H.W. et al v Eastern Sierra Unified School District, et al

Filing 28

ORDER signed by Judge Garland E. Burrell, Jr. on 10/11/2011 ORDERING Plaintiffs' state law claims against the District, Reed, and Clark are DISMISSED; pltfs are GRANTED 14 days from the date on which this order is filed to file a First Amended C omplaint addressing the deficiencies in the dismissed claims. Further, pltfs are notified that this action may be dismissed with prejudice under Rule 41(b) if pltfs fail to file an amended complaint within the prescribed time period. 6 , 7 (Reader, L)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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H.W., a minor, by and through
Guardian ad Litem HEIDI NELSON;
and M.K., a minor, by and
through Guardian ad Litem ROBERT
KOELLING,
Plaintiffs,

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v.

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EASTERN SIERRA UNIFIED SCHOOL
DISTRICT; COLEVILLE HIGH SCHOOL
PRINCIPAL JASON REED
(individually and in his
official capacity); ASSISTANT
FOOTBALL COACH CODY CARLISLE
(individually and in his
official capacity);
SUPERINTENDENT DON CLARK
(individually and in his
official capacity),

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Defendants.
________________________________

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2:11-cv-0531-GEB-GGH
ORDER GRANTING DEFENDANTS’
MOTION TO DISMISS

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Pending

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are

two

dismissal

motions

brought

by

Defendants

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Eastern Sierra Unified School District (“District”), Coleville High

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School Principal Jason Reed, and Superintendent Don Clark (collectively,

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“Defendants”); one under Federal Rule of Civil Procedure (“Rule”)

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12(b)(1) and the other under Rule 12(b)(6). (ECF Nos. 6-7.) Plaintiffs

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oppose each motion. (ECF Nos. 11-12.) Plaintiffs allege that because of

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Defendants’ failure to train and supervise assistant football coach Cody

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Carlisle,

Carlisle

engaged

in

inappropriate

1

sexual

conduct

with

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Plaintiffs. Since Plaintiffs’ claims against Defendants are dismissed

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based on each Defendant’s Rule 12(b)(6) dismissal arguments, the merit

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of each Defendant’s 12(b)(1) dismissal motion is not decided.

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I. LEGAL STANDARD

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To avoid dismissal under Rule 12(b)(6), a plaintiff must

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allege “enough facts to state a claim to relief that is plausible on its

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face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 547 (2007). When

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deciding

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complaint are accepted as true, and all reasonable inferences are drawn

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therefrom in the plaintiff’s favor. See al-Kidd v. Ashcroft, 580 F.3d

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949, 956 (9th Cir. 2009). However, “the tenet that a court must accept

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as true all of the allegations contained in a complaint is inapplicable

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to legal conclusions.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009).

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“A

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recitation of the elements of a cause of action will not do.’ Nor does

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a

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‘further factual enhancement.’” Id. (quoting Twombly, 550 U.S. at 555,

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557) (internal citation omitted). “In sum, for a complaint to survive a

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motion to dismiss, the nonconclusory ‘factual content,’ and reasonable

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inferences from that content, must be plausibly suggestive of a claim

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entitling the plaintiff to relief.” Moss v. United States Secret Serv.,

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572 F.3d 962, 969 (9th Cir. 2009).

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a

pleading

complaint

Rule

that

12(b)(6)

offers

suffice

if

motion,

‘labels

it

the

and

tenders

material

allegations

conclusions’

‘naked

or

‘a

assertion[s]’

of

the

formulaic

devoid

of

II. BACKGROUND

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The following factual allegations are contained in Plaintiffs’

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Complaint. Plaintiffs are minor females; both were fifteen years old at

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the time of the alleged incidents about which each Plaintiff complains.

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(Compl. ¶ 6.) On December 22, 2009, Carlisle “sexually molested both

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minor girls” while he was the assistant football coach at Coleville High
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School. Id. ¶¶ 10, 21. Carlisle “consistently and overtly flirted with

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and

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parties, and ultimately, engaged in acts of sexual intercourse and

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sodomy with multiple underage students [and] [h]e was able to do so

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. . . because of his role as assistant football coach at Coleville High

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School.” Id. ¶ 18. Carlisle ultimately plead guilty to “multiple felony

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charges for sexual contact with minors.” Id. ¶ 23.

sexually

harassed

students,

attended

and

facilitated

underage

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Defendant Jason Reed, as principal of Coleville High School,

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“negligently and tortiously failed to conduct a proper investigation

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into [Carlisle’s] background before allowing him access to the students

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of Coleville High School.” Id. ¶ 17. “Various employees in positions of

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authority . . . including . . . Principal [Reed], knew or suspected

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[Carlisle] was having inappropriate sexual relationships with underage

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students.” Id. ¶ 19. “Prior to December 22, 2009, Principal [Reed] . . .

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received information that [Carlisle] was involved in inappropriate

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sexual conduct with an underage female or females at the school . . .

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[but] did not report his suspicions regarding [Carlisle’s] behavior to

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the proper authorities . . . [or] take the appropriate steps to keep

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[Carlisle] away from . . . students[.]” Id. ¶ 20.

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Nor did the Defendant District “adequately train students,

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teachers, and staff regarding sexual harassment, sexual discrimination,

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and avoiding unlawful sexual conduct between students and staff.” Id. ¶

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24. Further, this was “not the first staff-on-student incident of its

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kind within the district[,]” yet “[n]o significant changes in district

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policy, training, or supervision resulted from the discovery of this

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[previous] unlawful behavior by a teacher within the district.” Id. ¶

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26.

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///
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Plaintiffs

state

in

the

caption

of

the

Complaint

that

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Defendants Reed and Clark are being sued “individually and in [their]

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official capacit[ies .]” (Compl. 1:21-24.) However, in their Complaint

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Plaintiffs allege the following concerning Reed and Clark: “[they] were

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at all times relevant herein acting within the purpose and scope of

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[their] agency and employment. However, with regard to claims brought

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under 42 U.S.C. § 1983, . . . Reed [and] Clark . . . are being sued in

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their individual capacities[.]” Id. ¶ 13. This allegation reveals

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Plaintiffs’ § 1983 claims against Reed and Clark are against them in

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their individual capacities and all other claims are solely against Reed

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and Clark in their official capacities. Plaintiffs allege the following

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federal claims in their Complaint: (1) “Prohibited Sex Discrimination

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(20

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constitutional rights under color of law (42 U.S.C. § 1983)” against

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Reed

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Plaintiffs also allege the following five state law claims against

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Defendants:

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supervision, negligent infliction of emotional distress, and failure to

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train. Id. ¶¶ 36-61, 69-72. Plaintiffs seek damages in each claim. Id.

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13:9-15.

U.S.C.

and

§

1681)”

Clark

“in

against

their

negligence,

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Defendants;

individual

negligent

and

(2)

“Deprivation

capacities.”

Id.

hiring/retention,

¶¶

of

27-35.

negligent

III. DISCUSSION
A. “Prohibited Sex Discrimination (20 U.S.C. § 1681)”

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Plaintiffs allege Defendants violated 20 U.S.C. § 1681 (“Title

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IX”) by subjecting “Plaintiffs to discrimination on the basis of sex.”

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(Compl. ¶ 29.) Defendants argue Title IX does not authorize suit against

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school officials like Reed and Clark and therefore, “[t]o the extent

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these

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dismissed.”

Defendants
(Mot.

are

sued

8:13-17,

as
ECF

individuals,
No.
4

7.)

[this

claim]

Plaintiffs

agree

should
in

be

their

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response to the motion that “individual defendants Reed and Clark cannot

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themselves be liable under Title IX[ and that] Defendants’ motions

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should

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Accordingly, Defendants Reed and Clark are dismissed from this claim.

be

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granted

in

that

regard.”

(Opp’n

2:3-5,

ECF

No.

11.)

Defendants also argue “Plaintiffs have failed to allege facts

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sufficient

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“Plaintiff[s have] failed to plead deliberate indifference on the part

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of the District.” (Mot. 9:4-5, 14-15.) Defendants further argue that

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“[a]ssuming . . . that either Reed’s or Clark’s knowledge could be

to

establish

liability

against

the

District”

since

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considered

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District, the allegation of Reed’s knowledge is conclusory” and “without

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basis

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complaint . . . makes adequate factual allegations under Title IX[,]

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. . . properly alleges deliberate indifference[,] . . . [and contains]

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allegations more than suffic[ient] to raise a claim under Title IX[.]”

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(Opp’n 5:1-3.)

in

proper

fact.”

for

Id.

purposes

9:15-17,

of

19.

imparting

Plaintiffs

actual

notice

respond

that

to

the

“[t]he

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Title IX prescribes in part: “No person . . . shall, on the

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basis of sex, be excluded from participation in, be denied the benefits

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of, or be subjected to discrimination under any education program or

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activity receiving Federal financial assistance[.]” 20 U.S.C. § 1681(a).

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“Title IX encompasses sexual harassment of a student by a teacher and is

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enforceable through an implied private right of action for damages

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against a school district.” Garcia ex rel. Marin v. Clovis Unified

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School Dist., No. 1:08-CV-1924 AWI SMS, 2009 WL 2982900, at *8 (E.D.

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Cal. Sept. 14, 2009). However, a school district may not be held liable

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for damages for a teacher’s sexual harassment of a student “unless an

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official of the school district who at a minimum has authority to

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institute corrective measures on the district’s behalf has actual notice
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of, and is deliberately indifferent to, the teacher’s misconduct.”

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Gebser v. Lago Vista Independent School Dist., 524 U.S. 274, 277 (1998).

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The following allegations in Plaintiffs’ Complaint concerning

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the District’s liability are contradictory: Reed “should have . . .

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known” about Carlisle’s conduct; Reed “knew or suspected that [Carlisle]

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was having inappropriate sexual relationships with underage students”;

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Reed “received information that [Carlisle] was involved in inappropriate

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sexual

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behavior[.]”

conduct”;

and

(Compl.

Reed
¶¶

had

“suspicions

19-20.)

Further,

regarding
what

[Carlisle’s]

Plaintiffs

allege

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regarding Reed’s actual knowledge is wholly conclusory. Therefore,

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Plaintiffs have failed to sufficiently allege a district employee had

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actual knowledge of Carlisle’s misconduct and acted with deliberate

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indifference; accordingly, this claim is dismissed.

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B. “Deprivation of constitutional rights under color of law (42 U.S.C.

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§ 1983)”

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Defendants argue to the extent Plaintiffs allege official

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capacity § 1983 claims against Reed and Clark, Eleventh Amendment

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immunity bars these claims. (Mot. 3:7-9.) However, Plaintiffs’ § 1983

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claims against these defendants are not official capacity claims.

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Plaintiffs allege individual capacity § 1983 claims against Reed and

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Clark alleging that each of these defendants “subjected [them] to

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violation of their rights to equal protection . . . under the Fourteenth

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Amendment of the Constitution, [and] their rights to substantive due

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process.” (Compl. ¶ 34.) Specifically, Plaintiffs allege Reed and Clark

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“had

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adequately correct sexual misconduct between staff and students.” Id. ¶

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32-33.

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///

a

custom,

policy

or

practice

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of

tolerating

and

failing

to

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Defendants argue Plaintiffs failed to plead facts sufficient

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to support their § 1983 equal protection and substantive due process

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claims against Reed and Clark. (Mot. 10:13-15.) Plaintiffs include no

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factual allegations in their Complaint against Clark. To allege a

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substantive

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individual defendants “depriv[ed them] of life, liberty, or property in

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such a way that ‘shocks the conscience’ or ‘interfere[ed] with the[ir]

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rights implicit in the concept of ordered liberty.’” Nunez v. City of

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L.A., 147 F.3d 867, 871 (9th Cir. 1998) (quoting United States v.

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due

process

claim

Plaintiffs

must

allege

that

these

Salerno, 481 U.S. 739, 746 (1987)).

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Defendants argue that Plaintiffs’ equal protection claim fails

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to “establish the classification to which [Plaintiffs were] subjected,

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. . . the similarly situated class against which the plaintiff[s’] class

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can be compared[,] . . . [and] how any two classes were treated

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differently.” (Mot. 10:18-22.)

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Defendant Reed had knowledge of inappropriate sexual relationships by an

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employee, that he was a mandatory reporter under the California Penal

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Code, and that he failed to carry out his duty.” (Opp’n 4:14-16).

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Further, Plaintiffs argue “[t]he complaint also alleges that these

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failures amounted to at least deliberate indifference, and that there

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was a custom, policy or practice of tolerating misconduct between staff

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and students.” Id. 4:16-18.

Plaintiffs counter “[t]hey alleged that

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Plaintiffs fail to adequately plead the elements of equal

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protection and substantive due process claims against Reed and Clark. No

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allegations are plead against Clark and the allegations against Reed are

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wholly conclusory. Therefore, these claims are dismissed.

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C. State Law Claims

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Defendants also seek dismissal of Plaintiffs’ state tort

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claims, arguing the Eleventh Amendment grants state agencies sovereign

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immunity from state tort claims in a federal forum. (Mot. 4:13-27.)

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Plaintiffs do not respond to this argument.

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The Eleventh Amendment “precludes the adjudication of pendent

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state law claims against nonconsenting state defendants in federal

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courts.” Cholla Ready Mix, Inc. v. Civish, 382 F.3d 969, 973 (9th Cir.

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2004). Defendants motion shows “[t]he State of California has not waived

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its [Eleventh Amendment] immunity to suits in [this] federal court[]

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. . . .” Lopez v. Wasco State Prison, No. 1:08-CV-889 AWI TAG, 2008 WL

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5381696, at *4 (E.D. Cal. Dec. 22, 2008) (citing Riggle v. California,

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577 F.2d 579, 585 (9th Cir. 1978)). Further, “California’s school

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districts are an arm of the state for Eleventh Amendment purposes.” Al-

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Rifai v. Willows Unified School Dist., No. 2:10-cv-02526 MCE-CMK, 2011

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WL 318572, at *2 (E.D. Cal. Feb. 1, 2011) (citing Belanger v. Madera

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Unified School Dist., 963 F.2d 248, 251 (9th Cir. 1992)). Therefore, the

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Eleventh Amendment bars Plaintiffs’ state tort claims against the

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District.

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The Eleventh Amendment also bars “damages actions brought

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against state officials in their official capacity, as the state is the

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real party-in-interest in these suits.” Doe v. Lassen Comty. Coll.

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Dist., No. 07-CV-01521 LEW (DADx), 2007 WL 4623042, at *2 (E.D. Cal.

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Dec. 28, 2007) (citing Pennhurst State Sch. & Hosp. v. Halderman, 465

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U.S. 89, 100-01 (1984)). Since Plaintiffs’ state tort claims against

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Reed and Clark are solely against them in their official capacities,

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Eleventh Amendment immunity also bars Plaintiffs’ state tort claims

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against Reed and Clark. See Gilbreath v. Cutter Biological, Inc., 931
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F.2d 1320, 1327 (9th Cir. 1991) (dismissing state law claims against

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state defendants on Eleventh Amendment grounds and stating that “‘it is

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difficult to think of a greater intrusion on state sovereignty than when

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federal courts instruct state officials on how to conform their conduct

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to state law’”) (quoting Pennhurst, 465 U.S. at 106)).

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Accordingly,

Plaintiffs’

state

law

claims

against

the

District, Reed, and Clark are dismissed.

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IV. CONCLUSION

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For

the

foregoing

reasons,

Plaintiffs’

claims

against

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Defendants are dismissed. Plaintiffs are granted fourteen (14) days from

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the date on which this order is filed to file a First Amended Complaint

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addressing the deficiencies in the dismissed claims. Further, Plaintiffs

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are notified that this action may be dismissed with prejudice under Rule

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41(b) if Plaintiffs fail to file an amended complaint within the

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prescribed time period.

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Dated:

October 11, 2011

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GARLAND E. BURRELL, JR.
United States District Judge

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