Wagnon, et al v Rocklin Unified School District, et al

Filing 12

ORDER signed by District Judge Troy L. Nunley on 6/21/19 DENYING 6 Motion to Dismiss. (Kaminski, H)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ALICIA WAGON in her individual
capacity and as conservator for
SULLIVAN R. FROM,

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Plaintiffs,

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No. 2:17-cv-01666-TLN-KJN

ORDER

v.
ROCKLIN UNIFIED SCHOOL
DISTRICT, PLACER COUNTY OFFICE
OF EDUCATION, DAVID HAWKINS,
and DOES 1-30,
Defendants.

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This matter is before the Court on Defendants’ Rocklin Unified School District, Placer

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County Office of Education, and David Hawkins’ (“Defendants”) Motion to Dismiss. (ECF No.

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6.) Plaintiff Alicia Wagon (“Plaintiff”) opposes Defendants’ motion. (ECF No. 9.) Defendants

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filed a reply. (ECF No. 10.) For the reasons below, the Court hereby DENIES Defendants’

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Motion to Dismiss. (ECF No. 6.)

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FACTUAL AND PROCEDURAL BACKGROUND1

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I.

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Plaintiff Alicia Wagon (“Plaintiff”) alleges that Defendant David Hawkins (“Hawkins”), a

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bus driver for Defendant Rocklin Unified School District (“RUSD”), subjected her son, Sullivan

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R. From (“S.R.F.”), to repeated verbal, physical, psychological, and emotional abuse. (ECF No.

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1 ¶ 15.)

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S.R.F. is a nonverbal individual living with Cerebral Palsy. (ECF No. 1 ¶ 9.) S.R.F.

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resides within RUSD (ECF No. 1 at 1) and receives special education services through the Placer

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County Office of Education (“PCOE”) (ECF No. 1 ¶ 10). Pursuant to his Individualized

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Education Plan (“IEP”) provided by PCOE, S.R.F. received transportation to his placement at Del

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Oro High School via RUSD’s buses on Transportation Route 32. (ECF No. 1 ¶ 12.) School staff

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were required to assist S.R.F. when ambulating through use of a gait belt to ensure his safety.

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(ECF No. 1 ¶ 9.) On the bus, the gait belt completely harnessed S.R.F. to his bus seat so that he

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could not fall or otherwise get out of his seat on his own. (ECF No. 1 ¶ 9.)
On September 28, 2016, Plaintiff was notified by S.R.F.’s teacher that S.R.F. had a bruise

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on his thigh. (ECF No. 1 ¶ 11.) Concerned that S.R.F.’s injury occurred while riding the bus,

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Plaintiff asked to review the recordings from the cameras on the bus from September 26, 27, and

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28, 2016. (ECF No. 1 ¶ 14.) Upon viewing the bus recordings at the RUSD Transportation

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Office, Plaintiff observed several instances of disturbing behavior by Hawkins. (See ECF No. 1

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¶¶ 14, 15.)
Plaintiff observed Hawkins yell at close range in S.R.F.’s face, make derogatory

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comments to others about S.R.F. while in his presence, talk about S.R.F. while in his presence as

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if “he was not a sensitive and perceptive human being”, use inappropriate, degrading, and

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intimidating voice tones, facial expressions, body language, and gestures toward S.R.F., and,

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make statements such as: “oh he’s a pisser this morning;” “you almost look like you know what

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you’re doing;” “we’re not going to be friends anymore if you keep being bad;” “he’s a brat;”

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“quit being such a brat, you know better;” “you’re just being a brat;” and “take him please!”

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(ECF No. 1 ¶ 17.) Plaintiff alleges that Hawkins directed disability-related epithets and

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The following allegations are taken, sometimes verbatim, from Plaintiff’s complaint. (ECF No. 1.)

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derogatory comments toward S.R.F. when he urinated while on the bus, or engaged in repetitive

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movements or in touching, lifting, or moving items as a result of his disability. (ECF No. 1 ¶ 48.)

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Additionally, Plaintiff observed in the recordings an instance of Hawkins forcefully

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shoving S.R.F. back in his seat when S.R.F. leaned forward, even though he was fully harnessed

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and incapable of getting out of his seat. (ECF No. 1 ¶ 18.) Plaintiff also observed an incident

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where Hawkins got off the bus during a stop and yelled “bye!” to his bus full of students with

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severe cognitive and physical disabilities, leaving them alone and unsupervised on the bus for

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several minutes. (ECF No. 1 ¶ 19.) Plaintiff further alleges that Hawkins played the radio at an

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excessively loud volume, causing students with various disabilities, like S.R.F., to become

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anxious and agitated, and experience sensory overload. (ECF No. 1 ¶ 20.)

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S.R.F., as a nonverbal dependent adult with significant disabilities, was unable to

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communicate Hawkins’ behavior to his mother. (ECF No. 1 ¶ 22.) S.R.F. exhibited changes in

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behavior during this time, regressing in several areas that he had previously made progress or

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mastered. (ECF No. 1 ¶ 24.) S.R.F. also showed signs of distress at the end of his school day as

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the time approached to load the bus; S.R.F.’s teacher documented these signs and communicated

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them to Plaintiff. (ECF No. 1 ¶ 24.)

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On information and belief, Plaintiff alleges PCOE and RUSD administrators had access to

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the bus videos and audio recordings of RUSD Transportation Route 32, and failed to monitor

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Hawkins and/or prevent his further abuse of S.R.F. (ECF No. 1 ¶ 25.) On information and belief,

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Plaintiff alleges that RUSD is responsible for Hawkins’ actions, as they were taken during the

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course and scope of his employment with RUSD. (ECF No. 1 ¶ 26.)

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On August 11, 2017, Plaintiff filed the instant lawsuit against RUSD, PCOE, Hawkins,

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and Does 1–30 (collectively, “Defendants”), alleging the following causes of action: (1) Violation

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of Fourth Amendment Rights under 42 U.S.C. § 1983 against Hawkins; (2) Discrimination in

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Violation of Americans with Disabilities Act (“ADA”) against RUSD and PCOE; (3) Violation of

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§ 504 of the Rehabilitation Act of 1973 against RUSD and PCOE; (4) Battery against Hawkins;

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(5) Negligence against Hawkins and RUSD; (6) Negligent Supervision against RUSD; (7)

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Violation of Unruh Civil Rights Act against RUSD; and (8) Violation of California Civil Code
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§52.1 against Hawkins and RUSD. (See ECF No. 1.) Defendants now move to dismiss

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Plaintiff’s first, second, third, seventh and eighth claims. (See ECF No. 6.)

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II.

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A motion to dismiss for failure to state a claim under Rule 12(b)(6) tests the legal

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sufficiency of a complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Federal Rule of

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Civil Procedure 8(a) requires that a pleading contain “a short and plain statement of the claim

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showing that the pleader is entitled to relief.” See Ashcroft v. Iqbal, 556 U.S. 662, 678–79

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(2009). Under notice pleading in federal court, the complaint must “give the defendant fair notice

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of what the claim . . . is and the grounds upon which it rests.” Bell Atlantic v. Twombly, 550 U.S.

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544, 555 (2007) (internal quotations omitted). “This simplified notice pleading standard relies on

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liberal discovery rules and summary judgment motions to define disputed facts and issues and to

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dispose of unmeritorious claims.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002).

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STANDARD OF LAW

On a motion to dismiss, the factual allegations of the complaint must be accepted as true.

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Cruz v. Beto, 405 U.S. 319, 322 (1972). A court is bound to give plaintiff the benefit of every

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reasonable inference to be drawn from the “well-pleaded” allegations of the complaint. Retail

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Clerks Int’l Ass’n v. Schermerhorn, 373 U.S. 746, 753 n.6 (1963). A plaintiff need not allege

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“‘specific facts’ beyond those necessary to state his claim and the grounds showing entitlement to

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relief.” Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads

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factual content that allows the court to draw the reasonable inference that the defendant is liable

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for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. 544, 556 (2007)).

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Nevertheless, a court “need not assume the truth of legal conclusions cast in the form of

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factual allegations.” United States ex rel. Chunie v. Ringrose, 788 F.2d 638, 643 n.2 (9th Cir.

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1986). While Rule 8(a) does not require detailed factual allegations, “it demands more than an

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unadorned, the defendant–unlawfully–harmed–me accusation.” Iqbal, 556 U.S. at 678. A

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pleading is insufficient if it offers mere “labels and conclusions” or “a formulaic recitation of the

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elements of a cause of action.” Twombly, 550 U.S. at 555; see also Iqbal, 556 U.S. at 678

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(“Threadbare recitals of the elements of a cause of action, supported by mere conclusory

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statements, do not suffice.”). Moreover, it is inappropriate to assume that the plaintiff “can prove
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facts that it has not alleged or that the defendants have violated the . . . laws in ways that have not

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been alleged.” Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459

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U.S. 519, 526 (1983).

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Ultimately, a court may not dismiss a complaint in which the plaintiff has alleged “enough

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facts to state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 697 (quoting

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Twombly, 550 U.S. at 570). Only where a plaintiff has failed to “nudge[] [his or her] claims . . .

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across the line from conceivable to plausible,” is the complaint properly dismissed. Id. at 680.

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While the plausibility requirement is not akin to a probability requirement, it demands more than

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“a sheer possibility that a defendant has acted unlawfully.” Id. at 678. This plausibility inquiry is

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“a context–specific task that requires the reviewing court to draw on its judicial experience and

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common sense.” Id. at 679.

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If a complaint fails to state a plausible claim, “[a] district court should grant leave to

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amend even if no request to amend the pleading was made, unless it determines that the pleading

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could not possibly be cured by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1130

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(9th Cir. 2000) (en banc) (quoting Doe v. United States, 58 F.3d 484, 497 (9th Cir. 1995)); see

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also Gardner v. Marino, 563 F.3d 981, 990 (9th Cir. 2009) (finding no abuse of discretion in

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denying leave to amend when amendment would be futile). Although a district court should

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freely give leave to amend when justice so requires under Rule 15(a)(2), “the court’s discretion to

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deny such leave is ‘particularly broad’ where the plaintiff has previously amended its complaint.”

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Ecological Rights Found. v. Pac. Gas & Elec. Co., 713 F.3d 502, 520 (9th Cir. 2013) (quoting

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Miller v. Yokohama Tire Corp., 358 F.3d 616, 622 (9th Cir. 2004)).

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III.

ANALYSIS
A. Claim One: Violation of Fourth Amendment Rights under 42 U.S.C. § 1983

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Defendants argue that Plaintiff’s first cause of action, violation of Fourth Amendment

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rights pursuant to 42 U.S.C. § 1983, should be dismissed because Plaintiff failed to allege any

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unconstitutional seizure by Hawkins. (ECF No. 6 at 2.) In opposition, Plaintiff argues that there

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need not be a typical “seizure” per se to show a violation of Fourth Amendment rights if there is

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excessive force exerted by school personnel. (ECF No. 9 at 12.)
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The consequences of a school employee’s use of force against a student at school are

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generally analyzed under the “reasonableness” rubric of the Fourth Amendment. Preschooler II

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v. Clark Cty. Sch. Bd. of Trs., 479 F.3d 1175, 1180 (9th Cir. 2007); see Doe ex rel. Doe v. Haw.

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Dept. of Educ., 334 F.3d 906, 908–09 (9th Cir. 2003) (explaining the move away from analyzing

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such claims under a Fourteenth Amendment substantive due process framework). The Fourth

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Amendment’s “reasonableness” standard, as applied in a school context, balances educational

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objectives with the particular characteristics of the student, such as age and sex, and the nature of

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the infraction. See Doe, 334 F.3d at 909. If there is no need for the claimed excessive force, then

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the use of force is considered unreasonable in violation of the Fourth Amendment, particularly if

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the student is more vulnerable than the average student of the same age and sex due to a

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disability. See Preschooler II, 479 F.3d at 1180–81.

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Plaintiffs allege that Hawkins, acting under color of state law as an employee of RUSD,

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utilized unjustified force against S.R.F. when Hawkins shoved S.R.F. back in his seat while he

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was fully harnessed and incapable of getting out of his seat on his own. (ECF No. 1 ¶ 37.)

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Defendants argue in their reply to Plaintiff’s opposition that a single incident of shoving does not

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rise to the level of a Constitutional violation. (ECF No. 10 at 2–3.) However, a single adverse

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action against a student in school is adequate to establish a prima facie violation of Fourth

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Amendment rights. See Doe, 334 F.3d at 910 (finding a single incident of a principal taping a

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student’s head to a tree sufficient for a fact finder to conclude there was unreasonable conduct in

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violation of the Fourth Amendment); C.B. v. City of Sonora, 769 F.3d 1005, 1030–31 (9th Cir.

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2014) (en banc) (reversing trial court’s ruling on a motion for judgment as a matter of law on two

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officers’ qualified immunity claims because “no officer could have reasonably believed that their

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use of handcuffs to remove C.B. from school grounds complied with the Fourth Amendment.”);

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T.A. ex rel. Amador v. McSwain Union Elementary Sch. Dist., No. CV-F-08-1986, 2009 WL

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1748793, at *8 (E.D. Cal. June 18, 2009) (finding that Plaintiff submitted sufficient evidence on

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motion to dismiss where teacher grabbed student’s arm and forcibly escorted her to the

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principal’s office); Gorthy v. Clovis Unified Sch. Dist., No. CVF05-1052RECJLO, 2006 WL

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236939, at *3–4 (E.D. Cal. Jan. 31, 2006) (finding that Plaintiff submitted sufficient evidence on
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motion to dismiss where coach ordered Plaintiff to perform the “bear crawls” despite his

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protests). Taking Plaintiff’s allegations as true, Plaintiff has adequately pleaded that Hawkins

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used unreasonable force in violation of the Fourth Amendment when Hawkins shoved S.R.F.

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without justification.

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Accordingly, the Court DENIES Defendants’ Motion to Dismiss Plaintiff’s First claim.

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B. Claims Two and Three: Discrimination in Violation of the ADA and Section

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504 of the Rehabilitation Act of 1973
Defendants argue that the Court should dismiss Plaintiff’s second and third causes of

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action because there are insufficient allegations S.R.F. was discriminated against due to his

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disability and there are no allegations of deliberate indifference. (ECF No. 6 at 10, 13.) In

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opposition, Plaintiff argues that she has adequately pleaded discrimination claims under Title II of

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the ADA and Section 504 of the Rehabilitation Act of 1973 because Hawkins’ actions were

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motivated by an obvious animus toward S.R.F. as a disabled individual and he subjected S.R.F. to

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physical, verbal, emotional, and psychological abuse because of various symptoms manifested

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from S.R.F.’s disability. (ECF No. 9 at 14.)

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To establish a prima facie case of disability discrimination under Title II of the ADA, a

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plaintiff must prove: (1) he is a qualified individual with a disability; (2) he was either excluded

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from participation in or denied the benefits of a public entity’s services, programs or activities, or

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was otherwise discriminated against by the public entity; and (3) such exclusion, denial of

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benefits, or discrimination was by reason of his disability.2 Weinreich v. L.A. Cty. Metro. Transp.

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Auth., 114 F.3d 976, 978 (9th Cir. 1997). A prima facie case under the Rehabilitation Act has

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identical elements, except that the plaintiff must also prove that the relevant program receives

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federal financial assistance. See Duvall v. Cnty. of Kitsap, 260 F.3d 1124, 1135 (9th Cir. 2001).

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To recover monetary damages under Title II of the ADA or the Rehabilitation Act, a

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plaintiff must additionally prove intentional discrimination as defined by the “deliberate

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indifference” standard. Id. at 1138. “Deliberate indifference requires both knowledge that a harm

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In contrast to the “by reason of” causation standard in the ADA, the Rehabilitation Act has a heightened
causation standard. See 29 U.S.C. § 794 (replacing ADA’s “by reason of” language with “solely by reason of”).
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to a federally protected right is substantially likely, and a failure to act upon that likelihood.” Id.

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at 1139 (citing City of Canton v. Harris, 489 U.S. 378, 389 (1989)).

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It is uncontested, that as an intellectually and physically disabled individual with Cerebral

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Palsy receiving special education services through PCOE, S.R.F. is a qualified individual with a

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disability under Title II of the ADA and the Rehabilitation Act. 42 U.S.C.A. § 12131; 29

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U.S.C.A. § 705(9). Moreover, it is uncontested that RUSD and PCOE are, and have been at all

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relevant times, the recipients of federal financial assistance, and that part of that financial

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assistance has been used to fund the operations, construction, and/or maintenance of the specific

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public facilities and services described in the complaint and the activities that took place therein.

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(ECF No. 1 ¶ 52; see ECF No. 6.)

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Instead, Defendants argue that Hawkins’ actions are not sufficient to plead discrimination

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“by reason of” or “solely by reason of” S.R.F.’s disabilities. (See ECF No. 6 at 11.) Specifically,

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Defendants state that this element of the claim cannot be presumed or summarily inferred from

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underlying allegations of wrongdoing which merely happen to involve disabled students. (ECF

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No. 6 at 11.) In opposition, Plaintiff alleges that Hawkins’ actions were motivated by his animus

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toward S.R.F. as a disabled individual, as evidenced by the disability-related epithets that

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Hawkins directed at S.R.F. and the abuse Hawkins subjected S.R.F. to because of various

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symptoms manifested from S.R.F.’s disability. (ECF No. 9 at 14.)

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Although the Ninth Circuit has yet to clarify the standard for identifying actions as

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disability-based, rather than due to other reasons such as personal animus, a number of district

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courts have held that a nexus between the alleged disability and the alleged bullying is sufficient

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to satisfy the causation standard under Title II of the ADA and the Rehabilitation Act. See

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Wormuth v. Lammersville Union Sch. Dist., 305 F. Supp. 3d 1108, 1126 (E.D. Cal. 2018) (“A

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nexus between the alleged disability and the alleged bullying is a prerequisite to a disability-based

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bullying claim.”); see also D.A. v. Meridian Joint Sch. Dist. No. 2, 289 F.R.D. 614 (D. Idaho

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2013) (finding enough to withstand summary judgment on disability-based harassment claim

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where classmate testified plaintiff was called a “retard” during class and that “almost everyone in

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his classes bullied him”; another student said plaintiff was bullied “a noticeable amount of times”;
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and a physician testified plaintiff was “pretty aggressively bullied and harassed.”). Additionally,

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courts within the Northern District of California have held that abuse in response to various

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symptoms of a plaintiff’s disability meets the causation standard for a discrimination claim under

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both the ADA and the Rehabilitation Act. K.T. v. Pittsburg Unified Sch. Dist., 219 F. Supp. 3d

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970, 980 (N.D. Cal. 2016) (finding that student sufficiently stated claims against school district

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under the ADA and Rehabilitation Act where teacher and/or special-education aide allegedly

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grabbed, slapped, and kicked student in response to various symptoms of her disability, like

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putting inedible objects in her mouth); see also E.H. v. Brentwood Union School Dist., No. C13–

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3243, 2013 WL 5978008 at *5, (N.D. Cal. Nov. 4, 2013) (holding that allegations of school

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officials “grabbing” and “dragging” plaintiff in “direct response to manifestations of his

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disability” met the Rehabilitation Act’s causation standard). In the present case, Plaintiff has

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alleged that Hawkins made statements including, but not limited to: “oh he’s a pisser this

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morning” and “you almost look like you know what you’re doing” in response to various

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symptoms of S.R.F.’s disabilities such as his inability to control his bladder and tendency to

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engage in repetitive movements. (ECF No. 1 ¶ 17; ECF No. 9 at 14–15.) This is sufficient to

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plead disability-based discrimination under both the ADA and the Rehabilitation Act. See K.T.,

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219 F. Supp. 3d at 980.

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Defendants’ argument that Plaintiff has not met the deliberate indifference standard

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because there are no allegations Defendant entities were aware of any alleged discrimination or

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abuse is similarly insufficient. (ECF No. 6 at 13.) A plaintiff need only allege that the

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perpetrator of the alleged abuse was deliberately indifferent to her rights if a public entity is liable

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in respondeat superior for the perpetrator’s actions. Duvall, 260 F.3d at 1141 (“When a plaintiff

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brings a direct suit under either the Rehabilitation Act or Title II of the ADA against a

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municipality (including a county), the public entity is liable for the vicarious acts of its

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employees.”). Thus, awareness is not a requisite factor in finding an entity liable if there is

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vicarious liability. See id. Because Plaintiff has alleged that RUSD and PCOE are liable in

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respondeat superior for Hawkins’ actions, she has sufficiently pleaded the “deliberate

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indifference” element necessary to recover monetary damages under Title II of the ADA and the
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Rehabilitation Act. (ECF No. 1 ¶¶ 43, 56.)
Accordingly, the Court DENIES Defendants’ Motion to Dismiss Plaintiff’s Second and
Third claims.
C. Claim Seven: Discrimination in Violation of the Unruh Civil Rights Act, Cal.
Civ. Code § 51 et seq.

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Defendants argue that the Court should dismiss Plaintiff’s seventh cause of action because

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there are insufficient allegations S.R.F. was discriminated against due to his disability. (ECF No.

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6 at 11.) Plaintiff argues in opposition that because she has sufficiently stated a claim under the

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ADA, she has sufficiently pleaded a claim under California’s Unruh Civil Rights Act under

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established Ninth Circuit precedent. (ECF No. 9 at 15.)
The Unruh Civil Rights Act provides that all people in California “are entitled to the full

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and equal accommodations, advantages, facilities, privileges, or services in all business

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establishments of every kind whatsoever.” See Cal. Civ. Code § 51(b). In the disability context,

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California’s Unruh Civil Rights Act operates virtually identically to the ADA. Molski v. M.J.

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Cable, Inc., 481 F.3d 724, 731 (9th Cir. 2007). Thus, any violation of the ADA necessarily

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constitutes a violation of the Unruh Act. Id.

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Plaintiff, in her complaint, asserts that California law considers public schools as business

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establishments and therefore subject to liability under the Unruh Act. (ECF No. 1 ¶ 77.)

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Defendants do not contest this assertion in their motion. (See ECF No. 6.) Instead, Defendants

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argue that Plaintiff has not stated a claim under the Unruh Act because there are insufficient

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allegations that Hawkins discriminated against S.R.F. due to his disability. (ECF No. 6 at 11.)

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As discussed above, Plaintiff has sufficiently pleaded that Hawkins did discriminate against

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S.R.F. due to his disability.

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Plaintiff, in her opposition to Defendants’ motion, reiterates that by sufficiently stating a

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claim under the ADA, she has also sufficiently pleaded a claim under California’s Unruh Civil

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Rights Act. (ECF No. 9 at 15.) Defendants, in their reply to Plaintiff’s opposition, argue that

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Plaintiff has failed to state a claim under the Unruh Act because Plaintiff has not alleged

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sufficient facts to show that Hawkins was deliberately indifferent to S.R.F.’s constitutional rights.
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(ECF No. 10 at 3.)
As discussed above, Plaintiff has sufficiently pleaded the “deliberate indifference”

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element for her ADA claim. Under the Unruh Act, Plaintiff need not plead intentional

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discrimination beyond that required for an ADA claim. Lentini v. Cal. Ctr. for the Arts,

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Escondido, 370 F.3d 837, 847 (9th Cir. 2004) (“[N]o showing of intentional discrimination is

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required where the Unruh Act violation is premised on an ADA violation . . . a violation of the

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ADA is, per se, a violation of the Unruh Act.”); see also Munson v. Del Taco, Inc., 46 Cal. 4th

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661, 665 (reaffirming Lentini’s interpretation of the Unruh Act by finding that a plaintiff seeking

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damages for ADA violations under the Unruh Act is not required to separately prove intentional

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discrimination). Thus, Plaintiff’s showing of deliberate indifference under her ADA claim is

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sufficient to plead this element of her Unruh Act claim.
Accordingly, the Court DENIES Defendants’ Motion to Dismiss for Plaintiff’s Seventh

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claim.

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D. Claim Eight: Violation of Cal. Civ. Code § 52.1, The Bane Act
Defendants argue that Plaintiff’s eighth cause of action should be dismissed because there

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are no facts alleged to establish a constitutional violation by Defendants, and there are no

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allegations that any of the Defendants violated any rights by intimidation, coercion, or attempted

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to interfere by threat, intimidation, or coercion towards Plaintiff. (ECF No. 6 at 14.) In

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opposition, Plaintiff argues that she has sufficiently alleged facts to state a claim of excessive

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force under the Fourth Amendment and has also alleged that the violation of S.R.F.’s Fourth

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Amendment rights was accomplished through threats, intimidation, and/or coercion. (ECF No. 9

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at 15–16.)

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The Bane Act provides for liability when someone, “by threat, intimidation, or coercion,”

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interferes with “rights secured by the Constitution or laws of the United States” or those of

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California. See Cal. Civ. Code § 52.1(b). The word “interferes” as used in the statute means

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violates. Barsamian v. City of Kingsburg, 597 F. Supp. 2d 1054, 1064 (E.D. Cal. 2009) (quoting

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Austin B. v. Escondido Union Sch. Dist., 149 Cal. App. 4th 860, 883 (2007)).

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Defendants argue that there are no facts alleged to establish a constitutional violation by
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Defendants. (ECF No. 6 at 14.) As discussed above, Plaintiff has adequately pleaded a Fourth

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Amendment claim based on Hawkins shoving S.R.F. Thus, Defendants’ argument here falls

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short.

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Defendants further argue that none of the Defendants violated any rights by threat,

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intimidation, or coercion towards Plaintiff. (ECF No. 6 at 14.) However, the Bane Act does not

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require a showing of “threat, intimidation or coercion” independent from the constitutional

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violation alleged. See Reese v. Cty. of Sacramento, 888 F.3d 1030, 1043 (9th Cir. 2018) (holding

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that the Bane Act does not require the “threat, intimidation or coercion” element of the claim to

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be independent from the constitutional violation alleged); Cornell v. City & Cty. of S.F., 17 Cal.

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App. 5th 766, 799 (2017) (“[T]he use of excessive force can be enough to satisfy the [Bane Act’s]

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‘threat, intimidation or coercion’ element.”). Thus, the coercion inherent in Hawkins’ use of

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excessive force is sufficient to plead this element of a claim under the Bane Act. See Rodriguez

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v. Cty. of L.A., 891 F.3d 776, 802 (9th Cir. 2018) (holding that in excessive force cases, the Bane

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Act does not require proof of coercion beyond that inherent in the underlying violation).

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The Ninth Circuit has, however, held that the Bane Act requires a defendant to have had a

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specific intent to violate the plaintiff’s protected rights. Reese, 888 F.3d at 1043. Specific intent

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does not require a showing that a defendant knew he was acting unlawfully; reckless disregard of

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the right at issue is all that is necessary. See Cornell, 17 Cal. App. 5th at 804. Plaintiff has

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alleged that Hawkins’ conduct was willful and wanton. (ECF No. 1 ¶ 38.) Defendants do not

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dispute this in their motion or reply. (See ECF No. 6.) Thus, Plaintiff has adequately pleaded the

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specific intent element, and Defendants’ motion to dismiss on this basis fails.
Accordingly, the Court DENIES Defendants’ Motion to Dismiss for Plaintiff’s Eighth

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claim.
E. Defendant PCOE’s Vicarious Liability for Defendant Hawkins’ Actions
Defendants argue that Defendant PCOE should be dismissed because Hawkins is not

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employed by PCOE and therefore there is no vicarious liability for his actions. (ECF No. 6 at

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15.) Plaintiff argues that PCOE is liable for Hawkins’ conduct because PCOE was the entity

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responsible for overseeing the implementation of S.R.F.’s IEP, and thus is jointly responsible
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with RUSD for Hawkins’ conduct. (ECF No. 9 at 16.)

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Under Cal. Gov. Code § 895.2, “[w]henever any public entities enter into an agreement,

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they are jointly and severally liable upon any liability which is imposed . . . upon any one of the

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entities . . ..” Cal. Gov. Code § 895.2. Plaintiff has alleged that RUSD contracted with PCOE to

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provide S.R.F.’s special education services and to oversee the implementation of S.R.F.’s IEP.

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(ECF No. 1 ¶ 27.) Defendants have cited no authority in their motion or reply that would

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contradict the conclusion under Cal. Gov. Code § 895.2 that PCOE is jointly liable with RUSD

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for Hawkins’ conduct. (See ECF No. 6 at 15–16; see also ECF No. 10.) The California code that

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Defendant cites in their motion, Cal. Gov. Code § 815.2, applies to the vicarious liability of

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RUSD for Hawkins’ actions but does not address the joint liability that PCOE has with RUSD as

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a product of their contractual agreements. See Cal. Gov. Code § 815.2. Accordingly,

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Defendants’ motion on this basis fails.

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IV.

Conclusion

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For the foregoing reasons, the Court hereby DENIES Defendants’ Motion to Dismiss for

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Plaintiff’s First, Second, Third, Seventh, and Eighth claims. The parties are hereby ordered to file

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a Joint Status Report within thirty (30) days of this Order.

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Dated: June 21, 2019
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Troy L. Nunley
United States District Judge

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