Swope et al v. Oneida School District, No. 351

Filing 24

OPINION AND ORDER REGARDING PLAINTIFFS MOTION FOR LEAVE TO AMEND - the plaintiffs 8/1/2017, Motion For Leave To Amend (docket no. 19 ) is granted. Signed by Judge Mark W Bennett. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
TIMOTHY SWOPE and MARLA
SWOPE, individually and on behalf of
B.S.,
No. 4:17-cv-113-MWB
Plaintiffs,
vs.
ONEIDA SCHOOL DISTRICT NO. 351,
a county school district; DAVID
RISENMAY, in his individual and
official capacities; and TERRI
SORENSEN, in her individual and
official capacities,

OPINION AND ORDER
REGARDING PLAINTIFFS’
MOTION FOR LEAVE TO AMEND

Defendants.
___________________________
This case, on behalf of a disabled elementary school student, is before me on the
plaintiffs’ August 1, 2017, Motion For Leave To Amend. Somewhat more specifically,
the proffered amendment is a Second Amended Complaint adding a new plaintiff, a new
defendant, and a new claim. The defendants filed their Objection on August 9, 2017,
and the plaintiffs filed their Reply on August 24, 2017.
I.

INTRODUCTION
A.

Background

In their Amended Complaint, Timothy and Marla Swope allege, on behalf of their
son, BS, that BS is a wheelchair-bound student with physical and cognitive disabilities
entitled to a free appropriate public education (FAPE) under the Individuals with
Disabilities Education Act (IDEA).

The defendants are the Oneida School District

No. 351, David Risenmay, the Superintendent for the District, and Terri Sorensen, the
Special Education Director for the District. The Swopes assert several causes of action,
arising, inter alia, from lack of appropriate transportation and bathroom facilities for BS,
lack of facilities for BS to access the second floor and other portions of the school
building, and from an accident on or about September 8, 2014, when BS’s wheelchair
tumbled off a sidewalk that lacked a safety bar or safety rail.
More specifically, the Swopes’ first cause of action, against the District, is for
violations of the IDEA in failing to maintain a least restrictive environment (LRE),
adequate transportation services, or a safety plan for BS, failure to provide a full-time
aid for BS, and improper removals of BS from the regular education environment. Their
second cause of action, against all defendants, is for disability discrimination in violation
of Title II of the Americans with Disabilities Act (ADA) based on BS’s exclusion from
and denial of meaningful and safe access to the schools of the District. Their third cause
of action, against all defendants, is for violation of the Rehabilitation Act, essentially
mirroring their ADA claim. Their fourth cause of action is for “violation of 42 U.S.C.
§ 1983,”1 but is more properly described as a claim of violation of BS’s right to equal
1

Of course, one cannot “violate” § 1983. Section 1983 was designed to provide
a “broad remedy for violations of federally protected civil rights,” Monell v. Dep’t of
Soc. Servs., 436 U.S. 658, 685 (1978), but it provides no substantive rights. Albright v.
Oliver, 510 U.S. 266, 271 (1994); Graham v. Conner, 490 U.S. 386, 393-94 (1989);
Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 617 (1979). “One cannot go
into court and claim a ‘violation of [42 U.S.C.] § 1983’—for [42 U.S.C.] § 1983 by itself
does not protect anyone against anything.” Chapman, 441 U.S. at 617. Rather, § 1983
provides a remedy for violations of all “rights, privileges, or immunities secured by the
Constitution and laws [of the United States].” 42 U.S.C. § 1983; see also Albright, 510
U.S. at 271 (42 U.S.C. § 1983 “merely provides a method for vindicating federal rights
elsewhere conferred”); Graham, 490 U.S. at 393-94 (same); Maine v. Thiboutot, 448
U.S. 1, 4 (1980) (“Constitution and laws” means 42 U.S.C. § 1983 provides remedies
(Footnote continued . . .
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protection under the Fourteenth Amendment to the United States Constitution.2 Their
fifth cause of action, against all defendants, is for child abuse. Their sixth cause of
action, against all defendants, is for intentional infliction of emotional distress.
On August 1, 2017, the Swopes sought leave to file a Second Amended Complaint,
adding Denise Coombs as a plaintiff asserting claims on behalf of her disabled daughter,
OC, and also adding as a defendant Kerry Adams, a member of the teaching faculty at
the District’s elementary school. The Second Amended Complaint alleges that OC is
another largely wheelchair-bound elementary school student, one grade behind BS, but
less than two months apart in age from BS. It also alleges that OC has suffered from the
inaccessibility of parts of the school and injured her leg when she attempted to climb a
stairway without adequate facilities. In the Second Amended Complaint, only the Swopes
assert an IDEA claim, but Ms. Coombs joins in all of the Swopes’ other claims. The
Second Amended Complaint also adds a new claim of negligence, “in the alternative,”
against all defendants by all plaintiffs.

for violations of rights created by federal statute, as well as those created by the
Constitution.). To state a claim under 42 U.S.C. § 1983, a plaintiff must establish:
(1) the violation of a right secured by the Constitution or laws of the United States and
(2) the alleged deprivation of that right by a person acting under color of state law. West
v. Atkins, 487 U.S. 42, 48 (1988).
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The Swopes allege that this claim also encompasses violations of the ADA, the
Rehabilitation Act, the IDEA, and Idaho’s Child Abuse Statute. “Despite § 1983’s broad
wording, that section’s availability as a remedy for violations of federal statutory or
constitutional rights may be foreclosed in the event that Congress enacts a statutory
scheme indicating an intent to preclude § 1983 suits.” Stilwell v. City of Williams, 831
F.3d 1234, 1240 (9th Cir. 2016) (citing Baker v. McCollan, 443 U.S. 137, 144 n.3
(1979)). Similarly, § 1983 provides no authorization for a claim of violation of state law.
42 U.S.C. § 1983. While I will not sua sponte limit the Swope’s § 1983 claim, at this
time, there are plainly some problems, likely insuperable, with the pleading of that claim.
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B.

Arguments Of The Parties

The Swopes argue that the proffered amendment is proper under Rule 15 of the
Federal Rules of Civil Procedure, because leave to amend should be freely given, when
justice so requires. They contend that the claims on behalf of BS and OC are very similar
and are probative, together, of the defendants’ habitually discriminatory intent toward
disabled students attending school in the District. They point out that both children
attended the Malad Elementary School; they are close in age and one grade apart; they
are both disabled and wheelchair-bound; owing to their disabilities, both have suffered
severe physical injuries while at the same school as a result of the school’s lack of
accommodations; they have both been denied access in and around the same school; and,
while at the same school, both were overtly discriminated against on the basis of their
disability. They contend that a complete merger of these claims into one action is
appropriate under Rule 42(a) of the Federal Rules of Civil Procedure in light of the
similarities in their claims and the similarity of the location and witnesses involved.
In response, the defendants argue that a proffered amendment may be denied
when, as here, it is prejudicial to the opposing party. They contend that the proffered
amendment is highly prejudicial, because the IDEA claim on behalf of BS has nothing to
do with OC, the two students were allegedly injured in two separate incidents in different
locations, and the claims of the two families involve two different sets of facts, which
will permit introduction of prejudicial evidence that would normally be inadmissible as
to one child in a trial involving claims of both children. Indeed, they argue that some of
the evidence about specific facilities relevant to one child is completely irrelevant as to
the other. They also argue that the undue prejudice is particularly apparent as to the
original named individual defendants, who will be subjected to a trial involving evidence
of alleged wrongdoing by others towards another child that is irrelevant as to them, and
the same would be true as to the new individual defendant as to evidence relevant only
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to BS. They also contend that, contrary to the Swopes’ arguments, there would be, in
effect, completely separate sets of records and two sets of witnesses, some of whom have
no knowledge or information pertaining to one child or the other. Finally, they contend
that, if the amendment is allowed, the new claims of the new plaintiff should not relate
back to the time of the filing of the Swopes’ original Complaint.
In reply, the Swopes belatedly argue that permissive joinder of the claims on behalf
of OC is appropriate under Rule 20(a)(1) of the Federal Rules of Civil Procedure, because
the claims on behalf of both children arise from the same occurrences or series of
occurrences. They also argue that the claims on behalf of the two children involve the
common question of discriminatory intent. Indeed, they argue that evidence about each
child would be admissible as to the other child as Rule 404(b) “me too” evidence. They
also contend that the defendants’ “relation back” argument is a red herring, because the
notices of the claims on behalf of both children were timely and/or that the timing issues
on which the defendants rely have nothing to do with the federal claims at issue.
II.
A.

ANALYSIS

Applicable Standards

As a general matter, leave to amend pursuant to Rule 15(a)(2) should be “freely
given.” FED. R. CIV. P. 15(a)(2). As the Ninth Circuit Court of Appeals has explained,
In Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227, 9
L.Ed.2d 222 (1962), the Supreme Court set forth the
following standard regarding motions for leave to amend:
If the underlying facts or circumstances relied upon by
a plaintiff may be a proper subject of relief, he ought
to be afforded an opportunity to test his claim on the
merits. In the absence of any apparent or declared
reason—such as undue delay, bad faith or dilatory
motive on the part of the movant, repeated failure to
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cure deficiencies by amendments previously allowed,
undue prejudice to the opposing party by virtue of
allowance of the amendment, futility of amendment
etc.—the leave sought should, as the rules require, be
“freely given.” Of course, the grant or denial of an
opportunity to amend is within the discretion of the
District Court, but outright refusal to grant the leave
without any justifying reason appearing for the denial
is not an exercise of discretion; it is merely abuse of
that discretion and inconsistent with the spirit of the
Federal Rules.
Id. at 182, 83 S.Ct. 227. We have held that trial courts should
determine whether to allow leave to amend by ascertaining
the presence of four factors: bad faith, undue delay, prejudice
to the opposing party, and futility. Griggs v. Pace Am. Grp.,
Inc., 170 F.3d 877, 880 (9th Cir. 1999).
In re Tracht Gut, LLC, 836 F.3d 1146, 1151–52 (9th Cir. 2016). The parties’ arguments,
here, focus on the “prejudice” factor.
However, as the Swopes belatedly recognize, Rule 20(a)(1) controls permissive
joinder of a new plaintiff, which is the principal effect of their proffered amendment.3
The district court has authority to manage the process of joining additional parties.
Hoffmann–La Roche, Inc. v. Sperling, 493 U.S. 165, 170–71 (1989). Rule 20(a) provides
that plaintiffs may be joined in an action if they “assert any right to relief . . . arising out
of the same transaction, occurrence, or series of transactions or occurrences” and a
“question of law or fact common to all plaintiffs will arise in the action.” FED. R. CIV.
3

The Swopes should have sought leave to join the new plaintiff and the new
defendant, pursuant to Rule 20, at the same time that they sought leave to file their Second
Amended Complaint, pursuant to Rule 15. Furthermore, Ms. Coombs could simply have
filed her own action, on behalf of OC, then the Swopes and Ms. Coombs could have
moved to consolidate the two actions, for purposes of discovery or for both discovery
and trial, pursuant to Rule 42.
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P. 20(a)(1); see also Coughlin v. Rogers, 130 F.3d 1348, 1351 (9th Cir. 1997)
(explaining the requirements for permissive joinder). Thus,
[t]o join together in one action, plaintiffs must meet two
specific requirements: (1) the right to relief asserted by each
plaintiff must arise out of or relate to the same transaction or
occurrence, or series of transactions or occurrences; and (2) a
question of law or fact common to all parties must arise in the
action. Fed.R.Civ.P. 20(a); League to Save Lake Tahoe v.
Tahoe Reg’l Planning Agency, 558 F.2d 914, 917 (9th
Cir.1977). If joined plaintiffs fail to meet both of these
requirements, the district court may sever the misjoined
plaintiffs, as long as no substantial right will be prejudiced by
the severance. See Fed.R.Civ.P. 21; Sabolsky v. Budzanoski,
457 F.2d 1245, 1249 (3d Cir.1972).
Coughlin, 130 F.3d at 1351. “The first prong, the ‘same transaction’ requirement, refers
to similarity in the factual background of a claim,” and requires some “basic connection”
beyond similar procedural treatment, such as “that their claims arise out of a systematic
pattern of events” or a “pattern or policy.” Id. at 1350. As to the “common questions”
prong, “merely alleg[ing] that Defendants violated the same laws in comparable ways”
as to additional plaintiffs is not enough. Visendi v. Bank of Am., N.A., 733 F.3d 863,
870 (9th Cir. 2013) (citing Coughlin, 130 F.3d at 1351).
“Further, ‘[e]ven once these requirements are met, a district court must examine
whether permissive joinder would ‘comport with the principles of fundamental fairness’
or would result in prejudice to either side.’” Visendi v. Bank of Am., N.A., 733 F.3d
863, 870 (9th Cir. 2013) (quoting Coleman v. Quaker Oats Co., 232 F.3d 1271, 1296
(9th Cir. 2000)). Thus, for example, the Ninth Circuit Court of Appeals held that the
district court properly denied joinder where a defendant would be prejudiced by having
ten plaintiffs all testify about their terminations in the same trial, which also created the

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possibility of juror confusion, and the claims of each plaintiff required examination of
individual circumstances. Coleman, 232 F.3d at 1296.
The Swopes proffered Second Amended Complaint would also join a new
defendant, which is controlled by Rule 20(a)(2). Essentially the same conditions for
joinder of a plaintiff apply to joinder of a defendant: “Permissive joinder [of a defendant]
is appropriate if a plaintiff’s ‘right to relief is asserted against [the defendants] . . . with
respect to or arising out of the same transaction, occurrence, or series of transactions or
occurrences,’ and also if there is a ‘question of law or fact common to’ the defendants.”
Rush v. Sport Chalet, Inc., 779 F.3d 973, 974 (9th Cir. 2015) (quoting Rule 20(a)(2)).
Moreover, joinder of a defendant requires consideration of essentially the same factors
as joinder of a plaintiff: “the possible prejudice that may result to any of the parties in
the litigation, the delay of the moving party in seeking an amendment to his pleadings,
the motive that the moving party has in seeking such amendment, the closeness of the
relationship between the new and the old parties, the effect of an amendment on the
court’s jurisdiction, and the new party’s notice of the pending action.” Desert Empire
Bank v. Ins. Co. of N. Am., 623 F.2d 1371, 1375 (9th Cir. 1980).
Thus, like amendment, joinder of either plaintiffs or defendants under Rule 20
may turn on the prejudice to the opposing party, and that is the basis for the defendants’
objection to the proffered amendment, here.
B.

Analysis

The defendants point to numerous different or additional factual issues and/or
occurrences that will enter the lawsuit if joinder of Ms. Coombs is allowed.
Nevertheless, the Swopes have satisfied the first requirement of Rule 20(a)(1) in that their
claims on behalf of BS and Ms. Coombs’s claim on behalf of OC arise out of the same
“series of transactions or occurrences.” FED. R. CIV. P. 20(a)(1)(A); Coughlin, 130
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F.3d at 1351. That is, they involve “similarity in the factual background of [the]
claim[s],” and “basic connection[s]” indicating “that their claims arise out of a systematic
pattern of events” or a “pattern or policy.”

Coughlin, 130 F.3d at 1350.

More

specifically, as the Swopes point out, the Second Amended Complaint alleges that both
children attended the Malad Elementary School; they are close in age and one grade
apart; they are both disabled and wheelchair-bound; owing to their disabilities, both have
suffered severe physical injuries while at the same school as a result of the school’s lack
of accommodations; they have both been denied access in and around the same school;
and, while at the same school, both were overtly discriminated against on the basis of
their disability. Thus, the “connection” here is more than just procedural, see id. (noting
that the only connection was similar procedural delays); rather, it goes to the very nature
of the discriminatory treatment to which both were allegedly subjected.
As to the second prong of the analysis, the “common questions” prong, with the
exception of the IDEA claim, which is asserted only on behalf of BS, all of the claims
on behalf of the two children involve the same laws and violation of those laws in
comparable ways. Although these similarities would not be enough, standing alone, see
Visendi, 733 F.3d at 870, the common question that unites these claims is, as the plaintiffs
argue, whether the defendants have a habitually discriminatory intent toward disabled
students attending school in the District. “Me too” evidence provides some evidence of
discriminatory motive, see, e.g., Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1221
(9th Cir. 1998), forging a closer connection between the claims on behalf of the two
children than mere violation of the same laws in comparable ways.
Essentially the same analysis of these two prongs leads me to conclude that the
defendant, Kerry Adams, may also be properly joined. Although the current named
defendants and Ms. Adams may have been involved in different occurrences, they were
all involved in one way or another in the same “series of transactions or occurrences”
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indicating that the plaintiffs’ claims “arise out of a systematic pattern of events” or
“pattern or policy,” not simply out of the actions of a single defendant. Similarly, the
common question of whether each of the defendants shared in a habitually discriminatory
intent toward disabled students also joins the claims against Adams with the claims against
the existing individual defendants. Rush, 779 F.3d at 974 (noting the two prongs of the
analysis of joinder of a defendant under Rule 20(a)(2)).
The main thrust of the defendants’ argument against amendment, however, is
prejudice.

In re Tracht Gut, LLC, 836 F.3d at 1151–52 (Rule 15 standards for

amendment); Visendi., 733 F.3d at 870 (Rule 20(a)(1) standards for joinder of a plaintiff);
Desert Empire Bank, 623 F.2d at 1375 (Rule 20(a)(2) standards for joinder of a
defendant). I do not find that either the existing defendants or the new defendant will
necessarily be prejudiced in the way or to the extent that the current defendants contend.
The defendants’ objections to joinder are aimed entirely at the effect of a joint trial, to
the same jury, of the claims on behalf of both children.

However, evidence of

comparable mistreatment of one child would likely fall within the scope of Rule 404(b)
“bad acts” or “me too” evidence in the separate trial of the claims on behalf of the other
child. See, e.g., Godwin, 150 F.3d at 1221. Also, joinder of a single additional plaintiff
does not run the same risk of prejudice or confusion of the jurors as a parade of ten
plaintiffs. Compare Coleman, 232 F.3d at 1296. Certainly, determination of whether
the prejudicial effect of the evidence outweighs its probative value is better determined
on a complete record, for example, on a pretrial motion in limine.
Also, here, where the defendants’ concerns are primarily to a joint trial, the better
point in the proceedings to assess the potential prejudice of evidence pertaining to each
child against its probative value in a trial of both of their claims is after discovery and
prior to trial, when the issues and evidence in the case have been clarified. At that point,

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I can also give more reasoned consideration of whether it is appropriate to order separate
trials, pursuant to Rule 20(b) and/or Rule 42(b), to avoid prejudice.
Similarly, while the defendants assert that the claims by Ms. Coombs on behalf of
OC should not “relate back” to the filing of the Swopes’s original Complaint or First
Amended Complaint, I conclude that is also a question better addressed on a dispositive
motion, preferably on a better developed record. This is so, because “relation back”
depends upon whether evidence in the record shows that the defendant has timely notice
of the suit. See FED. R. CIV. P. 15(c); Miguel v. Country Funding Corp., 309 F.3d
1161, 1165 (9th Cir.2002) (as amended). Certainly, the defendants’ showing so far falls
well short of a demonstration that the proposed amendment is “futile.” In re Tracht Gut,
LLC, 836 F.3d at 1152 (recognizing that futility is a factor to consider in deciding whether
to grant leave to amend).
III.

CONCLUSION

Upon the foregoing, the plaintiffs’ August 1, 2017, Motion For Leave To Amend
(docket no. 19) is granted.
IT IS SO ORDERED.
DATED this 1st day of September, 2017.

______________________________________
MARK W. BENNETT
U.S. DISTRICT COURT JUDGE
NORTHERN DISTRICT OF IOWA
VISITING JUDGE

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