Wentworth v. Pulsipher

[9] 10 UNITED STATES DISTRICT COURT 11 SOUTHERN DISTRICT OF CALIFORNIA [12] DAWN WENTWORTH, et al., Case Nos. 21-cv-01926-BAS-AGS 13 21-cv-01927-BAS-AGS Plaintiffs, 21-cv-01928-BAS-AGS 14 21-cv-01929-BAS-AGS 21-cv-01930-BAS-AGS 15 v. 21-cv-01931-BAS-AGS 21-cv-01932-BAS-AGS 16 CALIFORNIA CONNECTIONS ACADEMY, ORDER DISMISSING ACTIONS 17 WITHOUT PREJUDICE Defendant. [19] AND CONSOLIDATED CASES [21] 22 I. Background 23 On April 16, 2021, Ms. Dawn Wentworth, on her own behalf and on behalf of her 24 two children, filed 74 complaints in this federal district court. Many of these complaints 25 were duplicative, suing the same defendants with the same allegations. The Court issued 26 an order consolidating most of the cases and later dismissed them. (No. 21-cv-00757-BAS27 AGS, Electronic Case Filing (“ECF”) No. 5.) [28] 1 In November 2021, Ms. Wentworth filed more than a dozen additional lawsuits, 2 including the seven matters against different defendants consolidated here. These seven 3 lawsuits appear to involve different events than the cases mentioned above. These actions 4 all include allegations involving a racial slur during an online school gym class. 5 Previously, while consolidating the cases, the Court granted Ms. Wentworth and her son’s 6 Motions to Proceed In Forma Pauperis (“IFP”) but denied the Motions for Appointment 7 of Counsel. (ECF No. 5.) For the reasons explained below, the Court dismisses the case 8 against California Connections Academy because Ms. Wentworth cannot bring this lawsuit 9 on her minor son’s behalf without the assistance of an attorney. The Court also dismisses 10 the cases against the individual defendants. 11 II. Allegations 12 The Complaints list separate defendants on the first page, but the documents contain 13 the same allegations and requests for relief. Defendants are: (1) California Connections 14 Academy; (2) Elaine Pavlich; (3) Jennifer Conley; (4) Heather Tamayo; (5) Dr. Richard 15 Savage; (6) Diana Rivas; and (7) Adam Pulsipher. The Court refers to California 16 Connections Academy as the “School,” and the Court will refer to the remaining 17 defendants as the “Individual Defendants.” 18 The Complaints allege that “during [an] online gym class a student was allowed to 19 enter and sing the word ‘NIGGER’ on two separate occasions during the weeks of 9/13/21 20 through 9/24/21.” (Compl. 2.) Ms. Wentworth’s minor son, Y.A.W., presumably attended 21 this class at the School. (See id.; see also IFP Motion (noting Y.A.W. is thirteen years 22 old).) The Complaints sue the School under Title VI of the Civil Rights Act of 1964 for 23 this incident. And aside from wanting to hold the School liable, the Complaints allege the 24 Individual Defendants are to blame because they either hold positions of responsibility at 25 the School or failed to take corrective action. (See id.) Plaintiffs ask for various relief, 26 including $1,000,000 “for each Plaintiff listed,” “suspension of all federal as well as state 27 funds,” and “termination of staff.” (Id. 3.) [28] 1 III. Screening Standard 2 A complaint filed by a plaintiff proceeding IFP is subject to screening under 28 3 U.S.C. § 1915 (e)(2). Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (per curiam). 4 This provision requires the court to review the complaint and dismiss the action if it: “(i) is 5 frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or 6 (iii) seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. 7 § 1915(e)(2). 8 To determine whether the action must be dismissed under the second ground—a 9 failure to state a claim—the court applies “the familiar standard of Federal Rule of Civil 10 Procedure 12(b)(6).” Rosati v. Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015). Under this 11 standard, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a 12 claim to relief that is plausible on its face.’” Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 13 2012) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “Determining whether a 14 complaint states a plausible claim for relief [is] . . . a context-specific task that requires the 15 reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 16 679. The “mere possibility of misconduct” falls short of meeting this plausibility standard. [17] Id. 18 “When there are well-pleaded factual allegations, a court should assume their 19 veracity and then determine whether they plausibly give rise to an entitlement to relief.” 20 Iqbal, 556 U.S. at 679 . Further, the court has an obligation where the plaintiff “is pro se, 21 particularly in civil rights cases, to construe the pleadings liberally and to afford the 22 [plaintiff] the benefit of any doubt.” Hebbe v. Pliler, 627 F.3d 338 , 342 & n.7 (9th Cir. 23 2010) (quoting Bretz v. Kelman, 773 F.2d 1026 , 1027 n.1 (9th Cir. 1985)). The court, 24 however, “may not supply essential elements of the claim that were not initially pled.” Ivey 25 v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). Moreover, 26 “[v]ague and conclusory allegations of official participation in civil rights violations are 27 not sufficient.” Id. [28] 1 If a pro se complaint fails to meet this standard, the court should not dismiss the 2 action “without leave to amend unless ‘it is absolutely clear that the deficiencies of the 3 complaint could not be cured by amendment.’” Rosati, 791 F.3d at 1039 4 (quoting Akhtar, 698 F.3d at 1212 ). 5 IV. Analysis 6 A. Title VI 7 Ms. Wentworth and Y.A.W. seek to bring a claim under Title VI of the Civil Rights 8 Act. This law provides that “[n]o person in the United States shall, on the ground of race, 9 color, or national origin, be excluded from participation in, be denied the benefits of, or be 10 subjected to discrimination under any program or activity receiving federal financial 11 assistance.” 42 U.S.C. § 2000d. The allegations here concern a potentially hostile school 12 environment. To bring this type of claim, a plaintiff must allege that (1) there is a racially 13 or otherwise hostile environment; (2) the school had notice of the problem; and (3) the 14 school failed to adequately redress the problem. Monteiro v. Tempe Union High School 15 Dist., 158 F.3d 1022 , 1033 (9th Cir. 1998). 16 A hostile environment is one that is “so severe, pervasive, and objectively offensive, 17 and that so detracts from the victims’ educational experience, that the victims are 18 effectively denied equal access to an institution’s resources and opportunities.” See Davis 19 v. Monroe County Bd. of Educ., 526 U.S. 629, 652 (1999) (discussing the standard for 20 harassment claims under the analogous Title IX framework); see also Monteiro, 158 F.3d 21 at 1033 (“Racial harassment creates a hostile environment if it is sufficiently severe that it 22 would interfere with the educational program of a reasonable person of the same age and 23 race as the victim.”). Hence, where a high school student’s complaint alleged “a pattern of 24 egregious public racial harassment including the use of the [same] epithet” that is involved 25 here, she sufficiently alleged a hostile racial environment under Title VI. See Monteiro, 26 158 F.3d at 1034–35. 27 Further, a school fails to adequately address the situation when it “is ‘deliberately 28 indifferent’ to its students’ right to a learning environment free of racial hostility and 1 discrimination.” Monteiro, 158 F.3d at 1035 (quoting Gebser v. Lago Vista Indep. Sch. 2 Dist., 524 U.S. 274, 277 (1998)). This standard requires that an institutional “official who 3 at a minimum has authority to address the alleged discrimination and to institute corrective 4 measures on the recipient’s behalf has actual knowledge of discrimination in the recipient’s 5 programs and fails to adequately respond.” Gebser, 524 U.S. at 290 . 6 Here, as part of Plaintiffs’ request for relief, the Complaints seek “suspension of all 7 federal as well as state funds.” (Compl. 3.) The Court broadly construes this request to 8 allege that the School receives federal funding. Therefore, the Court will assume the 9 School is subject to Title VI and consider whether Plaintiffs may bring a claim against 10 Defendants. 11 B. Proper Plaintiff 12 For a Title VI claim, the student—not the parent—is the appropriate plaintiff 13 because the student is the intended beneficiary of a federally-funded school program. See, 14 e.g., Silva v. St. Anne Cath. Sch., 595 F. Supp. 2d 1171, 1179 (D. Kan. 2009). Ms. 15 Wentworth thus cannot bring her own Title VI claim against the School; her son Y.A.W. 16 is the one with the potential claim. 17 Further, although Y.A.W. may have a claim, there is a problem here because Y.A.W. 18 is a minor. He needs to sue through “a general guardian” or a “guardian ad litem.” Fed. 19 R. Civ. P. 17(c). Y.A.W.’s mother, Ms. Wentworth, seeks to sue on his behalf, but she 20 cannot do so by proceeding pro se—without an attorney. Under Civil Local Rule 83.11, 21 “[a]ny person who is appearing propria persona, (without an attorney) (i.e. pro se),” like 22 Y.A.W., “must appear personally for such purpose and may not delegate that duty to any 23 other person.” And the Ninth Circuit has held “that a parent or guardian cannot bring an 24 action on behalf of a minor child without retaining a lawyer.” Johns v. Cty. of San Diego, [25] 114 F.3d 874 , 877 (9th Cir. 1997); see also Garcia v. City of Fresno, No. 1:16-cv-0134026 LJO-SAB, 2017 WL 6383814 , at *4 (E.D. Cal. Dec. 14, 2017) (“It is established that a 27 non–attorney parent must be represented by counsel in bringing an action on behalf of the [28] 1 child.”). Meaning, Y.A.W. cannot proceed pro se through a pro se representative like his 2 mother. 3 Further, as the Court noted in its prior order, there is no right to counsel in civil 4 proceedings. Hedges v. Resolution Tr. Corp. (In re Hedges), 32 F.3d 1360, 1363 (9th Cir. 5 1994). And although courts have discretion to “request” an attorney represent an indigent 6 civil litigant, there must be a showing of “exceptional circumstances.” Agyeman v. Corr. 7 Corp. of Am., 390 F.3d 1101 , 1103 (9th Cir. 2004). The Court concluded those 8 circumstances are not present here. Hence, given that Ms. Wentworth cannot bring this 9 lawsuit on Y.A.W.’s behalf without an attorney, the Court will dismiss the case against the 10 School without prejudice to Y.A.W.’s representative retaining an attorney and filing an 11 amended complaint that removes Ms. Wentworth as a separate plaintiff. 12 B. Individual Defendants 13 Having dismissed the case against the School, the cases against the Individual 14 Defendants are subject to dismissal for the same reason. In addition, these cases also must 15 be dismissed because the Individual Defendants are not proper defendants for a Title VI 16 claim. Because Title VI prohibits racial discrimination in a “program or activity receiving 17 federal financial assistance,” 42 U.S.C. § 2000d, “Title VI actions must be brought against 18 an entity, not an individual,” e.g., Naharaja v. Wray, No. 3:13-CV-01261-HZ, 2014 WL 19 3891754, at *2 (D. Or. Aug. 6, 2014); accord Shotz v. City of Plantation, Fla., 344 F.3d 20 1161, 1170 (11th Cir. 2003). The Court discerns no other plausible federal claim against 21 the Individual Defendants from the Complaints’ limited allegations. The Court will 22 therefore dismiss the six consolidated lawsuits against them without prejudice. 23 V. Conclusion 24 For the foregoing reasons, the Court DISMISSES WITHOUT PREJUDICE the 25 Complaints against the Individual Defendants in the following cases: 26 1. Wentworth v. Pavlich, No. 21-cv-01927-BAS-AGS; 27 2. Wentworth v. Conley, No. 21-cv-01928-BAS-AGS; 28 3. Wentworth v. Tamayo, No. 21-cv-01929-BAS-AGS; 1 4. Wentworth v. Savage, No. 21-cv-01930-BAS-AGS; 2 5. Wentworth v. Rivas, No. 21-cv-01931-BAS-AGS; and 3 6. Wentworth v. Pulsipher, No. 21-cv-01932-BAS-AGS. 4 ||The Clerk of Court shall close these six cases. Any future filings concerning these 5 || Individual Defendants shall be filed in the lead case, No. 21-cv-1926-BAS-AGS. 6 In addition, the Court DISMISSES WITHOUT PREJUDICE the Complaint in the 7 || lead case against California Connections Academy. (ECF No. 1.) The Court advises Ms. 8 || Wentworth that an attorney will need to represent her if she wishes to bring this case as 9 || Y.A.W.’s guardian and file a First Amended Complaint to proceed. Any amended 10 || complaint must be filed by June 10,2022. Andif Y.A.W. seeks to file any amended claims 11 || against the Individual Defendants, those claims must be brought in the same First Amended 12 ||Complaint in the lead case. See, e.g., Kamakeeaina v. Armstrong Produce, Ltd., No. 1913 |} CV-00158-DKW-RT, 2019 WL 1601993 , at *2 (D. Haw. Apr. 15, 2019) (requiring pro se 14 || litigant to file a consolidated complaint that combined separate lawsuits for efficiency’s 15 ||sake). If no amended pleading is filed, the Clerk is directed to close this case and enter 16 ||judgment dismissing the action without prejudice. 17 IT IS SO ORDERED. 18 /\ yy 19 || DATED: May 5, 2022 ( itl A (pha □ 20 United States District Judge [28] _7-