P.H. v. Quijada et al

Filing 13

ORDER DENYING 6 Motion to Dismiss APPOINTING Guardian Ad Litem 2 signed by District Judge Dale A. Drozd on 6/8/17. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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P.H., by her guardian ad litem JUANITA
LUNA,
Plaintiff,

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No. 1:17-cv-00257-DAD-JLT

ORDER DENYING MOTION TO DISMISS
AND APPOINTING GUARDIAN AD LITEM

v.
TEHACHAPI UNIFIED SCHOOL
DISTRICT, KATHLEEN QUIJADA, and
DOES 1–100, inclusive,

(Doc. Nos. 2, 6)

Defendants.

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On February 22, 2017, plaintiff P.H., a minor, commenced this action by filing a

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complaint against Kathleen Quijada and the Tehachapi Unified School District (“Tehachapi”)

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bringing claims for 1) a violation of the American Disabilities Act (“ADA”), 28 C.F.R. Part 35;

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2) a violation of the Unruh Civil Rights Act, Cal. Civ. Code § 51, et seq.; 3) a violation of the

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Rehabilitation Act, 28 U.S.C. § 794 (§ 504); 4) breach of due of care arising under a special

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relationship; 5) negligence; 6) assault; 7) battery; and 8) intentional infliction of emotional

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district. (Doc. No. 1.) On the same day, plaintiff P.H.’s mother filed a motion for order

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appointing her guardian ad litem for P.H. (Doc. No. 2.) On March 16, 2017, defendant

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Tehachapi filed a motion to dismiss plaintiff’s first and third claim for relief under Federal Rule

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of Civil Procedure (“Rule”) 12(b)(6). (Doc. No. 6.) On April 3, 2017 plaintiff P.H. filed an
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opposition to the motion to dismiss and on April 10, 2017, defendant Tehachapi filed a reply.

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(Doc. Nos. 9 and 10.) The motion for order appointing guardian ad litem is unopposed. The

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matters came before the court for hearing on April 18, 2017. Attorney Anthony DeMaria

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appeared telephonically on behalf of defendant Tehachapi and attorney David Grey appeared

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telephonically on behalf of plaintiff. (Doc. No. 12.) The matters were taken under submission.

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For the reasons that follow the court will appoint Juanita Luna as P.H.’s guardian ad litem and

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will deny defendant Tehachapi’s motion to dismiss.

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Background
Plaintiff P.H. is a seven-year old girl who suffers from multiple severe disabilities, is

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non-verbal, and has limited intellectual capacity. (Doc. No. 2 at 3.) P.H. was a student at

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Tehachapi where she alleges she was tied to a chair with a blanket and left for entire school days.

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(Doc. No. 1 at 2.) Plaintiff further alleges she was bruised, battered, screamed at, and left all day

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in soiled papers. (Id.) In sum, plaintiff claims that she was physically and psychologically

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abused because of her disability from March 2016 through May 2016. (Id.) Her biological

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mother and legal custodian is Juanita Luna. (Doc. No. 2 at 3.) As noted, Ms. Luna has moved for

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an order appointing herself as guardian ad litem for P.H. (Doc. No. 2.)

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As also noted, defendant Tehachapi moves to dismiss plaintiff’s first and third claims

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brought under the ADA and the Rehabilitation Act, respectively, arguing that plaintiff has failed

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to allege that she exhausted her administrative remedies with respect to those claims. (Doc. No. 6

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at 1–2.) Tehachapi contends that the Individuals with Disabilities Education Act (“IDEA”)

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requires exhaustion of plaintiff’s first and third claims for relief before plaintiff can seek federal

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court intervention. (Id. at 5.) Plaintiff opposes dismissal of those claims, arguing that exhaustion

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is not required because her first and third claims are personal injury damages claims and are

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independent of the relief available under the IDEA for denial of free appropriate public education

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(“FAPE”). (Doc. No. 98 at 1) (citing Fry v. Napolean Community Schools, 580 U.S. __, 137 S.

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Ct. 743, 749 (2017) (“We hold that exhaustion is not necessary when the gravamen of the

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plaintiff’s suit is something other than the denial of the IDEA’s core guarantee – what the Act

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calls a ‘free appropriate public education.’”)).
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Below, the court will first address the motion for appointment of a guardian ad litem
before turning to defendant’s motion to dismiss.
Guardian Ad Litem
“District courts have a special duty, derived from Federal Rule of Civil Procedure 17(c),

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to safeguard the interests of litigants who are minors.” Robidoux v. Rosengren, 638 F.3d 1177,

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1181 (9th Cir. 2011). Rule 17 provides that “[t]he court must appoint a guardian ad litem—or

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issue another appropriate order—to protect a minor or incompetent person who is unrepresented

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in an action.” Fed. R. Civ. P. 17(c)(2). Local Rule 202(a) of this court states, in pertinent part:

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Upon commencement of an action or upon initial appearance in
defense of an action by or on behalf of a minor . . . the attorney
representing the minor or incompetent person shall present . . . a
motion for the appointment of a guardian ad litem by the Court,
or . . . a showing satisfactory to the Court that no such appointment
is necessary to ensure adequate representation of the minor or
incompetent person. See Fed. R. Civ. P. 17(c).

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The decision to appoint a guardian ad litem “must normally be left to the sound discretion of the

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trial court.” United States v. 30.64 Acres of Land, 795 F.2d 796, 804 (9th Cir. 1986).

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Juanita Luna moves the court to appoint her as guardian ad litem to her daughter P.H.

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(Doc. No. 2.) In a declaration signed under penalty of perjury, Ms. Luna states that P.H. is her

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natural born child and that she has legal custody over her. (Id. at 3.) Ms. Luna further declares

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that she has no interest adverse to the rights of P.H. and that she is fully competent and

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responsible to prosecute the action on her daughter’s behalf. (Id.) Finding good cause, the court

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grants the motion (Doc. No. 2) and appoints Juanita Luna as the guardian ad litem of P.H., a

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minor and the named plaintiff in this action.

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Motion to Dismiss

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A. Rule 12(b)(6) Legal Standard

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The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test the legal

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sufficiency of the complaint. N. Star Int’l v. Ariz. Corp. Comm’n, 720 F.2d 578, 581 (9th Cir.

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1983). “Dismissal can be based on the lack of a cognizable legal theory or the absence of

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sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dep’t, 901

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F.2d 696, 699 (9th Cir. 1990). A plaintiff is required to allege “enough facts to state a claim to
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relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A

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claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw

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the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v.

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Iqbal, 556 U.S. 662, 678 (2009).

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In determining whether a complaint states a claim on which relief may be granted, the

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court accepts as true the allegations in the complaint and construes the allegations in the light

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most favorable to the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Love v.

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United States, 915 F.2d 1242, 1245 (9th Cir. 1989). In ruling on a motion to dismiss brought

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pursuant to Rule 12(b)(6), the court is permitted to consider material which is properly submitted

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as part of the complaint, documents that are not physically attached to the complaint if their

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authenticity is not contested and the plaintiffs’ complaint necessarily relies on them, and matters

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of public record. Lee v. City of Los Angeles, 250 F.3d 668, 688–89 (9th Cir. 2001).

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B. Section 1415(l ) Legal Standard

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Under 20 U.S.C. § 1415(l ), “a plaintiff bringing suit under the ADA, the Rehabilitation

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Act, or similar laws must in certain circumstances—that is, when ‘seeking relief that is also

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available under’ the IDEA—first exhaust the IDEA’s administrative procedures.” Fry, 137 S. Ct.

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at 750. As the Supreme Court has explained:

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§ 1415(l )’s exhaustion rule hinges on whether a lawsuit seeks relief
for the denial of a free appropriate public education. If a lawsuit
charges such a denial, the plaintiff cannot escape § 1415(l ) merely
by bringing her suit under a statute other than the IDEA. . . . But if,
in a suit brought under a different statute, the remedy sought is not
for the denial of a FAPE, then exhaustion of the IDEA’s procedures
is not required.

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***

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But that examination should consider substance, not surface. The
use (or non-use) of particular labels and terms is not what
matters. . . . [§ 1415(l )] requires exhaustion when the gravamen of
a complaint seeks redress for a school’s failure to provide a FAPE,
even if not phrased or framed in precisely that way.

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In addressing whether a complaint fits that description, a court
should attend to the diverse means and ends of the statutes covering
persons with disabilities—the IDEA on the one hand, the ADA and
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Rehabilitation Act (most notably) on the other. The IDEA, of
course, protects only ‘children’ (well, really, adolescents too) and
concerns only their schooling. § 1412(a)(1)(A). And as earlier
noted, the statute’s goal is to provide each child with meaningful
access to education by offering individualized instruction and
related services appropriate to her ‘unique needs.’ § 1401(29); see
Rowley, 458 U.S. at 192; supra, at 753 – 754. By contrast, Title II
of the ADA and § 504 of the Rehabilitation Act cover people with
disabilities of all ages, and do so both inside and outside schools.
And those statutes aim to root out disability-based discrimination,
enabling each covered person (sometimes by means of reasonable
accommodations) to participate equally to all others in public
facilities and federally funded programs. See supra, at 749 – 750.
In short, the IDEA guarantees individually tailored educational
services, while Title II and § 504 promise non-discriminatory
access to public institutions.

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“One clue to whether the gravamen of a complaint against a school
concerns the denial of a FAPE, or instead addresses disability-based
discrimination, can come from asking a pair of hypothetical
questions. First, could the plaintiff have brought essentially the
same claim if the alleged conduct had occurred at a public facility
that was not a school—say, a public theater or library? And
second, could an adult at the school—say, an employee or visitor—
have pressed essentially the same grievance? When the answer to
those questions is yes, a complaint does not expressly allege the
denial of a FAPE is also unlikely to be truly about that subject. . .
But when the answer is no, then the complaint probably does
concern a FAPE.”

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Fry, 137 S. Ct. at 754-56.

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C. Analysis

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Here, plaintiff’s complaint specifically states that she “seeks monetary damages for

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personal injuries suffered by P.H. and does not assert any claims under the Individuals with

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Disabilities Education Act (IDEA) nor does she request any relief that is also available under the

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IDEA.” (Doc. No. 1 at 5.) Defendant Tehachapi argues that plaintiff’s first and third claims are

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in actuality based upon FAPE. (Doc. No. 10 at 3–5.) For instance, defendant contends, the first

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claim states “Defendants were aware that P.H. had federally protected rights to be integrated with

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general education children at school and to be provided with reasonable modifications and to be

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free from the physical and emotional abuse described herein.” (Doc. No. 1 at 8.) Similarly,

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according to defendant, plaintiff’s third claim asserts that defendant denied plaintiff “the benefits

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of receiving full and equal access to the public education programs and activities and
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discriminating against her because of her disability.” (Id. at 11.)

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The claims presented by plaintiff here are, however, premised on equal access and not the

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adequacy of the special education services. In Fry, for instance, school officials refused to allow

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a trained service dog to assist the plaintiff, who had a severe form of cerebral palsy, at school.

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137 S. Ct. at 750–51. In response, the parents removed the plaintiff from the school and

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homeschooled her. Id. at 751. The complaint “alleged that the school districts violated Title II of

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the ADA and § 504 of the Rehabilitation Act by ‘denying [plaintiff] equal access’ to [her school]

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and its programs, ‘refus[ing] to reasonably accommodate’ [plaintiff]’s use of a service animal,

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and otherwise ‘discriminat[ing] against [plaintiff] as a person with disabilities.’” Id. at 752.

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Under these circumstances the Supreme Court in Fry concluded that the “complaint alleges only

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disability-based discrimination, without making any reference to the adequacy of the special

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education services [plaintiff’s] school provided. . . . The [plaintiff’s family] instead

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maintained . . . that the school districts infringed [plaintiff’s] right to equal access—even if their

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actions complied in full with the IDEA’s requirement.” 137 S. Ct. at 758.

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The same type of equal access claim alleged in Fry is being alleged by plaintiff here.

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Indeed, the complaint alleges that defendants isolated P.H. from other school children during the

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school day, resulting in the denial of school programs and services, and physically and

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psychologically abused her because of her disability. (See, e.g., Doc. No. 1 at 2.) The complaint

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does not allege that defendants provided inadequate special education services or failed to provide

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sufficient supportive services for plaintiff’s disability. (Id.) Compare K.G. by & through Gosch

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v. Sergeant Bluff-Luton Cmty. Sch. Dist., No. C 15-4242-MWB, 2017 WL 1098829, at *11–13

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(N.D. Iowa Mar. 23, 2017) (concluding that denial of a FAPE was not the gravamen of the

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complaint even where plaintiffs initially pursued the administrative process under the IDEA

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because the complaint’s allegations identifying the parties in terms of needing or supplying

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“special education services” and having a duty to ensure “equal access to a public education”

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were not about the denial of a FAPE but instead showed notice to defendants of the conditions

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that put the plaintiff at risk when defendants allegedly used unlawful and unreasonable force

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against him); with J.M. v. Francis Howell School District, 850 F.3d 944, 949 (8th Cir. 2017)
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(concluding denial of a FAPE was the gravamen of the complaint where the complaint originally

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contained claims under the IDEA and it was alleged in the operative complaint that the use of

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isolation and physical restraints failed to provide proper “sufficient ‘supportive services’ to

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permit [J.M.] to benefit from . . . instruction,” and ultimately “denied [J.M.] . . . the benefits of

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public education.”); L.D. v. Los Angeles Unified Sch. Dist., No. 16-cv-8588-MWF-MRW, 2017

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WL 1520417, at *2 (C.D. Cal. Apr. 26, 2017) (concluding plaintiff’s complaint was really

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seeking relief under the IDEA because it alleged that the “level of behavior support” had been

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inadequate and that defendant failed to address the parents’ concerns regarding plaintiff’s

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behavioral issues in his IEP meeting).

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Moreover, there is nothing in history of this action that suggests any implicit focus on the

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adequacy of plaintiff’s education. See Fry, 137 S. Ct. at 758 (“a plaintiff’s initial pursuit of the

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IDEA’s administrative remedies can serve as evidence that the gravamen of her later suit is the

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denial of a FAPE, even though that does not appear on the face of her complaint.”). Accordingly,

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the court concludes that the gravamen of plaintiff’s complaint is not an alleged failure to provide

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a FAPE and the exhaustion of the IDEA’s administrative procedures is therefore not required.

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See Fry, 137 S. Ct at 755.

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For all of the reasons set forth above:

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1) The motion for order appointing guardian ad litem (Doc. No. 2) is granted;

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2) Juanita Luna is appointed guardian ad litem for plaintiff P.H.; and

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3) Defendant Tehachapi Unified School District’s motion to dismiss (Doc. No. 6) is

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denied.
IT IS SO ORDERED.
Dated:

June 8, 2017
UNITED STATES DISTRICT JUDGE

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