M.S. et al v. Weed Union Elementary School District et al

Filing 26

ORDER signed by Judge John A. Mendez on 11/26/2013 GRANTING IN PART AND DENYING IN PART 15 Motion to Dismiss; DENYING 15 Motion to Dismiss Plaintiff's Seventh Claim for negligence against Deputy Houtman and the County for vicarious liability ; GRANTING WITH PREJUDICE 15 Motion to Dismiss Plaintiff's Seventh Claim for negligence against the County based on direct liability; GRANTING WITH PREJUDICE 15 Motion to Dismiss Plaintiff's claim for punitive damages against the County under § 1983; DISMISSING WITH LEAVE TO AMEND Plaintiff's First Claim for violation of § 1983 against County defendants; ORDERING Plaintiff to file an Amended Complaint within twenty (20) days; ORDERING Defendants to file their responsive pleading within twenty (20) days of the filing of the Amended Complaint. (Michel, G)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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M.S., by and through her
Guardian ad Litem, David
Sisco; DAVID SISCO; and
KATHLEEN WILDER,
Plaintiffs,

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2:13-cv-01211 JAM-DAD

ORDER GRANTING COUNTY
DEFENDANTS’ MOTION TO DISMISS IN
PART AND DENYING IN PART

v.

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No.

WEED UNION ELEMENTARY SCHOOL
DISTRICT, LEEANNA RIZZO,
ALISA CUMMINGS, COUNTY OF
SISKIYOU, and DEPUTY SHERIFF
CARL HOUTMAN,
Defendants.

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This matter is before the Court on Defendants County of

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Siskiyou (“County”) and Deputy Sheriff Carl Houtman’s (“Deputy

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Houtman”) (collectively “County Defendants”) Motion to Dismiss

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Plaintiffs’ complaint (Doc. #15).

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(“Sisco”), and Kathleen Wilder (“Wilder”) (collectively

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“Plaintiffs”) oppose the motion (Doc. #22) and Defendant replied

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(Doc. #24). 1

Plaintiffs M.S., David Sisco

For the reasons set forth below, County Defendants’

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This motion was determined to be suitable for decision without
oral argument. E.D. Cal. L.R. 230(g). The hearing was scheduled
for October 23, 2013.
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Motion to Dismiss is GRANTED in part and DENIED in part

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I.

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FACTUAL ALLEGATIONS AND PROCEDURAL BACKGROUND

Plaintiffs originally filed this action on June 18, 2013,

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against County Defendants, Weed Union Elementary School District

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(“the District”), Leeanna Rizzo (“Rizzo”), and Alisa Cummings

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(“Principal”) (collectively “Defendants”).

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Plaintiffs’ allege seven causes of action: (1) violation of civil

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rights pursuant to 42 U.S.C. § 1983 as to all Defendants;

In the complaint,

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(2) child abuse as to Rizzo; (3) intentional infliction of

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emotional distress as to Rizzo; (4) battery as to Rizzo;

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(5) vicarious liability as to the District; (6) negligence as to

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Rizzo, Principal, and the District; and (7) negligence as to

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County Defendants.

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Court dismissed the District without prejudice pursuant to

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Plaintiffs’ request (Doc. #14).

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Compl ¶¶ 23-57.

On August 16, 2013, the

Plaintiffs allege that M.S., a minor, was battered and

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abused while a student at a school owned and operated by the

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District.

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natural parents.

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about November 2012, M.S. was harassed by a classmate and by

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Rizzo, M.S.’s teacher.

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incidents to the Principal and the Weed Police Department.

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14.

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M.S. was molested by a classmate but never reported it to the law

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enforcement authorities.

Id. ¶ 3.

Plaintiffs Sisco and Wilder are M.S.’s

Id.

Plaintiffs allege that beginning in or

Id. ¶¶ 12-13.

Plaintiffs reported the
Id. ¶

In addition, Plaintiffs allege that the Principal knew that

Id. ¶¶ 18-19.

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On or about February 13, 2013, Deputy Houtman allegedly

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appeared in uniform at Plaintiffs’ home and attempted to dissuade
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Plaintiffs from testifying or making further complaints against

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the Principal.

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Houtman’s demand and the Sheriff’s Department began a campaign of

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harassment against Plaintiffs.

Id. at 20.

Plaintiffs allegedly declined Deputy

Id.

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II.

OPINION

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A.

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A party may move to dismiss an action for failure to state

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Legal Standard

a claim upon which relief can be granted pursuant to Federal

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Rule of Civil Procedure 12(b)(6).

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dismiss a plaintiff must plead “enough facts to state a claim to

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relief that is plausible on its face.”

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Twombly, 556 U.S. 662, 570 (2007).

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dismiss, a district court must accept all the allegations in the

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complaint as true and draw all reasonable inferences in favor of

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the plaintiff.

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overruled on other grounds by Davis v. Scherer, 468 U.S. 183

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(1984); Cruz v. Beto, 405 U.S. 319, 322 (1972).

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entitled to the presumption of truth, allegations in a complaint

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or counterclaim may not simply recite the elements of a cause of

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action, but must sufficiently allege underlying facts to give

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fair notice and enable the opposing party to defend itself

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effectively.”

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2011), cert. denied, 132 S. Ct. 2101, 182 L. Ed. 2d 882 (U.S.

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2012).

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must plausibly suggest an entitlement to relief, such that it is

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not unfair to require the opposing party to be subjected to the

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expense of discovery and continued litigation.”

To survive a motion to

Bell Atlantic Corp. v.

In considering a motion to

Scheuer v. Rhodes, 416 U.S. 232, 236 (1974),

“First, to be

Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir.

“Second, the factual allegations that are taken as true

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Id.

Assertions

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that are mere “legal conclusions” are therefore not entitled to

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the presumption of truth.

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(2009) (citing Twombly, 550 U.S. at 555).

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appropriate when a plaintiff fails to state a claim supportable

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by a cognizable legal theory.

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Department, 901 F.2d 696, 699 (9th Cir. 1990).

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Ashcroft v. Iqbal, 556 U.S. 662, 678
Dismissal is

Balistreri v. Pacifica Police

Upon granting a motion to dismiss for failure to state a

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claim, a court has discretion to allow leave to amend the

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complaint pursuant to Federal Rule of Civil Procedure 15(a).

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“Dismissal with prejudice and without leave to amend is not

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appropriate unless it is clear . . . that the complaint could

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not be saved by amendment.”

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Inc., 316 F.3d 1048, 1052 (9th Cir. 2003).

Eminence Capital, L.L.C. v. Aspeon,

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B.

Discussion

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County Defendants move to dismiss all claims against them:

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the first claim, a Civil Rights claim under 42 U.S.C. § 1983,

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and the seventh claim, a negligence claim under state law. 2

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1.

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First Claim for Violation of 42 U.S.C. § 1983

County Defendants move to dismiss Plaintiffs’ first claim

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for violation of 42 U.S.C. § 1983 because they have failed to

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allege sufficient facts to establish the requisite elements of a

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claim under Monell v. Department of Social Services, 436 U.S.

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658, 690-91 (1978) and because Plaintiffs have failed to alleged

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a constitutional violation.

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complaint does not properly allege county liability under Monell

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Plaintiffs concede that the

County Defendants also mention that the second, third, fourth,
fifth, and sixth claims should be dismissed against them.
However, these claims are not alleged against them. See Compl.
¶¶ 32-50.
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and therefore should be dismissed with leave to amend.

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Accordingly, the Court dismisses Plaintiffs’ first claim against

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the County for violation of § 1983 with leave to amend.

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Plaintiffs also argue that Deputy Houtman’s actions in

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dissuading Plaintiffs from reporting or cooperating in a

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criminal case gives rise to a § 1983 claim against Deputy

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Houtman.

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violated the First and Fourteenth Amendment by attempting to

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dissuade Plaintiffs from testifying against Rizzo or the

Specifically, Plaintiffs argue that Deputy Houtman

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Principal.

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to be a retaliation claim and a right of access to courts claim.

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Opp. at 5-7.

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Amendment claim and the due process claim under the Fourteenth

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Amendment should be stricken.

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Plaintiffs’ precise claim is unclear, but it appears

In addition, Plaintiffs state that their Fourth

a.

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Opp. at 7.

Right of Access Claim

For a § 1983 claim, Plaintiffs must allege facts to show “a

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deprivation of a right, privilege or immunity secured by the

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Constitution or federal law, by one acting under color of state

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law.”

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The right of individuals to pursue legal redress for claims is

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protected by the First and Fourteenth Amendments.

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Cook, 169 F.3d 428, 432 (7th Cir. 1999) (quoting Vasquez v.

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Hernandez, 60 F.3d 325, 328 (7th Cir. 1995)); see also Delew,

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143 F.3d at 1222 (9th Cir. 1998) (noting “right of access to the

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courts is a fundamental right protected by the Constitution”).

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In the Ninth Circuit, to state a right to access claim, a

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plaintiff must allege that “defendants’ cover-up violated their

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right of access to the courts by rendering ‘any available state

Delew v. Wagner, 143 F.3d 1219, 1222 (9th Cir. 1998).

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Harrell v.

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court remedy ineffective.’”

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Swekel v. City of River Rouge, 119 F.3d 1259, 1264 (6th Cir.

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1997)).

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Delew, 143 F.3d at 1223 (quoting

County Defendants argue that Plaintiffs have not alleged

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any facts to show that Deputy Houtman took any actions to

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interfere and stop them from pursuing the prosecution with the

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Weed Police Department.

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that Deputy Houtman tried to dissuade Sisco, Wilder, and/or M.S.

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“from testifying against or making any further complaints to the

In their complaint, Plaintiffs allege

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Weed police about PRINCIPAL, telling SISCO it would be in

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plaintiffs’ best interests to back off of the reports already

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made concerning the foregoing alleged events.”

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Plaintiffs allegedly declined, and therefore, ”the COUNTY, via

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its Sheriff’s Department began a campaign of harassment against

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plaintiffs.”

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Houtman has rendered Plaintiffs’ judicial remedies inadequate or

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ineffective.

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right of access claim.

Id.

However, there are no allegations that Deputy

Therefore, Plaintiffs have not properly alleged a

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Compl. ¶ 20.

b.

Retaliation Claim

Plaintiffs argue that a § 1983 claim “will lie for

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retaliation based on the exercise of constitutionally or

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statutorily protected rights when the government or its

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officials take negative action against an individual because of

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his or her exercise of rights guaranteed by the Constitution or

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federal laws.”

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Plaintiffs rely on several out-of-circuit cases.

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the Ninth Circuit has held that a free speech retaliation claim

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is cognizable under § 1983.

Opp. at 6.

In support of their argument,
Nevertheless,

See e.g., Soranno’s Gasco, Inc. v.
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Morgan, 874 F.2d 1310, 1314 (9th Cir. 1989) (“The right of

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access to the courts is subsumed under the first amendment right

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to petition the government for redress of grievances.

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[]Deliberate retaliation by state actors against an individual’s

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exercise of this right is actionable under section 1983.”)

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(internal citations omitted).

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First Amendment retaliation claim by showing that “(1) [they]

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engaged in constitutionally protected activity; (2) as a result,

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[they] were subjected to adverse action by the defendant that

Plaintiffs may demonstrate a

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would chill a person of ordinary firmness from continuing to

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engage in the protected activity; and (3) there was a

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substantial causal relationship between the constitutionally

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protected activity and the adverse action.”

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School Dist., 608 F.3d 540, 543 (9th Cir. 2010) (citing Pinard

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v. Clatskanie School Dist. 6J, 467 F.3d 755, 770 (9th Cir.

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2006)); see also Wardany v. City of San Jacinto, 5:09-CV-00299,

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2011 WL 2119370 (C.D. Cal. May 27, 2011) (applying Blair to a

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right to petition retaliation claim) aff’d, 509 F. App’x 650

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(9th Cir. 2013)

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Blair v. Bethel

In this case, County Defendants argue that the verbal

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statements by Deputy Houtman and unrelated actions by other

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officers, not tied to Deputy Houtman, are insufficient to

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establish a claim for retaliation.

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above, Plaintiffs allege that Deputy Houtman threatened them.

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However, verbal threats, alone, are insufficient to state a

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violation of a constitutional right under § 1983.

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v. Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987).

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claim in their Tort Claim Letter to the County, attached to the
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Reply at 4.

As mentioned

Oltarzewski
Plaintiffs also

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complaint, that several unnamed deputies followed and watched

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them, but Plaintiffs fail to allege any facts to connect these

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actions to Deputy Houtman.

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Ex. 1, Doc. #1-1, at 2.

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personally participated in the alleged deprivation of First

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Amendment rights, Plaintiffs cannot state a claim.

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Williams, 297 F.3d 930, 934 (9th Cir. 2002) (“In order for a

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person acting under color of state law to be liable under § 1983

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there must be a showing of personal participation in the alleged

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Claim Letter to County of Siskiyou,

Without allegations that Deputy Houtman

See Jones v.

rights deprivation.”)
Accordingly, the Court finds that Plaintiffs have failed to

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state a § 1983 claim against Deputy Houtman.

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may be able to allege sufficient facts to state a right of

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access claim or a retaliation claim, the Court grants Plaintiffs

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leave to amend.

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2.

Because Plaintiffs

Negligence Claim

County Defendants argue that Plaintiffs’ seventh claim for

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negligence should be dismissed because they failed to comply

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with the Tort Claims Act (“TCA”).

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that the Tort Claim Notice was timely filed.

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initial matter, Defendants do not argue that Plaintiffs’ Tort

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Notice was untimely; they argue that Plaintiffs’ claim was for

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an intentional tort not for negligence.

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Mot. 4-5.

Plaintiffs contend
Opp. at 5.

As an

See Reply at 2.

State tort law claims are subject to the claim presentation

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requirements of the TCA.

Karim-Panahi v. Los Angeles Police

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Dep’t, 839 F.2d 621, 627 (9th Cir. 1988)

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need not contain the detail and specificity required of a

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pleading, but need only fairly describe what the entity is
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A submitted “claim

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alleged to have done.”

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Agencies Joint Powers Ins. Auth., 34 Cal. 4th 441, 446 (2004).

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If a plaintiff “relies on more than one theory of recovery

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against the [public entity], each cause of action must have been

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reflected in a timely claim.

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circumstances set forth in the written claim must correspond

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with the facts alleged in the complaint.”

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Livermore, 127 Cal.App.4th 32, 40 (2005); see Stockett, 34 Cal.

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4th at 447; Nelson v. State of California, 139 Cal.App.3d 72, 79

Stockett v. Ass’n of California Water

In addition, the factual

Dixon v. City of

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(1982).

“[A] complaint is vulnerable to a demurrer if it

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alleges a factual basis for recovery which is not fairly

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reflected in the written claim.”

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In other words, it is permissible to plead additional theories

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where the “additional theories [are] based on the same factual

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foundation as those in the claim, and the claim provide[s]

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sufficient information to allow the public agency to conduct an

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investigation into the merits of the claim.”

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Cal.App.4th at 42.

Stockett, 34 Cal. 4th at 447.

Dixon, 127

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In Plaintiffs’ claim letter, they state, “The deputies’

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intentional actions have caused the Siscos to fear for their

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safety and have caused the [sic] suffer severe emotional

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distress, fright, anxiety, and physical distress.”

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to County of Siskiyou, Ex. 1, Doc. #1-1, at 2.

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Plaintiffs only refer to intentional actions, Plaintiffs’

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negligence claim is based on the same factual foundation as the

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intentional acts.

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failure to specifically identify their causes of action in their

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claim letter is not fatal to their negligence state law claim

Claim Letter

Although

Therefore, the Court finds that Plaintiffs’

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against Deputy Houtman in this lawsuit.
County Defendants also argue that Plaintiffs’ claim letter

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contains no claim of wrongful action by the County.

Because

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there are no facts describing wrongful actions by the County,

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the Court dismisses Plaintiffs’ claim for direct liability

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against the County.

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under California Government Code section 820.8 (“Section 820.8),

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“there is no respondeat superior liability of the County of

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Siskiyou.”

Moreover, County Defendants argue that

Mot. at 2.

However, Section 820.8 provides that

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except as otherwise provided by statute, “a public employee is

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not liable for an injury caused by the act or omission of

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another person.”

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Therefore, Section 820.8 does not apply to public entities.

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Contrastingly, under California Government Code section 815.2, a

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public entity may be found vicariously liable for employees’

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tortious acts.

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relevant part that “[a] public entity is liable for injury

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proximately caused by an act or omission of an employee of the

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public entity within the scope of employment”).

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County may be sued in tort based on a respondeat superior theory

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of vicarious liability.

Cal. Gov’t Code § 820.8 (emphasis added).

Cal. Gov’t Code § 815.2(a) (providing in

Therefore, the

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Accordingly, the Court denies County Defendants’ motion to

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dismiss Plaintiffs’ negligence claim against Deputy Houtman and

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against the County under a respondeat superior theory of

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liability.

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dismiss Plaintiffs’ negligence against the County for direct

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liability.

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County for direct liability was not properly noticed, granting

The Court grants County Defendants’ motion to

Because Plaintiffs’ negligence claim against the

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Plaintiff leave to amend would be futile.

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3.

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Punitive Damages

County Defendants argue that Plaintiffs are barred from

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seeking punitive against them.

Based on Plaintiffs’ prayer for

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relief, Plaintiffs only seek punitive damages against the County

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pursuant to their first claim for violation of § 1983.

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Compl. at p. 19.

Under § 1983, municipalities are immune from

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punitive damages.

City of Newport v. Fact Concerts, Inc., 453

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U.S. 247, 271 (1981).

See

Accordingly, the Court dismisses

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Plaintiffs’ punitive damages claim and does not grant leave to

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amend because this claim is legally foreclosed.

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4.

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Supplemental Claims

Finally, County Defendants argue that if Plaintiffs’ first

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claim for violation of § 1983 fails, the Court should decline

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supplemental jurisdiction.

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Plaintiffs’ first claim against County Defendants, it granted

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Plaintiffs leave to amend.

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decide whether to decline supplemental jurisdiction at this

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time.

Although the Court has dismissed

Accordingly, the Court need not

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III.

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ORDER

For the foregoing reasons, County Defendants’ Motion to

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Dismiss is GRANTED in part and DENIED in part.

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Defendants’ Motion to Dismiss Plaintiffs’ seventh claim for

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negligence against Deputy Houtman and the County for vicarious

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liability is DENIED.

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Defendants’ Motion to Dismiss:

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(1)

County

The Court GRANTS WITH PREJUDICE County

Plaintiffs’ seventh claim for negligence against the
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County based on direct liability,
(2)

Plaintiffs’ claim for punitive damages against the

County under § 1983.

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The Court DISMISSES WITH LEAVE TO AMEND:

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(1)

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Plaintiffs’ first claim for violation § 1983 against

County Defendants.

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Plaintiffs’ Amended Complaint must be filed within twenty

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(20) days from the date of this Order. County Defendants shall

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file their responsive pleading within twenty (20) days after the

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Amended Complaint is filed.

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Amended Complaint, the case will proceed without Plaintiffs’

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first claim against County Defendants.

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If Plaintiffs elect not to file an

IT IS SO ORDERED.
Dated: November 26, 2013

____________________________
JOHN A. MENDEZ,
UNITED STATES DISTRICT JUDGE

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