Bialis v. Catalina Foothills Unified School District No. 16

1 WO [5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA [8] 9 Jonathan Bialis, et al., No. CV-23-00318-TUC-RM 10 Plaintiffs, ORDER 11 v. 12 Catalina Foothills Unified School District No. 16, et al., [13] Defendants. [14] 15 On July 21, 2023, Plaintiff Z.B., by and through his parents Jonathan and Tiffanie 16 Bialis (“Mr. and Mrs. Bialis”), filed a First Amended Complaint (“FAC”) against 17 Defendants Catalina Foothills Unified School District No. 16 (“CFUSD”), Dr. Mary 18 Kamerzell, Doug Huie, Dr. Erin Matyjasik, Denise Bartlett, and Dana Mulay. (Doc. 4.) 19 Pending before the Court is Defendants’ Partial Motion to Dismiss First Amended 20 Complaint (Doc. 6), to which Plaintiff responded (Doc. 8), and Defendants replied (Doc. 21 9). 22 I. First Amended Complaint 23 Plaintiff alleges the following facts in his FAC. Z.B. was previously enrolled as a 24 student at Ventana Vista Elementary School (“the School”), which is operated by 25 CFUSD. (Doc. 4 at 3-4 ¶¶ 12, 25.) Defendant Kamerzell was, at all relevant times, 26 CFUSD’s Superintendent and highest-ranking employee. (Id. at 2-3 ¶¶ 4, 17.) Defendant 27 Huie was CFUSD’s Interim Director of Facilities and Transportation. (Id. at 2 ¶ 5.) 28 Defendant Matyjasik was CFUSD’s Director of Special Services. (Id. at 2 ¶ 6.) 1 Defendant Bartlett was CFUSD’s Assistant Superintendent. (Id. at 2 ¶ 7.) Defendant 2 Mulay was the School’s Principal. (Id. at 2-3 ¶¶ 8, 19.) 3 Z.B. suffers from a rare knee condition that impacts his mobility and causes him 4 pain. (Id. at 4 ¶ 26.) On September 19, 2021, Mrs. Bialis emailed the School’s principal, 5 Mulay, to inform her of Z.B.’s knee condition and of his need for a wheelchair. (Id. at 4 6 ¶ 27.) At the time, Z.B. attended classes on the School’s second floor, and the elevator 7 was inoperable, so Mrs. Bialis was concerned that Z.B. would be unable to access the 8 second floor. (Id. at 4 ¶¶ 22, 29.) Mulay informed Mrs. Bialis that it would be best for 9 Z.B. to scoot on his bottom up and down the stairs. (Id. at 4 ¶ 30.) Mrs. Bialis then 10 emailed Matyjasik to report concerns about the inoperable elevator and Mulay’s “butt 11 scoot” proposal. (Id. at 5 ¶¶ 31-32.) Matyjasik forwarded the email to Huie, but Huie 12 failed to take appropriate action to ensure the School was equally accessible to Z.B. (Id. 13 at 5 ¶¶ 34-35.) Z.B. “was openly mocked and ridiculed by his peers” for having to butt 14 scoot on the stairs, and butt scooting caused him to suffer humiliation and worsened knee 15 pain. (Id. at 5 ¶¶ 37-38.) Defendants were notified of these issues, but they failed to take 16 appropriate action. (Id. at 5 ¶ 39.) 17 On September 24, 2021, Mulay informed the Bialises that Z.B. would be required 18 to attend classes taught on the second floor remotely from an empty classroom on the 19 first floor in order to avoid using the stairs. (Id. at 5 ¶ 40.) As a result, Z.B. was isolated 20 from his teachers and peers, causing loneliness and distress. (Id. at 5 ¶ 41.) Another 21 student briefly joined Z.B. in the isolated classroom, but after that student withdrew from 22 the school, Z.B.’s teacher denied his request for another student to join him in the 23 classroom. (Id. at 5-6 ¶¶ 42-46.) On September 30, 2021, Mr. Bialis reported to Mulay 24 that Z.B. felt isolated attending classes remotely and that his teacher failed to open virtual 25 meetings so he could participate in his classes. (Id. at 6 ¶ 49.) On the same day, the 26 Bialises emailed the president of CFUSD’s Governing Board, who responded that the 27 Governing Board had approved an expenditure to repair the School’s elevators but that 28 no estimated start or completion date could be provided. (Id. at 6 ¶¶ 51-53.) In October 1 2021, Z.B.’s doctor submitted a medical certification advising that Z.B.’s continued 2 isolation from peers could lead to anxiety and depression, but CFUSD ignored the 3 medical certification. (Id. at 7 ¶¶ 56-57.) 4 In September 2021, the Bialises requested a 504 plan for Z.B. because his 5 condition had been reclassified as a chronic episodic condition. (Id. at 7 ¶ 58.) CFUSD 6 employees initially concluded, without a medical basis, that Z.B.’s condition was 7 temporary and that Z.B. was not entitled to a 504 plan. (Id. at 7 ¶¶ 59-60.) After 8 requiring extensive documentation, CFUSD changed its position and provided Z.B. a 504 9 plan in January 2022. (Id. at 7-8 ¶¶ 63-67.) 10 On November 7, 2021, the School held a fire drill and another student had to assist 11 Z.B. because the door to the playground had a high lip that made exiting in a wheelchair 12 difficult. (Id. at 8 ¶¶ 71-73.) Z.B. suffered substantial distress because he could not 13 confidently exit the building during an emergency. (Id. at 8 ¶¶ 74-75.) On November 10, 14 2021, Mrs. Bialis emailed Mulay to express concern regarding the fire drill experience 15 and to request a plan to ensure Z.B. could safely exit the building in the event of an 16 emergency. (Id. at 8 ¶ 76.) Mulay’s response placed the onus on Z.B. to be “proactive” 17 about his safety. (Id. at 8-9 ¶¶ 77-78.) 18 Z.B. was diagnosed with depression, which he had never experienced before being 19 placed in the isolated classroom. (Id. at 8 ¶ 69.) Even though the Bialises informed 20 CFUSD of the diagnosis, CFUSD continued to ignore their concerns. (Id. at 8 ¶ 70.) On 21 December 4, 2021, Mr. Bialis advised Mulay that remote instruction was not adequate 22 and that Z.B. was struggling with feelings of isolation and depression. (Id. at 9 ¶ 82.) 23 Mulay failed to adequately respond to the Bialises’ concerns. (Id. at 9 ¶ 83.) 24 On December 14, 2021, Mulay emailed Z.B.’s teachers to advise them that 25 CFUSD had determined installing a chair lift was not feasible, and that “the elevator may 26 not be repaired until the end of the school year.” (Id. at 9 ¶ 86.) By that point, the 27 elevator had been non-operational for nearly a year. (Id. at 9 ¶ 87.) 28 The Bialises filed two complaints with the United States Department of 1 Education’s Office for Civil Rights (“OCR”), the first in October 2021 and the second in 2 February 2022. (Id. at 7, 10 ¶¶ 61, 90-91.) On March 15, 2022, the OCR issued a report 3 in response to the first OCR Complaint, determining that CFUSD had failed to make its 4 facilities accessible to those with disabilities. (Id. at 10 ¶ 92.) To avoid a formal finding 5 of discrimination against disabled students, CFUSD entered into a Resolution Agreement 6 requiring it to repair and/or replace the School’s elevator and ensure that students with 7 disabilities would have access to the School’s field, lower playground, and adjacent 8 facilities. (Id. at 10 ¶¶ 93-94.) CFUSD did not timely comply with the requirements of 9 the Resolution Agreement. (Id. at 10 ¶ 95.) 10 On March 18, 2022, Mr. Bialis emailed Mulay to report concerns regarding the 11 inaccessibility of new equipment on the School’s playground and field, and he reiterated 12 that Z.B. had been excluded from activities. (Id. at 10-11 ¶¶ 96, 99.) On April 26, 2022, 13 the Bialises had to pick Z.B. up from the School before an event on the lower field 14 because Z.B. was scared of being injured while attempting to get to the non-accessible 15 field. (Id. at 12 ¶¶ 110-113.) 16 Throughout March 2022, the Bialises contacted numerous CFUSD representatives 17 about Z.B.’s desire to participate in the Color Run—a race that was being held on School 18 property and was not wheelchair accessible. (Id. at 11 ¶ 101.) 19 Also in March 2022, the Bialises complained to CFUSD that Z.B.’s peers were 20 bullying him as a result of his disability. (Id. at 11 ¶ 102.) CFUSD failed to adequately 21 respond, and the bullying disrupted Z.B.’s education experience. (Id. at 11 ¶ 103.) On 22 April 27, 2022, the Bialises emailed several CFUSD representatives, including Mulay 23 and Bartlett, to report that Z.B.’s peers were chastising him due to his disability and his 24 inability to reach the second floor without butt scooting up the stairs. (Id. at 12 ¶ 116.) 25 CFUSD failed to remediate the issue or meaningfully respond. (Id. at 12 ¶ 117.) On 26 April 28, 2022, Z.B.’s teacher emailed Mulay about the ongoing harassment Z.B. was 27 experiencing from his peers, and Kamerzell emailed Mulay advising her that she or 28 Z.B.’s teachers should “intervene when this type of behavior is reported . . . [j]ust like 1 any other altercation between kids when they are making fun or speaking disrespectfully 2 to another.” (Id. at 12-13 ¶¶ 118-119.) Mulay responded that “[n]othing was actually 3 said directly to the child,” despite knowing the statement was inaccurate. (Id. at 13 ¶ 4 120.) 5 On April 26, 2022, Mr. Bialis emailed CFUSD’s Governing Board to report that 6 the School’s bookfair was not wheelchair accessible. (Id. at 11 ¶¶ 106-107.) The 7 Governing Board failed to respond. (Id. at 12 ¶ 108.) On April 28, 2022, Mr. Bialis 8 emailed Kamerzell to follow up, but Kamerzell failed to respond. (Id. at 13 ¶¶ 121-122.) 9 As a result of CFUSD’s failure to accommodate Z.B.’s disability and make the 10 School accessible to students with disabilities impacting their mobility, Z.B. suffered and 11 continues to suffer severe emotional distress, and the Bialises were forced to enroll him 12 in private school for the 2022-2023 school year. (Id. at 13-14 ¶¶ 124-131.) 13 In Counts One, Two, and Four of the FAC, Plaintiff asserts claims against 14 Defendant CFUSD for violation of the Americans with Disabilities Act (“ADA”), 15 violation of the Rehabilitation Act, and intentional infliction of emotional distress. (Id. at 16 14-16, 18-19 ¶¶ 134-159, 176-189.) In Count Three, Plaintiff asserts a claim under 42 17 U.S.C. § 1983 against the individual Defendants—Kamerzell, Huie, Matyjasik, Bartlett, 18 and Mulay—alleging that they discriminated against Z.B. on the basis of his disability in 19 violation of the Equal Protection Clause of the Fourteenth Amendment. (Id. at 16-18 ¶¶ 20 160-175.) Specifically, Plaintiff alleges in Count Three that Defendants “failed to 21 provide Z.B. equal access to the School’s facilities/programs that was provided to 22 students without disabilities impairing their mobility, subjected Z.B. to discriminatory 23 conduct on the basis of his disability, and failed to remediate Z.B.’s hostile education 24 environment.” (Id. at 18 ¶ 170.) Plaintiff further alleges that Defendants did not subject 25 non-disabled students to the same discriminatory treatment and that there “was no 26 rational relationship between the disparity of Defendants’ treatment of Z.B. and a 27 legitimate government purpose.” (Id. at 18 ¶¶ 172-173.) Plaintiff seeks compensatory, 28 consequential, and punitive damages. (Id. at 20.) 1 II. Standard of Review 2 Dismissal of a complaint, or any claim within it, for failure to state a claim under 3 Federal Rule of Civil Procedure 12(b)(6) may be based on either a “‘lack of a cognizable 4 legal theory’ or ‘the absence of sufficient facts alleged under a cognizable legal theory.’” 5 Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116 , 1121–22 (9th Cir. 2008) 6 (quoting Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990)). To 7 survive a motion to dismiss, a complaint must state a claim that is “plausible on its face.” 8 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial 9 plausibility when the plaintiff pleads factual content that allows the court to draw the 10 reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. 11 Iqbal, 556 U.S. 662, 678 (2009). While a complaint need not include “detailed factual 12 allegations,” it must contain more than labels, conclusions, “and a formulaic recitation of 13 the elements of a cause of action.” Twombly, 50 U.S. at 555. 14 In evaluating a Rule 12(b)(6) motion to dismiss, the court must take as true all 15 well-pleaded factual allegations of the complaint and construe them in the light most 16 favorable to the nonmovant. Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009). 17 However, the court need not accept as true legal conclusions that are couched as factual 18 allegations. Iqbal, 556 U.S. at 678 . 19 III. Discussion 20 Defendants move to dismiss Count Three of the FAC, arguing that Plaintiff’s 21 allegations of bullying and failure to accommodate do not state an equal protection 22 violation on which relief can be granted under 42 U.S.C. § 1983 . (Doc. 6.) In response, 23 Plaintiff argues that (1) Defendants failed to fully satisfy their meet-and-confer 24 obligations under LRCiv 12.1(c); (2) the FAC states a viable equal protection claim by 25 alleging that Defendants denied Plaintiff equal access to the School’s programs and 26 facilities and that there was no rational relationship between Defendants’ treatment of 27 Plaintiff and a legitimate government purpose; and (3) the FAC alleges a viable equal 28 protection claim arising from the individual Defendants’ deliberate indifference to the 1 peer-on-peer harassment experienced by Z.B. (Doc. 8.) 2 A. Meet-and-Confer 3 Plaintiff argues that Defendants did not satisfy their meet-and-confer obligations 4 under LRCiv 12.1(c) with respect to the argument that the FAC fails to allege Z.B. was 5 treated differently from his peers and the argument related to the FAC’s bullying 6 allegations. (Doc. 8 at 2, 8-10.) Defendants aver that they met and conferred with 7 Plaintiff on two separate occasions, notified Plaintiff of their intent to seek dismissal of 8 Count Three in its entirety, and specifically noted the primary argument in their pending 9 Motion to Dismiss. (Doc. 9 at 6.) Defendants note that Plaintiff never asserted during 10 the meet-and-confer conversations that the FAC’s bullying allegations were intended to 11 be considered as a separate theory of liability for Count Three. (Id.) Defendants argue 12 that the fact that they “included a catch-all argument if Plaintiff later asserted that the 13 bullying allegations were intended to fall within” Count Three does not mean that 14 Defendants’ meet-and-confer efforts failed to satisfy LRCiv 12.1(c). (Id.) Defendants 15 further argue that they actively took steps to remedy the alleged noncompliance with 16 LRCiv 12.1(c), offering to discuss the bullying allegations, agree to an extension of 17 Plaintiff’s response deadline, or agree to a stipulated amendment if Plaintiff could explain 18 how the amendment would cure the deficiencies in the FAC. (Id.) 19 Local Rule of Civil Procedure 12.1(c) provides: 20 No motion to dismiss for failure to state a claim or counterclaim, pursuant to Federal Rule of Civil Procedure 12(b)(6) . . . will be considered or decided unless 21 the moving party includes a certification that, before filing the motion, the movant notified the opposing party of the issues asserted in the motion and the parties 22 were unable to agree that the pleading was curable in any part by a permissible amendment offered by the pleading party. The movant may comply with this rule 23 through personal, telephonic, or written notice of the issues that it intends to assert in a motion. A motion that does not contain the required certification may be 24 stricken summarily. 25 Defendants included a LRCiv 12.1(c) certification with their Motion to Dismiss 26 (Doc. 6 at 2), and there is no dispute that Defendants notified Plaintiff of their intention to 27 move to dismiss Count Three and of the primary argument raised in the Motion to 28 Dismiss. Plaintiff’s Response (Doc. 8), the exhibit attached thereto (Doc. 8-1), and 1 Defendants’ Reply (Doc. 9) indicate that Defendants did not notify Plaintiff of all issues 2 asserted in their Motion to Dismiss, such as the arguments concerning Plaintiff’s bullying 3 allegations. However, given Defendants’ substantial compliance with LRCiv 12.1(c), 4 and given their attempts to remedy the situation after Plaintiff asserted non-compliance, 5 the Court does not find grounds to strike or refuse to consider Defendants’ Motion. 6 B. Equal Protection—Failure to Accommodate 7 Plaintiff’s FAC alleges that, by failing to offer Z.B. acceptable accommodations 8 for his disability, Defendants denied Z.B. equal access to classrooms and classes taught 9 on the School’s second floor, learning opportunities with his peers and teachers, recess 10 and play activities, a safe way to exit the building in the event of an emergency, school 11 facilities including the playground and fields, and school events including a race and 12 bookfair. (Doc. 4 at 4-13 ¶¶ 24, 40-41, 49-51, 54-55, 72-78, 82-83, 92-99, 101, 106-108, 13 110-113, and 124.) Defendants concede that Plaintiff’s FAC states claims for relief 14 under the ADA and the Rehabilitation Act, but they argue that Plaintiff’s allegations of 15 failure to accommodate his disability and provide accessible facilities do not, without 16 more, implicate equal protection concerns. (Doc. 6 at 7-10; Doc. 9 at 6-9.) Plaintiff 17 asserts that the FAC states a viable equal protection claim because it alleges that Z.B. was 18 disabled, that the individual Defendants denied him equal access to the School’s facilities 19 and programs, and that there was no rational relationship between the individual 20 Defendants’ treatment of Z.B. and a legitimate government purpose. (Doc. 8 at 11-16.) 21 The Ninth Circuit has held that “a plaintiff cannot bring an action under 42 U.S.C. 22 § 1983 against a State official in her individual capacity to vindicate rights created by 23 Title II of the ADA or section 504 of the Rehabilitation Act.” Vinson v. Thomas, 288 24 F.3d 1145 , 1156 (9th Cir. 2002). Here, however—unlike in Vinson—Plaintiff’s § 1983 25 claim is not explicitly premised on violations of the ADA or Rehabilitation Act; rather, 26 the claim is premised on an alleged violation of the Equal Protection Clause of the 27 Fourteenth Amendment. The Court assumes, without deciding, that neither the ADA nor 28 the Rehabilitation Act preclude a plaintiff from asserting an equal protection claim for 1 disability discrimination under § 1983. See Bullington v. Bedford Cnty., Tn., 905 F.3d 2 467, 478 (6th Cir. 2018) (holding ADA does not preclude a plaintiff from asserting an 3 equal protection claim for disability discrimination under § 1983). 4 The Equal Protection Clause of the Fourteenth Amendment requires states to treat 5 all similarly situated persons alike. Plyler v. Doe, 457 U.S. 202, 216 (1982). When a 6 classification “disadvantage[s] a suspect class” or “impinge[s] upon the exercise of a 7 fundamental right,” a state must demonstrate that the classification “has been precisely 8 tailored to serve a compelling governmental interest.” Id. at 216–17 (internal quotation 9 marks omitted). When neither a suspect class nor a fundamental right is at issue, a state’s 10 classification accords with the Equal Protection Clause so long as “there is a rational 11 relationship between the disparity of treatment and some legitimate governmental 12 purpose.” Heller v. Doe, 509 U.S. 312 , 319–20 (1993). 13 The disabled are not a suspect class for equal protection purposes, and 14 education—despite its importance—is not a fundamental right. Plyler, 457 U.S. at 223 15 (education not a fundamental right); Lee v. City of Los Angeles, 250 F.3d 668, 687 (9th 16 Cir. 2001) (disabled not a suspect class). Accordingly, in order to state an equal 17 protection claim, Plaintiff must show that Defendants’ actions lacked “a rational 18 relationship to a legitimate governmental purpose.” Tennessee v. Lane, 541 U.S. 509 , 19 522 (2004). To meet this burden, Plaintiff must “negative ‘any reasonably conceivable 20 state of facts that could provide a rational basis for the’” actions. Bd. of Trustees of Univ. 21 of Ala. v. Garrett, 531 U.S. 356, 367 (2001) (quoting Heller, 509 U.S. at 320 ). 22 It is unclear whether failure to make special accommodations for the disabled can 23 ever violate the Equal Protection Clause of the Fourteenth Amendment. The United 24 States Supreme Court has stated that “States are not required by the Fourteenth 25 Amendment to make special accommodations for the disabled, so long as their actions 26 toward such individuals are rational,” and that “[i]f special accommodations for the 27 disabled are to be required, they have to come from positive law and not through the 28 Equal Protection Clause.” Garrett, 531 U.S. at 367–68. This Court assumes, without 1 deciding, that a state’s irrational failure to provide special accommodations for the 2 disabled may violate the Equal Protection Clause, and thus that it is possible to state an 3 equal protection claim premised on failure to accommodate disability. However, even if 4 stating such a claim is possible, it is exceedingly difficult—as evidenced by the scarcity 5 of caselaw addressing such claims. 6 The first difficulty in stating such a claim is the requirement that a plaintiff 7 asserting an equal protection claim show that a government actor treated him “differently 8 from similarly situated individuals.” Gonzalez-Medina v. Holder, 641 F.3d 333, 336 (9th 9 Cir. 2011). Groups of individuals are similarly situated when their circumstances are “in 10 all relevant respects alike.” Nordlinger v. Hahn, 505 U.S. 1, 10 (1992). The “similarly 11 situated” analysis “focus[es] on factors of similarity and distinction pertinent” to the 12 government action at issue. Arizona Dream Act Coalition v. Brewer, 855 F.3d 957 , 967 13 (9th Cir. 2017). Here, the factual allegations of the FAC establish that Z.B. is not 14 similarly situated to non-mobility-impaired students in all relevant respects, because non15 mobility-impaired students can access the second floor and other school facilities without 16 special accommodations, and Z.B. cannot. Compare More v. Farrier, 984 F.2d 269 , 271 17 (8th Cir. 1993) (finding disabled prisoners similarly situated to non-disabled prisoners 18 with respect to in-cell cable television service because prison officials “would not have to 19 provide any special assistance” for disabled prisoners to watch television in their cells). 20 The second difficulty in stating a § 1983 equal protection claim premised on 21 failure to accommodate disability lies in the requirement that a plaintiff bears the burden 22 of negating “any reasonably conceivable state of facts that could provide a rational basis” 23 for the government actor’s differential treatment. Garrett, 531 U.S. at 367 (internal 24 quotation marks omitted). Plaintiff alleges in the FAC that “[t]here was no rational 25 relationship between the disparity of Defendants’ treatment of Z.B. and a legitimate 26 government purpose.” (Doc. 4 at 18 ¶ 173.) However, this is a legal conclusion that 27 need not be taken as true in evaluating Defendants’ Motion to Dismiss. See Iqbal, 556 28 U.S. at 678. Rational bases for Defendants’ actions—including the expense and time 1 required to repair the School’s elevator and otherwise render the school accessible to 2 wheelchair-bound students—are apparent from the face of the FAC. See Toledo v. 3 Sanchez, 454 F.3d 24 , 33–34 (1st Cir. 2006) (plaintiff failed to show school had no 4 rational bases for its alleged failure to accommodate his disability where the school’s 5 actions were rationally related to “budgetary constraints”); see also Lee v. City of Los 6 Angeles, 250 F.3d 668, 687 (9th Cir. 2001) (for purposes of equal protection claim, it is 7 insufficient for a plaintiff to allege that the defendants “knowingly or with deliberate 8 indifference to the rights of the . . . disabled adopted facially neutral policies of inaction 9 that have had a discriminatory impact on disabled persons”). 10 As conceded by Defendants, the allegations of the FAC implicate the ADA and 11 Section 504 of the Rehabilitation Act. They do not, however, state a § 1983 claim on 12 which relief can be granted for failure to accommodate disability in violation of the Equal 13 Protection Clause. The Court will dismiss Count Three to the extent it alleges failure to 14 provide equal access to school facilities and programs. 15 C. Equal Protection—Hostile Education Environment 16 Plaintiff also alleges in Count Three of the FAC that the individual Defendants 17 “failed to remediate Z.B.’s hostile education environment.” (Doc. 4 at 18 ¶ 170.) 18 Defendants argue that Plaintiff’s bullying allegations fail to state a viable equal protection 19 claim because Plaintiff does not allege that any of the individual Defendants treated him 20 differently from other students on the basis of his disability. (Doc. 6 at 10-11.) 21 Defendants further note that Plaintiff does not allege that Defendant Matyjasik or 22 Defendant Huie had any involvement with the Bialises’ reports of bullying. (Id. at 10.) 23 Plaintiff argues in response that the FAC states a viable claim arising from the individual 24 Defendants’ deliberate indifference to the peer-on-peer harassment experienced by Z.B. 25 because it alleges all Defendants were aware that Z.B.’s peers were bullying him as a 26 result of his disability, and all were deliberately indifferent. (Doc. 8 at 16-18.) Plaintiff 27 contends that he need not allege that each individual Defendant had direct involvement 28 with the situation in order to state a viable § 1983 claim. (Id. at 17.) 1 A public school official may violate the Equal Protection Clause by treating a 2 student’s complaints of harassment differently from other complaints of harassment. See 3 Flores v. Morgan Hill Unified Sch. Dist., 324 F.3d 1130 , 1135 (9th Cir. 2003). To 4 succeed on such a claim, a plaintiff must show that the defendant either “intentionally 5 discriminated” or that the defendant “acted with deliberate indifference” by 6 “‘respond[ing] to known peer harassment in a manner that is . . . clearly unreasonable.’” 7 Id. (quoting Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 649 (1999)). To state a § 8 1983 claim, a plaintiff must plead that each government-official defendant, through the 9 official’s own actions, violated the Constitution; vicarious liability is inapplicable. Iqbal, [10] 556 U.S. at 676 . 11 Here, Plaintiff has failed to adequately plead that Defendants Matyjasik and Huie 12 unreasonably responded to known peer harassment. The FAC’s allegations that the 13 Bialises complained of peer harassment to CFUSD or unnamed CFUSD officials, and the 14 vague allegation that “Defendants were notified” of bullying issues and failed to take 15 appropriate action, are insufficient to state a plausible claim that Matyjasik and Huie were 16 notified that Z.B. was being harassed by his peers and that they responded in a clearly 17 unreasonable manner. (See Doc. 4 at 5, 11 ¶¶ 39, 102-103.) Furthermore, the FAC’s 18 allegation that Kamerzell told Mulay to intervene when harassing behavior was reported 19 is insufficient to show that Kamerzell responded to known peer harassment in a manner 20 that is clearly unreasonable. (See id. at 12-13 ¶ 119.) Finally, the FAC’s allegation that 21 the Bialises emailed Bartlett to report that Z.B.’s peers were chastising him due to his 22 disability and that “the District failed to remediate th[e] issue or otherwise meaningfully 23 respond” is too vague to show that Bartlett unreasonably responded to known peer 24 harassment. (See id. at 12 ¶¶ 116-117.) Accordingly, the Court will dismiss Defendants 25 Matyjasik, Huie, Kamerzell, and Bartlett to the extent the FAC alleges they violated the 26 Equal Protection Clause through deliberate indifference to known peer harassment. 27 However, the Court finds that the FAC states a § 1983 equal protection claim 28 against Mulay premised on deliberate indifference to known peer harassment. Plaintiff 1 alleges that Z.B. was openly mocked and ridiculed by his peers due to his disability and 2 due to Mulay’s proposal that he “butt scoot” up and down the stairs. (Doc. 4 at 5 ¶¶ 373 38.) Plaintiff further alleges that Mulay was notified by both the Bialises and Z.B.’s 4 teacher of the ongoing peer harassment experienced by Z.B. (Id. at 5, 12 ¶¶ 39, 116, 5 118.) Despite being on notice of the harassment, when Mulay was told by Kamerzell to 6 intervene in the same manner that school officials would respond to any other type of 7 harassment, Mulay falsely reported that nothing was actually said to Z.B. (Id. at 12-13 ¶¶ 8 116-120.) Taking these allegations as true, Plaintiff has plausibly alleged that Mulay 9 responded unreasonably to known peer harassment. 10 D. Leave to Amend 11 Plaintiff requests leave to amend the FAC if the Court is persuaded by any of 12 Defendants’ arguments. (Doc. 8 at 18.) Defendants argue that this Court should dismiss 13 without leave to amend because Plaintiff has failed to cure the deficiencies with Count 14 Three despite a previous amendment, and because any amendment attempting to raise an 15 equal protection claim would be futile. (Doc. 9 at 11.) 16 It is possible that Plaintiff could state a viable equal protection claim against the 17 individual Defendants through the allegation of other facts. See Eminence Capital, LLC 18 v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) (“Dismissal with prejudice and 19 without leave to amend is not appropriate unless it is clear . . . that the complaint could 20 not be saved by amendment.”). Furthermore, Defendants’ failure to notify Plaintiff of all 21 issues raised in their pending Motion to Dismiss during the parties’ meet-and-confer 22 discussions provides further justification for allowing amendment. Accordingly, the 23 Court will grant leave to amend. 24 IT IS ORDERED that Defendants’ Partial Motion to Dismiss (Doc. 6) is granted 25 in part and denied in part. The Motion is denied to the extent it seeks dismissal of the 26 portion of Count Three asserting a 42 U.S.C. § 1983 claim against Defendant Dana 27 Mulay premised on deliberate indifference to known peer harassment in violation of the 28 Equal Protection Clause. The Motion is otherwise granted. 1 IT IS FURTHER ORDERED that Count Three of the First Amended Complaint 2|| is dismissed without prejudice to the extent that (1) it asserts that Defendants violated || the Equal Protection Clause by failing to make the Ventana Vista Elementary School’s 4|| facilities and programs equally accessible to Z.B; and (2) to the extent it alleges that || Defendants Erin Matyjasik, Doug Huie, Mary Kamerzel, and Denise Bartlett were 6|| deliberately indifferent to known peer harassment of Z.B. Defendants Matyjasik, Huie, 7\| Kamerzel, and Bartlett are dismissed without prejudice. 8 IT IS FURTHER ORDERED that Plaintiff may file an amended complaint 9|| curing the deficiencies addressed in this Order within thirty (30) days of the date this Order is filed. If Plaintiff fails to timely file an amended complaint, this case will 11 || proceed on Counts One, Two, and Four of the FAC asserted against Defendant Catalina 12 || Foothills Unified School District No. 16, and on the portion of Count Three of the FAC 13 || asserted against Defendant Dana Mulay alleging deliberate indifference to known peer 14|| harassment in violation of the Equal Protection Clause of the Fourteenth Amendment. 15 Dated this 7th day of December, 2023. [17] 8 ph baer, [19] Honorable Rostehary Mafquez 20 United States District □□□□□ [28] -14-