Pantell v. Antioch Unified School District et al

Filing 59

ORDER by Judge Hamilton granting in part and denying in part 43 Motion to Dismiss; granting 44 Motion to Dismiss; granting in part and denying in part 45 Motion to Dismiss (pjhlc1, COURT STAFF) (Filed on 9/26/2014)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ADRIANNE PANTELL,
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Plaintiff,

No. C 14-1381 PJH

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v.

ORDER GRANTING MOTIONS
TO DISMISS

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9

Defendants.
_______________________________/

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For the Northern District of California

United States District Court

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ANTIOCH UNIFIED SCHOOL
DISTRICT, et al.,

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Defendants' motions to dismiss the first amended complaint came on for hearing

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before this court on September 24, 2014. Plaintiff appeared by her counsel Andrea Tytell,

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and defendants appeared by their counsel Marguerite Meade. Having read the parties'

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papers and carefully considered their arguments and the relevant legal authority, the court

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hereby GRANTS the motions as follows and for the reasons stated at the hearing.

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BACKGROUND
This is a case alleging claims under federal and state disability and civil rights laws,

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and common law tort claims. Plaintiff Adrianne Pantell brings this action as guardian ad

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litem for DP, a minor. Plaintiff seeks damages, attorney's fees, and costs.

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Named as defendants are Antioch Union School District ("AUSD"); Board of

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Education of the AUSD ("AUSD Board"); Dr. Donald Gill ("Gill"), Superintendent of AUSD;

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David Wax ("Wax"), the former Director of Special Education for AUSD1; Wendy Aghily

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("Aghily"), Program Specialist for Contra Costa SELPA; Tobinworld, a non-public school;

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Mike Williams ("Williams"), Vice President and Behaviorist for Tobinworld; Sara Forghani

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("Forghani"), Principal of Tobinworld; Teresa Turner ("Turner"), Teacher at Tobinworld; and

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three Teacher's Aides at Tobinworld – Charee Mosley ("Mosley"), Ashley Curtin ("Curtin"),

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Plaintiff states she has been unable to serve Wax.

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and Stephanie Brown ("Brown").
DP, who is plaintiff's son, allegedly suffers from an emotional disturbance that

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qualifies him for special education services. FAC ¶ 7. From January 7, 2013 to February

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1, 2013, DP was enrolled at Tobinworld, a California-certified, non-profit, non-public school

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located in Antioch. FAC ¶¶ 14, 31. Tobinworld offers special education and behavioral

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services to children and young adults with severe behavior problems (those who are

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autistic or developmentally disabled). FAC ¶ 14. Tobinworld was approved by AUSD to

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provide special education and related services to DP, and he attended Tobinworld under a

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contract between Tobinworld and AUSD. FAC ¶¶ 14, 32.
The events that form the basis of the complaint are alleged to have occurred on

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For the Northern District of California

United States District Court

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Monday, January 28, 2013 and Friday, February 1, 2013. FAC ¶ 31. Plaintiff alleges that

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on both January 28 and February 1, DP was restrained in an upright position by Curtin,

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Mosley, and Brown (possibly for disruptive behavior, although the complaint is not clear).

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In addition, his feet were allegedly kicked out from under him, which caused him to fall to

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the floor. Williams and Turner are also alleged to have participated in the restraint on

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January 28. FAC ¶¶ 33, 35, 42.

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Plaintiff asserts that on both these occasions, DP was then forced by Curtin, Mosley,

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and Brown to lie face down, and those same three individuals placed folders wrapped in

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plastic against his face, which impeded his ability to breathe. FAC ¶¶ 35, 42. Plaintiff

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alleges that this was particularly distressful to DP on the January 28 occasion, because he

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had also sustained a bloody nose when he fell. FAC ¶ 35. DP was also allegedly

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restrained more than once on those days, was not permitted to use the restroom, was

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denied food, and was not allowed to play outside on either day. As a result of the repeated

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restraints, DP allegedly suffered bruises. FAC ¶¶ 35, 38-40, 42, 43.

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Plaintiff asserts that during January 2013, she "gave actual notice" of the restraints

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and inappropriate interventions that she claims were condoned and directed by Wax,

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Aghily, Williams, Turner, and Forghani, and that said "actual notice" was tendered to AUSD

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and AUSD Board, as well as to Gill, Wax, and Aghily, all of whom who allegedly failed to
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intervene on behalf of DP. FAC ¶ 44.
Plaintiff filed the original complaint on March 25, 2014. Defendants moved to

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asserts eight causes of action – (1) assault and battery (against Curtin, Mosley, Brown,

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Williams, Turner, Aghily, and Forghani); (2) negligence (against all defendants);

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(3) violation of substantive due process, under 42 U.S.C. § 1983 (Gill, Wax, Aghily,

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Williams, Forghani, Turner, Mosley, Curtin, and Brown, in their individual capacities only);

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(4) discrimination in violation of California Civil Code § 51 (Unruh Act) (AUSD, Gill, Wax,

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Aghily, Williams, Forghani, Turner, Mosley, Curtin, and Brown in their individual capacities

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only); (5) discrimination in violation of § 504 of the Rehabilitation Act, 29 U.S.C. § 701, et

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For the Northern District of California

dismiss, and on July 9, 2014, plaintiff filed a first amended complaint ("FAC"). The FAC

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United States District Court

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seq. (AUSD and AUSD Board); (6) violation of Title II of the Americans With Disabilities Act

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("ADA"), 42 U.S.C. § 12101, et seq. (AUSD and AUSD Board) (7) intentional infliction of

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emotional distress or "IIED" (all defendants); and (8) negligent infliction of emotional

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distress or "NIED" (all defendants).

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Now before the court are three motions to dismiss –

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(1)

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Motion of AUSD and AUSD Board to dismiss the claims asserted against

them for lack of subject matter jurisdiction and/or for failure to state a claim;
(2)

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Motion of AUSD individual defendants (Gill and Aghily) to dismiss the claims

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asserted against them for lack of subject matter jurisdiction and/or for failure to state a

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claim; and
(3)

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Motion of Tobinworld defendants (Tobinworld, Williams, Forghani, Turner,

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Mosley, Curtin, and Brown) to dismiss the claims asserted against them for failure to state

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a claim.
DISCUSSION

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A.

Legal Standards

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1.

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Federal courts are courts of limited jurisdiction, possessing only that power

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Dismissal for lack of subject matter jurisdiction

authorized by Article III of the United States Constitution and statutes enacted by Congress
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pursuant thereto. See Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986).

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Thus, federal courts have no power to consider claims for which they lack subject-matter

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jurisdiction. See Chen-Cheng Wang ex rel. United States v. FMC Corp., 975 F.2d 1412,

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1415 (9th Cir. 1992). The court is under a continuing duty to dismiss an action whenever it

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appears that the court lacks jurisdiction. Id.; see also Spencer Enters., Inc. v. United

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States, 345 F.3d 683, 687 (9th Cir. 2003); Attorneys Trust v. Videotape Computers Prods.,

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Inc., 93 F.3d 593, 594-95 (9th Cir. 1996). The burden of establishing that a cause lies

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within this limited jurisdiction rests upon the party asserting jurisdiction. Kokkonen v.

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Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994).
2.

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For the Northern District of California

United States District Court

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A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests for the legal

Dismissal for failure to state a claim

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sufficiency of the claims alleged in the complaint. Ileto v. Glock, Inc., 349 F.3d 1191,

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1199-1200 (9th Cir. 2003). Review is limited to the contents of the complaint. Allarcom

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Pay Television, Ltd. v. Gen. Instrument Corp., 69 F.3d 381, 385 (9th Cir. 1995). To survive

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a motion to dismiss for failure to state a claim, a complaint generally must satisfy only the

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minimal notice pleading requirements of Federal Rule of Civil Procedure 8, which requires

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that a complaint include a “short and plain statement of the claim showing that the pleader

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is entitled to relief.” Fed. R. Civ. P. 8(a)(2).

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A complaint may be dismissed under Rule 12(b)(6) for failure to state a claim if the

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plaintiff fails to state a cognizable legal theory, or has not alleged sufficient facts to support

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a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir.

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1990). While the court is to accept as true all the factual allegations in the complaint,

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legally conclusory statements, not supported by actual factual allegations, need not be

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accepted. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009); see also In re Gilead Scis. Sec.

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Litig., 536 F.3d 1049, 1055 (9th Cir. 2008).

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The allegations in the complaint "must be enough to raise a right to relief above the

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speculative level[,]" and a motion to dismiss should be granted if the complaint does not

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proffer enough facts to state a claim for relief that is plausible on its face. Bell Atlantic
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Corp. v. Twombly, 550 U.S. 544, 555, 558-59 (2007) (citations and quotations omitted). A

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claim has facial plausibility when the plaintiff pleads factual content that allows the court to

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draw the reasonable inference that the defendant is liable for the misconduct alleged."

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Iqbal, 556 U.S. at 678 (citation omitted). "[W]here the well-pleaded facts do not permit the

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court to infer more than the mere possibility of misconduct, the complaint has alleged – but

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it has not ‘show[n]' – ‘that the pleader is entitled to relief.'" Id. at 679. Where dismissal is

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warranted, it is generally without prejudice, unless it is clear the complaint cannot be saved

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by any amendment. Sparling v. Daou, 411 F.3d 1006, 1013 (9th Cir. 2005).

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B.

Defendants' Motions
1.

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For the Northern District of California

United States District Court

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AUSD and AUSD Board seek an order dismissing the claims asserted against them

AUSD and AUSD Board's motion

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for lack of subject matter jurisdiction and/or for failure to state a claim. The causes of

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action that are asserted against both AUSD and AUSD Board are the second (negligence),

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fifth (Rehabilitation Act), sixth (ADA), seventh (IIED), and eighth (NIED). In addition, the

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fourth cause of action (Unruh Act) is also alleged against AUSD.

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The only facts alleged against these two defendants are (a) as to AUSD, that AUSD

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is a governmental subdivision of the State of California, that AUSD contracts with

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California-certified agencies to provide special programming and services for children with

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disabilities, that plaintiff gave AUSD "actual notice" of the allegedly improper containments

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of DP during January 2013, that AUSD failed to intervene on DP's behalf, and that AUSD

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failed to adequately train and supervise Tobinworld employees Curtin, Mosley, and Brown,

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FAC ¶¶ 9, 44, 59-62; and (b) as to AUSD Board, that it was authorized and empowered to

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make and enforce AUSD policies, that plaintiff gave the Board "actual notice" of the

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allegedly improper containments of DP during January 2013, that the Board failed to

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intervene on DP's behalf, and that the Board failed to adequately train and supervise

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Tobinworld employees Curtin, Mosley, and Brown, FAC ¶¶ 10, 44, 59-62.

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2.

Individual AUSD defendants' motion

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The causes of action that are asserted against both Gill and Aghily are the second
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(negligence), third (substantive due process under § 1983), fourth (Unruh Act), seventh

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(IIED) and eighth (NIED). In addition, the first cause of action (assault and battery) is also

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alleged against Aghily. It appears that these defendants are sued in both their "individual"

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and "official" capacities (Gill as AUSD Superintendent of Education, and Aghily as Program

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Specialist for Contra Costa SELPA) in all claims except the § 1983 claim and the Unruh Act

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claim, where they are sued in their individual capacities only.

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Apart from vague and generalized allegations against all "defendants," the only facts

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alleged specifically against these two defendants are, as to Gill, that during January 2013,

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plaintiff gave "actual notice" of the allegedly improper containments and improper
interventions to Gill, and that he failed to intervene on DP's behalf, FAC ¶ 44; and that

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For the Northern District of California

United States District Court

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"defendants" (presumably including Gill) failed to adequately implement appropriate

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policies and procedures for the training and supervision of "teachers" and "aides"

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(presumably Tobinworld employees Turner, Curtin, Mosley, and Brown), FAC ¶ 79.

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As to Aghily, the only facts alleged are that in November 2012, Aghily told plaintiff

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that AUSD did not have district level programming or services for DP, and that plaintiff

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should seek services through DP's psychiatrist, not the school district, which plaintiff claims

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constituted an attempt by Aghily to mislead and conceal facts related to the provision of

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special education programming and services, FAC ¶ 30; that the January 28 containment

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incident occurred under Aghily's direction and with her knowledge, FAC ¶ 36; that Aghily

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was aware of the February 1 containment of DP, but "did nothing to intervene[,]" FAC ¶ 42;

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and that "defendants" (presumably including Aghily) failed to adequately implement

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appropriate policies and procedures for the training and supervision of "teachers" and

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"aides" (presumably Tobinworld employees Turner and Teacher's Aides Curtin, Mosley,

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and Brown), FAC ¶ 79.

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3.

Tobinworld defendants' motion

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The causes of action that are asserted against Tobinworld are the second

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(negligence), seventh (IIED), and eighth (NIED). Plaintiff does not assert the third

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(§ 1983 substantive due process) cause of action against Tobinworld, but does allege in
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that cause of action that "[d]efendants" (not identified – but presumably including the

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individual Tobinworld defendants) "maintained a culture of abuse as well as an inadequate

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custom and policy relating to the training and supervision of AUSD and Tobinworld's

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administrators and staff as necessary to protect students like DP from harm." FAC ¶ 70.

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The individual Tobinworld defendants are Williams, Forghani, Turner, Mosley,

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Curtin, and Brown. The causes of action asserted against the individual defendants are the

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first (assault and battery), second (negligence), third (substantive due process under

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§ 1983), fourth (Unruh Act), seventh (IIED) and eighth (NIED). It appears that, except for

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the § 1983 and Unruh Act claims, these individuals are sued in both their "individual" and
"official" capacities (Williams as VP and Behaviorist, Forghani as Principal, Turner as

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For the Northern District of California

United States District Court

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Teacher, and Mosley, Curtin, and Brown as Teacher's Aides). Defendants contend that

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while Brown is identified as a Teacher's Aide in the FAC, she in fact is a Pro-Act®

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Trainer/Program Specialist.
While the FAC is replete with facts alleged against unidentified "defendants," the

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only facts alleged against specific individual Tobinworld defendants are (a) as to Williams,

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that he was one of the individuals who "restrained" DP on January 28 and February 1, that

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the containment incidents occurred with his knowledge, and that he did nothing to

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intervene; (b) as to Forgani, that the January 28 and February 1 containment incidents

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occurred under her direction and at her knowledge, that she knew about the February 1

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incident but did nothing to intervene, and that she failed to adequately train and supervise

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Curtin, Mosley, and Brown; (c) as to Turner, that she denied DP's request for a snack on

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January 28, that the two containment incidents occurred under her direction and with her

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knowledge, that she knew about the February 1 incident but did nothing to intervene, and

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that she failed to adequately train and supervise Curtin, Mosley, and Brown; and (d) as to

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Curtin, Mosley, and Brown, that they were among the Tobinworld employees who

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contained DP on January 28 and February 1.

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C.

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Analysis
As the court indicated at the hearing, the FAC is deficient in that if fails to plead facts
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sufficient to support the necessary elements of a number of the causes of action; and the

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facts that are alleged are frequently asserted against "defendants" without any indication of

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which defendant is alleged to have done what. In addition, plaintiff included numerous

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purported facts in her opposition briefs which appear nowhere in the FAC.

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The court finds that all the claims (with the exception of the common-law tort claims
asserted against the individual Tobinworld defendants) must be dismissed, as follows.
1.

The eighth (NIED) cause of action is duplicative of the second (negligence)

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cause of action, see Potter v. Firestone Tire & Rubber Co., 6 Cal. 4th 965, 984 (1993), and

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as such the eighth cause of action is DISMISSED as to all defendants. The dismissal is

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For the Northern District of California

United States District Court

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WITH PREJUDICE.
2.

The motion of AUSD and AUSD Board to dismiss the second (negligence),

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fourth (Unruh Act), and seventh (IIED) causes of action based on Eleventh Amendment

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immunity is GRANTED. See Raygor v. Regents of Univ. of Minn., 534 U.S. 533, 541-42

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(2002); Stoner v. Santa Clara Office of Education, 502 F.3d 1116, 1122 (9th Cir. 2007);

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Brouillette v. Montague Elem. Sch. Dist., 2014 WL 2453036 at *2 (E.D. Cal. May 30, 2014).

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The dismissal is WITH PREJUDICE.

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3.

The motion of AUSD and AUSD Board to dismiss the ADA Title II claim based

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on Eleventh Amendment immunity is DENIED, because the pleading is so deficient that the

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court cannot tell whether the abrogation of Eleventh Amendment immunity for some ADA

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Title II claims applies to this case. See United States v. Georgia, 546 U.S. 151, 159

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(2006); J.F. by Abel-Irby v. New Haven Unified Sch. Dist., 2014 WL 1614867 at*4 (N.D.

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Cal. Apr. 22, 2014); E.H. v. Brentwood Union Sch. Dist., 2013 WL 5978008 at *5 (N.D. Cal.

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Nov. 4, 2013).

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4.

The motion of AUSD and AUSD Board to dismiss the ADA Title II and

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Rehabilitation Act claims for failure to state a claim is GRANTED. The dismissal is WITH

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LEAVE TO AMEND, to allege facts sufficient to support each element of the claims. See

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E.R.K. ex rel. R.K. v. Hawaii Dep't of Educ., 728 F.3d 982, 992 (9th Cir. 2013); Duvall v.

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County of Kitsap, 260 F.3d 1124, 1135 (9th Cir. 2001). Plaintiff has adequately alleged that
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DP is an individual with a disability, which is the first element of each claim. However, the

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remaining allegations as to these causes of action border on incomprehensible.

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5.

As plaintiff concedes in her opposition, any claims asserted against Gill and

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Aghily in their official capacities must be DISMISSED for Eleventh Amendment immunity.

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See Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989); Pennhurst State Sch. and

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Hosp. v. Halderman, 465 U.S. 89, 100 (1984). The dismissal is WITH PREJUDICE.

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Based on plaintiff's concession in her opposition, see Pltf's Opp. at 11:4-5, the claim

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of assault and battery asserted against Aghily in her individual capacity is also DISMISSED

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WITH PREJUDICE.
7.

The motion of Gill and Aghily to dismiss the second (negligence), fourth

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For the Northern District of California

United States District Court

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(Unruh Act), and seventh (IIED) causes of action asserted against them in their individual

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capacities, for failure to state a claim, is GRANTED. The dismissal is with leave to amend,

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to allege facts supporting the elements of each of these causes of action. See Mendoza v.

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City of Los Angeles, 66 Cal. App. 4th 1333, 1339 (1998); Nymark v. Heart Fed. Sav. &

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Loan Ass'n, 231 Cal. App. 3d 1089, 1095 (1991) (negligence); Wilkins-Jones v. Cnty. of

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Alameda, 859 F. Supp. 2d 1039, 1048 (N.D. Cal. 2012) (Unruh Act); Potter, 6 Cal. 4th at

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1001 (IIED).

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8.

The motion of Gill and Aghily to dismiss the third (§ 1983) cause of action

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asserted against them in their individual capacities, for failure to state a claim, is

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GRANTED. To state a claim under § 1983, a plaintiff must allege (1) that a right secured

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by the Constitution or laws of the United States was violated and (2) that the alleged

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violation was committed by a person acting under the color of state law. West v. Atkins,

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487 U.S. 42, 48 (1988); Jones v. Williams, 297 F.3d 930, 934-35 (9th Cir. 2002).

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To be liable under § 1983, the defendant's actions must have caused the alleged

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violation. That is, "[i]n order for a person acting under color of state law to be liable under

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section 1983, there must be a showing of personal participation in the alleged rights

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deprivation . . . ." Jones, 297 F.3d at 935; see also Estate of Brooks v. United States, 197

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F.3d 1245, 1248 (9th Cir. 1999); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989).
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Plaintiff has identified no affirmative conduct on the part of either Gill or Aghily that could

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support her § 1983 due process claim – whether direct or supervisory. There is no

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respondeat superior liability under § 1983. See Monell v. Dep't of Soc. Servs., 436 U.S.

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658, 691 (1978). Under the standard set forth in Iqbal, the FAC fails to allege facts

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showing that either Gill or Aghily violated DP's due process rights.

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Plaintiff appears to be alleging that Gill and Aghily are liable for their failure to

this qualifies as an "omission." “[T]he general rule is that [a] state is not liable for its

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omissions.” Munger v. City of Glasgow Police Dep't, 227 F.3d 1082, 1086 (9th Cir. 2000).

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“As a corollary, the Fourteenth Amendment typically does not impose a duty on the state to

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For the Northern District of California

intervene and "protect" DP from actions taken by the Tobinworld defendants. If anything,

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United States District Court

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protect individuals from third parties.” Patel v. Kent Sch. Dist., 648 F.3d 965, 971 (9th Cir.

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2011) (quotation omitted).

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Put another way, § 1983 does not impose liability for violations of duties of care

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arising out of state tort law. DeShaney v. Winnebago County Social Servs. Dep't, 489 U.S.

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189, 201-03 (1989); Baker v. McCollan, 443 U.S. 137, 146 (1979). The Due Process

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Clause is not implicated by a state official's negligent act causing unintended loss or injury

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to life, liberty, or property. See Daniels v. Williams, 474 U.S. 327 (1986); Davidson v.

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Cannon, 474 U.S. 344 (1986).

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There are two exceptions to this rule – 1) when a “special relationship” exists

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between the plaintiff and the state (“special relationship exception”), see DeShaney, 489

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U.S. at 198-02 (1989); and 2) when the state affirmatively places the plaintiff in danger by

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acting with “deliberate indifference” to a “known or obvious danger” (“state-created danger

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exception”), see L.W. v. Grubbs, 92 F.3d 894, 900 (9th Cir. 1996). If either exception

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applies, a state's omission or failure to protect may give rise to a § 1983 claim.” Patel, 648

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F.3d at 972.

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In claims of constitutional due process violations, the "special relationship" exception

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applies when a state “takes a person into its custody and holds him there against his will.”

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DeShaney, 489 U.S. at 199-200. The types of custody triggering this exception are
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“incarceration, institutionalization, or other similar restraint of personal liberty.” Id. at 200.

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“Compulsory school attendance and in loco parentis status do not create “custody” under

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the strict standard of DeShaney.” Patel, 649 F.3d at 973.

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The "state-created danger" exception applies when there is “affirmative conduct on

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the part of the state in placing the plaintiff in danger,” and the state acts with “deliberate

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indifference” to a “known or obvious danger.” Id. at 974 (internal citation omitted).

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"Deliberate indifference" is a “stringent standard of fault, requiring proof that a municipal

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actor disregarded a known or obvious consequence of his action.” Bryan Cnty. v. Brown,

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530 U.S. 397, 410 (1997). To prove that a state official acted with deliberate indifference, a
plaintiff must show the person “recognize[d] the unreasonable risk and actually intend[ed]

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For the Northern District of California

United States District Court

10

to expose the plaintiff to such risks without regard to the consequences to the plaintiff.”

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Grubbs, 92 F.3d at 899 (citation omitted).

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Gill and Aghily cannot be liable for any actions taken by the Tobinworld defendants

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unless one of the two exceptions described above applies. The "special relationship"

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exception does not apply under the facts alleged because DP was not "in custody." See

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Patel, 649 F.3d at 973. The "state-created danger" exception is also not applicable here,

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as plaintiff has not alleged any facts showing that Gill or Aghily – as individuals –

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recognized that any of the Tobinworld defendants posed any danger to DP, or actually

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intended to expose him to the risks posed (if any). Thus, since neither of these exceptions

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applies, plaintiff fails to state a substantive due process claim against either Gill or Aghily

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based on "failure to intervene" or "failure to protect."

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Nevertheless, while it seems doubtful that plaintiff will be able to state a claim, the

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court will allow plaintiff LEAVE TO AMEND the § 1983 cause of action against Gill and

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Aghily to plead facts showing either direct or supervisory liability.

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9.

The individual Tobinworld defendants' motion to dismiss the third (§ 1983)

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cause of action for failure to state a claim is GRANTED. Section 1983 does not apply to

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the conduct of private parties. Kirtley v. Rainey, 326 F.3d 1088, 1092 (9th Cir. 2003). That

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is, the "[t]he state-action element in § 1983 ‘excludes from its reach merely private conduct,
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1

no matter how discriminatory or wrongful.'" Caviness v. Horizon Community Learning

2

Center, Inc., 590 F.3d 806, 812 (9th Cir.2010) (quoting American Manufacturers Mut. Ins.

3

Co. v. Sullivan, 526 U.S. 40, 50 (1999)). As employees of Tobinworld, a private school, the

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individual Tobinworld defendants are presumably not state actors.

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In limited circumstances, a private party's conduct could constitute state action for

to identify private action that qualifies as state action: (1) public function; (2) joint action;

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(3) governmental compulsion or coercion; and (4) governmental nexus. Kirtley, 326 F.3d at

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1092-95. The fundamental consideration in each test is whether the private conduct is

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fairly attributable to the state. Id. at 1092; see also Morse v. North Coast Opportunities,

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For the Northern District of California

purposes of imposing liability on that party under § 1983. Courts recognize four tests used

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United States District Court

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Inc., 118 F.3d 1338, 1340 (9th Cir. 1997).

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The dismissal is WITH LEAVE TO AMEND to allege the elements of a claim under §

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1983, including that each defendant is a state actor. Allegations that Tobinworld had a

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contractual relationship with AUSD, that it received state and federal funds, and that it was

15

subject to state regulation are insufficient to show satisfy the requirement of pleading that

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Tobinworld is a state actor. See Rendell-Baker v. Kohn, 457 U.S. 830, 840-42 (1982);

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Morse v. North Coast Opportunities, Inc., 118 F.3d 1338, 1341 (9th Cir. 1997). Plaintiff

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must specify the applicable test, and must allege facts as to each defendant showing that

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he/she qualified as a state actor. See, e.g., Lee v. Katz, 276 F.3d 550, 554-55 (9th Cir.

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2002) ("public function" test); Crowe v. County of San Diego, 608 F.3d 406, 440 (9th Cir.

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2010) ("joint action" test); Sutton v. Providence St. Joseph Med. Ctr., 192 F.3d 826, 836-41

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(9th Cir. 1999) ("governmental compulsion" test); Villegas v. Gilroy Garlic Festival Assoc.,

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541 F.3d 950, 955 (9th Cir. 2008) ("nexus" test).

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10.

The individual Tobinworld defendants' motion to dismiss the fourth (Unruh

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Act) claim is GRANTED, based on plaintiff's concession in her opposition and her failure to

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oppose the motion. See Pltf's Opp. at 17:7-10. The dismissal is WITH PREJUDICE.

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11.

The individual Tobinworld defendants' request that the court decline to

exercise supplemental jurisdiction over the first (assault/battery), second (negligence, and
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seventh (IIED) causes of action, pursuant to 28 U.S.C. § 1367(c)(3) is DENIED, given that

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leave to amend the federal claims has been granted.

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12.

No later than October 15, 2014, plaintiff shall file a proof of service showing

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service of the summons and complaint on defendant David Wax. If such proof of service is

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not filed, the court will dismiss Wax pursuant to Federal Rule of Civil Procedure 4(m).

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CONCLUSION
In accordance with the foregoing, defendants' motions are GRANTED. The

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dismissal is WITH LEAVE TO AMEND only as indicated above. The second amended

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complaint must be filed no later than October 22, 2014. No new claims or parties may be

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For the Northern District of California

United States District Court

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added without leave of court.
In addition, the amended complaint must clarify, as to all individual defendants,

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whether they are being sued in their official capacities, their individual capacities, or both,

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under each cause of action. Further, the amended complaint must state in each cause of

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action what it is that each individual defendant is alleged to have done, and those

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defendants must be listed in the heading of each cause of action. It is not sufficient to

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simply refer to "defendants" collectively.

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IT IS SO ORDERED.

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Dated: September 26, 2014
______________________________
PHYLLIS J. HAMILTON
United States District Judge

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