C.C. v. Paradise High School

[7] 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA [10] 11 C.C., No. 2:16-cv-02210-KJM-DMC 12 Plaintiffs, 13 v. ORDER 14 PARADISE HIGH SCHOOL, 15 Defendants. [16] 17 The parties’ cross-motions for summary judgment are before the court. ECF Nos. 18 37, 42. Each party has filed an opposition, ECF Nos. 55, 56, and a reply, ECF Nos. 59, 61. On 19 October 19, 2018, the court heard oral argument on the motions. ECF No. 64. For the reasons set 20 forth below, plaintiff’s motion is DENIED, and defendant’s motion is GRANTED. 21 I. BACKGROUND 22 A. Factual Disputes and Evidentiary Objections 23 The following facts are undisputed unless otherwise stated. Where a genuine 24 dispute exists, the court draws reasonable inferences in favor of the non-moving party. Tolan v. 25 Cotton, 134 S. Ct. 1861, 1868 (2014). This is true even where cross-motions are filed, as each 26 motion must be considered on its own merits. Nat’l Grange of the Order of Patrons of 27 Husbandry v. California State Grange, 115 F. Supp. 3d 1171, 1177 (E.D. Cal. 2015), aff’d, 715 28 F. App’x 747 (9th Cir. 2018). Parties may object to the evidence cited by another party to prove 1 the undisputed facts. In re Oracle Corp. Sec. Litig., 627 F.3d 376 , 385–86 (9th Cir. 2010). But 2 the evidentiary admission standard at summary judgment is lenient: A court may evaluate 3 evidence in an inadmissible form if the evidentiary objections could be cured at trial. See Burch 4 v. Regents of the Univ. of Cal., 433 F. Supp. 2d 1110 , 1119–20 (E.D. Cal. 2006). “Admissibility 5 at trial” depends not on the evidence’s form, but on its content. Block v. City of L.A., 253 F.3d 6 410, 418–19 (9th Cir. 2001) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). Here, 7 the court notes and reviews objections, if relevant, as they arise. 8 B. Factual and Procedural Background 9 At all times relevant to this dispute, plaintiff (“C.C.”) was a minor, diagnosed with 10 Attention Deficit Disorder (“ADD”). Compl. ¶ 5, ECF No. 1; Defs.’ Undisp. Fact (“DF”) 1, 3, 11 ECF No. 37-2. In 2014, while attending Santa Rosa High School, C.C. was placed on a 12 specialized education program (“504 plan”) to accommodate his individual education needs in 13 light of his ADD. DF 5. C.C.’s 504 plan was entirely academic in nature, and contained no 14 component ensuring social integration. DF 6. While he was a freshman at Santa Rosa High 15 School, C.C.’s family abruptly moved to Paradise, California, and he began attending Paradise 16 High School toward the end of that same school year. DF 8, 9. Although C.C. is unable to 17 accurately recall, there are no records showing incidents of bullying or abuse involving C.C. 18 during the remainder of his freshman year at Paradise High. DF 10; Pl.’s Resp. to Undisp. Fact 19 (“PDF”) ¶ 10, ECF No. 56-1. On August 17, 2015, C.C., his mother and school officials attended 20 a meeting to develop a 504 plan to aid C.C. throughout his time at Paradise High. DF 11. The 21 504 plan contained two accommodations: (1) that his notes be reviewed to ensure he remained 22 organized, and (2) that he be permitted extra time to complete classwork when necessary and 23 when requested. DF 12. Neither C.C. nor his mother asked the school to make additional 24 accommodations with respect to social or extracurricular activities. DF 15. Both reviewed and 25 signed the 504 plan. DF 14. 26 While at Paradise High, C.C. became friendly with two fellow classmates: Faith 27 George and Justin Hoskins. DF 16. C.C. contends Justin was aware he suffered from a blood 28 clotting disorder and assaulted him on at least one occasion prior to the underlying incident. Pl.’s 1 Undisp. Fact (“PF”) 3, ECF No. 42-2; Defs.’ Resp. to Undisp. Fact 3 (“DPF”), ECF No. 55-3. 2 On August 28, 2015, the three classmates attended a football game at Paradise High. DF 17. The 3 school supplied four individuals to supervise the game. PF 22. During the game, Justin punched 4 C.C. in the head more than once, breaking his nose and allegedly rendering him unconscious. PF 5 6; DPF 6. The attack was caused, at least in part, by Justin’s jealousy stemming from C.C.’s 6 relationship with Faith. DF 23. 7 On September 16, 2016, C.C. sued defendants Paradise High School and Paradise 8 Unified School District (collectively “defendants”), seeking damages under Title II of the 9 Americans with Disabilities Act (“ADA”) of 1990, and § 504 of the Rehabilitation Act of 1973. 10 ECF No. 1. Defendants move for summary judgment on both claims. ECF No. 37. C.C. moves 11 for partial summary judgment as to liability only. ECF No. 42. The parties filed oppositions and 12 replies. ECF Nos. 55, 56, 59, 61. 13 II. LEGAL STANDARD 14 A court will grant summary judgment “if . . . there is no genuine dispute as to any 15 material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). 16 The “threshold inquiry” is whether “there are any genuine factual issues that properly can be 17 resolved only by a finder of fact because they may reasonably be resolved in favor of either 18 party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). 19 In determining summary judgment, a court uses a burden-shifting scheme. The 20 moving party must first satisfy its initial burden, which requires “com[ing] forward with evidence 21 which would entitle it to a directed verdict if the evidence went uncontroverted at trial.” C.A.R. 22 Transp. Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474 , 480 (9th Cir. 2000) (citation and 23 quotation marks omitted). If the moving party fails to meet its initial burden, summary judgment 24 must be denied and the court need not consider the nonmoving party’s evidence. See Adickes v. 25 S.H. Kress & Co., 398 U.S. 144 (1970). If the moving party meets its initial burden, however, the 26 burden then shifts to the nonmoving party, which “must establish that there is a genuine issue of 27 material fact.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585 (1986). To 28 carry their burdens, both parties must “cit[e] to particular parts of materials in the record . . .; or 1 show [ ] that the materials cited do not establish the absence or presence of a genuine dispute, or 2 that an adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 3 56(c)(1); see also Matsushita, 475 U.S. at 586 (“[The nonmoving party] must do more than 4 simply show that there is some metaphysical doubt as to the material facts.”). Moreover, “the 5 requirement is that there be no genuine issue of material fact . . . . Only disputes over facts that 6 might affect the outcome of the suit under the governing law will properly preclude the entry of 7 summary judgment.” Anderson, 477 U.S. at 247–48. 8 In deciding summary judgment, the court draws all inferences and views all 9 evidence in the light most favorable to the nonmoving party. Matsushita, 475 U.S. at 587–88; 10 Whitman v. Mineta, 541 F.3d 929, 931 (9th Cir. 2008). “Where the record taken as a whole could 11 not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for 12 trial.’” Matsushita, 475 U.S. at 587 (quoting First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 13 U.S. 253 , 289 (1968)). The Supreme Court has taken care to note that district courts should act 14 “with caution in granting summary judgment,” and have authority to “deny summary judgment in 15 a case where there is reason to believe the better course would be to proceed to a full trial.” 16 Anderson, 477 U.S. at 255. 17 III. ANALYSIS 18 A. C.C.’s Motion for Partial Summary Judgment 19 C.C. moves for summary judgment on the issue of liability for Claim One under 20 Title II of the ADA, and Claim Two under § 504 of the Rehabilitation Act. Because both claims 21 are evaluated under a single framework, discussed below, they are addressed in unison. 22 1. ADA and Rehabilitation Claims 23 Title II of the ADA provides, in pertinent part: “[N]o qualified individual with a 24 disability shall, by reason of such disability be excluded from participation in or be denied the 25 benefits of the services, programs, or activities of a public entity, or be subjected to 26 discrimination by any such entity.” 42 U.S.C. § 12132 . Similarly, § 504 of the Rehabilitation 27 Act provides: “No otherwise qualified individual with a disability . . . shall, solely by reason of 28 her or his disability, be excluded from the participation in, be denied the benefits of, or be 1 subjected to discrimination under any program or activity receiving Federal financial assistance.” [2] 29 U.S.C. § 794 . For purposes of the analysis required here, the court treats the two statutory 3 texts as one, and evaluates the claims under a single analytical framework. Zukle v. Regents of 4 University of California, 166 F.3d 1041 , 1045 n.11 (9th Cir. 1999). To prevail under Title II of 5 the ADA or § 504, a plaintiff must show: “(1) [he] is a qualified individual with a disability; 6 (2) [he] was denied a reasonable accommodation that [he] needs in order to enjoy meaningful 7 access to the benefits of public services; and (3) the program providing the benefit receives 8 federal financial assistance.” A.G. v. Paradise Valley Unified Sch. Dist. No. 69, 815 F.3d 1195 , 9 1204 (9th Cir. 2016) (quotations omitted). 10 Whether or not plaintiff satisfies the second prong, reasonable accommodation, is 11 the greatest source of contention here, as discussed in more detail below. Prong two can be 12 satisfied in one of two ways: (1) “by showing that the federally funded program denied [C.C.] 13 services that [he] needed to enjoy meaningful access to the benefits of a public education and that 14 were available as reasonable accommodations,” or (2) “by showing that the program denied [him] 15 meaningful access to public education through another means, such as by violating a regulation 16 that implements section 504’s prohibitions.” Id. In other words, C.C. must show the school 17 either denied an accommodation request it should not have, or failed to comply with a regulation 18 it should have. 19 a) Prongs One and Three: Qualified Individual and Federally Funded Program [20] 21 Here, prongs one and three of the ADA and § 504 analysis are not materially 22 disputed. The ADA defines a qualified individual as someone with a “disability who . . . meets 23 the essential eligibility requirements for the receipt of services or the participation in programs or 24 activities provided by a public entity.” 42 U.S.C. § 12131 (2). A public entity, as pertinent here, 25 is defined as “any department, agency, special purpose district, or other instrumentality of a State 26 or States or local government.” Id. § 12131(1)(B). [28] 1 As relevant to this case, C.C. was diagnosed with ADD in elementary school. DF 2 3. His ADD triggered the need for a 504 plan at both Santa Rosa High and Paradise High. DF 5, 3 12. C.C. also claims he suffers from a blood-clotting disorder. ECF No. 42-1 at 5. Defendants, 4 however, object to the assertion that C.C.’s qualifying disability is based on a blood-clotting 5 disorder, rather than ADD alone. ECF No. 55-3 at 2. Because C.C.’s ADD diagnosis is 6 undisputed, and the complaint’s only reference to a qualifying disability is to ADD, Compl. ¶¶ 5, 7 11, the court need only consider ADD as the qualifying disability in its analysis. This distinction, 8 however, has no material influence on the outcome of the underlying motions. Therefore, 9 because C.C.’s ADD falls within the statutory definition, and there is no dispute as to whether 10 ADD is a qualifying disability, the first prong is satisfied on that basis alone. Similarly, the third 11 prong is satisfied because Paradise High and Paradise Unified School District (“PUSD”) are 12 public entities in receipt of federal funding. PF 19, 20.1 13 b) Prong Two: Reasonable Accommodation 14 Of the two ways the reasonable accommodation prong can be satisfied, C.C. 15 chooses to pursue the latter: “by showing that the program denied [him] meaningful access to 16 public education . . . by violating a regulation that implements section 504’s prohibitions.” ECF 17 No. 42-1 at 6–8; Paradise Valley, 815 F.3d at 1204 . C.C. does not claim he made an affirmative 18 accommodation request for supervision based on his susceptibility to bullying; rather, he claims 19 that “Dear Colleague Letters,”2 issued by the U.S. Department of Education in 2013 and 2014, set 20 forth comprehensive guidelines for preventing bullying of children with disabilities, and [21] 22 1 Defendants object to the internet links provided by C.C. to support the assertion that Paradise High and PUSD are eligible public entities. ECF No. 55-3 at 11. As provided by 23 Federal Rule of Evidence 201(b), the court, sua sponte, takes judicial notice of the following websites provided by C.C. and finds that they provide credible support for the assertion: [24] http://phs.pusdk12.org/About-Us/index.html; http://www.pusdk12.org/About-Us/index.html; 25 https://www.cde.ca.gov/nr/ne/yr17/yr17rel22.asp. See Gerritsen v. Warner Bros. Entm’t Inc., 112 F. Supp. 3d 1011, 1033 (C.D. Cal. 2015) (“[P]ublic records and government documents available 26 from reliable sources on the Internet, such as websites run by governmental agencies” are frequently subject to judicial notice). [27] 28 2 “Dear Colleague Letters” are explained in detail below. 1 defendants’ failure to comply with those guidelines constitutes a regulatory violation, satisfying 2 the reasonable accommodation prong. See ECF No. 42-1. Specifically, C.C. identifies two 3 preventative measures defendants failed to follow: (1) adequate supervision at extracurricular 4 events, and (2) monitoring bullying incidents involving disabled students. Id. at 7. These 5 failures, C.C. argues, coupled with the general vulnerability of students with disabilities, 6 demonstrate defendants’ failure to provide a reasonable accommodation. Id. at 8. Further, C.C. 7 avers that defendants’ actual knowledge of the need for an accommodation is irrelevant if it is 8 clear defendants failed to comply with an applicable regulation, which amounts to putting 9 defendants on notice of an “obvious” accommodation need. Id. at 9. 10 Defendants oppose, arguing there must be a sufficient nexus between the 11 qualifying disability and the harm sustained. ECF No. 55 at 5–8. Further, in their reply, 12 defendants assert that Dear Colleague Letters are not regulations, do not equate to an obvious 13 accommodation need, and C.C.’s liability claims under the ADA and § 504 are merely veiled 14 claims for denial of a free appropriate public education (“FAPE”) under the Individuals with 15 Disabilities Education Act (“IDEA”), even though plaintiff has not relied on that statute. ECF 16 No. 59 at 4–7 (referencing Act found at 20 U.S.C. § 1400 et seq.). 17 C.C. may satisfy the reasonable accommodation prong “by showing there was a 18 ‘violation of one of the regulations implementing’ section 504, if such violation denied the 19 plaintiff meaningful access to a public benefit.” Paradise Valley, 815 F.3d at 1204 (quoting Mark 20 v. Hamamoto, 620 F.3d 1090, 1096 (9th Cir. 2010)). But a regulation may only be enforced if it 21 “‘authoritatively construe[s]’ the statute; regulations that go beyond a construction of the statute’s 22 prohibitions do not fall within the implied private right of action, even if valid.” Id. At 1204–05 23 (quoting Alexander v. Sandoval, 532 U.S. 275, 284 (2001)). 24 A Dear Colleague Letter is a guidance document issued by a government agency 25 providing insight into that agency’s interpretation or application of a particular statute, regulation 26 or rule. See, e.g., Sterrett v. Cowan, 85 F. Supp. 3d 916, 937 (E.D. Mich. 2015) (“[A] ‘Dear 27 Colleague’ letter is a guidance document issued by the U.S. Department of Education pursuant to [28] 1 its regulatory authority under 72 Fed. Reg. 3432 .”3), vacated on other grounds, No. 2:14-CV2 11619, 2015 WL 13719720 (E.D. Mich. Sept. 30, 2015); see also Xiaolu Peter Yu v. Vassar Coll., [3] 97 F. Supp. 3d 448 , 462 n.7 (S.D.N.Y. 2015) (defining Dear Colleague Letter as a “significant 4 guidance document” as issued by the Office of Management and Budget); Doe v. Univ. of 5 Arkansas-Fayetteville, No. 5:18-CV-05182, 2019 WL 1493701 , at *1 n.2 (W.D. Ark. Apr. 3, 6 2019) (“A ‘Dear Colleague Letter’ is a guidance document . . . intended to inform schools of how 7 the Office of Civil Rights evaluates whether they are complying with their Title IX obligations.”) 8 (citation omitted). 9 In J.M. v. Dep’t of Educ., State of Hawai’i, the district court specifically addressed 10 the question of what weight Dear Colleague Letters should be afforded within the regulatory 11 framework: 12 This Court is not aware of any Ninth Circuit case addressing what, if any, weight courts should give to the OCR’s4 Dear Colleague 13 letters. This Court therefore CONCLUDES that the OCR’s 10/21/14 Dear Colleague Letter is merely aspirational. Because the 14 10/21/14 Dear Colleague Letter is merely aspirational and the responses to bullying described in the letter merely provide 15 guidance for schools, not requirements, this Court does not reach the issue of whether the DOE substantially complied with the eight 16 responses described in the letter. [17] 224 F. Supp. 3d 1071, 1079 (D. Haw. 2016), aff’d sub nom. J.M. by & through Mandeville v. 18 Matayoshi, 729 F. App’x 585 (9th Cir. 2018), and overruled on other grounds by R.E.B. v. State 19 of Hawaii Dep’t of Educ., 870 F.3d 1025 (9th Cir. 2017). Although J.M. addressed claims under 20 the IDEA, the reasoning remains consistent with the Supreme Court’s general treatment of 21 agency guidance letters, such as Dear Colleague Letters. [22] 23 3 72 Fed. Reg. 3432 -01 provides, in pertinent part: “The Office of Management and Budget (OMB) is publishing a final Bulletin entitled, “Agency Good Guidance Practices,” which [24] establishes policies and procedures for the development, issuance, and use of significant guidance 25 documents by Executive Branch departments and agencies. This Bulletin is intended to increase the quality and transparency of agency guidance practices and the significant guidance documents 26 produced through them.” Final Bulletin for Agency Good Guidance Practices, 72 FR 3432 -01. [27] 4 “OCR” refers to the United States Department of Education, Office for Civil Rights. 28 J.M., 224 F. Supp. 3d at 1079 . 1 The general rule regarding an agency’s authority to interpret statutory provisions 2 stems from the seminal case of Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc.: “We have 3 long recognized that considerable weight should be accorded to an executive department’s 4 construction of a statutory scheme it is entrusted to administer, and the principle of deference to 5 administer interpretations.” 467 U.S. 837, 844 (1984). But the deference accorded an agency 6 interpretation assumes a rigorous process by which the agency determines a question of statutory 7 construction and produces a result carrying the force of law. See 5 U.S.C. § 553 (providing 8 rulemaking procedures under the Administrative Procedure Act). A guidance letter, such as a 9 Dear Colleague Letter, is afforded no such deference because it is not the product of this rigorous 10 process, but rather is issued by an Agency head to provide information regarding a particular 11 regulation or statutory directive. See Christensen v. Harris Cty., 529 U.S. 576, 587 (2000) 12 (“Interpretations such as those in opinion letters—like interpretations contained in policy 13 statements, agency manuals, and enforcement guidelines, all of which lack the force of law—do 14 not warrant Chevron-style deference . . . . Instead, interpretations contained in formats such as 15 opinion letters are entitled to respect.”) (internal quotations omitted). 16 The Dear Colleague Letters here are not formal regulations, and they otherwise 17 lack the force of law. Therefore, the letters themselves cannot satisfy the reasonable 18 accommodation prong. A brief examination of the Dear Colleague Letters underscores this point. 19 For example, the 2013 letter includes an enclosure that lists best practices to prevent bullying of 20 students with disabilities; C.C. relies on two of these best practices to support the argument that a 21 violation occurred here. ECF No. 51 at 54–64. But as the letter describes, “[t]here is no one-size22 fits-all or simple solution for addressing bullying behavior.” Id. at 58. And “[w]hen deciding 23 which strategy . . . to use . . . each school needs to consider the relevant factors given its school 24 environment, students’ social and cognitive development, and the evidence on programmatic 25 prevention and intervention.” Id. It is evident the Dear Colleague Letters are meant to aid 26 schools in bullying prevention, but are not regulatory in their effect, demanding strict compliance. 27 The reasonable accommodation prong cannot be satisfied by violation of mere best-practice 28 recommendations. Cf. Paradise Valley, 815 F.3d at 1204–06 (remanding on issue of meaningful 1 access where plaintiffs claimed violation of two specific regulations: 34 C.F.R. § 103.33 (b)(1) 2 and 34 C.F.R. § 104.34 (a)). 3 Because the Dear Colleague Letters do not support a claim of regulatory violation, 4 to prevail on summary judgment here C.C. must show a violation of an existing regulatory 5 scheme. He does not make the required showing. C.C. does reference the Code of Federal 6 Regulation, but only in the context of pointing to an overarching framework. See ECF No. 42 at 7 4 (citing 28 C.F.R. § 35.190 (b)(2), § 35.149, and 45 C.F.R. § 84.37 ). These references merely 8 support the general notion that defendants must provide accommodations to disabled students 9 when necessary, including during extracurricular activities. The balance of C.C.’s factual 10 evidence also is thin. First, C.C. relies on a vague reference in a police report to an altercation 11 with Justin at school in which Justin hit him on the shoulder. ECF No. 51 at 5. Second, C.C. 12 claims having only four individuals supervising the football game violates the recommended 13 practice of providing “active adult supervision.” ECF No. 42-1 at 8; ECF No. 42-2 at 5; ECF No. 14 51 at 60. Finally, C.C. argues that by not distinguishing disability-related bullying incidents from 15 non-disability related incidents, defendants violated the recommended practice of “[m]onitor[ing] 16 and track[ing] bullying behaviors.” ECF No. 42-1 at 8; ECF No. 42-2 at 5; ECF No. 51 at 62. 17 These arguments are insufficient to meet C.C.’s burden to justify summary 18 judgment in his favor, and, as described below, are also insufficient to defeat defendants’ 19 summary judgment motion. First, assuming the police report’s contents would be admitted over a 20 defense objection at trial, its vague reference to a prior “altercation” between C.C. and Justin does 21 nothing to establish defendants were on notice of C.C.’s need for accommodation: “[He] had been 22 bothering [Faith] and [C.C.] because he was jealous and had threatened to assault [C.C.].” ECF 23 No. 51 at 5. C.C. makes no claim the incident was reported to the school, the school became 24 aware of the incident in any way, or the school had the opportunity to record or investigate the 25 incident, and defendants deny they ever became aware of the alleged adversarial history between 26 C.C. and Justin. See ECF No. 55 at 7 (citing C. C. Depo. 84:5–13, ECF No 37-5 at 4). While 27 C.C. may have a good faith belief the incident made his need for accommodation obvious, 28 defendants cannot be expected to respond to an issue they did not know existed. See Doe v. 1 Galster, 768 F.3d 611 , 617–18 (7th Cir. 2014) (“School administrators . . . cannot escape liability 2 by putting their heads in the sand . . . The standard [however] is actual knowledge. School 3 administrators have actual knowledge only of the incidents that they witness or that have been 4 reported to them.”) (citations omitted). Second, although a Dear Colleague Letter encourages 5 adequate adult supervision, it does not prescribe an ideal supervisor-to-student ratio such that a 6 failure to adhere to that ratio constitutes a failure to follow best practices that in any event have 7 no regulatory heft. The Letter’s generalized advice is consistent with its observation that there is 8 “no one-size-fits-all or simple solution for addressing bullying behavior.” ECF No. 51 at 58. 9 Similarly, C.C.’s argument that defendants’ failure to distinguish bullying incidents constitutes a 10 regulatory violation is inconsistent with the letter’s general premise that bullying should be 11 addressed through “a comprehensive, multitiered behavioral framework used to establish a 12 positive school environment,” not strict compliance with a list of best-practices. Id. Notably, 13 C.C. provides no evidence showing that defendants did not follow any of the other recommended 14 practices. See generally ECF No. 42. Under this reasoning, it follows that adherence to many, 15 but not all, of the recommended practices would still constitute compliance, if such compliance 16 were required, which it is not. Finally, C.C. provides no evidence showing how the adults 17 supervising the football game on August 28, 2015, executed their duties that night; even if the 18 need for accommodation were clear, there is no evidence for the court to assess in determining 19 whether there is an absence of material factual dispute regarding the adequacy of that supervision. 20 In sum, C.C. has not established that there is no triable issue of fact such that he 21 prevails on liability. In particular, C.C. fails to show defendants violated an applicable regulation, 22 putting them on notice of C.C.’s need for a reasonable accommodation. As such, an essential 23 prong of ADA and § 504 analysis is not met. 24 2. Deliberate Indifference 25 Even if C.C. were to satisfy all elements under the ADA and § 504, he also does 26 not clear the additional hurdle of deliberate indifference required for an award of damages under 27 Title II and § 504. Paradise Valley, 815 F.3d at 1204 . “Deliberate indifference requires both 28 knowledge that a harm to a federally protected right is substantially likely, and a failure to act 1 upon that [] likelihood.” Duvall v. Cty. of Kitsap, 260 F.3d 1124 , 1139 (9th Cir. 2001), as 2 amended on denial of reh’g (Oct. 11, 2001). 3 If the Dear Colleague Letter were to satisfy the accommodation prong of ADA and 4 § 504 analysis, then the first prong of the deliberate indifference analysis would be satisfied. See 5 Duvall, 260 F.3d at 1139 (“[W]here the need for accommodation is obvious, or required by 6 statute or regulation[], the public entity is on notice that an accommodation is required, and the 7 plaintiff has satisfied the first element of the deliberate indifference test.”). 8 The second prong sets a higher hurdle. “In order to meet the second element of the 9 deliberate indifference test, a failure to act must be a result of conduct that is more than negligent, 10 and involves an element of deliberateness.” Id. It is not enough for C.C. to show defendants 11 merely failed to act, by commission or omission; he must show defendants possessed the requisite 12 “mens rea of intentional discrimination” in their failure to accommodate. Paradise Valley, 815 13 F.3d at 1204 (emphasis in original and quotations omitted). Here, C.C. presents no such 14 evidence. In his motion, C.C. claims students with disabilities are generally susceptible to 15 bullying and the Dear Colleague Letter put defendants on constructive notice of C.C.’s need for 16 specialized accommodation to prevent bullying. ECF No. 42-1 at 9. Even assuming the Dear 17 Colleague Letter provided constructive notice of a generalized best practice, that notice alone 18 cannot establish the recipient of the Letter’s per se discriminatory animus; there must be a factual 19 foundation for the recipient’s knowing that bullying behavior is prompted by a disability. See 20 Wormuth v. Lammersville Union Sch. Dist., 305 F. Supp. 3d 1108, 1125 (E.D. Cal. 2018) (“[A] 21 plaintiff . . . does not state a claim under the ADA and Section 504 absent some factual allegation 22 linking the disability and the bullying. To hold otherwise would convert the ADA and 23 Rehabilitation Act into generalized anti-bullying statutes.”) (quoting Eskenazi–McGibney v. 24 Connetquot Cent. Sch. Dist., 84 F. Supp. 3d 221, 233 (E.D.N.Y. 2015)). 25 C.C.’s counsel also argues defendants “knew—after the first assault—that our 26 client was being harassed on the basis of his disability.” ECF No. 42-1 at 9. To support this 27 assertion, C.C. cites the August 28, 2015 police report in which he informed the investigating 28 officer that he “told [redaction] about the disorder several days prior to the assault because 1 [redaction] had hit him on the shoulder during school.” ECF No. 51 at 5. This report, C.C. 2 claims, combined with information in a database defendants maintained of bullying incidents, 3 shows that defendants knew about C.C.’s vulnerable position before the August 28, 2015 attack; 4 thus, their failure to provide adequate accommodations to prevent bullying amounts to deliberate 5 indifference. ECF No. 42-1 at 9–10. The evidence to which plaintiff points, however, taken as 6 true, does not show defendants were informed of the purported “first assault.” As noted above, 7 the police report does not reflect that C.C. told the school about the shoulder-hitting incident, nor 8 does C.C.’s testimony. At deposition, C.C. said the opposite: 9 Q: Do you claim that you went to somebody at the school before this [football game] altercation happened and that you told them, 10 hey I need more protection, I’m worried about my protection or whatever protection you’re providing is not enough before the 11 altercation; you didn’t have any conversations like that with the school, did you? [12] A: No, I did not. [13] 14 C. C. Depo. 81:6-13. As for the database of bullying incidents, C.C. cites the admission in a letter 15 from defense counsel, that defendants “keep records of incidents of violence for use in the 16 completion of mandatory and public reports”; but this generalized statement does not support the 17 conclusion that defendants were actually informed of or made a record of the first incident when 18 Justin hit C.C. Ayres Letter, ECF No. 51 at 52.5 19 The state of the record does not satisfy the clear notice standard required before 20 liability attaches in ADA-bullying cases. Cf. S.S. v. Eastern Kentucky University, 532 F.3d 445 21 (6th Cir. 2008) (granting defendants’ summary judgment where evidence of active school 22 response and investigation following numerous peer-on-peer harassment complaints); Estate of 23 Lance v. Lewisville Independent School Dist., 743 F.3d 982 (5th Cir. 2014) (no deliberate 24 indifference where district exhibited pattern of timely response to student’s reported bullying 25 incidents); K.R.S. v. Bedford Cmty. Sch. Dist., 109 F. Supp. 3d 1060, 1080 (S.D. Iowa 2015) 26 (plaintiff who suffered from ADD survived summary judgment by presenting evidence of [27] 5 Defendants object to the admissibility of the Ayres letter based on hearsay and lack of 28 foundation. ECF No. 55-1 at 2. 1 pervasive bullying and harassment, including getting pelted in head by members of football team, 2 created factual dispute as to whether the school was actually aware of the bullying); see also 3 Zdrowski v. Rieck, 119 F. Supp. 3d 643, 669 (E.D. Mich. 2015) (“Plaintiff has not proffered any 4 evidence that [student] was harassed based on his disability. Indeed, whether the other young 5 students even knew that [student] was disabled is unclear at best.”). C.C. has not shown the 6 absence of genuine dispute of material fact as to defendants’ deliberate indifference such that he 7 can prevail on his motion. 8 In evaluating plaintiff’s evidence, the court notes the Declaration of Dr. Preston 9 Gelhart filed in support of C.C.’s summary judgment reply. See ECF No. 62. This declaration is 10 untimely under Local Rule 230(d), providing that replies are due not less than seven days prior to 11 hearing. Even if timely filed, Dr. Gelhart’s declaration does not affect the weight of evidence to 12 create a triable issue. First, although Dr. Gelhart opines that the school district breached 13 “Federal, State and Case Law” and “knew or should have known that [C.C.] was subject to the 14 risk of assault,” ECF No. 62 at 4, the court need not accept as true the conclusory testimony of a 15 purported expert witness where there are no facts as here to support such assertions. See Fed. R. 16 Evid. 704; see also United States v. Various Slot Machs. on Guam, 658 F.2d 697, 699 (9th Cir. 17 1981) (“[I]n the context of a motion for summary judgment, an expert must back up his opinion 18 with specific facts.”). Second, even if the court accepted Dr. Gelhart’s testimony as true, he does 19 not point to specific facts establishing defendants were actually aware of C.C.’s need for 20 extracurricular accommodations. Dr. Gelhart’s declaration merely sets out a number of legal 21 conclusions that mirror the arguments contained in C.C.’s summary judgment and opposition 22 papers, and, in part, address legal theories not at issue, such as negligence, in this case. See, e.g., 23 ECF No. 62 at 3–4 (“The identified absence of ordinary supervision . . . was a breach of Federal, 24 State, and Case Law.”; “[Defendants] were deliberately indifferent to his need for special 25 education classes [and in] recognizing a previous bullying incident”; “there is an affirmative duty 26 on the school district to take all reasonable steps to protect its students”). 27 In light of the foregoing, C.C.’s motion for partial summary judgment is DENIED 28 in full. 1 B. Defendants’ Motion for Summary Judgment 2 Defendants move for summary judgment claiming the undisputed facts defeat, as a 3 matter of law, a finding of intentional discrimination because there is no evidentiary support 4 defendants knowingly and intentionally denied C.C. an accommodation he was entitled. ECF No. 5 37-1. Defendants also urge summary judgment because the second prong of ADA and § 504 6 analysis is not satisfied given that noncompliance with a Dear Colleague Letter does not 7 constitute a regulatory violation, and C.C. cannot show his need for accommodation was obvious. 8 ECF No. 59. 9 In opposition, C.C. maintains his position that deliberate indifference is established 10 through a “wanton disregard for (1) departmental regulations addressing harassment of students 11 with disabilities and (2) obvious areas of the school where bullying frequently occurs.” ECF No. 12 56. C.C. points here as well to the Dear Colleague Letters to show the school was under an 13 obligation to adhere to the recommended bullying-prevention principles, those principles put the 14 school on constructive notice that C.C. was susceptible to bullying, and because the first “assault” 15 occurred “during lunch at school, . . . defendants are deemed to have had notice of what occurred 16 in those area[s] under departmental guidelines.” Id. at 3–6. 17 Although the court considers each party’s summary judgment motion on its own, 18 Nat'l Grange, 115 F. Supp. 3d at 1177 , because the defense motion raises issues identical to those 19 raised by plaintiff’s motion, the court addresses below only those defense arguments it has not 20 already discussed above. 21 The court has accepted the defendants’ arguments that the Dear Colleague Letters 22 in the record here do not carry the weight of regulations, and therefore a finder of fact could not 23 find a regulatory violation here. J.M. by & through Mandeville v. Matayoshi, 729 F. App’x 585 , 24 586, n.1 (9th Cir. 2018). Because there can be no regulatory violation, the only plausible avenue 25 by which C.C. could defeat summary judgment would be to show “that the [defendants’] 26 federally funded program denied [him] services that [he] needed to enjoy meaningful access to 27 the benefits of a public education and that were available as reasonable accommodations.” 28 Paradise Valley, 815 F.3d at 1204 . As defendants assert, and for the same reasons discussed 1 above, this avenue is foreclosed by the weight of the undisputed evidence. There is no evidence 2 the school became aware of or failed to act in response to an obvious need to protect C.C. based 3 on the first alleged “assault.” See C. C. Depo. 81:6-13. The mere fact that the incident occurred 4 during the school lunch hour, without any evidence that a school administrator or staff witnessed 5 it, is insufficient to establish notice. There is no other evidence that the school was provided any 6 kind of notice of the need for accommodation prior to the football game on August 28, 2015. See 7 T. Csutoras Depo. 19:21–25, ECF No. 37-5. And there is no evidence showing the school failed 8 to respond or displayed a pattern of failing to respond to known 504 accommodation needs. See 9 Christie Decl. ¶¶ 6–16, ECF No. 37-4. C.C. also has not pointed to any evidence to support his 10 theory the school acted with deliberate indifference or because of C.C.’s disability. See id. ¶ 19; 11 see also T. Csutoras Depo. 21:3–6, 24:23–25. 12 For these reasons, defendants have met their initial burden of establishing that no 13 material question of fact exists as to their liability under Title II of the ADA or § 504 of the 14 Rehabilitation Act. Because C.C. has not rebutted defendants’ evidence to show a triable 15 question exists, summary judgment must be entered in defendants’ favor. 16 IV. CONCLUSION 17 For the reasons set forth above, plaintiff’s motion for partial summary judgment, 18 ECF No. 42, is DENIED, and defendants’ motion for summary judgment, ECF No. 37, is 19 GRANTED. The Clerk of Court is directed to enter judgment in favor of defendants and CLOSE 20 this case. 21 IT IS SO ORDERED. 22 DATED: November 18, 2019.