts supporting a Monell claim 27 because it alleges only vague and conclusory allegations. However, what Plaintiff alleges 28 could be a valid Monell theory—namely that WCSD has policies of inaction and that a 2 violations—if it was supported by sufficient facts. See Tsao, 698 F.3d at 1143-44. 3 Therefore, because the Court cannot find that amendment is futile, dismissal of these 4 claims is with leave to amend to cure these deficiencies. 5 B. Title IX Claims 6 In the Dismissal Order, the Court dismissed without prejudice Plaintiff’s fourth 7 cause of action alleging violations of his rights under Title IX. (ECF No. 30 at 13.) Plaintiff 8 again attempts to allege a Title IX claim in his fourth cause of action but fails to plausibly 9 allege the required elements. (ECF No. 31 at 23-25.) The Court therefore dismisses the 10 claim with leave to amend. 11 Under Title IX, “[n]o person in the United States shall, on the basis of sex, be 12 excluded from participation in, be denied the benefits of, or be subjected to discrimination 13 under any education program or activity receiving Federal financial assistance.” 20 U.S.C. 14 § 1681(a). Title IX includes a private right of action against federal fund recipients for 15 discrimination based on sex, sexual orientation, or perceived sexual orientation. See 16 Grabowski v. Ariz. Bd. of Regents, 69 F.4th 1110, 1115-16 (9th Cir. 2023). The Grabowski 17 court also suggested that a viable Title IX claim could be based on allegations that the 18 harassers perceived the victim as not conforming to traditional gender norms. See id. at 19 1117-19. Plaintiff presents two theories of Title IX liability: student-on-student sexual 20 harassment and retaliation. (ECF No. 35 at 13-15.) The Court addresses each 21 theory in turn. 22 1. Sexual Harassment 23 A plaintiff may allege “a Title IX claim against a school that arises from student-on- 24 student . . . sexual harassment or assault” as Plaintiff appears to allege here. See Karasek 25 v. Regent of Univ. of Cal., 956 F.3d 1093, 1105 (9th Cir. 2020). But to do so, a plaintiff 26 must plausibly allege that “(1) the educational institution had substantial control over both 27 the harasser and the context in which the known harassment occurs; (2) that the 28 harassment was so severe, pervasive, and objectively offensive that it denied its victims 2 with authority to address the alleged discrimination and to institute corrective measures 3 has actual knowledge of the discrimination; (4) that the school acted with deliberate 4 indifference to the harassment; and (5) that the school’s deliberate indifference must, at 5 a minimum, cause students to undergo harassment, or make them liable or vulnerable to 6 it.” See Brown v. Arizona, 82 F.4th 863, 874 (9th Cir. 2023) (internal quotation marks and 7 citations omitted) (citing Grabowski, 69 F.4th at 1120). 8 To support his Title IX sexual harassment claim, Plaintiff alleges that “despite being 9 reported . . . [to] faculty and staff at Whitehead,” he “was subject[ed] to extreme and 10 pervasive harassment by a group of students,” including “taunting based on his sexuality 11 . . . [and] perceived sexual orientation.” (ECF No. 31 at 6.) The FAC once again fails to 12 allege sufficient facts supporting the necessary elements of a Title IX claim. For example, 13 Plaintiff does not allege specific details of when or where the harassment by the 14 unidentified group of students occurred other than conclusory assertions that it happened, 15 and while under the supervision of WCSD staff. It also does not contain sufficient factual 16 allegations to support a claim that a WCSD official with authority to address the alleged 17 harassment had actual knowledge of the discrimination; the allegations that unidentified 18 staff ignored reports of discrimination are too unclear for the Court to discern who 19 provided the reports, approximately when the reports were provided, and what 20 information was provided in the report. (Id.) Without more, Plaintiff cannot allege sufficient 21 facts to support the elements of a Title IX sexual harassment claim. 22 2. Retaliation 23 “To establish a prima facie claim of retaliation under Title IX, a plaintiff must allege 24 that (1) the plaintiff participated in a protected activity, (2) the plaintiff suffered an adverse 25 action, and (3) there was a causal link between the protected activity and the adverse 26 action.” Grabowski, 69 F.4th at 1120 (citation omitted). To support a Title IX retaliation 27 theory, Plaintiff alleges that “[he was] retaliated against as [he was] denied privileges” and 28 2 harassment, assault, and bullying.” (ECF No. 35 at 14.) 3 Plaintiff again fails to plead sufficient facts to support the necessary elements of a 4 Title IX retaliation claim. He alleges that WCSD denied him privileges and isolated him 5 because of the harassment, but the Court cannot discern who did this, when, or how from 6 the factual allegations in the FAC and therefore cannot determine whether a reasonable 7 person would have been dissuaded from complaining of discrimination by the action taken 8 by anyone at Whitehead Elementary. (ECF No. 31 at 16.) The Court also cannot 9 determine the proximity in time between any protected action and any alleged retaliation 10 to determine a causal link. Lacking these details, Plaintiff has not alleged sufficient facts 11 to support a Title IX retaliation claim. 12 Plaintiff therefore fails to allege sufficient facts to support a Title IX claim, instead 13 providing only bare and conclusory allegations. The Court accordingly dismisses 14 Plaintiff’s Title IX claim. However, dismissal of this claim is with leave to amend because 15 the Court cannot find that amendment is futile; Plaintiff’s bullying allegations and 16 subsequent inaction from WSCD could support a Title IX claim with sufficient facts. See 17 Grabowski, 69 F.4th at 1118-19, 1121-22. 18 IV. CONCLUSION 19 The Court notes that the parties made several arguments and cited several cases 20 not discussed above. The Court reviewed these arguments and cases and determines 21 that they do not warrant discussion as they do not affect the outcome of the Motion before 22 the Court. 23 It is therefore ordered that Defendant WCSD’s motion to dismiss (ECF No. 32) the 24 FAC (ECF No. 31) is granted. The first through fourth causes of action are dismissed with 25 leave to amend because the Court cannot find that amendment would be futile. The fifth 26 and sixth causes of action are dismissed with prejudice because Plaintiff repeatedly failed 27 to cure deficiencies. 28 1 It is further ordered that Plaintiff is granted leave to file a second amended 2 || complaint within 30 days from the date of entry of this order if he believes he may cure 3 || the identified deficiencies. 4 If Plaintiff does not timely file a second amended complaint consistent with this 5 || order, the Court will dismiss the first through fourth causes of action with prejudice without 6 || further advance notice to Plaintiff. 7 DATED THIS 14!" Day of November 2024. 9 MIRANDA M. DU 10 UNITED STATES DISTRICT JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11