A.T. v. Seattle School District No 1

— 1 — — 2 — — 3 — — 4 — — 5 — — 6 — UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON — 7 — AT SEATTLE — 8 — A.T., Case No. C22-1140-RSM — 9 — Plaintiff, ORDER RE: MOTIONS FOR 10 SUMMARY JUDGMENT v. — 11 — SEATTLE SCHOOL DISTRICT NO.1, — 12 — Defendant. — 13 — — 14 — I. INTRODUCTION — 15 — This matter comes before the Court on Defendant’s Motion for Summary Judgment, Dkt. — 16 — #18, and Plaintiff’s Motion for Partial Summary Judgment, Dkt. #21. Defendant moves for — 17 — summary judgment on all of Plaintiff’s claims. Plaintiff moves for partial summary judgment — 18 — only on his 42 U.S.C. § 1983 First Amendment claim. For the following reasons, the Court — 19 — DENIES IN PART and GRANTS IN PART Defendant’s Motion and DENIES Plaintiff’s Motion — 20 — as stated below. — 21 — II. BACKGROUND — 22 — The following facts are adopted from Plaintiff’s Complaint, Dkt. #1, and Defendant’s — 23 — Motion, Dkt. #18. — 24 — 1 Plaintiff is a former student of Garfield High School who is on the autism spectrum. During his time at the school, he participated on the swim team. During Plaintiff’s junior year, — 2 — 2019-2020, Plaintiff was enrolled in the Running Start Program, which meant Plaintiff attended — 3 — college and university classes at nearby institutions. Plaintiff was required to sign in and out of — 4 — Garfield High School’s front office whenever on campus. — 5 — On December 15, 2017, Plaintiff alleges that, as a freshman, he witnessed sexual hazing — 6 — in the swim team locker room. On December 6, 2019, Plaintiff alleges that he witnessed high — 7 — school students taking “selfies” in the locker room while other dressed in the background, along — 8 — with witnessing several naked teammates heading into a private shower stall. On December 24, — 9 — 2019, Plaintiff alleges that he again saw swim team members taking “selfies” in the locker room. — 10 — That day, Plaintiff emailed his swim team coach, asking him to address the locker room behavior — 11 — he witnessed. His coach responded that he would address it and hosted a team meeting the next — 12 — day to discuss these concerns. — 13 — In January 2020, a student journalist reached out to Plaintiff about discussing his — 14 — experiences for an article on sports-team hazing at the school. Plaintiff met with the journalist — 15 — to discuss both the 2017 and 2019 incidents. On January 12, 2020, Plaintiff experienced an — 16 — emotional meltdown at a Robotics Club competition. The Robotics Club teacher and advisor — 17 — was present, and Plaintiff told him about the 2017 swim team incident and speaking with the — 18 — school journalist. The Robotics teacher called Plaintiff’s parents and followed up with school — 19 — staff and administration about the 2017 incident. — 20 — Plaintiff later planned to meet with the student journalist to clarify a few details on — 21 — January 17, 2020. That morning, the school principal was informed about the student journalist’s — 22 — story on sexual hazing by the journalism teacher. The principal emailed the manager of the — 23 — Office of Student Civil Rights, Title IX Coordinator, and Director of Investigations for the — 24 — 1 District, who then replied with steps to respond to alleged sexual hazing reports, the District’s policy on student expression in school-sponsored media, and safety plan templates. The assistant — 2 — principal then filed a police report and initiated a school-level investigation. — 3 — The school’s assigned police officer from Seattle Police Department was also informed — 4 — of the situation via dispatch. As part of his duties as the on-duty School Resource Officer — 5 — (“SRO”), he was required to be in uniform and carry a holstered weapon. — 6 — On the afternoon of January 17, 2020, Plaintiff went to the school and checked in at the — 7 — front office to attend his interview with the school journalist. The assistant principal requested — 8 — to speak with Plaintiff and lead him to his private office. The assistant principal also requested — 9 — the SRO’s presence. They spoke, and a “safety plan” was signed by Plaintiff. This safety plan — 10 — included terms such as “Follow directions from all staff,” “No threats, intimidation or harassment — 11 — of other students or staff,” and the following: — 12 — Agreement to and compliance with the above conditions are necessary to maintain — 13 — enrollment at school. If the conditions are violated, a multidisciplinary team will re-convene and the school may re-instate the Emergency Exclusion for Safety — 14 — Reasons. Further student misbehavior will be sanctioned based on the progressive discipline standards of Seattle Public Schools. — 15 — The assistant principal then phoned Plaintiff’s mother and requested a parent come to the — 16 — school, who said that they (Plaintiff’s parents) did not want the SRO interviewing Plaintiff — 17 — without them present. Plaintiff’s father arrived later, and he declined to give permission for — 18 — Plaintiff to be interviewed. Plaintiff then became visibly upset, crying into his father’s shoulder. — 19 — The vice principal stated that it “would not be best” for Plaintiff to speak to the newspaper, and — 20 — Plaintiff’s father agreed and signed the safety plan. Plaintiff was not provided a copy of the — 21 — safety plan. Afterward, Plaintiff and his father met with the journalism teacher and the school — 22 — therapist. — 23 — — 24 — 1 Later, Plaintiff’s parents discussed the safety plan and some of the “unfavorable terms.” Plaintiff’s father emailed the assistant principal and revoked the safety plan. On January 21, — 2 — 2020, Plaintiff’s mother sent a complaint to Defendant alleging that Plaintiff was harassed, — 3 — intimidated, and bullied by the assistant principal and SRO. Defendant determined that there — 4 — was insufficient evidence and Plaintiff’s parents appealed. On May 21, 2021, the Hearing — 5 — Examiner affirmed Defendant’s decision. Plaintiff then filed this action in King County Superior — 6 — Court on July 13, 2022, which was removed to this Court on August 15, 2022. — 7 — III. DISCUSSION — 8 — A. Legal Standard — 9 — Summary Judgment is appropriate where “the movant shows that there is no genuine — 10 — dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. — 11 — R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). Material facts are — 12 — those which might affect the outcome of the suit under governing law. Anderson, 477 U.S. at 13 248. In ruling on summary judgment, a court does not weigh evidence to determine the truth of — 14 — the matter but “only determine[s] whether there is a genuine issue for trial.” Crane v. Conoco, — 15 — Inc., 41 F.3d 5547 , 549 (9th Cir. 1994) (citing Federal Deposit Ins. Corp. v. O’Melveny & — 16 — Meyers, 969 F.2d 744, 747 (9th Cir. 1992)). — 17 — On a motion for summary judgment, the court views the evidence and draws inferences — 18 — in the light most favorable to the non-moving party. Anderson, 477 U.S. at 255 ; Sullivan v. U.S. — 19 — Dep’t of the Navy, 365 F.3d 827, 832 (9th Cir. 2004). The Court must draw all reasonable — 20 — inferences in favor of the non-moving party. See O’Melveny & Meyers, 969 F.2d at 747 , rev’d — 21 — on other grounds, 512 U.S. 79 (1994). However, the non-moving party must make a “sufficient — 22 — showing on an essential element of her case with respect to which she has the burden of proof” — 23 — to survive summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). — 24 — 1 B. Analysis a. 42 U.S.C. § 1983 Claim — 2 — i. Whether Defendant is Subject to Monell Liability — 3 — Defendant argues that Plaintiff’s First Amendment claim should be dismissed because — 4 — there is no basis to impose municipal liability and, alternatively, because Defendant did not — 5 — deprive Plaintiff of his right to free speech. Dkt. #18 at 13-22. Plaintiff disagrees, contending — 6 — that genuine issues of material fact exist regarding Defendant having a practice of censorship. — 7 — Dkt. #33 at 24. — 8 — 42 U.S.C. § 1983 provides for any person who suffers a constitutional or legal violation — 9 — by a state or federal official to sue for damages or relief. See 42 U.S.C. § 1983 . A school district — 10 — can be held liable under § 1983 “when execution of a . . . policy or custom whether made by its — 11 — lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts — 12 — the injury that the . . . entity is responsible” for, not “for an injury inflicted solely by its employees — 13 — or agents.” Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 694 (1978). — 14 — Municipal liability requires that “a policy, practice, or custom of the entity can be shown to be a — 15 — moving force behind a violation of constitutional rights.” Dougherty v. City of Covina, 654 F.3d 16 892, 900 (9th Cir. 2011). “A school district’s liability under Monell may be premised on any of — 17 — three theories: (1) that a district employee was acting pursuant to an expressly adopted official — 18 — policy; (2) that a district employee was acting pursuant to a longstanding practice or custom; or — 19 — (3) that a district employee was acting as a ‘final policymaker.’” Lytle. v. Carl, 382 F.3d 978 , — 20 — 982 (9th Cir. 2004). — 21 — Defendant argues that there is insufficient evidence connecting an expressly adopted — 22 — official policy or longstanding practice or custom of Defendant to the alleged violation. Dkt. #18 — 23 — at 14. Plaintiff contends that his school principal had a “longstanding practice of censoring — 24 — 1 student reporting related to views he just simply opposed.” Dkt. #33 at 24. However, Plaintiff mentions only one other alleged incident of the school principal suppressing a school article. Id. — 2 — Plaintiff’s school principal stated that he prohibited a school article from publishing “[o]nce” — 3 — when the school paper “did a slanderous article on [a former principal] who was leaving Garfield — 4 — [the school], going to another school.” Dkt. #35, Ex. 4 at 70. The school’s alleged liability, with — 5 — this instance coupled with Plaintiff’s allegations, is “predicated on isolated or sporadic incidents; — 6 — [liability] must be founded upon practices of sufficient duration, frequency and consistency that — 7 — the conduct has become a traditional method of carrying out policy.” Trevino v. Gates, 99 F.3d 8 911, 918 (9th Cir. 1996). Plaintiff does not provide sufficient facts to allege any longstanding — 9 — practice or custom based on the school principal’s actions here. — 10 — Plaintiff does, however, raise other genuine disputes regarding a potential longstanding — 11 — practice or custom. Plaintiff asserts that the school principal and assistant principal “acted — 12 — pursuant to specific directive . . . and ‘board policy’” in prohibiting the article and stopping — 13 — Plaintiff from speaking to the newspaper student reporters. Dkt. #33 at 25. As stated above, — 14 — liability “must be founded upon practices of sufficient duration, frequency and consistency that — 15 — the conduct has become a traditional method of carrying out policy.” Trevino, 99 F.3d at 918 . — 16 — “For purposes of Monell liability, the term ‘policy’ includes within its definition not only policy — 17 — in the ordinary sense of a rule or practice . . . but also includes ‘a course of action tailored to a — 18 — particular situation and not intended to control decisions in later situations.’” Lytle, 382 F.3d at 19 983 (quoting Pembaur v. Cincinnati, 475 U.S. 469, 483 (1986) (emphasis added). — 20 — In the school principal’s deposition, he said that “anytime you do an investigation, then — 21 — everything should stop until you have completed the investigation” and that he was “given a — 22 — directive to do something” regarding telling the newspaper that they could not move forward — 23 — with the article. Dkt. #35 at 86-87, 114. The school assistant principal also told Plaintiff that — 24 — 1 “it’s probably best not to [speak to the newspaper] during an investigation” and he “thought it was in [Plaintiff’s] best interest not to speak to the newspaper because the investigation was — 2 — going on.” Id. at 54, 76. These facts are scant. But whether a practice existed based on these — 3 — facts is a question of fact for a jury. Therefore, the Court concludes that Plaintiff has sufficiently — 4 — alleged material disputes of fact regarding if the school district had a longstanding policy or — 5 — custom to limit student’s First Amendment rights during supposed school investigations.1 — 6 — ii. Whether Plaintiff Has Viable First Amendment Claim — 7 — Defendant contends that Plaintiff’s First Amendment claim cannot survive summary — 8 — judgment because the school district never disciplined Plaintiff and did not impose a legal — 9 — impediment on his future expression. Dkt. #18 at 17-22. Plaintiff does not contest this argument — 10 — in his Response to Defendant’s Motion. Dkt. #33. Instead, Plaintiff filed a Motion for Partial — 11 — Summary Judgment on his First Amendment claim, arguing that Plaintiff engaged in — 12 — constitutionally protected speech and Defendant retaliated against Plaintiff over his actions. Dkt. — 13 — #21. In Defendant’s Response, Defendant contends that Plaintiff was not disciplined and was — 14 — not engaged in protected speech, thus he has no First Amendment claim. Dkt. #36. — 15 — “To establish a First Amendment retaliation claim in the student speech context, a — 16 — plaintiff must show that (1) he was engaged in a constitutionally protected activity; (2) the — 17 — defendant’s actions would chill a person of ordinary firmness from continuing to engage in the — 18 — protected activity and (3) the protected activity was a substantial or motivating factor in the — 19 — defendant’s conduct.” Pinard v. Clatskanie Sch. Dist. 6J, 467 F.3d 755, 770 (9th Cir. 2006). — 20 — The Court discusses these factors in turn below. — 21 — — 22 — 1 Plaintiff also argues that liability under Monell is proper because the school principal and assistant 23 principal were acting as final policymakers. Dkt. #33 at 25. The Court need not address this argument because only one method of liability (here, longstanding practice or custom) is required. — 24 — 1 1. Constitutionally Protected Activity Plaintiff argues that his attempt to speak with the school newspaper to clarify some of his — 2 — prior statements was a constitutionally protected activity. Dkt. #21 at 7-8. Defendant does not — 3 — address this issue in its Motion but argues in its Response that Plaintiff’s statements “were made — 4 — with a reckless disregard for the truth and do not enjoy constitutional protection.” Dkt. #36 at — 5 — 11. Defendant alleges that Plaintiff “continues to perpetuate the fiction that he witnessed — 6 — members of the swim team engage in inappropriate sexual conduct in the private shower stall, — 7 — knowing it is false.” Id. Defendant argues that Plaintiff knows these statements are falsehoods — 8 — because “his teammates informed him that nothing occurred” and he did not seek out his — 9 — teammates to clarify. Id. — 10 — However, whether or not the events occurred in the team locker room are not questions — 11 — for the Court to settle here. On multiple occasions, Plaintiff brought up instances of questionable — 12 — conduct occurring in the locker room and was even found in an obvious state of crying by one of — 13 — his teachers. See gen. Dkt. #1. Something occurring within the swim team appeared to affect — 14 — Plaintiff and stir up this entire case, and simply because Plaintiff never talked to a teammate — 15 — outright or his teammates told him nothing happened does not equate to Plaintiff’s statements — 16 — being falsehoods he knowingly perpetuated. While Plaintiff’s arguments might not hold water — 17 — in other regards, Defendant’s attempt to paint Plaintiff dishonestly regarding his alleged — 18 — experience without substantiation does not convince this Court that Plaintiff was not engaging in — 19 — protected speech. The Court concludes that Plaintiff has alleged sufficient facts to show that he — 20 — was participating in constitutionally protected speech. Whether Plaintiff’s intended speech was — 21 — constitutionally protected or falls under an exception, such as representing a risk of substantial — 22 — disruption to the school environment or others, is a question better left to a jury. — 23 — 2. Chill — 24 — 1 The Court also finds that genuine questions of material fact exist regarding whether Defendant’s actions would “chill a person of ordinary firmness” from participating in protected — 2 — speech. Alleged actions against a student bringing a First Amendment retaliation claim must be — 3 — more than “de minimis deprivations of benefits and privileges[.]” Blair v. Bethel Sch. Dist., 608 4 F.3d 540, 544 (9th Cir. 2010). — 5 — Defendant argues that Plaintiff experienced no disciplinary or adverse action to create a — 6 — chilling effect in a student of ordinary firmness. Dkt. #18 at 18. As Defendant states in its — 7 — Motion, First Amendment student speech cases might ordinarily involve “explicit censorship or — 8 — openly disciplinary action[,]” but that is not an explicit requirement. Id. at 18; see gen. Pinard, — 9 — 467 F.3d 755 ; O’Brien v. Welty, 818 F.3d 920 (9th Cir. 2016). — 10 — “Under Ninth Circuit law, Plaintiffs do not have a retaliation claim based on threats of — 11 — discipline for First Amendment activity if that threat is itself based upon lawful consequences — 12 — and is not actually administered.” Corales v. Bennett, 567 F.3d 554, 565 (9th Cir. 2009). — 13 — However, the crux of the question at issue here is not if lawfully consequential discipline was — 14 — actually administered but was Plaintiff “chilled” by a threat of discipline not based on lawful — 15 — consequences. Here, Plaintiff was asked to speak with the school assistant principal in the — 16 — presence of the SRO in a private office. As Defendant points out, courts have held that school — 17 — administrators need to be able to investigate reports of sexual misconduct, even by separating a — 18 — student to speak with them, and this is “precautionary and protective[,]” not disciplinary. See — 19 — Cox v. Warwick Valley Cent. Sch. Dist., 654 F.3d 267, 274 (2d Cir. 2011). The actions of the — 20 — school assistant principal, even with the presence of the school police officer, are not necessarily — 21 — “chilling.” — 22 — The school’s supposed “safety plan” coupled with the assistant principal’s and SRO’s — 23 — actions create a question. As Plaintiff contends, this safety plan that Plaintiff and his parent — 24 — 1 signed required Plaintiff to “[f]ollow directions from all staff . . . [f]ollow school rules . . . [make no] threats, intimidation or harassment of other students or staff” and stated that “[a]greement to — 2 — and compliance with the above conditions are necessary to maintain enrollment at school” and — 3 — “[f]urther student misbehavior will be sanctioned based on the progressive discipline standards — 4 — of Seattle Public Schools.” Dkt. #1, Ex. A. Plaintiff’s parents later called the school to revoke — 5 — this plan out of objections to its content. Id. at 14. Multiple school administrators questioned — 6 — the language of the safety plan, and at least one stated that this safety plan appeared disciplinary. — 7 — Dkt. #35, Ex. 3 at 98, Ex. 4 at 103. It is not clear how Plaintiff’s actions warranted “lawful — 8 — consequences” and possible threats of discipline. Plaintiff did not participate in a walkout or any — 9 — other activity blatantly against school rules or policy. See Corales, 567 F.3d at 565 . While — 10 — Defendant claims that the “safety plan is a non-disciplinary tool used to identify support and — 11 — safety measures for [Plaintiff’s] needs[,]” the Court fails to see how no factual argument exists — 12 — whether the safety plan appeared disciplinary or not. Dkts. #36 at 13, #35, Ex. 3 at 100 (“I read — 13 — it [the safety plan] and had questions on what actual impact that last provision would have if this — 14 — is a safety plan.”). Thus, Plaintiff has raised genuine issues of material fact as to whether the — 15 — safety plan paired with the school administrators’ actions created an uncalled-for situation that — 16 — would chill any reasonable student from participating in protected speech. — 17 — However, the Court is not convinced by Plaintiff’s argument in his Motion that these — 18 — actions clearly constitute a First Amendment violation. See Dkt. #21 at 9-11. While Plaintiff — 19 — has raised genuine issues of material fact against Defendant’s Motion, he has not resolved these — 20 — issues in his own Motion. In Plaintiff’s own Response to Defendant’s Motion, Plaintiff argues — 21 — that there are genuine issues of material fact regarding Defendant’s liability under Monell. Dkt. — 22 — #33 at 24. Whether a person of ordinary firmness would have been chilled, whether a policy — 23 — actually existed, whether school administrators stopped Plaintiff from speaking to the school — 24 — 1 newspaper, whether the school “retaliated,” whether the school’s investigation was pretextual, or whether the school was simply acting in Plaintiff’s best interests, to name a few, are all genuine — 2 — issues of material fact best answered by a fact-finding jury, not this Court on summary judgment — 3 — motions. — 4 — b. False Imprisonment Claim — 5 — Defendant argues for dismissal of Plaintiff’s false imprisonment claim because Plaintiff — 6 — was not “intentionally imprisoned,” Defendant was authorized to speak with Plaintiff regarding — 7 — his reports, and Plaintiff was not wrongfully deprived of his freedom of movement because he — 8 — was not lawfully permitted unrestricted campus access at the time. Dkt. #18 at 22-24. Plaintiff — 9 — raises no arguments against this Motion in his Response. See gen. Dkt. #33. — 10 — Plaintiff’s lack of response to Defendant’s argument does not allow this Court to consider — 11 — it as an admission that Defendant’s motion has merit. See Local Civil Rule 7(b)(2). However, — 12 — while the Court must take all inferences in Plaintiff’s favor as the non-moving party, Plaintiff — 13 — must make a “sufficient showing on an essential element of [his] case with respect to which [he] — 14 — has the burden of proof” to survive summary judgment. Catrett, 477 U.S. at 323 . — 15 — To state a claim of false imprisonment, a plaintiff must demonstrate that he has been — 16 — “deprived of either liberty of movement or freedom to remain in the place of his lawful choice[.]” — 17 — Bender v. Seattle, 99 Wn.2d 582, 591 (1983) (internal citation omitted). False imprisonment can — 18 — be “by physical force alone, or by threat of force, or by conduct reasonably implying that force — 19 — will be used.” Id. (quoting Kilcup v. McManus, 64 Wn.2d 771 (1964)). — 20 — The Court concludes that no genuine question of material fact exists to deny Defendant’s — 21 — Motion on this claim. As Defendant argues, “a school district has the power to control the — 22 — conduct of its students while they are in school or engaged in school activities[.]” Quynn v. — 23 — Bellevue Sch. Dist., 195 Wn.App. 627, 634 (2016) (quoting Peck v. Siau, 65 Wn.App. 285 , 292 — 24 — 1 (1992). As any who have attended grade school know, students are not permitted general free movement during school hours. Furthermore, as Plaintiff was not enrolled in classes at the high — 2 — school but was a full-time Running Start student at the time, Plaintiff did not have permitted — 3 — access to the school under district policy. Dkt. #19, Ex. O at 11 (explain that Running Start — 4 — student are only allowed on campus for scheduled meetings , such as those required for — 5 — graduation with a school counselor, or school activities.). Furthermore, Defendant was required — 6 — under Washington Law “to take prompt and appropriate action to investigate” any allegations of — 7 — sexual harassment. WAC 392-190-0555(1)(c). Speaking privately with Plaintiff regarding what — 8 — he heard or saw would be a necessary step in investigating Plaintiff’s allegations. The school’s — 9 — assistant principal requesting to speak with Plaintiff privately, not locking Plaintiff in a room, — 10 — and the mere presence of the school’s officer, even in uniform with a holstered firearm, does not — 11 — equate to false imprisonment. The Court concludes that Defendant has shown no question of — 12 — material fact exists regarding Plaintiff’s false imprisonment claim. Thus, summary judgment is — 13 — granted on this issue. — 14 — c. Negligence and Negligent Infliction of Emotional Distress Claims (NIED) — 15 — Defendant contends that Plaintiff’s negligence and NIED should be dismissed because — 16 — “there was no foreseeable risk, threatened danger of injury, or disproportionate unreasonable — 17 — conduct . . . [and Plaintiff’s] negligence claims are inextricably linked to his s 42 U.S.C. § 1983 — 18 — claim.” Dkt. #18 at 24. Defendant argues that there is insufficient evidence for Plaintiff’s — 19 — assertion that Defendant breached its duty to Plaintiff “by threatening . . . and silencing him” and — 20 — no other basis exists. Id. Plaintiff contends that these claims are separate from his First — 21 — Amendment claim and genuine issues of material fact remain. Dkt. #33 at 18-23. — 22 — “To prevail on a negligence claim, a Washington Plaintiff must show (a) the existence of — 23 — a duty to the plaintiff, (b) a breach of that duty, (c) a resulting injury, and (d) the breach as the — 24 — 1 proximate cause of the injury.” Turner v. Washington State Dep’t of Soc. & Health Servs., 198 Wn.2d 273 , 284 (2021) (internal quotation marks and citations omitted). School districts have a — 2 — special relationship with their students, enhancing the duty of care owed to students against — 3 — foreseeable dangers. See Harris v. Fed. Way Pub. Sch., 21 Wn App. 2d 144, 153 (2022). — 4 — For a claim of NIED, a plaintiff must show “duty, breach, proximate cause, damage, and — 5 — ‘objective symptomatology.’” Kumar v. Gate Gourmet Inc., 180 Wn.2d 481, 505 (2014) — 6 — (quoting Strong v. Terrell, 147 Wn.App. 376, 387 (2008)). Actions based on mental distress are — 7 — subject to the court’s limitation, thus a defendant’s “conduct is unreasonable when its risk — 8 — outweighs its utility.” Id. A plaintiff may recover for NIED “in the absence of physical injury — 9 — only where emotion distress is (1) within the scope of foreseeable harm of the negligent conduct, — 10 — (2) a reasonable reaction given the circumstances, and (3) manifest by objective — 11 — symptomatology.” Bylsma v. Burger King Corp., 176 Wn.2d 555, 560 (2013) (citation omitted). — 12 — The Court agrees with Defendant that Plaintiff’s negligence and NIED claims are — 13 — duplicative of his First Amendment claims. In his Complaint, Plaintiff asserts that Defendant — 14 — breached its duty of care by “threatening [him] and silencing him and thus exacerbating his — 15 — underlying trauma” and causing harm. These alleged duties, threats, and acts of chilling Plaintiff — 16 — into silence are directly duplicative of his First Amendment claim. Plaintiff attempts to — 17 — differentiate these tort claims from his First Amendment claim by stating that the Defendant — 18 — owed Plaintiff a duty of care “in responding to the trauma he experienced[.]” Dkt. #33 at 19. — 19 — However, Plaintiff later states that his negligence claim is based on Defendant’s breach of its — 20 — “duty of care [owed] when responding to [Plaintiff’s] desire to speak to his school newspaper” — 21 — and “mental distress caused by the Defendant prohibiting him under threat of disciplinary — 22 — action[.]” Id. at 21, 22. He also argues that his NIED cause of action “also arises from the — 23 — Defendant’s duty to exercise ordinary care in responding to the Plaintiff’s desire to speak again — 24 — 1 to his school newspaper[.]” Id. at 23. All of these alleged actions of Defendant are the factual and legal basis for Plaintiff’s First Amendment claim. “[T]hree separate legal theories based — 2 — upon one set of acts constitute one ‘claim for relief[.]’” Snyder v. State, 19 Wn.App. 631 , 635 — 3 — (1978). “A single claim for relief, on one set of acts, is not converted into multiple claims, by — 4 — the assertion of various legal theories.” Pepper v. J.J. Welcome Const. Co., 73 Wn.App. 523 , — 5 — 546 (1994). Even taking all inferences in favor of Plaintiff as the non-moving party, the Court — 6 — concludes that Plaintiff’s tort claims are duplicative of his First Amendment claim. Therefore, — 7 — the Court dismisses Plaintiff’s negligence and NIED claims. — 8 — IV. CONCLUSION — 9 — Having reviewed the parties’ filings and the remainder of the record, the Court finds and — 10 — ORDERS: — 11 — (1) Defendant’s Motion for Summary Judgment, Dkt. #18, is DENIED IN PART and — 12 — GRANTED IN PART. Plaintiff’s negligence and negligent infliction of emotional — 13 — distress claims are DISMISSED. Plaintiff’s First Amendment claim under 42 U.S.C. — 14 — § 1983 REMAINS. — 15 — (2) Plaintiff’s Motion for Partial Summary Judgment, Dkt. #21, is DENIED. — 16 — — 17 — DATED this 26th day of March, 2024. — 18 — 19 A — 20 — RICARDO S. MARTINEZ UNITED STATES DISTRICT JUDGE — 21 — — 22 — — 23 — — 24 —