C.H. v. Brentwood Union School District

[3] 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA [6] 7 C.H., Case No. 21-cv-00196-EMC 8 Plaintiff, ORDER GRANTING IN PART AND 9 v. DENYING IN PART DEFENDANTS’ MOTIONS TO DISMISS 10 BRENTWOOD UNION SCHOOL DISTRICT, et al., Docket Nos. 11, 14 [11] Defendants. [14] 15 I. INTRODUCTION 16 Plaintiff C.H. brings this action against Brentwood Union School District (“the District”) 17 and Valerie Harrison (collectively “Defendants”). C.H. asserts eight claims against Defendants 18 pursuant to 42 U.S.C. § 1983 and California tort law, based on an alleged physical assault that he 19 endured in a school classroom in September 2019. Pending before the Court are the Defendants’ 20 motions to dismiss six of these claims. The Court held a hearing on the motions to dismiss on 21 June 22, 2021. For the reasons given below, the Court GRANTS the District’s motion to dismiss 22 in full with leave to amend, and GRANTS IN PART and DENIES IN PART Ms. Harrison’s 23 motion to dismiss with leave to amend. 24 II. BACKGROUND 25 C.H.’s complaint alleges that on or around September 16, 2019, C.H. was in his seventh26 grade science class at Bristow Middle School, standing and talking with some classmates. Docket 27 No. 1 (“Compl.”) ¶ 5. C.H. was the only African American student in the group. Id. Brentwood 1 students and a small percentage of African American students. Id. ¶ 13 . 2 At some point during class, Valerie Harrison, a substitute teacher for that day and who is 3 Caucasian, “ordered Plaintiff C.H. to take off his hoodie sweatshirt.” Id. ¶¶ 4, 5 . C.H. told Ms. 4 Harrison that he was “getting over a cold” and that the “hoodie was helping him stay warm and get 5 better.” Id. ¶ 5 . Ms. Harrison then “walked over to where C.H. was standing and, without 6 warning, roughly grabbed C.H. by his hood and dragged him backward to his seat in front of all 7 his classmates.” Id. ¶ 6 . While being dragged by his hood, C.H. told Ms. Harrison that “he was 8 having trouble breathing because the hood and hoodie zipper were choking him.” Id. Ms. 9 Harrison “ignored Plaintiff’s pleas and did not stop dragging and choking [him], but instead 10 continued to drag him to his seat and physically forced him down onto his seat.” Id. C.H.’s neck 11 was scratched by the hoodie zipper while Ms. Harrison was pulling the hoodie. Id. ¶ 8 . Ms. 12 Harrison had not asked C.H. to take his seat at any time before dragging and choking him. Id. ¶ 7 . 13 Fellow students informed Bristow Middle School administrators about the incident after class. Id. 14 ¶ 10. However, the administrators did not notify C.H.’s parents; C.H. did not either because he 15 was “so embarrassed and distressed.” Id. ¶¶ 10, 11 . His parents only learned about it a few days 16 later from C.H.’s twin brother. Id. ¶ 11 . 17 On or around September 20, 2019, someone reported the incident to the Brentwood Police 18 Department. Id. ¶ 12 . Ms. Harrison told the investigating officer that “she does not remember 19 pulling a hood, but it sounds like something she would do.” Id. Other students in the classroom 20 corroborated that Ms. Harrison “had pulled [C.H.] by his hood and forced him into his seat.” Id. 21 As a result of Ms. Harrison’s conduct, C.H. has “suffer[ed] anguish, fright, horror, nervousness, 22 grief, anxiety, worry, shock, humiliation, and shame.” Id. ¶ 13 . 23 C.H.’s complaint asserts claims against Ms. Harrison for violations of 42 U.S.C. § 1983 24 regarding the use of excessive force (Claim 1) and denial of equal protection (Claim 2); claims 25 against the District for the same violations under the Monell theory of municipal liability (Claims 26 3 and 4), and for negligent hiring, retention and supervision (Claim 8); and three claims against 27 the Defendants collectively under respondeat superior for battery (Claim 5), intentional infliction 1 The District moved to dismiss Claims 3, 4, 6 and 8 on April 19, 2021. See Docket No. 11. 2 Ms. Harrison moved to dismiss Claims 2, 6 and 7 on May 18, 2021. See Docket No. 14. C.H. 3 filed briefs in opposition on May 3 and June 1, 2021, to the District and Ms. Harrison respectively. 4 See Docket Nos. 12, 16. The District and Ms. Harrison filed reply briefs on May 10 and June 8, 5 2021, respectively. See Docket Nos. 13, 17. The Court held a hearing on the motions to dismiss 6 on June 22, 2021. 7 III. LEGAL STANDARD 8 Federal Rule of Civil Procedure 8(a)(2) requires a complaint to include “a short and plain 9 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A 10 complaint that fails to meet this standard may be dismissed pursuant to Federal Rule of Civil 11 Procedure 12(b)(6). See Fed. R. Civ. P. 12(b)(6). To overcome a Rule 12(b)(6) motion to dismiss 12 after the Supreme Court’s decisions in Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell Atlantic 13 Corp. v. Twombly, 550 U.S. 544 (2007), a plaintiff’s “factual allegations [in the complaint] ‘must 14 . . . suggest that the claim has at least a plausible chance of success.’” Levitt v. Yelp! Inc., 765 15 F.3d 1123, 1135 (9th Cir. 2014). The court “accept[s] factual allegations in the complaint as true 16 and construe[s] the pleadings in the light most favorable to the nonmoving party.” Manzarek v. St. 17 Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). But “allegations in a 18 complaint . . . may not simply recite the elements of a cause of action [and] must contain sufficient 19 allegations of underlying facts to give fair notice and to enable the opposing party to defend itself 20 effectively.” Levitt, 765 F.3d at 1135 (internal quotation marks omitted). “A claim has facial 21 plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable 22 inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 . “The 23 plausibility standard is not akin to a probability requirement, but it asks for more than a sheer 24 possibility that a defendant has acted unlawfully.” Id. (internal quotation marks omitted). 25 IV. DISCUSSION 26 A. Claim 2: Equal Protection 27 Section 1983 creates a civil cause of action against a “person who, under color of any 1 their “rights, privileges, or immunities secured by the Constitution and laws.” 42 U.S.C. § 1983 . 2 To state a claim under § 1983, a complaint must allege a violation of a constitutional or other 3 federal right and that the violation was committed by a person acting under color of state law. Am. 4 Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49 (1999). Section 1983 “is not itself a source of 5 substantive rights, but merely provides a method for vindicating federal rights elsewhere 6 conferred.” Albright v. Oliver, 510 U.S. 266, 271 (1994) (citing Baker v. McCollan, 443 U.S. 137 , 7 144 n.3 (1979)). Thus, the “first step in any [section 1983] claim is to identify the specific 8 constitutional right allegedly infringed.” Albright v. Oliver, 510 U.S. at 271 . To state a claim for 9 denial of equal protection pursuant to the Equal Protection Clause of the Fourteenth Amendment, 10 a plaintiff must allege that the defendant acted intentionally because of the plaintiff’s membership 11 in a protected class. Furnace v. Sullivan, 705 F.3d 1021, 1030 (9th Cir. 2013). Sufficiently 12 alleging discriminatory intent requires facts that are at least susceptible of an inference of 13 discriminatory intent. Monteiro v. Tempe Union High Sch. Dist., 158 F.3d 1022 , 1026 (9th Cir. 14 1998). 15 Differential treatment among similarly situated individuals may provide grounds for an 16 inference of discriminatory intent. See, e.g., Whiting v. Dep’t of Cal. Highway Patrol, 2020 WL 17 5753231, at *7 (C.D. Cal. Sept. 1, 2020); Lim v. City & Cnty. of San Francisco, 2010 WL 18 1838834, at *5 (N.D. Cal. May 4, 2010). For example, the Whiting court found that a plaintiff 19 adequately pleaded an equal protection claim where the police-officer defendant stopped the 20 plaintiff, who was Black, in his car several times while ignoring a nearby white driver with a 21 broken car. See 2020 WL 5753231 at *7. In contrast, in Lim, a Filipino American woman 22 inadequately pleaded an equal protection claim on account of her race and gender against the city 23 of San Francisco, where she was denied access to public financing to run for a city board of 24 supervisors seat, while most other candidates received public financing. See 2010 WL 1838834 at 25 *5. Since “nothing in [her] complaint indicate[d] that the other candidates were similarly situated 26 to her,” such as that other candidates had outstanding campaign-finance-related fines owed to the 27 city at the time, as she had, and she did not even allege whether those candidates “were male or 1 C.H. alleges that Ms. Harrison “acted with an intent and purpose to discriminate against 2 [him] based on his race” and “singled out [him] on the basis of race.” Compl. ¶¶ 22. However, 3 these allegations are inadequate because they lack supporting facts sufficient to state a claim of 4 intentional race discrimination. The complaint merely states that C.H. was “standing” among a 5 group of students, was “ordered . . . to take off his hoodie sweatshirt,” chose to keep it on because 6 “he was getting over a cold,” and was then “grabbed . . . by his hood and dragged backward to his 7 seat.” See id. ¶¶ 5–6. In his reply, C.H. re-emphasizes that him being “the only African American 8 student in the group” and “the only student grabbed and dragged to his seat by [Ms.] Harrison” 9 should permit an inference of discriminatory intent. See Docket No. 16 at 10–11 (emphasis 10 original). However, these facts are still inadequate to state a plausible claim, as they do not 11 suggest that C.H. received differential treatment vis-à-vis similarly situated students. In contrast, 12 if, for example, one or more non-Black students similarly refused Ms. Harrison’s request to 13 remove their jackets and were not physically harmed as a result, such facts could conceivably 14 provide grounds for the Court to infer discriminatory intent, just as differential treatment to 15 motorists in the same vicinity allowed an inference of discriminatory intent in Whiting. See 2020 16 WL 5753231 at *7. While there may be other ways of stating facts that could give rise to an 17 inference of racially motivated discrimination (e.g., use of racial epithets), no such facts are 18 alleged here. Thus, the complaint lacks allegations which would provide a plausible basis for 19 inferring Ms. Harrison’s discriminatory intent. 20 The Court therefore GRANTS Ms. Harrison’s motion to dismiss C.H.’s second claim with 21 leave to amend. 22 B. Claims 3 and 4: Municipal Liability 23 Municipal liability requires that “an action pursuant to official municipal policy of some 24 nature caused a constitutional tort.” See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978). 25 In other words, “a municipality cannot be held liable solely because it employs a tortfeasor.” Id. 26 Thus, “only when execution of a government’s policy or custom . . . inflicts the injury” will the 27 municipal entity be held liable under Section 1983. Id. at 694 . The Ninth Circuit has delineated 1 official policy; (2) a pervasive practice or custom; (3) a failure to train, supervise, or discipline; or 2 (4) a decision or act by a final policymaker. Horton v. City of Santa Maria, 915 F.3d 592 , 602–3 3 (9th Cir. 2019). 4 To state a claim based on a pervasive practice or custom, the plaintiff must identify a 5 practice that is so “longstanding” that it constitutes the “standard operating procedure of the local 6 government entity.” Jett v. Dallas, 491 U.S. 701, 737 (1989). Likewise, to state a claim based on 7 a failure to train, plaintiff must “ordinarily” identify “[a] pattern of similar constitutional violations 8 by untrained employees,” or alternatively, “the unconstitutional consequences of failing to train 9 [are] so patently obvious that a [municipality] could be liable . . . without proof of a pre-existing 10 pattern of violations.” See Connick v. Thompson, 563 U.S. 51, 62, 64 (2011). After establishing 11 such a pervasive practice or failure to train, the plaintiff must plead that (1) their constitutional or 12 federal rights were violated; (2) the municipality’s practice or failure to train amounted to 13 deliberate indifference to those rights; and (3) the practice or failure to train was the “moving 14 force” behind the violation. See Lee v. City of Los Angeles, 250 F.3d 668 , 681–82 (9th Cir. 2001); 15 Benavidez v. Cnty. of San Diego, 993 F.3d 1134 , 1153–54 (9th Cir. 2021). 16 Here, C.H. brings two claims of municipal liability against the District. He first asserts 17 that the District maintained practices that resulted in the use of excessive force against him. Even 18 if C.H. had sufficiently alleged such a constitutional violation, however, he has not sufficiently 19 alleged Monell liability. Specifically, C.H. has not sufficiently alleged that the District’s 20 purported failure to discipline teachers for using force against children constitutes a “pervasive 21 practice,” nor that its purported failure to train teachers not to use physical force against children 22 constitutes a “failure to train.” See Compl. ¶¶ 25–29; see also Docket No. 12 at 7–8 (clarifying the 23 claims due to ambiguity in the complaint). The complaint merely states that “[o]n information and 24 belief, [the District] had a practice of not training teachers, including substitute teachers, to refrain 25 from physically disciplining children,” with the only supporting fact being that the District has 26 received “multiple prior complaints against it involving use of excessive force against children.” 27 Compl. ¶ 27. This statement reveals no details as to, for instance, what misconduct was alleged, 1 responded to the complaints. As it stands, the bare allegation that the District received complaints 2 does not establish that it has failed to train teachers when it should have, let alone that any such 3 failure is “longstanding.” See Jett, 491 U.S. at 737 . C.H. provides no evidence for his allegation 4 that the District fails to discipline teachers who have committed misconduct. Compl. ¶ 28. He 5 only conclusorily alleges that, “[o]n information and belief, teachers were not adequately 6 disciplined for using force against children.” See id. These allegations are insufficient to meet the 7 pleading requirements of Twombly and Iqbal, which apply to Monell claims. 8 The Court therefore GRANTS the District’s motion to dismiss C.H.’s third claim with 9 leave to amend. 10 Additionally, C.H. asserts that the District maintains practices that resulted in a denial of 11 equal protection. C.H.’s allegations with respect to this claim, however, are similarly inadequate. 12 First, as explained above, he has not sufficiently alleged that he was denied equal protection. 13 Second, assuming arguendo that he had successfully pled an equal protection violation against 14 Ms. Harrison, his claim that the District has a pervasive practice of failing to discipline teachers 15 for discriminating against students of color, and fails to train teachers not to discriminate against 16 students of color, lacks an evidentiary basis. See id. ¶¶ 30–33. He merely conclusorily alleges 17 that, “[o]n information and belief, [the District] had a practice of not training teachers . . . to 18 refrain from physically disciplining children based on their race,” and “[o]n information and 19 belief, teachers were not adequately disciplined for discriminating against students of color.” Id. ¶ 20 32. C.H. must provide further details about this “information” to state a plausible claim. 21 The Court therefore GRANTS the District’s motion to dismiss C.H.’s fourth claim with 22 leave to amend. 23 C. Claim 6: IIED 24 Under California law, the elements of an IIED claim are: “(1) extreme and outrageous 25 conduct by the defendant with the intention of causing, or reckless disregard of the probability of 26 causing, emotional distress; (2) the plaintiff’s suffering severe or extreme emotional distress; and 27 (3) actual and proximate causation of the emotional distress.” Christen v. Superior Ct. of Los 1 vicarious liability claim against the District under California Government Code § 815.2. Section 2 815.2 provides for vicarious liability against a public entity on behalf of tortious conduct by an 3 employee, acting within the scope of his or her employment. See Cal. Gov. Code § 815.2 . 4 Defendants argue that C.H. fails to plead the elements of extreme and outrageous conduct or 5 severe emotional distress. 6 1. Extreme and Outrageous Conduct 7 To state an IIED claim, the conduct at issue must be “so extreme as to exceed all bounds of 8 that usually tolerated in a civilized community.” Christen, 54 Cal. 3d at 903 (citing Davidson v. 9 City of Westminster, 32 Cal. 3d 197, 209 (1982)). Liability for intentional infliction of emotional 10 distress “does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or 11 other trivialities,” but only to conduct so extreme as “to be regarded as atrocious.” Alcorn v. 12 Anbro Eng’g, Inc., 2 Cal. 3d 493 , 499 n.5 (1970). Cases with student plaintiffs have found that 13 prolonged torment, frequently involving violence by police officers, constitutes extreme and 14 outrageous conduct at the pleading stage. In C.B. v. Sonora School District, for example, the court 15 held that police officers taking a student into custody rather than contacting his family per his IEP, 16 injuring his wrists in handcuffs, driving him in a police car for half an hour, and having no official 17 reason for the action was extreme and outrageous conduct for the purposes of a motion to dismiss. 18 See 691 F. Supp. 2d 1170, 1174 , 1188–89 (E.D. Cal. 2010). Similarly, in Banks v. Modesto City 19 Schools District, the court found that teachers taunting a disabled student about a traumatic 20 incident, in which a police officer pepper-sprayed her face; threatening to take her to the police 21 again; and purposely bringing her to the police despite her appeals not to sufficed to plead extreme 22 and outrageous conduct. See 2005 WL 2233213 , at *12 (E.D. Cal. Sept. 9, 2005). In contrast, in 23 K.T. v. Pittsburg Unified School District, the court held that while “[g]rabbing, slapping, and 24 kicking a child with special needs is deplorable,” the conduct was insufficient to state an IIED 25 claim, as the abuse was “not so depraved” as to “shock the conscience.” See 219 F. Supp. 3d 970 , 26 980 (N.D. Cal. 2016). 27 Ms. Harrison’s conduct here does not rise to the level of extreme and outrageous. As in 1 support an IED claim, Ms. Harrison “grabbed C.H. by his hood and dragged him backward to his 2 seat,” Compl. ¶ 6—conduct that, based on the allegations in the complaint, was undoubtedly 3 injurious and unwarranted but “not so depraved” that it “shock[s] the conscience.” See K.T., 219 4 F. Supp. 3d at 980. In addition, unlike in C.B., where the police detained the student for half an 5 hour, and Banks where the teachers taunted a student over a period of several weeks, Ms. 6 Harrison’s conduct occurred in a brief single incident. See Compl. ¶ 6. 7 The cases that C.H. cites in his favor, where courts found extreme and outrageous 8 behavior, are inapposite to the facts at hand. See Newman v. San Joaquin Delta Cmty. Coll. Dist., [9] 2010 WL 2179964 , at *1, *5 (E.D. Cal. May 27, 2010) (police dragged plaintiff to ground and 10 restrained him face-down); Plotnik v. Meihaus, 208 Cal. App. 4th 1590, 1613 (Cal. Ct. App. 2012) 11 (defendant rushed toward plaintiff, made obscene comments, threatened to kill him and his dog); 12 Acinelli v. Torres, 2019 WL 6825767 , at *8 (C.D. Cal. April 22, 2019) (doctor sexually assaulted 13 plaintiff during examination in prison, continued to make inappropriate advances); Keum v. Virgin 14 Am. Inc., 781 F. Supp. 2d 944, 953 (N.D. Cal. 2011) (flight attendant yelled at plaintiff, punched 15 her arm, saliva hit her face). All these cases involve far more aggressive physical violence or 16 harassing conduct than that alleged here. As such, C.H. has not sufficiently alleged that Ms. 17 Harrison’s actions constituted extreme and outrageous behavior. 18 2. Severe Emotional Distress 19 The Court also concludes that C.H. has failed to plead that he suffered severe emotional 20 distress, another element of an IIED claim. Severe emotional distress must be “emotional distress 21 of such substantial quality or enduring quality that no reasonable [person] in civilized society 22 should be expected to endure it.” Hughes v. Pair, 46 Cal. 4th 1035, 1051 (2009) (citing Potter v. 23 Firestone Tire & Rubber Co., 6 Cal. 4th 965, 1004 (1993)). In addition, district courts applying 24 California law have held that conclusory allegations without details about the distress are 25 insufficient to state a claim. For instance, in Galindo v. City of San Mateo, this Court held that a 26 complaint that only stated that the plaintiff experienced “severe emotional distress, humiliation, 27 indignity, embarrassment, anger, frustration, annoyance, anxiety . . . and loss of enjoyment of life” 1 Dec. 7, 2016) (Chen, J.). Similarly, in Nelson v. County of Sacramento, the plaintiff alleged 2 experiences of “pain, grief, shame, humiliation . . . and worry,” which the court found as 3 “lack[ing] specific facts to show their nature and extent.” See 926 F. Supp. 2d 1159, 1172 (E.D. 4 Cal. 2013 ). In contrast, in Robles v. Agreserves, the court held that the plaintiff sufficiently 5 pleaded severe emotional distress where he alleged that he experienced symptoms of anxiety and 6 depression such that he had “nightmares, cried, felt stressed, pushed his kids away, isolated 7 himself, experienced panic attacks, had memory loss, could not relax quickly, and fought with his 8 wife.” See 158 F. Supp. 3d 952, 973 (E.D. Cal. 2016). 9 The conclusory allegations here more closely resemble those in Galindo and Nelson than 10 those in Robles. In the complaint, C.H. alleges only that he has suffered “anguish, fright, horror, 11 nervousness, grief, anxiety, worry, shock, humiliation, and shame,” without providing particular 12 details regarding, for instance, how his distress has manifested itself in his day-to-day activities. 13 See Compl. ¶ 13. To plausibly plead severe emotional distress, a plaintiff must provide a greater 14 degree of specificity. 15 For these reasons, the Court GRANTS Defendants’ motion to dismiss claim 6 with leave 16 to amend. 17 D. Claim 7: Negligence 18 Public employees in California can be held liable for common law torts, such as 19 negligence. See Cal. Gov. Code § 820 . To assert a common law negligence claim in California, a 20 plaintiff must plead four elements: duty, breach, causation, and damages. Vasilenko v. Grace 21 Fam. Church, 3 Cal. 5th 1077 , 1083–84 (2017). 22 As a general rule, intentional conduct cannot form the basis of a negligence claim. See 23 Miller v. Fairchild Indus., Inc., 797 F.2d 727 , 738 (9th Cir. 1986). However, if the facts alleged in 24 a complaint may reasonably be interpreted as giving rise to a negligence claim, a court may 25 construe those facts as providing the basis of such a claim. See id. For example, in Miller, the 26 employee plaintiffs brought intentional and negligent infliction of emotional distress claims 27 against their former employer. Id. at 729–30. The plaintiffs alleged that they had been laid off 1 newly established benefits, such as access to training opportunities. Id. The Ninth Circuit held 2 that evidence that the employer “intentionally retaliated” against the plaintiffs in laying them off 3 “would preclude an assertion that this same intentional action constituted negligence.” Id. at 738. 4 However, since the defendant’s “act of negotiating” the contract and “then laying them off prior to 5 their enjoyment of benefits implied under the contract” may have alternatively been due to 6 “carelessness,” the court held that the plaintiffs had sufficiently stated a negligence claim. Id. 7 Here, the Court finds that C.H. has similarly pled facts sufficient to state a negligence 8 claim. The complaint alleges that Ms. Harrison “ordered [C.H.] to take off his hoodie sweatshirt,” 9 and when C.H. did not, she “walked over” to him and “roughly grabbed [him] by his hood and 10 dragged him backward to his seat.” See Compl. ¶¶ 5, 6. These allegations may plausibly be 11 interpreted as indicating that Ms. Harrison was instructing C.H. to sit down, and when her verbal 12 directive failed to bring about its desired effect, she carelessly but intentionally applied excessive 13 force to make him sit. Indeed, in its opposition brief, the District asserts that Ms. Harrison’s 14 conduct was, at worst, “negligent,” indicating that the general contours of negligent conduct can 15 be inferred from the complaint. See Docket No. 13 at 8. Consequently, Defendants have been 16 given “fair notice of what the claim is and the grounds upon which it rests,” as required under 17 Federal Rule of Civil Procedure 8(a)(2). See Twombly, 550 U.S. at 555 . 18 The Court accordingly DENIES Ms. Harrison’s motion to dismiss claim 7. 19 E. Claim 8: Negligent Hiring, Retention and Supervision 20 California Government Code § 815.2 establishes that public school districts can be held 21 vicariously liable for their employees’ torts. See Cal. Gov. Code § 815.2 (a). California common 22 law additionally recognizes that school employees have a “duty to use reasonable measures to 23 protect students from foreseeable injury at the hands of third parties.” C.A. v. William S. Hart 24 Union High Sch. Dist., 53 Cal. 4th 861, 870 (2012). Accordingly, a school district may be liable 25 under § 815.2 for the negligence of its school administrators or supervisors in hiring, retaining, 26 and supervising a school employee who harasses and abuses a student. Id. at 879. 27 To allege negligent hiring, retention and supervision of a school employee, a plaintiff must 1 supervision processes that “the employee created a particular risk or hazard” and that “that 2 particular harm materialize[d].” See S.G. v. San Francisco Unif. Sch. Dist., 2018 WL 1876875 , at 3 *10 (N.D. Cal. Apr. 19, 2018) (Chen, J.). For example, in S.G., this Court found that the student 4 plaintiff adequately alleged that the district negligently supervised her teacher, since district 5 employees “failed to intervene” after being informed of and observing the teacher’s repeated 6 sexual abuse toward her in the classroom and outside on campus. See id. at *8 . Similarly, in 7 Garcia v. Clovis Unified School District, the court found that the student plaintiff plausibly 8 alleged a negligent supervision claim against the district, where she informed district employees at 9 a board meeting of her teacher’s sexually abusive behavior, the district took no action, and the 10 teacher continued to leer and stare at her. See 627 F. Supp. 2d 1187, 1193, 1207 (E.D. Cal. 2009). 11 In contrast, in Garcia, the court separately found that the plaintiff inadequately alleged that the 12 district negligently hired and retained that teacher, as the complaint did not allege one way or 13 another whether the district “behaved reasonably in its attempts to discover the fitness of its 14 employees.” See id. at 1208–9. 15 Here, the Court rejects the District’s argument that C.H. must identify a specific negligent 16 supervisory or administrative employee. See Docket No. 11 at 18; Docket No. 13 at 9. Given that 17 some District employee(s) were responsible for hiring, retaining, and supervising Ms. Harrison, 18 and that discovery would reveal their identities, it would be excessively formalistic to require the 19 plaintiff to identify a specific employee at this stage of the litigation. See Garcia, 627 F. Supp. 2d 20 at 1207 (finding plausible claim of negligent supervision of school personnel without identifying 21 specific negligent district employees). This is a matter within the District’s knowledge. 22 Nonetheless, C.H. fails to state a claim of negligent hiring, retention and supervision 23 because the complaint does not adequately allege that the District knew or should have known that 24 Ms. Harrison was unfit to supervise students. See Compl. ¶¶ 47–52. The complaint alleges only 25 that, “[o]n information and belief, employees at [the District] knew or should have known that 26 [Ms. Harrison] was not qualified to and could not be trusted to supervise middle school children.” 27 See id. ¶ 51. C.H. has not alleged that Ms. Harrison ever acted inappropriately in any way prior to 1 concerns. See id. ¶ 47–52. More particularized allegations than those provided here—e.g., that 2 the District previously witnessed Ms. Harrison engaging in misconduct with students, was notified 3 through official means of such past misconduct, or had unreasonable practices to discover its 4 employees’ fitness generally, as in S.G. and Garcia—are required to state this type of claim. 5 The Court therefore GRANTS the District’s motion to dismiss claim 8 with leave to 6 amend. 7 V. CONCLUSION 8 For the reasons given above, the Court GRANTS the District’s motion to dismiss claims 3, 9 4, 6 and 8 but gives C.H. leave to amend his complaint. The Court also GRANTS Ms. Harrison’s 10 motion to dismiss claims 2 and 6 with leave to amend. The Court DENIES Ms. Harrison’s 11 motion to dismiss claim 7. C.H. may file an amended complaint within thirty (30) days from the 12 date of this order. 13 This order disposes of Docket Nos. 11 and 14. [14] 15 IT IS SO ORDERED. [16] 17 Dated: July 30, 2021 [18] 19 ______________________________________ EDWARD M. CHEN 20 United States District Judge