Skinner et al v. Clark County School District et al

Filing 31

ORDER Granting 8 Motion to Dismiss. Plaintiffs action as against defendant Clark County School District is dismissed without prejudice. Signed by Judge James C. Mahan on 4/10/2013. (Copies have been distributed pursuant to the NEF - SLR)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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HAYLEY SKINNER, et al.,

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2:12-CV-1730 JCM (NJK)

Plaintiff(s),

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v.

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CLARK COUNTY SCHOOL
DISTRICT, et al.,

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Defendant(s).

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ORDER

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Presently before the court is defendant Clark County School District’s motion to dismiss.

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(Doc. # 8).1 Plaintiff, Hayley Skinner, through her parent, Christopher E. Skinner, Jr. responded.

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(Doc. # 11). Defendant replied. (Doc. # 17).

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I.

Background facts

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This action arises out of alleged physical and psychological abuse of a 10-year-old student

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with disabilities by two Clark County School District employees. The student, Hayley Skinner,

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suffers from bipolar disorder amongst other disabilities. Because of her disabilities, Hayley attends

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school at Variety School, a Clark County School District school for students with physical and

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mental disabilities.

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On February 9, 2010, plaintiff alleges that Latasha Anderson and Lafayette Clark, a bus

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driver and bus aide respectively, abused Hayley while she was on the bus. Plaintiff alleges that in

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James C. Mahan
U.S. District Judge

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Defendant Clark County School District is hereinafter referred to as defendant.

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response to Hayley’s behavior as a result of her bipolar disorder, Clark allegedly struck Hayley,

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fastened her to a seat with a belt, insulted and screamed at her loudly, and grabbed her and shook her.

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Anderson allegedly encouraged and permitted Clark’s behavior.

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Plaintiff brings the instant suit against named defendants Clark County School District,

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Anderson, and Clark. (See doc. # 1). Plaintiff’s complaint alleges: (1) violation 18 U.S.C. § 1983 for

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deprivation of substantive due process against all defendants; (2) violation of 18 U.S.C. § 1983 for

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deprivation of equal protection against all defendants; (3) violation of the Rehabilitation Act of 1973,

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29 U.S.C. § 794 et seq. against all defendants; (4) violation of the Americans with Disabilities Act,

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42 U.S.C. § 12101 et seq. against all defendants; (5) violation of NRS § 392.4633 against all

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defendants; (6) assault against all defendants; (7) battery against all defendants; (8) intentional

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infliction of emotional distress against Clark; (9) negligence against Anderson; (10) negligent

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performance of an undertaking against Anderson; (11) breach of fiduciary duty against Anderson;

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(12) negligence per se against Anderson; (13) vicarious liability for negligence and negligence per

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se against defendant; (14) negligent hiring, training, supervision, and retention against defendant;

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and (15) false imprisonment against all defendants. (Id.)
Defendant moves to dismiss those causes of action brought against it.2 Defendant moves for

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dismissal only on its own behalf.3

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II.

Legal standard

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A court may dismiss a plaintiff’s complaint for “failure to state a claim upon which relief can

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be granted.” FED. R. CIV. P. 12(b)(6). A properly pled complaint must provide “[a] short and plain

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statement of the claim showing that the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2); Bell

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Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). While Rule 8 does not require detailed factual

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The causes of action brought against defendant are (1) and (2) violation 18 U.S.C. § 1983; (3) violation of the
Rehabilitation Act of 1973; (4) violation if the Americans with Disabilities Act; (5) NRS § 392.4633; (6) assault; (7)
battery; (13) vicarious liability; (14) negligent hiring, training, supervision, and retention; and (15) false imprisonment.
(See doc. # 1).
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Defendant represents that Anderson and Clark are no longer employed by Clark County School District.

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James C. Mahan
U.S. District Judge

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allegations, it demands “more than labels and conclusions” or a “formulaic recitation of the elements

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of a cause of action.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (citation omitted).

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“Factual allegations must be enough to rise above the speculative level.” Twombly, 550 U.S.

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at 555. Thus, to survive a motion to dismiss, a complaint must contain sufficient factual matter to

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“state a claim to relief that is plausible on its face.” Iqbal, 129 S.Ct. at 1949 (citation omitted).

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In Iqbal, the Supreme Court clarified the two-step approach district courts are to apply when

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considering motions to dismiss. First, the court must accept as true all well-pled factual allegations

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in the complaint; however, legal conclusions are not entitled to the assumption of truth. Id. at 1950.

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Mere recitals of the elements of a cause of action, supported only by conclusory statements, do not

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suffice. Id. at 1949.

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Second, the court must consider whether the factual allegations in the complaint allege a

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plausible claim for relief. Id. at 1950. A claim is facially plausible when the plaintiff’s complaint

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alleges facts that allows the court to draw a reasonable inference that the defendant is liable for the

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alleged misconduct. Id. at 1949.

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Where the complaint does not permit the court to infer more than the mere possibility of

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misconduct, the complaint has “alleged – but not shown – that the pleader is entitled to relief.” Id.

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(internal quotations omitted). When the allegations in a complaint have not crossed the line from

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conceivable to plausible, plaintiff's claim must be dismissed. Twombly, 550 U.S. at 570.

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The Ninth Circuit addressed post-Iqbal pleading standards in Starr v. Baca, 652 F.3d 1202,

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1216 (9th Cir. 2011). The Starr court stated, “First, to be entitled to the presumption of truth,

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allegations in a complaint or counterclaim may not simply recite the elements of a cause of action,

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but must contain sufficient allegations of underlying facts to give fair notice and to enable the

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opposing party to defend itself effectively. Second, the factual allegations that are taken as true must

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plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to

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be subjected to the expense of discovery and continued litigation.” Id.

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James C. Mahan
U.S. District Judge

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III.

Discussion

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A.

Plaintiff’s 28 U.S.C. § 1983 claims (claims one and two)

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“Section 1983 suits against local governments alleging constitutional rights violations by

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government officials cannot rely solely on respondeat superior liability.” AE ex rel. Hernandez v.

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County of Tulare, 666 F.3d 631, 636 (9th Cir. 2012) (citing Whitaker v. Garcetti, 486 F.3d 572, 581

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(9th Cir.2007); Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978)). Instead, plaintiff must

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establish that “the local government had a deliberate policy, custom, or practice that was the moving

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force behind the constitutional violation [she] suffered.” Whitaker, 486 F.3d at 581 (citation and

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internal quotation marks omitted).

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Here, plaintiff’s complaint fails to allege facts that defendant had a “policy, custom, or

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practice” that caused a violation of plaintiff’s constitutional rights. The complaint alleges a one-time

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incident of abuse by a school bus aide and a failure to intervene by the bus driver. The complaint

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does not identify any policy by defendant that was the moving force behind the incident. The court

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finds dismissal of plaintiff’s § 1983 claims against defendant appropriate.

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B.

Plaintiff’s Rehabilitation Act and Americans with Disabilities Act claims (claims

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three and four)

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I.

Rehabilitation Act

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Section 504 of the Rehabilitation Act provides in relevant part: “No otherwise qualified

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individual with a disability in the United States . . . shall, solely by reason of her or his disability, be

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excluded from the participation in, be denied the benefits of, or be subjected to discrimination under

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any program or activity receiving Federal financial assistance . . . .” 29 U.S.C. § 794(a). “Section 504

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applies to all public schools that receive federal financial assistance.” Mark H. v. Lemahieu, 513 F.3d

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922, 929 (9th Cir. 2008); see also 29 U.S.C. § 794(b)(2)(B).

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To make out a prima facie case of disability discrimination under the Rehabilitation Act,

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plaintiff must show that: (1) she is handicapped within the meaning of the Rehabilitation Act; (2)

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she is otherwise qualified for the benefit or services sought; (3) she was denied the benefit or

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James C. Mahan
U.S. District Judge

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services “solely by reason of” her handicap; and (4) the program providing the benefit or services

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receives federal financial assistance. Lovell v. Chandler, 303 F.3d 1039, 1052 (9th Cir. 2002).

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ii.

Americans with Disabilities Act

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Title II of the American with Disabilities Act prohibits a public entity from discriminating

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against a qualified individual with a disability on the basis of disability. See 42 U.S.C. § 12132. A

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claim for disability discrimination requires that plaintiff show that: (1) she is a qualified individual

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with a disability; (2) she is otherwise qualified to participate in or receive the benefit of some public

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entity’s services, programs or activities; (3) she was either excluded from participation in or denied

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the benefits of the public entity’s services, programs, or activities, or was otherwise discriminated

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against by the public entity; and (4) some exclusion, denial of benefits, or discrimination was by

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reason of her disability. Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002).

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iii.

Relief sought

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Plaintiff seeks actual, compensatory, and punitive damages. (See doc. # 1, 32:3-9). To recover

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monetary damages under Title II or § 504, a plaintiff must prove intentional discrimination on the

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part of defendant. Ferguson v. City of Phoenix, 157 F.3d 668, 674 (9th Cir. 1998); see also Lovell,

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303 F.3d at 1056. The “deliberate indifference” standard applies as to the level of intent required to

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support an award for compensatory damages. See Lovell, 303 F.3d at 1056.

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“Deliberate indifference requires both knowledge that a harm to a federally protected right

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is substantially likely, and a failure to act upon that likelihood.” Duvall v. County of Kitsap, 260 F.3d

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1124, 1139 (9th Cir. 2001) (citing City of Canton v. Harris, 489 U.S. 378, 389 (1989)). The first

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element is satisfied when the public entity has notice that an accommodation is required. Id. The

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second element is satisfied if the entity’s “failure to act [is] a result of conduct that is more than

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negligent, and involves an element of deliberateness.” Id. Under the second element, “a public entity

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does not ‘act’ by proffering just any accommodation: it must consider the particular individual’s

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need when conducting its investigation into what accommodations are reasonable.” Id.

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James C. Mahan
U.S. District Judge

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iv.

Discussion

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In this case, even accepting as true all of plaintiff’s factual allegations and drawing all

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reasonable inferences in her favor, the court is still compelled to find that plaintiff failed to state a

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claim under § 504 of the Rehabilitation Act and Title II of the Americans with Disabilities Act.

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Nowhere does the complaint allege facts demonstrating “intentional discrimination” or “deliberate

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indifference” on defendant’s part. Further, the threadbare allegations contained in these claims

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neither mention that defendant had notice of this harm nor that defendant failed to act. See Duvall,

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260 F.3d at 1139. Based on similar deficiencies identified supra III.A., the court finds dismissal of

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these claims against defendant appropriate.

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IV.

Supplemental jurisdiction4

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This court is authorized by 28 U.S.C. § 1367(a) to exercise supplemental jurisdiction over

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state-law claims whenever the relationship between the federal and state claims is such that they

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“form part of the same case or controversy under Article III of the United States Constitution.” 28

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U.S.C. § 1367(a). However, a district court may decline to exercise supplemental jurisdiction over

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a related claim grounded in state law where “(1) the claim raises a novel or complex issue of state

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law, (2) the claim substantially predominates over the claim or claims over which the district court

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has original jurisdiction, (3) the district court has dismissed all claims over which it has original

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jurisdiction, or (4) in exceptional circumstances, there are other compelling reasons for declining

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jurisdiction.” Id. at § 1367(c). The court may also decline to exercise supplemental jurisdiction if the

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retention of the state claims “requires the expenditure of substantial additional judicial time and

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effort.” Executive Software North America, Inc. v. U.S. Dist. Court for Cent. Dist. of California, 24

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F.3d 1545, 1548 (9th Cir. 1994); Carnegie–Mellon Univ. v. Cohill, 484 U.S. 343 (1988); see also

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Government Employees Ins. Co. v. Dizol, 33 F.3d 1220, 1224 (9th Cir. 1998).

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James C. Mahan
U.S. District Judge

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Plaintiff appears to allege the following state law causes of action against defendant: (5) NRS § 392.4633; (6)
assault; (7) battery; (13) vicarious liability; (14) negligent hiring, training, supervision, and retention; and (15) false
imprisonment. (See doc. # 1).

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In the case where the federal claims are dismissed early and state-law claims substantially

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predominate, the usual remedy is to dismiss the state-law claims without prejudice. See Cohill, 484

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U.S. at 350 (1988); Schneider v. TRW, Inc., 938 F.2d 986, 993 (9th Cir. 1991) (“[I]n the usual case

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in which federal-law claims are eliminated before trial, the balance of factors . . . will point toward

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declining to exercise jurisdiction over the remaining state law claims.”).

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Here, the court declines to exercise supplemental jurisdiction over plaintiff’s state law claims

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because this case is still in the initial proceedings, all remaining claims against defendant arise under

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state law, and the values of judicial economy, convenience, fairness, and comity are furthered by

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dismissing the state law claims without prejudice. See Ove v. Gwinn, 264 F.3d 817, 826 (9th Cir.

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2001) (“A court may decline to exercise supplemental jurisdiction over state-law claims once it has

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dismissed all claims over which it has original jurisdiction.”); see also San Pedro Hotel Co. v. City

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of L.A., 159 F.3d 470, 478 (9th Cir. 1998) (district courts not required to provide explanation when

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declining jurisdiction under 28 U.S.C. § 1367(c)(3)).

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Because the court holds that plaintiff’s federal claims against defendant do not contain

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sufficient factual matter to survive its motion to dismiss, the court declines to exercise supplemental

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jurisdiction over plaintiff’s state-law claims and therefore does not reach those claims on the merits.

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V.

Conclusion

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IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that defendant Clark County

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School District’s motion to dismiss (doc. # 8) be, and the same hereby is, GRANTED. Plaintiff’s

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action as against defendant Clark County School District is dismissed without prejudice.

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DATED April 10, 2013.

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UNITED STATES DISTRICT JUDGE
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James C. Mahan
U.S. District Judge

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