Chadam et al v. Palo Alto Unified School District

Filing 50

ORDER by Judge Claudia Wilken GRANTING DEFENDANT'S 43 MOTION TO DISMISS SECOND AMENDED COMPLAINT. (ndr, COURT STAFF) (Filed on 11/4/2014)

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1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE NORTHERN DISTRICT OF CALIFORNIA 3 4 5 JAMES CHADAM and JENNIFER CHADAM, individually and on behalf of their minor children A.C. and C.C., 6 7 8 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 21 22 23 24 25 26 27 28 ORDER GRANTING DEFENDANT'S MOTION TO DISMISS SECOND AMENDED COMPLAINT (Docket No. 43) Plaintiffs, v. PALO ALTO UNIFIED SCHOOL DISTRICT, a governmental entity created and existing under the laws of the State of California, Defendant. ________________________________/ Defendant Palo Alto Unified School District (PAUSD) moves to dismiss Plaintiffs' second amended complaint (2AC). Plaintiffs James Chadam and Jennifer Chadam, individually and on behalf of their minor children A.C. and C.C., oppose the motion. Chadam was appointed guardian ad litem. opposition, and PAUSD has filed a reply. Jennifer Plaintiffs have filed an Having considered the papers, the Court GRANTS PAUSD's motion to dismiss. 19 20 No. C 13-4129 CW FACTUAL BACKGROUND The following facts are alleged in the complaint and taken as true for the purposes of this motion. James and Jennifer Chadam (the Chadams or Plaintiffs) reside in Palo Alto, California with A.C. and C.C., their minor children. 2AC ¶ 1. As a newborn, C.C. underwent genetic screening following cardiac surgery. 2AC ¶ 5. The screening indicated that C.C. had genetic markers for cystic fibrosis (CF), but further testing revealed he did not have CF. 2AC ¶ 5. On July 22, 2012, Jennifer Chadam enrolled her sons A.C. and 1 2 C.C. in a middle school owned and operated by PAUSD. 3 On August 1, 2012, Jennifer Chadam completed and returned several 4 forms for enrollment, including a "Report of Health Examination 5 for School Entry" regarding C.C. 6 "private, personal and privileged medical information." 7 PAUSD assigned both children to attend Jordan Middle School. 8 ¶ 13. 9 provided additional medical information regarding C.C. Id. ¶ 12. Id. ¶ 11. This form included Id. Id. Between August 2, 2012, and August 16, 2012, the Chadams Id. ¶ 14. United States District Court For the Northern District of California 10 On August 16, 2012, A.C. and C.C. began attending their assigned 11 middle school. 12 Id. ¶ 15. On August 22, one of C.C.'s teachers contacted the Chadams 13 regarding C.C.'s medical condition. 14 September 11, 2012, during a parent-teacher conference, one of 15 C.C.'s teachers disclosed C.C.'s private medical information to 16 parents of another student attending the middle school (Mr. and 17 Mrs. X). 18 that C.C. had CF. 19 permission or notice from the Chadams. 20 Id. ¶ 17. Id. ¶ 16. On or about Specifically, the teacher told Mr. and Mrs. X Id. ¶ 17. The teacher did so with no prior Id. On September 11, 2012, PAUSD arranged for the Chadams to 21 attend a meeting with Gregory Barnes, the middle school's 22 principal, along with Linda Lenoir, PAUSD Nurse, and Grant 23 Althouse, the Vice Principal and Administrator of sixth grade. 24 Id. ¶ 18. 25 of Mr. and Mrs. X had active CF and that Mr. and Mrs. X had 26 "discovered C.C.'s condition." 27 Chadams informed those in attendance at the meeting that C.C. did 28 not, in fact, have cystic fibrosis. At the meeting, the Chadams were told that the children Id. ¶ 19. 2 At that time, the Id. ¶ 20. 1 On or about September 13, 2012, Dr. Carlos Milla sent a 2 letter to PAUSD regarding the medical issues raised by C.C.'s 3 presence at Jordan Middle School. 4 recommended that C.C. be removed from Jordan Middle School for the 5 safety of Mr. and Mrs. X's children. 6 Milla's identity and connection to the case are not disclosed. 7 Id. ¶ 23. Id. Dr. Milla's letter Details about Dr. On September 14, Jennifer Chadam informed Mr. Barnes that she 8 did not want C.C. to be transferred out of Jordan Middle School. 9 Id. ¶ 25. Mr. Barnes informed Jennifer Chadam that Mr. and Mrs. X United States District Court For the Northern District of California 10 had decided to remove their children from the school, so there was 11 no need "to make any changes" at that time. 12 Id. On September 16, 2012, Mrs. X sent a letter to Ms. Lenoir 13 requesting that C.C. be removed from Jordan Middle School so that 14 her children could return to school. 15 2012, Dr. Milla sent another letter, this time recommending that 16 children with CF must not be in the same school together. 17 ¶ 29. 18 Id. ¶ 28. On September 17, Id. On September 17, 2012, the Chadams received a call from Mr. 19 Barnes informing them that, based on Mr. and Mrs. X's demands, and 20 based on C.C.'s private medical information, PAUSD intended to 21 prohibit C.C. from attending Jordan Middle School and to transfer 22 him to another PAUSD middle school. 23 Chadams emailed Assistant Superintendent Charles Young, demanding 24 that he provide the documentation upon which the district relied 25 to transfer C.C. out of Jordan Middle School. 26 day, the Chadams made the same demand to Mr. Young, this time in 27 person. Id. 28 3 Id. ¶ 30. That same day, the Id. ¶ 31. The next On September 20, the Chadams provided a letter from Dr. John 1 2 Morton, explaining that C.C. did not have any signs of CF. 3 ¶ 32. 4 that "this boy is any risk whatsoever to other children with 5 [cystic fibrosis] even if they were using the same classroom." 6 Id. 7 Lenoir. 8 C.C. did not have, nor had he ever had, CF. 9 allege that Mr. Young informed them that the decision to remove In this letter, Dr. Morton stated that he did not think Also on September 20, the Chadams met with Mr. Young and Ms. Id. ¶ 33. At this meeting, the Chadams reiterated that Id. The Chadams 10 United States District Court For the Northern District of California Id. C.C. from Jordan Middle School was based on a letter from a 11 Stanford doctor. 12 Id. On September 24, 2012, Jennifer Chadam offered to provide Mr. 13 Young more medical evidence that C.C. was not a risk to any other 14 child. 15 Chadams, by telephone and in writing, that C.C. was going to be 16 transferred out of Jordan Middle School. 17 Id. ¶ 34. On September 28, Mr. Young informed the Id. ¶¶ 35-36. On October 10, C.C. was removed from his classroom at Jordan 18 Middle School and told it was his last day at the school. 19 ¶ 37. 20 October 12, 2012, the Chadams brought suit in a California state 21 court seeking to enjoin PAUSD from transferring C.C. to another 22 middle school. 23 case, the parties "settled the matter" and C.C. was permitted to 24 stay at Jordan Middle School. 25 Id. C.C. did not attend school for approximately two weeks. Id. ¶ 38. On Prior to a hearing on the merits of the Id. On September 6, 2013, the Chadams brought this suit in 26 federal court, alleging (1) violation of Title II of the Americans 27 with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., through 42 28 U.S.C. § 1983; (2) violation of the Rehabilitation Act of 1972 (RA 4 1 or § 504), 29 U.S.C. § 794 et seq., through 42 U.S.C. § 1983; and 2 (3) violation of the federal right to privacy conferred by the 3 First Amendment. 4 which this Court granted with leave to amend. 5 Unified Sch. Dist., Docket No. 32, Order Granting Mot. Dismiss 6 First Am. Compl., Jan. 29, 2014. 7 PAUSD filed a motion to dismiss the complaint, Chadam v. Palo Alto The Chadams' second amended complaint alleges four causes of 8 action: (1) violation of the ADA; (2) violation of § 504; 9 (3) violation of the First Amendment; and (4) negligence. LEGAL STANDARDS United States District Court For the Northern District of California 10 11 A complaint must contain a "short and plain statement of the 12 claim showing that the pleader is entitled to relief." 13 Civ. P. 8(a). 14 claim to relief that is plausible on its face." 15 Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. 16 Twombly, 550 U.S. 544, 570 (2007)). 17 "when the plaintiff pleads factual content that allows the court 18 to draw the reasonable inference that the defendant is liable for 19 the misconduct alleged." 20 Fed. R. The plaintiff must proffer "enough facts to state a Ashcroft v. A claim is facially plausible Id. In considering whether the complaint is sufficient to state a 21 claim, the court will take all material allegations as true and 22 construe them in the light most favorable to the plaintiff. 23 Metzler Inv. GMBH v. Corinthian Colls., Inc., 540 F.3d 1049, 1061 24 (9th Cir. 2008). 25 complaint, materials incorporated into the complaint by reference, 26 and facts of which the court may take judicial notice. 27 1061. 28 including "threadbare recitals of the elements of a cause of The court's review is limited to the face of the Id. at However, the court need not accept legal conclusions, 5 1 action, supported by mere conclusory statements." 2 Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 555). 3 When granting a motion to dismiss, the court is generally 4 required to grant the plaintiff leave to amend, even if no request 5 to amend the pleading was made, unless amendment would be futile. 6 Cook, Perkiss & Liehe, Inc. v. N. Cal. Collection Serv. Inc., 911 7 F.2d 242, 246-47 (9th Cir. 1990). 8 amendment would be futile, the court examines whether the 9 complaint could be amended to cure the defect requiring dismissal In determining whether United States District Court For the Northern District of California 10 "without contradicting any of the allegations of [the] original 11 complaint." Reddy v. Litton Indus., Inc., 912 F.2d 291, 296 (9th 12 Cir. 1990). However, where a court has previously granted a 13 plaintiff an opportunity to amend its complaint after a motion to 14 dismiss, and the amended complaint still fails to state claims 15 with the required particularity, the court may grant a motion to 16 dismiss without granting the plaintiff leave to amend. 17 Chattem, Inc., 926 F. Supp. 2d 1070, 1081 (N.D. Cal. 2012). DISCUSSION 18 19 Arroyo v. I. Status of State Court Litigation 20 In its previous order, this Court required that, in any 21 amended complaint, the Chadams were to "provide the status of the 22 state court action involving the same events and explain why this 23 action is not barred by the state court action due to either res 24 judicata or release of claims." 25 23. 26 continued attendance at Jordan Middle School was settled, the 27 Chadams' current claims are barred by res judicata. Order Grant. Mot. Dismiss 17:20- PAUSD argues that because the dispute regarding C.C.'s 28 6 1 The doctrine of res judicata, or claim preclusion, prohibits 2 the re-litigation of any claims that were raised or could have 3 been raised in a prior action. 4 Tahoe Reg’l Planning Agency, 322 F.3d 1064, 1077 (9th Cir. 2003). 5 The purpose of the doctrine is to "relieve parties of the cost and 6 vexation of multiple lawsuits, conserve judicial resources, and, 7 by preventing inconsistent decisions, encourage reliance on 8 adjudication." 9 590, 594 (9th Cir. 1985) (quoting Allen v. McCurry, 449 U.S. 90, Tahoe-Sierra Pres. Council v. Marin v. HEW, Health Care Fin. Agency, 769 F.2d United States District Court For the Northern District of California 10 94 (1980)). 11 when doing so does not raise any disputed issues of fact. 12 v. Kuhlmann, 746 F.2d 1377, 1378 (9th Cir. 1984). 13 must be present in order for res judicata to apply: (1) an 14 identity of claims; (2) a final judgment on the merits; and 15 (3) the same parties or their privies. 16 Res judicata may be raised on a motion to dismiss Scott Three elements Allen, 449 U.S. at 94. The Chadams allege that, prior to a state court hearing on 17 the merits, the "parties settled the matter and C.C. has continued 18 to attend Jordan Middle School." 19 has filed a Request For Judicial Notice (RFJN) which states that 20 on March 27, 2014, he filed a request to have the state court 21 action dismissed without prejudice. 22 indication that the Superior Court has granted the request. 23 2AC ¶ 38. The Chadams' counsel RFJN, Ex. A. There is no In any case, the Chadams allege that the state court suit has 24 not been tried on its merits, and PAUSD does not dispute that 25 allegation. 26 judgment in the state court suit, or a dismissal with prejudice. 27 As a result, PAUSD has not shown that res judicata applies. 28 does not move to dismiss because it obtained a release in the PAUSD has failed to show that there has been a final 7 PAUSD 1 settlement of the state court case. 2 declines to dismiss the complaint on the basis of res judicata or 3 a release of claims. 4 other reasons. 5 II. 6 7 Accordingly, the Court However, the case must be dismissed for First Cause of Action: Violation of Title II of the Americans with Disabilities Act The Chadams allege that PAUSD violated Title II of the ADA by 8 depriving C.C. of certain alleged rights on the basis of a 9 perceived disability. PAUSD argues that this cause of action United States District Court For the Northern District of California 10 fails for several reasons. 11 the Chadams' claim is barred by Eleventh Amendment immunity. 12 13 As a threshold matter, it argues that Second, it argues that C.C. is not disabled or perceived as disabled under the ADA, nor was he denied the benefit of a public 14 15 program or deprived of any other rights. Third, it argues that 16 its alleged conduct is expressly permitted by law, and hence "non- 17 actionable." 18 allege intent to discriminate on the basis of a disability or 19 perceived disability, they are not entitled to seek monetary 20 damages, which is all they seek in the complaint. 21 Fourth, it argues that because the Chadams do not Lastly, it argues that Plaintiffs James Chadam, Jennifer Chadam and A.C. do 22 23 24 25 not have standing to bring individual claims. A. Eleventh Amendment Immunity PAUSD argues that it is shielded from ADA Title II liability 26 by the Eleventh Amendment. In the January 29, 2014 Order Granting 27 Defendant's Motion to Dismiss the First Amended Complaint, this 28 8 1 Court suggested that in order to bring a proper Title II claim 2 that is not barred by PAUSD's Eleventh Amendment immunity, the 3 Chadams would have to allege that PAUSD's Title II violation 4 deprived C.C. of a fundamental right. 5 6 7 8 9 United States District Court For the Northern District of California 10 11 12 13 14 15 After examining the history of disability discrimination in the provision of public services such as education, transportation, health services and voting, the Supreme Court concluded that Congress acted within its [Fourteenth Amendment section five] powers in abrogating state immunity for ADA Title II, at least regarding the protection of certain fundamental rights guaranteed by the Due Process Clause, such as access to the courts. . . . Although the Ninth Circuit has not ruled on this particular issue, the district courts and other circuit courts have interpreted Tennessee v. Lane, 541 U.S. 509 (2004), to mean that courts must engage in a case-by-case analysis of whether an ADA Title II case involves "fundamental rights" to determine whether Congress rightfully abrogated state immunity with respect to it. Order Grant. Mot. Dismiss 10:7-11:2. While the Chadams' privacy claim arguably implicates a fundamental right, the Chadams have not alleged any authority for 16 17 the proposition that school choice or freedom from being 18 stigmatized is a fundamental right. 19 of action fails for other reasons as described below, the Court 20 need not decide whether PAUSD would enjoy Eleventh Amendment 21 immunity for their ADA Title II claims in this case. 22 23 B. However, because this cause Sufficiency of ADA Cause of Action Title II applies to all "public entities," including schools. 24 25 26 42 U.S.C. § 12131; see also Lane, 541 U.S. at 525. "To prove that a public program or service violated Title II of the ADA, a 27 plaintiff must show: (1) he is a 'qualified individual with a 28 disability'; (2) he was either excluded from participation in or 9 1 denied the benefits of a public entity's services, programs, or 2 activities, or was otherwise discriminated against by the public 3 entity; and (3) such exclusion, denial of benefits, or 4 discrimination was by reason of his disability." 5 of Kitsap, 260 F.3d 1124, 1135 (9th Cir. 2001) (citation omitted); 6 7 Duvall v. Cnty. see also 42 U.S.C. § 12132 ("no qualified individual with a disability shall, by reason of such disability, be excluded from 8 9 participation in or be denied the benefits of the services, United States District Court For the Northern District of California 10 programs, or activities of a public entity, or be subjected to 11 discrimination by any such entity.") 12 PAUSD argues that, even if the Chadams' Title II claim did 13 not fail due to Eleventh Amendment immunity, it fails because they 14 do not state facts sufficient to support a cause of action for a 15 violation of the ADA. Specifically, it argues that C.C. is 16 17 18 neither disabled nor perceived as having a disability, nor was he denied the benefit of a public program. It also argues that the 19 Chadams have failed to allege "that defendant took improper action 20 by reason of the plaintiff's disability." 21 Lastly, it argues that the Chadams have failed to allege the 22 discriminatory intent required to state a claim for monetary 23 damages. 24 25 26 27 28 10 Docket No. 43 at 18. 1 2 1. "Regarded as" disabled To be considered disabled under Title II, a plaintiff must 3 show: (1) a physical or mental impairment1 that substantially 4 limits one or more of his or her major life activities; (2) a 5 6 record of such an impairment; or (3) that he or she is regarded as having such an impairment. Bragdon v. Abbott, 524 U.S. 624, 630 7 8 9 (1998). For claims arising after the ADA Amendments Act of 2009, the "regarded as" prong provides that "[a]n individual meets the United States District Court For the Northern District of California 10 requirement of 'being regarded as having such an impairment' if 11 the individual establishes that he or she has been subjected to an 12 action prohibited under this chapter because of an actual or 13 perceived physical or mental impairment whether or not the 14 impairment limits or is perceived to limit a major life activity." 15 42 U.S.C. § 12102. "The phrase 'is regarded as having an 16 17 impairment' means -- (1) Has a physical or mental impairment that 18 does not substantially limit major life activities but that is 19 treated by a public entity as constituting such a limitation; 20 (2) Has a physical or mental impairment that substantially limits 21 major life activities only as a result of the attitudes of others 22 toward such impairment; or (3) Has none of the impairments defined 23 "The phrase physical or mental impairment includes, but is not limited to, such contagious and noncontagious diseases and conditions as orthopedic, visual, speech and hearing impairments, cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, mental retardation, emotional illness, specific learning disabilities, HIV disease (whether symptomatic or asymptomatic), tuberculosis, drug addiction, and alcoholism." 28 C.F.R. § 35.104. 1 24 25 26 27 28 11 1 2 3 4 5 6 in paragraph (1) of this definition but is treated by a public entity as having such an impairment."2 Id. While the Ninth Circuit has not specifically designated cystic fibrosis as a disability under the ADA, other district courts have. See, e.g., Save Our Summers v. Wash. State Dep't of Ecology, 132 F. Supp. 2d 896, 907 (E.D. Wash. 1999).3 7 8 9 However, the Chadams allege that PAUSD knew C.C. did not actually have cystic fibrosis but only had a genetic marker for United States District Court For the Northern District of California 10 the disease. 11 had a physical impairment. 12 13 14 The question is whether PAUSD treated C.C. as if he The Chadams allege that, as a result of PAUSD's mistaken belief about the danger C.C. posed to other students, PAUSD disclosed his personal information to another family, attempted to 15 This definition represents a change from the previous standard. Under that standard, the Ninth Circuit "required that a plaintiff alleging a 'regarded as' claim [under Title I, with regards to employment] 'provide evidence of the employer's misperception, or subjective belief that the plaintiff is substantially impaired.' A plaintiff who does not have direct evidence of the employer's subjective belief that the plaintiff is substantially limited in a major life activity must provide evidence that the impairment imputed to the plaintiff is, objectively, a substantially limiting impairment." Scott v. Napolitano, 717 F. Supp. 2d 1071, 1086-87 (S.D. Cal. 2010) (citations omitted). 2 16 17 18 19 20 21 22 23 24 25 26 27 28 Cystic fibrosis is "a hereditary disease . . . that appears usually in early childhood, is inherited as an autosomal recessive monogenic trait, involves functional disorder of the exocrine glands, and is marked especially by faulty digestion due to a deficiency of pancreatic enzymes, by difficulty in breathing due to mucus accumulation in airways, and by excessive loss of salt in the sweat." Cystic Fibrosis, MedlinePlus: Merriam-Webster, http://www.merriam-webster.com/medlineplus/cystic%20fibrosis (last visited Oct. 22, 2014). 3 12 1 transfer C.C. out of his assigned middle school and subjected him 2 to ridicule and humiliation. 3 facts to support the inference that PAUSD acted on the basis of a 4 mistaken belief about C.C.'s status as a genetic carrier for CF 5 and, hence, regarded him as disabled. 6 7 The Chadams have alleged sufficient 2. Service, program or activity In determining what constitutes a service, program or 8 9 activity, the Ninth Circuit "construe[s] 'the ADA's broad language United States District Court For the Northern District of California 10 as bringing within its scope anything a public entity does.'" 11 Cal. Council of the Blind v. Cnty. of Alameda, 985 F. Supp. 2d 12 1229, 1235 (N.D. Cal. 2013) (citation omitted). 13 history of the ADA . . . supports construing the language 14 generously, providing that Title II . . . 'simply extends the 15 "The legislative anti-discrimination prohibition embodied in section 504 to all 16 17 18 19 actions of state and local governments.'" Barden v. City of Sacramento, 292 F.3d 1073, 1077 (9th Cir. 2002). The Chadams allege that, because it regarded C.C. as a person 20 with a disability, PAUSD deprived him of "fundamental and 21 substantial rights under the law" including the right to attend 22 the school closest to his home, to have his medical information 23 24 remain confidential, and not to be subjected to ridicule and harassment. As stated above, while his privacy claim arguably 25 26 implicates a fundamental right, the Chadams do not provide 27 authority for the proposition that any of the rights or benefits 28 denied to C.C., including privacy, are either "fundamental" or 13 1 "substantial." They may, however, state facts sufficient to 2 support the inference that attendance at the school closest to 3 one's home, the confidentiality of medical information, or freedom 4 from ridicule and embarrassment are services, programs or 5 activities encompassed under the definition stated in Cal. Council 6 7 of the Blind and Barton. Be that as it may, because this claim must be dismissed on other grounds, the Court need not decide if 8 9 United States District Court For the Northern District of California 10 11 12 C.C. was deprived of services, programs and activities within the meaning of the ADA. 3. Exclusion from or denial of a service, program or activity PAUSD argues that none of the rights deprivations the Chadams 13 cite in their complaint rises to the level of a denial of a 14 15 16 service, program or activity because its conduct is expressly permitted by statute. 17 Title II does 18 not require a public entity to permit an individual to participate in or benefit from the services, programs, or activities of that public entity when that individual poses a direct threat to the health or safety of others. . . . In determining whether an individual poses a direct threat to the health or safety of others, a public entity must make an individualized assessment, based on reasonable judgment that relies on current medical knowledge or on the best available objective evidence, to ascertain: the nature, duration, and severity of the risk; the probability that the potential injury will actually occur; and whether reasonable modifications of policies, practices, or procedures or the provision of auxiliary aids or services will mitigate the risk. 19 20 21 22 23 24 25 26 27 28 28 C.F.R. § 35.139. Further, a public entity "may impose legitimate safety requirements necessary for the safe operation of its services, programs, or activities. 14 However, the public entity 1 must ensure that its safety requirements are based on actual 2 risks, not on mere speculation, stereotypes, or generalizations 3 about individuals with disabilities." 4 5 6 7 Id. at § 35.130. The Ninth Circuit has held that "it is clear that ultimately the entity asserting a 'direct threat' as a basis for excluding an individual bears a heavy burden of demonstrating that the individual poses a significant risk to the health and safety of 8 9 others." Lockett v. Catalina Channel Exp., Inc., 496 F.3d 1061, United States District Court For the Northern District of California 10 1066 (9th Cir. 2007). 11 on a reasonable judgment of the risks involved may be acceptable. 12 Id. (holding that a ferry operator's one-time exclusion of a 13 service animal from a lounge where another passenger purportedly 14 had an animal dander allergy was a reasonable judgment under 28 15 C.F.R. § 36.208). On the other hand, one-time exclusion based However, an ongoing policy of exclusion may 16 17 18 well violate the ADA even when a one-time exclusion does not. Id. The Chadams have not alleged any facts to support the 19 inference that PAUSD did not act in an effort to preserve the safe 20 operation of the school. 21 support the inference that PAUSD's brief exclusion of C.C. from 22 the school closest to his home, in light of the risk involved, was 23 24 Nor have they alleged any facts to not reasonable given the information PAUSD had. In fact, they allege that PAUSD told them it was basing its decision on medical 25 26 evidence provided both by Dr. Milla and a "top Stanford doctor." 27 They state that PAUSD made its decisions on the basis of its 28 belief that C.C.'s presence in the school was a serious threat to 15 1 other students. Furthermore, C.C. was allowed, within two weeks, 2 to return to the school closest to his home, indicating that PAUSD 3 had changed its policy with regard to C.C. 4 5 6 7 In short, the Chadams admit that PAUSD believed the risk to other children was real and based on medical evidence. Accordingly, the Court GRANTS PAUSD's motion to dismiss the Chadams' Title II cause of action. 8 4. Compliance with the Family Educational Rights and Privacy Act (FERPA) and the California Education Code 9 United States District Court For the Northern District of California 10 11 PAUSD argues that, even if the Chadams' Title II cause of 12 action did not fail for the reasons stated above, its compliance 13 with both the California Education Code and the Family Educational 14 Rights and Privacy Act (FERPA) shields it from ADA liability. 15 PAUSD argues that California Education Code section 49451 obliges 16 it to "exclude students for which the school has good reason to 17 believe have an infectious disease." Docket No. 43 at 16-17. If 18 19 20 that is true, then C.C. likely did not have a right to attend a school with another child with cystic fibrosis during the time 21 period PAUSD needed to ascertain whether or not C.C. posed a risk 22 to another child. 23 itself provides for a defense based on the safe operations of a 24 public entity's programs, it need not decide whether adherence to 25 26 However, because the Court finds that Title II the California Education Code is a defense to an ADA Title II claim. 27 28 16 1 PAUSD also argues that, under FERPA and the California 2 Education Code, it is allowed to disclose student information 3 without consent "to protect the health/safety of students." 4 Docket No. 43 at 17. 5 Education Code expressly allow for the "disclosure of information 6 7 It argues that when FERPA and the California to protect the health and safety of students," the information disclosed is "rendered not confidential." Docket No. 49 at 6. 8 9 Because this cause of action must be dismissed for other United States District Court For the Northern District of California 10 reasons, the Court need not decide whether compliance with FERPA 11 and the Education Code is a defense to the Chadams' Title II 12 claim. 13 C. Monetary Damages 14 Lastly, PAUSD argues that, even if the Chadams' Title II 15 cause of action did not fail for the reasons discussed above, 16 17 18 19 their claims, which are for money damages, would fail because they have not alleged the requisite intent. In Ferguson v. City of Phoenix, 157 F.3d 668 (9th Cir. 1998), 20 the Ninth Circuit considered the circumstances under which 21 compensatory damages are available for violations of Title II and 22 § 504. 23 24 "By statute, the remedies for violations of the ADA and the Rehabilitation Act are co-extensive with each other, . . . and are linked to Title VI of the Civil Rights Act of 1964. . . . 25 26 These statutes require that ADA and Rehabilitation Act remedies be 27 construed the same as remedies under Title VI." 28 (citations omitted). Id. at 673 Under Title VI, "compensatory damages are 17 1 2 3 not available . . . absent a showing of discriminatory intent." Id. at 674. While the Chadams accuse PAUSD of conduct that was "intended 4 to cause harm and injury to plaintiffs," they do not allege any 5 facts to support that accusation. 6 7 Even if this claim were not dismissed for other reasons, it would not support a request for monetary damages. The Chadams admit that PAUSD's actions resulted 8 9 from its belief that student safety was at risk. Money damages United States District Court For the Northern District of California 10 are the only relief the Chadams seek; they did not seek injunctive 11 relief, which would be moot in any event, because C.C. is 12 currently attending the school closest to his home. 13 14 15 16 17 18 19 20 21 22 23 24 D. Plaintiffs James Chadam, Jennifer Chadam, and A.C. cannot assert individual claims under the ADA and Section 504 In its previous order, the Court stated: While parents may assert ADA and § 504 claims on behalf of their child, they may not assert claims based on their own injury arising from violations of their child's rights under those laws. C.C.'s parents are only proper plaintiffs "insofar as [they are] asserting and enforcing the rights of [their] son and incurring expenses for his benefit." This does not include their own "severe past, present and future emotional distress," "humiliation," "embarrassment," "disruption in family life," or other damages if they themselves were not denied benefits due to disability. Plaintiffs James Chadam, Jennifer Chadam, and A.C. plead no additional facts or legal authority that would enable them to recover. Accordingly, their individual claims for relief must fail. Order Granting Mot. Dismiss 16:26-17:15. (citations omitted). In their 2AC, the Chadams and A.C. have not alleged any 25 additional facts to support their individual claims. 26 these individual claims must fail. 27 28 18 Accordingly, 1 E. ADA Title II Cause of Action: Conclusion 2 The Chadams have not alleged facts sufficient to support 3 4 their claim for a violation of Title II of the ADA. Specifically, they have not alleged facts sufficient to support the accusation 5 6 7 that PAUSD excluded C.C. from, or denied him access to, any service, program or activity because it regarded him as disabled, 8 rather than because it believed, based on medical evidence, that 9 his condition imposed a health risk to other students. Nor do United States District Court For the Northern District of California 10 they allege facts sufficient to support the accusation that PAUSD 11 acted with the intent to discriminate or with the deliberate 12 indifference that would entitle them to monetary damages. 13 Accordingly, the Court GRANTS PAUSD's motion to dismiss this cause 14 15 of action. Because the Chadams have already been granted an 16 opportunity to amend this claim, it is now dismissed with 17 prejudice. 18 II. Second Cause of Action: Violation of the Rehabilitation Act of 1973 19 20 21 The Chadams' cause of action for a violation of the Rehabilitation Act (§ 504) is based on the same allegations as 22 their ADA Title II cause of action. PAUSD raises the same 23 arguments in its motion to dismiss this cause of action. 24 A. Eleventh Amendment Immunity 25 As it argued with regard to the ADA cause of action, PAUSD 26 argues that, pursuant to the Eleventh Amendment, it is immune from 27 28 19 1 2 3 4 5 6 7 causes of actions brought under § 504. As explained in the Court's previous order, however, The Ninth Circuit ruled that California waived state immunity under the Rehabilitation Act. The . . . Rehabilitation Act's statutory language manifests "a clear intention to condition participation in the programs funded under the Act on a State's consent to waive its constitutional immunity." By accepting federal funds under the Act, California waived its state immunity regarding the Act and consented to be sued. The Eleventh Amendment therefore will not bar a direct Rehabilitation Act claim by Plaintiffs against PAUSD. 8 Order Granting Mot. Dismiss 12:3-14 (citations omitted). 9 Accordingly, the Court declines to dismiss this cause of action on United States District Court For the Northern District of California 10 11 12 the basis of Eleventh Amendment immunity. B. Sufficiency of § 504 Cause of Action PAUSD argues that even if the Chadams' § 504 claim does not 13 14 fail due to Eleventh Amendment immunity, it fails because they do 15 not state facts sufficient to support a cause of action for a 16 violation of § 504. 17 in opposition to the Chadams' Title II claim. 18 19 20 PAUSD relies on the same arguments presented The only difference between an ADA Title II cause of action and a cause of action pursuant to § 504 is that a plaintiff must allege that the benefits program receives federal financial 21 22 23 assistance. Duvall, 260 F.3d at 1135. disputed by the parties. That element is not Nonetheless, the Chadams' cause of 24 action under § 504 fails for the same reasons their Title II cause 25 of action fails. 26 dismiss this cause of action. Accordingly, the Court GRANTS PAUSD's motion to Because the Chadams have already 27 28 20 1 been granted an opportunity to amend this claim, it is now 2 dismissed with prejudice. 3 III. Third Cause of Action: Violation of the Federal Constitutional Right to Privacy 4 The Chadams allege that, through the unauthorized disclosure 5 of C.C.'s medical information, PAUSD violated "C.C.'s 6 constitutional right to privacy conferred upon him by the First 7 Amendment of the Constitution of the United States." 8 9 2AC ¶ 50. "Technically, the First Amendment only restricts actions by the federal government. First Amendment rights against state United States District Court For the Northern District of California 10 actors derive from the Fourteenth Amendment and must be brought 11 under 42 U.S.C. § 1983." 12 WL 3341039, at *8 (E.D. Cal.). 13 Qualls v. Regents, Univ. of Cal., 2013 In its previous order, the Court stated, "As a California 14 school district, PAUSD is a state agency equivalent to the state 15 itself. 16 § 1983, and so Plaintiffs' [claim for a First Amendment violation 17 of privacy] is barred." 18 Court went on to note that the Chadams could bring a cause of 19 action against individual state officials in their personal 20 capacity. 21 PAUSD therefore is not a 'person' within the meaning of Id., fn.1. Order Granting Mot. Dismiss 7:23-26. The Chadams have not done so in their 2AC. Accordingly, the Court GRANTS PAUSD's motion to dismiss this 22 cause of action. 23 opportunity to amend this claim, it is now dismissed with 24 prejudice. 25 IV. 26 The Because the Chadams have already been granted an Fourth Cause of Action: Negligence The Chadams allege that PAUSD "owed [them] a duty of care 27 28 21 1 . . . not to allow the unlawful and improper disclosure of 2 personal, confidential, private medical information." 3 They allege that PAUSD breached its duty of care by "allowing one 4 of its teachers to disclose" C.C.'s medical information to Mr. and 5 Mrs. X. 6 "willful, deliberate and intended to cause harm and injury." 7 PAUSD argues that the Chadams' negligence claim fails to comply 8 with the California Tort Claims Act and to include a statutory 9 basis. United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Id. 2AC ¶ 53. They further allege that PAUSD's conduct was Id. A. California Tort Claims Act, California Government Code section 810 et seq. "Under the Tort Claims Act, a plaintiff may not maintain an action for money or damages against a public entity unless first a written claim has been presented to the public entity and rejected in whole or in part. Failure to timely present a claim for money or damages to a public entity bars a plaintiff from filing a lawsuit against that entity. Before a cause of action may be stated, a plaintiff must allege either compliance with this procedure or circumstances excusing compliance." Connelly v. Cnty. of Fresno, 146 Cal. App. 4th 29, 36-37 (2006) (citations omitted). "[I]n considering whether a claim substantially complies with the Government Tort Claims Act, the claim should be viewed in its entirety and a determination made as to whether the claim is susceptible to an interpretation that reasonably enables the public entity to make an adequate investigation and settle the claim." Id. at 40. "Timely claim presentation is not merely a procedural requirement, but rather, a condition precedent to a plaintiff's maintaining an action against a defendant, and thus, 28 22 1 an element of the plaintiff's cause of action." Belinda K. v. 2 Cnty. of Alameda, 2011 WL 2690356, at *11 (N.D. Cal.). 3 to allege facts in a complaint demonstrating or excusing 4 compliance with the Tort Claims Act subjects the complaint to a 5 motion to dismiss for failure to state a cause of action." "Failure Id. 6 Plaintiffs allege that they substantially complied with the 7 TCA through the "pleadings, allegations, documents, declarations 8 and exhibits filed in the now dismissed state court injunctive 9 relief action." Docket No. 47 at 18. However, the TCA requires a United States District Court For the Northern District of California 10 "written claim [to be] presented to the public entity and rejected 11 in whole or in part." 12 submitted a written claim for money damages to PAUSD, nor do they 13 allege that the claim was rejected, either in whole or in part. 14 They have not complied with the Tort Claims Act because they did 15 not give to PAUSD, prior to filing this lawsuit, written notice of 16 their allegations, causes of action, and claim for damages. 17 Without such notice, they are barred from bringing this state law 18 cause of action against PAUSD. 19 The Chadams do not allege that they Accordingly, the Court GRANTS PAUSD's motion to dismiss this 20 cause of action for failure to comply with the Tort Claims Act. 21 The dismissal is without prejudice to Plaintiffs re-filing the 22 claim in state court if they can remedy this deficiency. 23 all federal claims are dismissed, this Court will not retain 24 supplemental jurisdiction over the state claim. Because 25 B. Failure to Allege Statutory Basis for Negligence 26 Notwithstanding the Tort Claims Act issue, PAUSD argues that 27 the Chadams' negligence claim also fails because they do not state 28 a statutory basis for the claim. 23 1 California Government Code section 815.2 provides: 2 (a) A public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative. (b) Except as otherwise provided by statute, a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability. 3 4 5 6 7 8 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Furthermore, "[e]xcept as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused." Cal. Gov't Code § 820.2. "Nevertheless, [t]he fact that a [public] employee normally engages in discretionary activity is irrelevant if, in a given case, the employee did not [actually] render a considered decision." Walsh v. Tehachapi Unified Sch. Dist., 827 F. Supp. 2d 1107, 1122 (E.D. Cal. 2011) (citations omitted). Therefore, to bring an action for negligence against PAUSD, the Chadams would need to allege that the teacher who disclosed C.C.'s medical information without consent is also liable personally. If they cannot do so, then they must allege a statutory exception by which PAUSD can be found liable for actions for which the employee is immune. The Chadams can allege that the teacher is personally liable only by claiming that the teacher's conduct was not the result of the discretion vested in his or her authority. The Chadams have not made any allegations to support any of these theories upon which a negligence claim against PAUSD could 24 1 rest. Accordingly, the Court GRANTS PAUSD's motion to dismiss the 2 claim for this reason as well. 3 dismissed without prejudice to filing in state court if its 4 deficiencies can be remedied. As discussed above, this claim is 5 CONCLUSION 6 For the reasons set forth above, the Court GRANTS PAUSD's 7 motion to dismiss (Docket No. 43). 8 are dismissed with prejudice; their state claims are dismissed 9 without prejudice to re-filing in state court. United States District Court For the Northern District of California 10 11 12 The Chadams' federal claims IT IS SO ORDERED. Dated: November 4, 2014 CLAUDIA WILKEN United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 25

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