B. v. West Contra Costa Unified School District

[2] 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA [5] 6 BRENNON B., CASE NO. 19-cv-02394-YGR 7 Plaintiff, ORDER GRANTING IN PART AND DENYING 8 vs. IN PART DEFENDANTS’ MOTION TO DISMISS 9 WEST CONTRA COSTA UNIFIED SCHOOL DISTRICT, ET AL., Re: Dkt. No. 23 [10] Defendants. [11] 12 On September 24, 2019, the Court heard oral argument on defendant’s motion to dismiss, 13 which was fully briefed. (Dkt. Nos. 23, 28, 29.) As stated on the record, and confirmed herein, 14 having carefully considered the briefing and arguments submitted in this matter, defendant’s 15 motion to dismiss is GRANTED IN PART and DENIED IN PART. 16 First, with respect to defendants’ assertion that plaintiff’s claims under 42 U.S.C. § 1983 17 (“Section 1983”), 29 U.S.C. § 794 (“Section 504”), and Title IX of the Education Amendments of 18 1972 (“Title IX”) are untimely, the Court finds that the applicable statutes of limitations have been 19 and continue to be tolled in light of plaintiff’s incompetence. See Tzolov v. International Jet 20 Leasing, Inc., 232 Cal.App.3d 117, 120-21 (1991). Accordingly, the Court DENIES this portion of 21 defendants’ motion. 22 Second, regarding plaintiff’s Section 1983 Equal Protection claim against school principal 23 Robert Evans,1 plaintiff must allege that the “defendants, acting under color of state law, 24 discriminated against [him] as [a] member[] of an identifiable class and that the discrimination [26] 1 Plaintiff has stipulated to dismissal of his Section 1983 claim against West Contra Costa Unified School District (“WCCUSD” or the “District”). (See Dkt. No. 28 (“Opp.”) at 22.) [27] Additionally, plaintiff confirmed at the September 24 hearing that his claim under Section 1983 is 1 was intentional” or with deliberate indifference.2 Flores v. Morgan Hill Unified Sch. Dist., 324 2 F.3d 1130, 1134-35 (9th Cir 2003). As confirmed by the parties during the September 24 hearing, 3 they do not dispute that Evans was acting under color of state law. With respect to his 4 membership in an identifiable class, plaintiff has alleged that he has a disability (see Dkt. No. 15 5 (“FAC”) ¶ 12), which may qualify as a basis for violation of the Equal Protection Clause if not 6 rationally related to legitimate legislative goals. Pierce v. County of Orange, 526 F.3d 1190 , 1225 7 (9th Cir. 2008). 8 Regarding the nature of the discrimination as either intentional or with deliberate 9 indifference, “[s]chool administrators . . . are deemed ‘deliberately indifferent’ to acts of student10 on-student harassment only where the recipient’s response to the harassment or lack thereof is 11 clearly unreasonable in light of the known circumstances.” Davis v. Monroe County Bd. Of Educ., [12] 526 U.S. 629, 648 (1999). Plaintiff alleges that he, through his mother, made numerous reports to 13 the school of inappropriate sexual touching perpetrated against plaintiff by other students while he 14 was left unsupervised by District staff and Evans failed to follow-up or conduct an independent 15 investigation after receiving these reports. (FAC ¶¶ 48, 49, 51.) Plaintiff alleges that Evans relied 16 on plaintiff’s disability-related communication difficulties to discredit plaintiff’s accounts of abuse 17 and as a basis for his refusal to investigate further or take meaningful corrective measures to 18 prevent future abuse. (FAC ¶ 47.) Moreover, plaintiff alleges that Evans failed to train his 19 subordinates adequately to respond properly and appropriately to the reports of sexual harassment 20 and abuse of disabled students and instead school staff “followed Evans’ lead by using [p]laintiff’s 21 disability related communication challenges to claim that his complaints regarding the ongoing 22 abuse were made up and underserving of any attention.” (FAC ¶ 73.) Accordingly, plaintiff has 23 alleged that Evans’ conduct, which occurred under the color of state law, constituted 24 discrimination based on plaintiff’s disability that was intentional or with deliberate indifference. 25 See Monteiro v. Tempe Union High Sch. Dist., 158 F.3d 1022 , 1034 (9th Cir. 1998); Plumeau v. [27] 2 Plaintiff confirmed during the September 24 hearing that his Section 1983 against Evans 1 School Dist. No. 40, 130 F.3d 432 , 439 n.4 (9th Cir. 1997). Accordingly, the Court DENIES 2 defendants’ motion with respect to plaintiff’s Section 1983 claim based on the harm he suffered 3 resulting from sexual touching by other students. However, plaintiff has not alleged that Evans, or 4 any other District employee, knew of or otherwise had suspicion of in appropriate sexual touching 5 against plaintiff by Mr. King. Accordingly, the Court GRANTS defendants’ motion with respect to 6 plaintiff’s Section 1983 claim based on the harm he suffered resulting from sexual touching by 7 Mr. King.3 8 Third, with respect to plaintiff’s 42 U.S.C. § 12131 (“ADA”) claim, as a preliminary 9 matter the Court finds that Eleventh Amendment immunity does not apply to this claim because it 10 is abrogated under Title II of the ADA. See Guttman v. Khalso, 669 F.3d 1101 , 1123 n.4 (10th 11 Cir. 2012) (noting “a trend of courts holding that, absent the need to vindicate a fundamental right 12 or protect a suspect class, Congress may not abrogate state sovereign immunity,” but that there is 13 one “exception to this trend: discrimination against students in public education.”).4 To state a 14 claim for violation of Title II of the ADA, a plaintiff must allege that (1) he is a qualified 15 individual with a disability; (2) he was excluded from participation in or otherwise discriminated 16 against with regard to a public entity’s services, programs, or activities; and (3) such exclusion or 17 discrimination was by reason of his disability. See Weinreich v. Los Angeles County Metro. 18 Transp. Auth., 114 F.3d 976, 978 (9th Cir. 1997). To state a claim for money damages, a plaintiff 19 must allege intentional discrimination, which can be established by a showing of deliberate 20 indifference, which requires both actual knowledge that a harm to a federally protective right is 21 substantially likely, and a deliberate failure to act upon that likelihood. See Duvall v. County of 22 Kitsap, 260 F.3d 1124, 1138 (9th Cir. 2001). [23] 3 As noted by the Court during the September 24 hearing, to the extent that plaintiff [24] obtains evidence of such knowledge or suspicion through discovery, he may request leave of Court to amend his complaint. [25] 4 The Court notes that although the Ninth Circuit has not addressed this issue, the Court [26] finds persuasive the reasoning of each of the circuit to address the issue. See Ass'n for Disabled Ams., Inc. v. Fla. Int'l Univ., 405 F.3d 954 , 958–59 (11th Cir. 2005); Constantine v. Rectors & [27] Visitors of George Mason Univ., 411 F.3d 474, 490 (4th Cir. 2005); Toledo v. Sanchez, 454 F.3d 1 Parties do not dispute that plaintiff has alleged that he is a qualified individual with a 2 disability. Regarding exclusion from participation or other discrimination, plaintiff alleges that 3 the District, through school principal Evans, terminated an investigation into improper sexual 4 conduct by other students against plaintiff and failed to investigate further complaints and that the 5 District “denied him the benefits of access to their educational program when it acted with 6 deliberate indifference by failing to report, investigate, or discipline known instances of 7 inappropriate sexual touching and sexual abuse and by failing to supervise, train, or discipline 8 staff creating an extremely high risk that such abuses will continue to occur” (FAC ¶¶ 73, 92.) 9 With respect to his contention that the exclusion or discrimination was by reason of his disability 10 and intentional, plaintiff has alleged that Evens “justified [the] failures by using [p]laintiff’s 11 disability related challenges in communicating the sequence of events to falsely claim that 12 [p]laintiff was ‘fabricating’ the substance of his complaints.” (FAC ¶ 73.) Plaintiff further alleges 13 that District staff “followed Evans’ lead” and used plaintiff’s “disability related communication 14 challenges to claim that his complaints regarding the ongoing abuse were made up and 15 undeserving of any attention.” (Id.) Finally, plaintiff assert that defendants were “deliberately 16 indifferent to the fact that [p]laintiff had was [sic] routinely victimized and that his disability made 17 him particularly susceptible to abuse constitutes a deliberate indifference toward the substantial 18 harm that has been caused.”5 (Id. ¶ 92.) Accordingly, the Court DENIES defendants’ motion to 19 dismiss plaintiff’s ADA claim. 20 Fourth, defendants’ arguments regarding plaintiff’s Section 504 claim fail for the same 21 reasons, as such a claim requires the same factual bases as an ADA claim. See Duvall, 260 F.3d at 22 1138. 23 Finally, regarding plaintiff’s Title IX claim, a plaintiff may assert a Title IX claim against a 24 school for sexual harassment by a teacher or by another student where the harassment “is so 25 severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an [26] 5 The Court notes that defendants’ argument that plaintiff cannot assert an ADA claim [27] based on Mr. King’s conduct under the theory of respondeat superior fails. See Duvall, 260 F.3d 1 educational opportunity or benefit,” and “the funding recipient acts with deliberate indifference to 2 || known acts of harassment in its programs or activities.” Davis, 526 U.S. at 633 . Moreover, a 3 school district is only liable under Title IX where “an official who at minimum has authority to 4 || address the alleged discrimination and to institute corrective measures on the recipient’s behalf has 5 actual knowledge of discrimination and fails to adequately respond.” Gebser v. Lago Vista 6 || Independent School Dist., 524 U.S. 274, 290 (1998). Defendants argue that plaintiff did not allege 7 actual knowledge of King’s alleged sexual harassment and therefore fails to assert a Title IX 8 claim. (MTD at 24-25; Reply at 8-9.) However, plaintiff has alleged actual knowledge of the 9 alleged sexual contact by fellow special needs students. (FAC {[f| 20, 21, 23 45, 46, 116.) 10 || Accordingly, the Court GRANTS IN PART defendants’ motion to dismiss plaintiffs Title IX claim 11 to the extent that it is grounded in conduct by Mr. King and DENIES IN PART defendants’ motion 12 || to the extent that it is grounded in conduct by other students. 13 This Order terminates Docket Number 23. 14 IT Is SO ORDERED. 16 Dated: September 27, 2019 fpene Hagel lcs, — YVONNE GONZALEZ'ROGERS 7 UNITED STATES DISTRICT COURT JUDGE Z 18