J.M. v. Liberty Union High School District

Filing 39

Order by Magistrate Judge Laurel Beeler granting 34 Motion to Dismiss. The court grants the defendant's motion to dismiss. The plaintiff may amend the complaint within 14 days from the date of this order. (lblc1S, COURT STAFF) (Filed on 5/16/2017)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 San Francisco Division United States District Court Northern District of California 11 12 J. M., Case No. 16-cv-05225-LB Plaintiff, 13 ORDER GRANTING THE DEFENDANT’S MOTION TO DISMISS v. 14 15 LIBERTY UNION HIGH SCHOOL DISTRICT, 16 Re: ECF No. 34 Defendant. 17 18 INTRODUCTION 19 This case concerns the expulsion of J.M., a minor and former student at Liberty Union High 20 School District.1 J.M., who has ADHD, had “a verbal altercation with another student while 21 playing an on-line video game” and, the next day, was “involved in a threatening confrontation 22 with that same student on school grounds.”2 J.M. challenges here the District’s determination that 23 his altercation-related conduct was not a manifestation of his ADHD and asserts two substantive 24 claims: (1) discrimination under section 504 of the Rehabilitation Act, see 29 U.S.C. § 794; and 25 26 27 See First Amended Compl. – ECF No. 33. Record citations refer to material in the Electronic Case File (“ECF”); pinpoint citations are to the ECF-generated page numbers at the top of documents. 28 2 1 See id. ¶¶ 4, 12. ORDER — No. 16-cv-05225-LB 1 (2) retaliation under section 504 of the Rehabilitation Act, see id.3 He also seeks judicial review of 2 the District’s administrative hearing and determination.4 The District moves to dismiss the 3 complaint under Federal Rule of Civil Procedure 12(b)(6). The court can decide the matter without oral argument and so it vacated the hearing previously 4 5 set for May 11, 2017. The court grants the motion and dismisses the complaint but grants leave to 6 amend. 7 STATEMENT 8 9 1. The District Develops a Section 504 Plan for J.M. J.M. is sixteen years old and has Attention Deficit Hyperactivity Disorder (“ADHD”). 5 While 10 United States District Court Northern District of California 11 in middle school (outside of the defendant’s district), J.M. was provided with a section 504 12 Plan — a plan consisting of the “accommodations, supplementary aids, supports[,] and services” 13 necessary to provide him with a free appropriate public education.6 In 2014, when J.M. enrolled in 14 the District’s high school, the District “evaluated him and again found him eligible for a 504 Plan” 15 because of his ADHD.7 16 The District’s 504 Plan for J.M. “described the impact of [his] disability on his education,” 17 which was “limited to his poor attention and distractibility in the classroom, poor organization 18 skills[,] and frequent failure to complete and turn in assignments and homework.”8 Under the Plan, 19 J.M. received “class notes, preferential classroom seating, [and] enrollment in a tutorial support 20 class.”9 The Plan also contained “similar provisions focusing solely on his timely production and 21 completion of his academic work.”10 22 3 Id. ¶¶ 24–30. 4 Id. ¶¶ 31–39. 24 5 Id. ¶ 4. 25 6 Id. ¶¶ 7, 10. 7 Id. ¶ 10. 8 Id. ¶ 11. 27 9 Id. 28 10 23 26 Id. ORDER — No. 16-cv-05225-LB 2 1 2. J.M. Is Involved in an Altercation; the District Conducts a Manifestation Determination; and J.M. Requests an Administrative Hearing One night in January 2016, J.M. had “a verbal altercation with another student while playing 2 3 an on-line video game.”11 The next day, he was “involved in a threatening confrontation with that 4 same student on school grounds.”12 “J.M. was immediately suspended and [the District] moved to 5 expel him.”13 The District then completed a “comprehensive psycho-educational assessment of J.M.”14 The 6 District’s assessor considered whether J.M.’s conduct in the altercation “was caused by or had a 8 direct and substantial relationship” to his ADHD.15 The assessor found that it was not, and 9 therefore his “conduct was not a manifestation” of his disability.16 The assessor explained: “The 10 conduct in question did not appear to be an act of impulsivity, [it] instead appeared to be an act 11 United States District Court Northern District of California 7 organization [sic] and planning.”17 J.M.’s parents disagreed with the determination.18 To challenge the District’s determination, J.M.’s parents requested a section 504 12 13 administrative hearing under the District’s policies.19 In that process, his parents obtained a copy 14 of the District assessor’s test protocols used in conducting J.M.’s assessment.20 Those protocols 15 revealed certain facts — including (among other things) J.M.’s “clinically significant” inability to 16 independently generate ideas, responses, or problem-solving strategies; an inability to anticipate 17 future events; a “severe” inability to consider the consequences of his own acts; and an “elevated” 18 difficulty providing an appropriate emotional response — that J.M. asserts the assessor failed to 19 20 21 11 Id. ¶ 12. 22 12 Id. 13 Id. 14 Id. ¶ 13. 24 15 Id. 25 16 Id. 17 Id. 18 Id. 27 19 Id. ¶ 14. 28 20 Id. ¶¶ 15–16. 23 26 ORDER — No. 16-cv-05225-LB 3 1 consider.21 The assessor instead “discussed only one symptom of ADHD — difficulty with 2 organization and planning of tasks — and even then . . . failed to make a factual finding.”22 J.M. submitted the above facts for the administrative hearing, which was held in May 2016. 23 3 4 At the hearing (and in his briefs), J.M. challenged the District’s “failure to take any reasonable 5 steps to locate [his] prior psycho-educational assessment from the prior school year.”24 He asserted 6 that such failure violated his “procedural right to a manifestation determination based upon all 7 relevant and necessary records and information.”25 But, following an evidentiary hearing, the 8 hearing officer “upheld the D[istrict]’s determination that J.M.’s conduct was neither caused by 9 nor had a direct and substantial relationship to J.M.’s disability and therefore was not a manifestation of his disability.”26 The hearing officer did not address or make any factual findings 11 United States District Court Northern District of California 10 regarding J.M.’s procedural challenge.27 12 13 3. J.M. Sues the District After the administrative hearing, J.M. sued the District.28 In the initial complaint, J.M. sought 14 15 judicial review of the hearing officer’s decision under section 504 of the Rehabilitation Act.29 The 16 District moved to dismiss the complaint for lack of subject-matter jurisdiction.30 J.M. did not 17 dispute that this court lacked jurisdiction but requested leave to amend to “present the facts in a 18 manner that will support a substantive claim of discrimination under Section 504 . . . and establish 19 subject matter jurisdiction.”31 The court granted J.M. leave to amend the complaint.32 20 21 23 24 25 26 27 28 Id. ¶ 17. 23 Id. ¶ 18. 24 Id. ¶ 21. Id. 26 Id. ¶ 18. 27 Id. ¶ 22. 28 See Compl. – ECF No. 1. 29 22 Id. ¶¶ 16–17. 22 25 21 See generally id. 30 See ECF No. 24. 31 ECF No. 26 at 3–4. ORDER — No. 16-cv-05225-LB 4 J.M. did so and asserts two substantive Section 504 claims — one for discrimination and one 1 2 for retaliation — and reasserts his request for review of the hearing officer’s findings.33 The 3 District moves to dismiss the First Amended Complaint (“FAC”) under Rule 12(b)(6).34 4 RULE 12(B)(6) LEGAL STANDARD 5 6 Under Federal Rule of Civil Procedure 12(b)(6), a claim may be dismissed because of a 7 “failure to state a claim upon which relief can be granted.” A dismissal under Rule 12(b)(6) may 8 be based on the lack of a cognizable legal theory or on the absence of sufficient facts alleged under 9 a cognizable legal theory. Johnson v. Riverside Healthcare Sys., 534 F.3d 1116, 1121 (9th Cir. 10 2008); Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). A complaint must contain a “short and plain statement of the claim showing that the pleader is United States District Court Northern District of California 11 12 entitled to relief” to give the defendant “fair notice” of what the claims are and the grounds upon 13 which they rest. See Fed. R. Civ. P. 8(a)(2); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 14 (2007). A complaint does not need detailed factual allegations, but “a plaintiff’s obligation to 15 provide the ‘grounds’ of his ‘entitlement to relief’ requires more than labels and conclusions, and a 16 formulaic recitation of the elements of a cause of action will not do. Factual allegations must be 17 enough to raise a claim for relief above the speculative level . . . .” Twombly, 550 U.S. at 555 18 (internal citations omitted). 19 To survive a motion to dismiss, a complaint must contain sufficient factual allegations, 20 accepted as true, “‘to state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 21 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). “A claim has facial plausibility when 22 the plaintiff pleads factual content that allows the court to draw the reasonable inference that the 23 defendant is liable for the misconduct alleged.” Id. “The plausibility standard is not akin to a 24 ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted 25 26 32 Order – ECF No. 30. 27 33 First Amended Compl. – ECF No. 33. 28 34 Motion to Dismiss – ECF No. 34; Opposition – ECF No. 35; Reply – ECF No. 37. ORDER — No. 16-cv-05225-LB 5 1 unlawfully.” Id. (quoting Twombly, 550 U.S. at 556). “Where a complaint pleads facts that are 2 ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between possibility and 3 plausibility of ‘entitlement to relief.’’” Id. (quoting Twombly, 550 U.S. at 557). 4 If a court dismisses a complaint, it should give leave to amend unless the “the pleading could 5 not possibly be cured by the allegation of other facts.” Cook, Perkiss and Liehe, Inc. v. Northern 6 California Collection Serv. Inc., 911 F.2d 242, 247 (9th Cir. 1990). 7 ANALYSIS 8 9 1. Section 504 Discrimination Claim Section 504 of the Rehabilitation Act provides that “[n]o otherwise qualified individual with a 11 United States District Court Northern District of California 10 disability . . . shall, solely by reason of her or his disability, be excluded from the participation in, 12 be denied the benefits of, or be subjected to discrimination under any program or activity receiving 13 Federal financial assistance.” 29 U.S.C. § 794(a). “Section 504 applies to all public schools that 14 receive federal financial assistance.” Mark H. v. Lemahieu, 513 F.3d 922, 929 (9th Cir. 2008). 15 To state a claim under section 504, a plaintiff must show: “(1) she is a qualified individual 16 with a disability; (2) she was denied ‘a reasonable accommodation that [she] needs in order to 17 enjoy meaningful access to the benefits of public services;’ and (3) the program providing the 18 benefit receives federal financial assistance.” A.G. v. Paradise Valley Unified Sch. Dist. No. 69, 19 815 F.3d 1195, 1204 (9th Cir. 2016) (quoting Mark H. v. Hamamoto, 620 F.3d 1090, 1097 (9th 20 Cir. 2010)); see also Duvall v. Cnty. of Kitsap, 260 F.3d 1124, 1135 (9th Cir. 2001). The plaintiff 21 can satisfy the second prong “by showing that the program denied her meaningful access to public 22 education . . . by violating a regulation that implements section 504’s prohibitions.” A.G., 815 F.3d 23 at 1204 (citing Lemahieu, 513 F.3d at 938–39). When asserting an implementing-regulation-based 24 claim, the plaintiff must allege “precisely which § 504 regulations are at stake and why,” or, “in 25 what regard” the regulation was violated. Lemahieu, 513 F.3d at 925. 26 In the public-school context, section 504’s implementing regulations require “schools to 27 ‘provide a free appropriate public education to each qualified handicapped person.’” A.G., 815 28 F.3d at 1203 (quoting 34 C.F.R. § 104.33(a)). That free appropriate public education (“FAPE”) ORDER — No. 16-cv-05225-LB 6 1 requires “regular or special education and related aids and services that (i) are designed to meet 2 individual educational needs of handicapped persons as adequately as the needs of 3 nonhandicapped persons are met and (ii) are based upon adherence to procedures that satisfy the 4 requirements of [34 C.F.R.] §§ 104.34, 104.35, and 104.36.” 34 C.F.R. § 104.33(b)(1); see also 5 A.G., 815 F.3d at 1203. 6 1.1 Private Right of Action 8 J.M. asserts two implementing-regulation violations, both based in 34 C.F.R. § 104.36. 9 Whether a plaintiff can bring a claim under a specific implementing regulation depends on 10 whether the regulation asserted “come[s] within the § 504 implied right of action.” Lemahieu, 513 11 United States District Court Northern District of California 7 F.3d at 935; see H. v. Mill Valley School Dist., No. 15-cv-05751-HSG, 2016 WL 3162174, at *4 12 (N.D. Cal. June 7, 2016). “For purposes of determining whether a particular regulation is ever 13 enforceable through the implied right of action contained in a statute, the pertinent question is 14 simply whether the regulation falls within the scope of the statute’s prohibition.” Lemahieu, 513 15 F.3d at 938. “[T]o be enforceable through the § 504 implied private right of action, regulations 16 must be tightly enough linked to § 504 that they ‘authoritatively construe’ that statutory section, 17 rather than impose new obligations.” Id. at 939 (quoting Alexander v. Sandoval, 532 U.S. 275, 284 18 (2001)). Section 504’s “reasonable accommodation” and “meaningful access” requirements are 19 relevant “when evaluating whether regulations ‘come within § 504’s substantive scope.’” P.P. v. 20 Compton Unified Sch. Dist., 135 F. Supp. 3d 1098, 1118 (C.D. Cal. 2015) (quoting Lemahieu, 513 21 F.3d at 938). 22 In P.P. v. Compton Unified School District, the court found that 34 C.F.R. § 104.36, “as 23 invoked in [that] case, is ‘a variety of meaningful access regulation,’ such that it is encompassed 24 within § 504’s implied right of action.” 135 F. Supp. 3d at 1119. There, the plaintiffs alleged that 25 the school district failed to “established procedures regarding notice,” which “resulted in negative 26 consequences for class members who were entitled to the protection of procedural safeguards, 27 including suspension, involuntary transfer, and expulsion.” Id. (internal quotations omitted). 28 Distinguishing cases that involved “no underlying discrimination claim” (and instead involved ORDER — No. 16-cv-05225-LB 7 1 only claims for violation of section 104.36’s procedural provisions), the alleged consequences of 2 the district’s failure were “related to Plaintiffs’ general theory of disability-based deprivation.” Id. 3 (distinguishing Power ex. rel. Power v. Sch. Bd. of City of Virginia Beach, 276 F. Supp. 2d 515, 4 519 (E.D. Va. 2003)). And so the plaintiffs could sue under § 104.36. Here, as in P.P., the court construes the complaint to invoke § 104.36 as “a variety of 5 6 meaningful access regulation.” The gravamen of J.M.’s complaint is that the District did not apply 7 the correct standard (or provide a review process) to evaluate his documented ADHD-related 8 symptoms before expelling him. As such (and liberally construed) the claim is not one attacking 9 only section 104.36’s procedural requirements, but one that involves a related, underlying 10 discrimination claim. United States District Court Northern District of California 11 12 1.2 Violation of the “Manifestation Determination” Regulations 13 J.M. asserts that the District violated section 504 and implementing regulation 34 C.F.R. 14 § 104.36 by applying the incorrect “legal standing in making a manifestation determination.”35 He 15 alleges that “the correct legal standard is not whether the student’s behavior was caused by or had 16 a direct and substantial relationship to his disability, the standard used by the D[istrict], but simply 17 whether the behavior bears a relationship to the disability.”36 34 C.F.R. § 104.36 requires public schools to establish a system of procedural safeguards 18 19 “with respect to actions regarding the identification, evaluation, or educational placement of 20 persons who, because of handicap, need or are believed to need special instruction or related 21 services.” That system must include “notice, an opportunity for the parents or guardian of the 22 person to examine relevant records, an impartial hearing with opportunity for participation by the 23 person’s parents or guardian and representation by counsel, and a review procedure.” Id. 24 Compliance with the procedural safeguards of [the Individuals with Disabilities in Education Act 25 (“IDEA”)] is one means of meeting this requirement.” Id. 26 27 35 FAC ¶ 25. 28 36 Id. ¶ 32. ORDER — No. 16-cv-05225-LB 8 The IDEA, designed “to ensure that all children with disabilities have available to them a free 1 2 appropriate public education,” see Lamahieu, 513 F.3d at 928 (quoting 20 U.S.C. 3 § 1400(d)(1)(A)), provides for a manifestation-determination process. See 20 U.S.C. § 1415(k)(E); 4 34 C.F.R. 300.530(e). That process requires, before changing a child’s placement, that the local 5 educational agency, the parents, and the child’s individualized-education-program (“IEP”) team 6 members “review all relevant information in the student’s file, including the child’s IEP, any 7 teacher observations, and any relevant information provided by the parents,” to determine: 8 (I) if the conduct in question was caused by, or had a direct and substantial relationship to, the child’s disability; or 9 (II) if the conduct in question was the direct result of the local educational agency’s failure to implement the IEP. 10 United States District Court Northern District of California 11 20 U.S.C. § 1415(k)(E)(i); 34 C.F.R. 300.530(e)(1). If the group determines that either of those 12 two conditions is applicable to the child, “the conduct shall be determined to be a manifestation of 13 the child’s disability.” 20 U.S.C. § 1415(k)(E)(ii); 34 C.F.R. 300.530(e)(2). Here, the District’s section 504 “Notice of Parent/Guardian Rights and Procedural Safeguards” 14 15 contains a section titled “Discipline.”37 The manifestation-determination procedures therein 16 incorporate and mirror the above IDEA process and standard.38 For example, if the team 17 determines that (1) “the conduct in question was caused by, or had a direct and substantial 18 relationship to, the student’s disability,” or (2) “the conduct in question was the direct result of 19 [the] District’s failure to implement the student’s current Section 504 Service Plan,” then “the 20 alleged misconduct shall be determined to be a manifestation of the student’s disability.”39 J.M. 21 concedes as much in his opposition.40 22 23 24 Request for Judicial Notice – ECF No. 25, Ex. B at 23. The court considers this document — referenced in the complaint — under the incorporation-by-reference doctrine. See Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005). 37 25 26 38 Id. 27 39 Id. 28 40 Opposition at 5. ORDER — No. 16-cv-05225-LB 9 But J.M. asserts that “[b]y making a manifestation determination that failed to include the 1 2 findings required by” 34 C.F.R. § 300.523(c)(2)(ii) and (iii), which “requires more specific 3 findings,” the District violated § 104.36 and thus gives rise to his claim for discrimination.41 There are two problems. First, the regulation that J.M. points to (§ 300.523(c)) appears to be 4 5 an old, repealed IDEA regulation. See 34 C.F.R.§ 300.530 (effective Oct. 13, 2006); id. § 300.523 6 (effective to Oct. 12, 2006). It is not clear how the District’s failure to comply with that section 7 could constitute a violation of § 104.36. The District’s policy instead mirrors the IDEA’s current 8 process and standard. Second, in any event, § 104.36 says only that “[c]ompliance with the 9 procedural safeguards of [IDEA] is one means of meeting this requirement”— i.e., IDEA compliance is sufficient, but not necessary. See Lemahieu, 513 F.3d at 933. So J.M.’s assertion 11 United States District Court Northern District of California 10 that the District did not comply with an (old) IDEA regulation is not alone sufficient to state a 12 claim. Because J.M.’s manifestation-determination claim is based solely on the District’s failure to 13 14 apply the correct legal standard (and not, for example, its failure to properly apply it), the court’s 15 analysis stops here. The court does not reach the issue of whether the District properly applied the 16 legal standard or whether it’s failure to do so constituted “intentional discrimination.” The court 17 dismisses the claim without prejudice. 18 19 1.3 Violation of the “Review Procedure” Regulations 20 J.M. asserts that the District violated § 104.36 by failing “to provide [him] with a clear and 21 understandable ‘review procedure.’”42 The District’s Section 504 “Notice of Parent/Guardian Rights and Procedural Safeguards” 22 23 provides “procedural safeguards” involving a three-step process.43 Under those procedures, if a 24 parent or guardian disagrees with the “decisions regarding the identification, evaluation, or 25 26 41 Id. 27 42 FAC ¶ 26. 28 43 See Request for Judicial Notice – ECF No. 25, Ex. B at 24–25. ORDER — No. 16-cv-05225-LB 10 1 educational placement” of his or her child, the parent or guardian may initiate one of two 2 processes.44 First, at “level one,” the parent or guardian may submit a written disagreement and request for 3 4 a meeting with the “District Section 504 Administrator / Director of Special Services.”45 (The 5 parent or guardian may skip level one altogether.46) Second, at “level two,” “[i]f the disagreement 6 is not resolved,” the parent or guardian may request a due-process hearing to “be presided over 7 and decided by an impartial hearing officer.”47 The District’s section 504 Notice contains 8 approximately a page and a half of procedures discribing the level two due-process hearing.48 9 Finally, the Notice states, “[e]ither party may seek review of the hearing officer’s decision by timely filing with a court of competent jurisdiction.”49 The District points out that the “court of 11 United States District Court Northern District of California 10 competent jurisdiction” in this case would be the California superior court.50 See Cal. Civ. P. Code 12 § 1094.5; Leone v. Medical Bd., 22 Cal. 4th 660, 663 (2000) (“The superior court has original 13 jurisdiction of these administrative mandate proceedings.”). 14 It is this last level of “review” that J.M. appears to take issue with. The court does not now 15 decide whether California Civil Procedure Code section 1094.5 provides the proper avenue for 16 review. J.M. does not plausibly plead a theory (factual or legal) about (1) how the District’s 17 review procedure was unclear and thus discriminatory, or (2) why the final, judicial level of 18 review “cannot be considered to have ‘provided’ a review procedure to claimants, as required by 19 the regulation.”51 The court therefore dismisses J.M.’s “review procedure” claim without 20 prejudice. 21 22 44 Id. 45 Id. at 24. 24 46 Id. 25 47 Id. 48 See id. at 24–25. 49 Id. at 25. 27 50 Motion at 11–12; Reply at 5–6. 28 51 Opposition at 6. 23 26 ORDER — No. 16-cv-05225-LB 11 1 2. Section 504 Retaliation Claim J.M. asserts a section 504 retaliation claim based on the District’s failure to send his personal 2 3 file to his new school in response to his parents’ “advocacy.”52 To state a claim for retaliation under section 504, a plaintiff must show: (1) involvement in a 4 5 protected activity, (2) an adverse action, and (3) a causal link between the two. See Henry v. Napa 6 Valley Unified, No. 16-cv-04021-MEJ, 2016 U.S. Dist. LEXIS 170152, at *12 (N.D. Cal. Dec. 8, 7 2016) (citing Kitchen v. Lodi Unified Sch. Dist., 2014 WL 5817320, at *4 (E.D. Cal. Nov. 5, 8 2014)); see also Weixel v. Bd. of Educ. of City of New York, 287 F.3d 138, 148 (2d Cir. 2002). Here, J.M. alleges that while “awaiting hearing and still on suspension,” his parents withdrew 9 him from his District school and enrolled him in a private school.53 Since his enrollment, J.M.’s 11 United States District Court Northern District of California 10 parents and his new school requested “numerous times” that the District send his educational file 12 to the new school.54 But, to date, the District “has refused to comply with these requests and has 13 failed to identify any reason for that refusal.”55 In fact, the District “has not communicated with 14 [his] parents at all regarding their request for transmittal of [his] file.”56 And so J.M. alleges that 15 the District’s actions “are retaliatory against J.M. for his parents’ advocacy on behalf of their son 16 and their pursuit of claims against the D[istrict] under Section 504.”57 17 The District says it concedes (for the current motion) that J.M.’s parents “engaged in protected 18 activity by advocating on behalf of their son.”58 But the District later argues, in connection with its 19 “causal connection” challenge, that J.M. “does not specifically identify the activity that his parents 20 engaged in that the District allegedly retaliated against.”59 Indeed, the court thinks, it is necessary 21 to first identify the alleged “protected activity.” 22 52 FAC ¶¶ 28–30. 53 Id. ¶ 29. 24 54 Id. 25 55 Id. 56 Id. 57 Id. 27 58 Motion at 13. 28 59 Id. at 14. 23 26 ORDER — No. 16-cv-05225-LB 12 And it is because J.M. fails to adequately identify that activity that the claim as pled fails. He 1 2 asserts that the District withheld his file in retaliation for his parents’ “advocacy.” But the term 3 “advocacy” is ambiguous in the context of the complaint. Does J.M. allege that the District 4 withheld his file because of his parents’ advocacy during his manifestation determination? 5 Because they challenged the result of that determination? Because they enrolled him in a private 6 school? Because they filed this lawsuit? The FAC is not clear: it could be one such instance of 7 advocacy; it could all. 8 The clarity is important because the FAC must contain enough facts to state a plausible claim 9 and provide sufficient notice of that claim for the District to respond. It is also important because it affects at least two elements of the claim — (1) whether his parents were in fact engaged in 11 United States District Court Northern District of California 10 “protected activity” and (2) whether there was a causal connection between that activity and the 12 District’s alleged retaliation. For example, regarding causation, the time between the activity and 13 retaliation may be illuminating, and that analysis may change depending on what the alleged 14 “activity” is here. See, e.g., Alex G. ex rel. Dr. Steven G. v. Bd. of Trs. of Davis Joint Unified Sch. 15 Dist., 387 F. Supp. 2d 1119, 1129 (E.D. Cal. 2005) (“Courts have generally held that causation 16 can be inferred from timing alone where the adverse action follows closely on the heels of the 17 protected activity”) (citing Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273–74 (2001) 18 (stating “that the temporal proximity must be ‘very close’”)). The court therefore dismisses the claim without prejudice. 19 20 21 3. Claim for Review of the Hearing Officer’s Decision J.M.’s third claim requests judicial review of the hearing officer’s findings.60 The District 22 23 previously moved to dismiss this claim (it was the sole claim in J.M.’s original complaint) for lack 24 of subject-matter jurisdiction.61 J.M. did not dispute that this court lacks subject-matter jurisdiction 25 26 27 60 FAC ¶¶ 31–39; Prayer ¶ 2. 28 61 See Compl. – ECF No. 1; ECF No. 24. ORDER — No. 16-cv-05225-LB 13 1 to hear an appeal from the hearing officer’s administrative proceeding.62 The court therefore 2 dismissed the complaint but allowed J.M. to amend his complaint.63 J.M.’s new administrative-review claim is nearly identical but hooks it to the above, 3 4 substantive section 504 claims and asks the court to exercise “supplemental jurisdiction over this 5 claim as a state claim.”64 The court dismisses the claim. To the extent J.M. can raise this as a state-law claim under the 6 7 court’s supplemental jurisdiction, the court declines to exercise such jurisdiction at this time. 8 Although courts may exercise supplemental jurisdiction over state law claims “that are so related 9 to claims in the action within [the court’s] original jurisdiction that they form part of the same case or controversy,” 28 U.S.C. § 1367(a), a court may decline to exercise supplemental jurisdiction 11 United States District Court Northern District of California 10 where it “has dismissed all claims over which it has original jurisdiction,” id. § 1367(c)(3). Indeed, 12 unless “considerations of judicial economy, convenience[,] and fairness to litigants” weigh in 13 favor of exercising supplemental jurisdiction, “a federal court should hesitate to exercise 14 jurisdiction over state claims.” United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966); 15 see also Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988) (“[A] federal court should 16 consider and weigh in each case, and at every stage of the litigation, the values of judicial 17 economy, convenience, fairness, and comity in order to decide whether to exercise jurisdiction 18 over a case brought in that court involving pendent state-law claims.”), superseded on other 19 grounds by statute as recognized in Fent v. Okla. Water Res. Bd., 235 F.3d 553, 557 (10th Cir. 20 2000). Here, J.M. asserts federal-question jurisdiction based on his substantive section 504 claims. 21 22 But the court dismisses those claims, and, although the court grants leave to amend, it is not clear 23 that they will support supplemental jurisdiction. The court accordingly declines to exercise 24 supplemental jurisdiction over J.M.’s “state-law claim” for review of the hearing officer’s decision 25 26 62 See ECF No. 26. 27 63 Order – ECF No. 30. 28 64 FAC ¶ 39. ORDER — No. 16-cv-05225-LB 14

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