Menefee et al v. Tacoma Public School District No. 10 et al

Filing 22

ORDER granting 8 Motion to Dismiss Party by Judge Benjamin H. Settle.(TG)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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BRITTNEY MENEFEE, et al.,
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Plaintiffs,
v.

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CASE NO. C17-6037 BHS
ORDER GRANTING
DEFENDANT’S MOTION TO
DISMISS

TACOMA PUBLIC SCHOOL
DISTRICT NO. 10, et al.,

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Defendants.

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This matter comes before the Court on Defendant Steven Holmes’s motion to

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dismiss. Dkt. 8. The Court has considered the pleadings filed in support of and in

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opposition to the motion and the remainder of the file and hereby grants the motion for

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the reasons stated herein.

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I.

PROCEDURAL HISTORY

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On December 12, 2017, Plaintiffs T.D.F. and Brittney Menefee filed their

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complaint in this action. Dkt. 1. Plaintiffs have asserted claims under 42 U.S.C. § 1983

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against Defendants Tacoma Public School District No. 10, Sandra Holmes, and Steven

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Holmes arising from an alleged sexual assault on T.D.F. by one of her kindergarten

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classmates. Id. Plaintiffs have also asserted claims against the school district under Title

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IX. Id.

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ORDER - 1

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On January 17, 2018, Steven Holmes moved to dismiss the complaint to the extent

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it asserted claims against him under 42 U.S.C. § 1983. Dkt. 8. On February 5, 2018,

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Plaintiffs responded. Dkt. 12. On February 9, 2018, Steven Holmes replied. Dkt. 13.

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II. FACTUAL BACKGROUND

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In 2013, Defendant Sandra Holmes was a kindergarten teacher in Tacoma,

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Washington, and Steven Holmes (unrelated to Sandra Holmes) was the school’s

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principal. Dkt. 1 at 4. From September of 2013 until December 4, 2013, Defendant

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Sandra Holmes took a medical leave, during which her kindergarten class was taught by a

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substitute teacher, Megan Clark (“Clark”). Id. On December 4, 2013, a meeting was held

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wherein Steven Holmes and Sandra Holmes met with T.D.F.’s parents, who expressed

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concern that Sandra Holmes was known as being “the worst [teacher] in the school,” and

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that “a survey of other parents” proved it. Id. At the meeting, T.D.F.’s mother requested a

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different teacher. Id.

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During the transition from Clark to Sandra Holmes, Clark alerted Sandra Holmes

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to a danger posed by one of the male students in the classroom. Id. The male student had

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reportedly engaged in dangerous behaviors, including sexually inappropriate touching of

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a female student. Id. As a result, Clark had implemented procedures to prevent potentially

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dangerous and sexually inappropriate behaviors, such as structured bathroom rules that

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allowed only one student to use the restroom at a time in order. Id. After the transition,

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Sandra Holmes did not enforce the rules established by Megan Clark regarding bathroom

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use. Id. at 5.

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ORDER - 2

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In December of 2013, after the transition, Sandra Holmes informed the school

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counselor that the aforementioned male student had “a touching problem” and that he had

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“been touching kids in [her] class.” Id. at 4. She stated that the counselor needed to “get

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him help.” Id. However, Sandra Holmes did not report the behavior of the male student to

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law enforcement or the Child Protective Services (“CPS”) agency within Washington’s

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Department of Social and Health Services (“DSHS”). Id. at 5.

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Within two months of the transition back to Sandra Holmes’s teaching, Steven

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Holmes received approximately sixty complaints regarding Sandra Holmes. Id. at 4.

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Despite these complaints, Steven Holmes did not reprimand Sandra Holmes, replace her,

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or provide additional oversight of her teaching until January 16, 2014. Id.
On January 16, 2014, Steven Holmes issued a “letter of direction” to Sandra
Holmes for unprofessional conduct, including:
1. Releasing students to other adults not on the contact list (3
instances);”
2. Having an (unknown) parent watch the class while Defendant
Sandra Holmes exited her classroom to go to the staffroom;
3. Grabbing a student by the shirt and others by the arm to line up;
4. Not knowing the first and last names of her students by the sixth
week;
5. Leaving a child in a timeout for 1.5 hours; and
6. Allowing kindergarten students to answer the classroom
telephone.

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Id. Sandra Holmes admitted to these violations. Id. Steven Holmes also gave specific
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directions to help Sandra Holmes avoid such conduct in the future. Id. The letter included
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a warning that failure to follow the directions would result in discipline, including the
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possibility of termination of Sandra Holmes’s employment. Id.
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ORDER - 3

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On an unspecified date in mid-January of 2014, the mother of one of Sandra

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Holmes’s students emailed Sandra Holmes and informed her that a male student in the

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class had asked to touch her daughter’s genital area that day. Id. at 6. The mother

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reminded Sandra Holmes that the same student “had inappropriately touched her

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daughter in the fall” and requested that her daughter be placed in a different class. Id.

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Sandra Holmes notified Steven Holmes of this complaint. Neither Sandra Holmes nor

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Steven Holmes informed law enforcement or CPS of this incident, even though the

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School District’s policy no. 3421 and RCW required district employees who have

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“reasonable cause” to believe a child has suffered from abuse to report the incident. Id.

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On January 23, 2014, Sandra Holmes left her class unsupervised notwithstanding

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the previous warning. Id. at 5. A parent volunteer at the school discovered the

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unsupervised classroom and monitored the classroom until Sandra Holmes returned. Id.

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When Sandra Holmes returned, she asked the parent volunteer whom she had never met

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to watch the class while she went to lunch. Id.

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On January 31, 2014, Steven Holmes conducted a classroom observation of

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Sandra Holmes’s class. Id. at 6. His observation found the classroom to be unsafe. Id.

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During the observation, a student left the group and was unnoticed while coloring on a

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whiteboard for approximately 20 minutes, until directed back to the group by a parent

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volunteer. Id. During an unannounced fire drill that day, Sandra Holmes left a student

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behind in the classroom who was eventually escorted out by someone else. Id.

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On February 5, 2014, T.D.F. was found without her pants and underwear during
recess. Id. Another staff member reported this to Sandra Holmes. Id. Sandra Holmes

ORDER - 4

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responded that she “hoped this conduct would not continue because it was not the first

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time [T.D.F.] had been found without her clothes on.” Id. Sandra Holmes did not report

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this incident, nor had she reported any other incidents involving T.D.F., to Steven

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Holmes, law enforcement, or CPS. Id. at 6–7.

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On February 7, 2014, T.D.F.’s mother observed after school that T.D.F.’s clothes

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and hair were disheveled and her pants were unbuttoned and unzipped so that her

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underwear was exposed. Id. at 7. T.D.F. revealed to her mother that the aforementioned

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male student in her class had “crawled under a table during class, removed her pants, and

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orally copulated her private parts.” Id. T.D.F.’s mother contacted Steven Holmes by

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phone and Steven Holmes then reported the incident to law enforcement. Id. The act of

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sexual abuse on T.D.F. had been unnoticed by Sandra Holmes although it occurred in her

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classroom. Id.

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A subsequent investigation by law enforcement “established an institutional loss

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of control in Defendant Sandra Holmes’[s] classroom that threatened the health and well-

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being of all students in class, and that sexual abuse had been occurring for some time.”

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Id.

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III. DISCUSSION

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Steven Holmes has moved to dismiss Plaintiffs’ claims against him pursuant to

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Rule 12(b)(6). Dkt. 8. He argues that Plaintiffs have failed to state a claim against him

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upon which relief can be granted because he is entitled to qualified immunity under the

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facts as alleged in Plaintiffs’ complaint. Id.

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ORDER - 5

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A.

Standard
Motions to dismiss brought under Rule 12(b)(6) of the Federal Rules of Civil

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Procedure may be based on either the lack of a cognizable legal theory or the absence of

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sufficient facts alleged under such a theory. Balistreri v. Pacifica Police Department, 901

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F.2d 696, 699 (9th Cir. 1990). Material allegations are taken as admitted and the

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complaint is construed in the plaintiff’s favor. Keniston v. Roberts, 717 F.2d 1295, 1301

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(9th Cir. 1983). To survive a motion to dismiss, the complaint does not require detailed

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factual allegations but must provide the grounds for entitlement to relief and not merely a

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“formulaic recitation” of the elements of a cause of action. Bell Atlantic Corp. v.

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Twombly, 127 S. Ct. 1955, 1965 (2007). Plaintiffs must allege “enough facts to state a

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claim to relief that is plausible on its face.” Id. at 1974.

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Additionally, “[g]overnment officials performing discretionary functions enjoy

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qualified immunity from civil damages so long as their conduct does not violate ‘clearly

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established statutory or constitutional rights of which a reasonable person would have

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known.’” F.E. Trotter, Inc. v. Watkins, 869 F.2d 1312, 1314 (9th Cir. 1989) (quoting

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Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). Under qualified immunity, a public

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official is protected from suit when he or she “makes a decision that, even if

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constitutionally deficient, reasonably misapprehends the law governing the

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circumstances.” Brosseau v. Haugen, 543 U.S. 194, 198 (2004). It protects “all but the

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plainly incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S.

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335, 341 (1986). “Qualified immunity is an immunity from suit rather than a mere

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defense to liability.” Pearson v. Callahan, 555 U.S. 223, 237 (2009) (quotation marks

ORDER - 6

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omitted). Accordingly, to adequately plead a claim against such government officials,

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Plaintiffs bear the burden of pleading facts that demonstrate that a violation of a right that

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was clearly established at the time of the alleged misconduct. See id.

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B.

42 U.S.C. § 1983 Claims Against Steven Holmes

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Steven Holmes advances two arguments to suggest that he is entitled to qualified

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immunity. First, he argues that Plaintiffs have failed to specify a particular federal right

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that was violated by Steven Holmes’s alleged conduct. Second, he argues that Plaintiffs

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have failed to allege facts demonstrating that his failure to prevent the male

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kindergartner’s abuse of T.D.F. violated a clearly established right of Plaintiffs.

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1.

Implicated Federal Rights

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Steven Holmes’s first argument asserts that “Plaintiff never states what

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constitutional right Mr. Holmes purportedly violated” beyond “mere conclusions that he

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violated Plaintiff’s Ninth and Fourteenth Amendment rights by allegedly creating a

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danger that Plaintiff would be sexually abused and by failing to protect Plaintiff from

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such purported abuse.” Dkt. 8. Steven Holmes continues to note that “[g]eneralized

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allegations of constitutional violations, however, are insufficient to rebut an official’s

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assertion of a qualified immunity defense.” Id. (quoting Maraziti v. First Interstate Bank

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of California, 953 F.2d 520, 524 (9th Cir. 1992) (citation omitted)).

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Steven Holmes is correct that Plaintiffs have failed to state any viable claim based

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on alleged violations of the Ninth Amendment. “[T]he ninth amendment has never been

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recognized as independently securing any constitutional right, for purposes of pursuing a

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civil rights claim.” Strandberg v. City of Helena, 791 F.2d 744, 748 (9th Cir. 1986).

ORDER - 7

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Nonetheless, the due process rights secured by the Fourteenth Amendment include

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“the right to be free from state-imposed violations of bodily integrity” and it is well-

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established that sexual abuse violates that right. Plumeau v. Sch. Dist. No. 40 Cty. of

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Yamhill, 130 F.3d 432, 438 (9th Cir. 1997). The question of whether a school official’s

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failure to prevent student-on-student sexual abuse constitutes a violation of a clearly

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established federal right actionable under 42 U.S.C. § 1983 warrants substantive

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discussion and is addressed below in this order. However, for the purposes of addressing

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Steven Holmes’s first argument, it is sufficient for the Court to note that the complaint

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sets out a specific allegation of sexual abuse which, if “state-imposed,” would constitute

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a grave violation of T.D.F.’s right to bodily integrity under the Fourteenth Amendment.

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The right to bodily integrity is plainly implicated by Plaintiffs’ factual allegations of

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sexual abuse and Plaintiffs specifically claim that such abuse violated T.D.F.’s

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Fourteenth Amendment due process rights.

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2.

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Steven Holmes also moves to dismiss the claims against him on the basis that

Liability for Third-Party Acts

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Plaintiffs have failed to allege facts demonstrating that he can be liable under 42 U.S.C. §

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1983 for sexual abuse perpetrated by a third party. Specifically, Steven Holmes argues

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that Plaintiffs fail to allege facts that overcome “[t]he general rule announced in

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DeShaney that members of the public have no constitutional right to sue state actors who

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fail to protect them from harm inflicted by third parties.” Johnson v. City of Seattle, 474

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F.3d 634, 639 (9th Cir. 2007) (citing DeShaney v. Winnebago County Dep’t of Soc. Serv.,

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489 U.S. 189, 195 (1989) (“[N]othing in the language of the Due Process Clause itself

ORDER - 8

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requires the State to protect the life, liberty, and property of its citizens against invasion

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by private actors.”)).

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Under the DeShaney rule, liability for 42 U.S.C. § 1983 due process violations is

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precluded when the harm is inflicted by a private actor unless a plaintiff can establish that

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the abuse grew out of a “state created danger” or the government defendant had a

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“special relationship” with the plaintiff. See Johnson, 474 F.3d at 639. Plaintiffs’

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complaint makes clear that T.D.F.’s cause of action against Steven Holmes is predicated

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on his “actions in failing to promulgate, issue, and enforce appropriate procedures and

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policies concerning the protection of its students including T.D.F. who suffered sexual

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abuse and exploitation” at the hands of a private actor. Dkt. 1 at 8. Accordingly, to state a

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viable due process claim against Steven Holmes under 42 U.S.C. § 1983, Plaintiffs must

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allege facts showing either that Steven Holmes had a “special relationship” with T.D.F.

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or Steven Holmes’s actions resulted in a “state created danger” out of which T.D.F.’s

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abuse grew.

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Plaintiffs have conceded that the special-relationship exception does not apply to

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Plaintiffs’ claims. Dkt. 12 at 14 n.48. Indeed, “[t]he special-relationship exception does

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not apply when a state fails to protect a person who is not in custody,” Patel v. Kent Sch.

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Dist., 648 F.3d 965, 972 (9th Cir. 2011), and the Ninth Circuit has concluded that

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“[c]ompulsory school attendance and in loco parentis status do not create ‘custody’ under

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the strict standard of DeShaney.” Id. at 973. Accordingly, the viability of Plaintiffs’ 42

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U.S.C. § 1983 claims against Steven Holmes turns on whether any of his actions

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constitute a basis for imposing liability under the “danger-creation” exception.

ORDER - 9

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The Ninth Circuit’s “‘state-created danger’ cases . . . contemplate § 1983 liability

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for the state actor who, though not inflicting plaintiff’s injury himself, has placed plaintiff

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in the harmful path of a third party not liable under § 1983.” Kennedy v. City of

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Ridgefield, 439 F.3d 1055, 1082 (9th Cir. 2006). This exception applies only where (1)

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there is “affirmative conduct on the part of the [defendant] in placing the plaintiff in

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danger” and (2) the defendant “acts with ‘deliberate indifference’ to a ‘known or obvious

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danger.’” Patel, 648 F.3d at 974 (quoting Munger v. City of Glasgow Police Dep’t, 227

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F.3d 1082, 1086 (9th Cir. 2000); L.W. v. Grubbs, 92 F.3d 894, 900 (9th Cir. 1996)).

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a.

Affirmative Acts Under the Danger-Creation Exception

The touchstone for determining if an official has taken an affirmative act under the

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danger-creation exception is “whether the officers left the person in a situation that was

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more dangerous than the one in which they found him.” Munger, 227 F.3d at 1086. In

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Johnson, the Ninth Circuit examined cases where it had previously recognized

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affirmative acts that implicated the danger-creation exception. 474 F.3d 634. Examining

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those cases, the Ninth Circuit noted that it had only found affirmative state actions when

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(1) there was “involuntary exposure to harm, as a result of a state actor’s command,” (2)

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“the state actor exposed the plaintiff to a danger which she otherwise would not have

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faced,” or (3) state actors “confine[d] the . . . Plaintiffs to a place where they would be

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exposed to a risk of harm by private persons.” Id. at 640–41. For instance, in Grubbs, a

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medium-security prison assigned a nurse to work unknowingly alongside a dangerous sex

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offender who had failed all the institution’s treatment programs, despite previous

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assurances that she would not be required to work alone with violent sex offenders. See

ORDER - 10

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Grubbs, 974 F.2d 119. In Penilla, the danger-creation exception applied when police

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locked a seriously ill person in his house and cancelled a neighbor’s 911 request for

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emergency services. Penilla v. City of Huntington Park, 115 F.3d 707, 710–11 (9th Cir.

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1997). In Munger, police expelled a belligerent and intoxicated bar patron, wearing only

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a T-shirt and jeans, into subfreezing temperatures where he died of hypothermia only two

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blocks away. Munger, 227 F.3d at 1084–85. In Kennedy, police assured a mother who

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had reported the molestation of her daughter that they would give her notice prior to

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contacting the accused neighbor. Kennedy, 439 F.3d at 1057–58. The police failed to

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provide notice to the mother before contacting the neighbor and, early the next morning,

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she was shot in her bed while sleeping. Id. at 1058. In each of these cases, the

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government actively exposed the victim to a risk of harm that was involuntary on the part

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of the victim. Accordingly, in each of these cases, it could be said that the government

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“affirmatively created an actual, particularized danger [the plaintiffs] would not

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otherwise have faced.” Kennedy, 439 F.3d at 1063.

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However, in Johnson, the Ninth Circuit concluded that the defendant police

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officers had not engaged in any affirmative conduct that satisfied the first prong of the

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danger-creation exception. In that case, the plaintiffs had been assaulted, injured, and in

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one case killed by a crowd during a Mardi Gras celebration. Johnson, 474 F.3d at 637.

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The plaintiffs alleged that police had been deliberately indifferent to their safety by

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abandoning an aggressive crowd-control operational plan in favor of a more passive one.

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Id. at 639. Ultimately, the Ninth Circuit concluded that the danger-creation exception did

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not apply because the plaintiffs “failed to offer evidence that the Defendants engaged in

ORDER - 11

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affirmative conduct that enhanced the dangers the . . . Plaintiffs exposed themselves to by

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participating in the Mardi Gras celebration.” Id. at 641.

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Until December 4, 2013, T.D.F.’s class was taught by Megan Clark.

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Notwithstanding requests to Steven Holmes that Sandra Holmes not be placed in charge

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of T.D.F.’s class, Sandra Holmes resumed her teaching duties on December 4, 2013.

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Later, in January of 2014, Steven Holmes was made aware of multiple instances of sexual

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abuse that had occurred in Sandra Holmes’s kindergarten class, including when a male

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student had inappropriately touched a female student and had again subsequently asked to

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touch the female student’s genital area. Dkt. 1 at 6. Steven Holmes also had prior

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knowledge that Sandra Holmes’s classroom presented a dangerous environment of

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inattention. Id. at 4–7. Steven Holmes had received approximately sixty complaints

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regarding Sandra Holmes and had himself observed that Sandra Holmes’s classroom was

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an unsafe environment. Despite this knowledge, Steven Holmes failed to report the

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sexual abuse of which he learned in January of 2014 as required under the school

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district’s policy no. 3421. Id. at 7. It was not until February 7, 2014 that Steven Holmes

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reported any instances of sexual abuse occurring in Sandra Holmes’s classroom upon

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learning of the sexual abuse against T.D.F. Id.

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Ultimately, these allegations amount to assertions that Steven Holmes failed to

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implement reasonable corrective actions. Plaintiffs do not allege that Steven Holmes took

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an affirmative act in assigning Sandra Holmes to T.D.F.’s class. Rather, the complaint

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states that Sandra Holmes returned from medical leave to a classroom that was hers

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already. Furthermore, the complaint does not allege that Steven Holmes participated in

ORDER - 12

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any acts that contributed to dangers in the classroom, but only that he failed to abate

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dangers that he knew to exist. Under the Ninth Circuit’s construction of the danger-

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creation exception, an affirmative act cannot be based “on omissions of the state,

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regardless of how egregious—the state must take some action that affirmatively places

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the plaintiff in a position of danger, that is, where the state action creates or exposes an

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individual to a danger which he or she would not have otherwise faced.” I.V. v.

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Wenatchee Sch. Dist. No. 246, 2:17-CV-0118-TOR, 2017 WL 4683424, at *5 (E.D.

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Wash. Oct. 18, 2017) (quotation marks omitted). Accordingly, the Court must find that

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Plaintiffs have failed to allege facts that satisfy the requirements of the danger-creation

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exception to the limits on liability under § 1983 due process claims for private third-party

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acts.

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The Court notes that some extra-circuit authority suggests that a failure to report

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sexual abuse in accordance with applicable guidelines can, on its own, constitute an

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unconstitutional affirmative action if it proximately causes a constitutional deprivation.

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See e.g., Doe v. New York City Dep’t of Soc. Servs., 649 F.2d 134, 146 (2d Cir. 1981)

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(“[T]he failure to report was itself a proximate cause of [a] continuing injury and could

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be the basis for liability if the agency’s failure was the result of its being deliberately

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unconcerned about whether it complied with that duty, since reporting would have led to

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an investigation by the Department’s confidential investigations unit which might well

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have discovered the abuse and put an end to it . . . .”) (emphasis added). The Court has

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previously relied on such authority in determining whether adequate evidence supported

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a theory of deliberate indifference. W.H. v. Olympia Sch. Dist., C16-5273 BHS, 2017 WL

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3581632, at *7 (W.D. Wash. Aug. 18, 2017), reconsideration denied, C16-5273 BHS,

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2017 WL 4408034 (W.D. Wash. Oct. 4, 2017). However, such authority is not binding in

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the Ninth Circuit, and is insufficient on its own to clearly establish that the failure to

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comply with mandatory reporting requirements constitutes an affirmative act under the

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danger-creation exception. Even if a court were inclined to find that the law should allow

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claims predicated on egregious omissions such as failures to comply with mandatory

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reporting requirements under a new formulation of the danger-creation exception, such a

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ruling would be of no avail in Plaintiffs’ claims against Steven Holmes. Steven Holmes

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would still be entitled to qualified immunity on the basis that it was not clearly

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established at the time of T.D.F.’s abuse that the omissions contributing to his failure to

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protect T.D.F from a third-party private actor constituted due process violations.

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b.

Deliberate Indifference

Even though the Court has found that Plaintiffs have presently failed to allege an

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affirmative act within the clearly established contours of the danger-creation exception, it

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is important for the purposes of amended pleadings that the Court still address whether

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Plaintiffs have alleged facts supporting a theory that any presently unpled affirmative acts

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by Steven Holmes were carried out with deliberate indifference to T.D.F.’s safety. While

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the Court has not clearly established that a failure to report in compliance with mandatory

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reporting requirements is an “affirmative act” within the meaning of the danger-creation

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exception, the Court concludes that a failure to comply with reporting requirements does

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evince a plausible theory of deliberate indifference towards children’s right to bodily

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integrity. New York City Dep’t of Soc. Servs., 649 F.2d at 146 (stating that failure to

ORDER - 14

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comply with reporting duties is “evidence of an overall posture of deliberate indifference

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toward [a child]’s welfare.”). Moreover, Plaintiffs have alleged additional facts

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indicating that Steven Holmes acted with an attitude of deliberate indifference towards a

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known risk to the safety of the children in Sandra Holmes’s class. Despite approximately

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sixty complaints about Sandra Holmes’s classroom, a “letter of direction” that he drafted,

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and Steven Holmes’s own alleged observations of Sandra Holmes’s inadequate

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supervision in her classroom that constituted failures to comply the “letter of direction,”

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Steven Holmes allowed Sandra Holmes to continue teaching without taking any

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discipline or actions that would abate the immediate risk to the children’s safety.

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Notably, in light of Steven Holmes’s “letter of direction” and subsequent

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classroom observation, whether Steven Holmes’s course of action to address the safety

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concerns in Sandra Holmes’s classroom constitutes deliberate indifference is an open

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question. Generally, an official acts with deliberate indifference if he knows of “a

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substantial risk of serious harm and disregards that risk by failing to take reasonable

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measures to abate it.” Castro v. Cty. of Los Angeles, 833 F.3d 1060, 1067 (9th Cir. 2016),

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cert. denied sub nom. Los Angeles Cty., Cal. v. Castro, 137 S. Ct. 831 (2017) (quotation

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marks omitted) (emphasis in original). Steven Holmes is correct that some facts alleged

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in the complaint could be construed to suggest that he did not act with deliberate

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indifference to the children’s safety. See Dkt. 8 at 9. It may be that the timeframe of

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Steven Holmes’s “letter of direction” on January 16, 2014, his classroom observation of

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Sandra Holmes’s class on January 31, 2014, and the abuse of T.D.F. on February 5, 2014

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ultimately establish that Steven Holmes was actively seeking to abate the unsafe

ORDER - 15

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conditions posed by Sandra Holmes’s inattention in a reasonable manner. However, the

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Court is required to construe the factual allegations in the compliant in the light most

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favorable to Plaintiffs when evaluating a motion to dismiss. Considering the gravity of

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the alleged misconduct occurring in Sandra Holmes’s classroom and Steven Holmes’s

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alleged knowledge of the children’s risk of harm, Plaintiffs have stated a plausible claim

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that Steven Holmes was aware of an excessive risk to T.D.F. and knew that the remedial

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measures he was taking were unreasonably inadequate to abate the immediate danger to

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the children’s safety.

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C.

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Amending the Complaint
Plaintiffs have requested that the Court grant them leave to amend any deficiencies

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in their pleading of 42 U.S.C. § 1983 due process claims against Steven Holmes. Leave

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to amend an initial pleading may be allowed by leave of the Court and “shall freely be

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given when justice so requires.” Foman v. Davis, 371 U.S. 178, 182 (1962); Fed. R. Civ.

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P. 15(a). Granting leave to amend rests in the discretion of the trial court. Internat’l Ass’n

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of Machinists & Aerospace Workers v. Republic Airlines, 761 F.2d 1386, 1390 (9th Cir.

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1985). In determining whether amendment is appropriate, the Court considers five

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potential factors: (1) bad faith, (2) undue delay, (3) prejudice to the opposing party, (4)

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futility of amendment, and (5) whether there has been previous amendment. United States

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v. Corinthian Colleges, 655 F.3d 984, 995 (9th Cir. 2011). The Court’s decision is guided

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by the established practice of permitting amendments with “extreme liberality” in order

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to further the policy of reaching merit-based decisions. DCD Programs Ltd. v. Leighton,

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833 F.2d 183, 186 (9th Cir. 1987). In light of this policy, the nonmoving party generally

ORDER - 16

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bears the burden of showing why leave to amend should be denied. Genentech, Inc. v.

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Abbott Labs., 127 F.R.D. 529, 530–31 (N.D. Cal. 1989).

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Although Plaintiffs have presently failed to allege that Steven Holmes took any

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affirmative acts that placed T.D.F. in a position of enhanced danger, it is far from clear

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that such facts could not be supplied if leave to amend were granted. Steven Holmes has

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not argued that any other factors other than futility weigh against amendment, and they

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plainly do not. Therefore, the Court grants Plaintiffs leave to file an amended complaint

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to cure the inadequacy of their 42 U.S.C. § 1983 due process claims against Steven

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Holmes.

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Also, in their response, Plaintiffs argue that 42 U.S.C. § 1983 provides a cause of

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action for violations of rights secured under Title IX. Dkt. 12 at 19–22. See Oona R.-S.-

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by Kate S. v. McCaffrey, 143 F.3d 473, 476–78 (9th Cir. 1998). However, the complaint

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does not assert claims against Steven Holmes under 42 U.S.C. § 1983 for alleged

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violations of T.D.F.’s rights secured by Title IX. Instead, Plaintiffs’ 42 U.S.C. § 1983

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claims only reference rights secured by the Ninth and Fourteenth Amendments. Dkt. 1 at

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8. Plaintiffs separately bring claims under Title IX’s implied cause of action, but those

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claims are asserted exclusively against the school district, not Steven Holmes. Dkt. 1 at 9.

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If Plaintiffs seek to bring claims under 42 U.S.C. § 1983 for violations of rights secured

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by Title IX, or if they wish to bring claims against the individually named defendants

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under Title IX’s implied cause of action, they may move for leave to amend their

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complaint pursuant to Rule 15 and the Local Civil Rules. Fed. R. Civ. P. 15(a)(2); W.D.

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Wash. Local Rules LCR 15. However, because the claims against Sandra Holmes and the

ORDER - 17

1

school district remain and Plaintiffs are not faced with a complete dismissal of their

2

lawsuit, the Court does not need to consider the propriety of amending the complaint in

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regards to claims against Sandra Holmes and the school district absent a separate motion

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employing the Court’s local procedures for seeking leave to amend. W.D. Wash. Local

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Rules LCR 15. Accordingly, while the Court will presently grant Plaintiffs leave to

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amend the complaint for the limited purpose of alleging affirmative acts by Steven

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Holmes that enhanced the danger of abuse against T.D.F., it may be expedient for

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Plaintiffs to instead submit a separate motion for leave to amend that sets out a

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comprehensive overview of their proposed amendments.

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IV. ORDER
Therefore, it is hereby ORDERED that Steven Holmes’s motion to dismiss (Dkt.

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8) is GRANTED and Plaintiffs’ 42 U.S.C. § 1983 claims against Steven Holmes are

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DISMISSED. Plaintiffs are granted leave to file an amended complaint for the purpose

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of curing their presently-asserted 42 U.S.C. § 1983 due process claims against Steven

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Holmes. Any amended complaint filed pursuant to the leave granted by this order must

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be submitted no later than April 20, 2018. Otherwise, Plaintiffs may move for leave to

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amend in a separate motion.

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Dated this 29th day of March, 2018.

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A

BENJAMIN H. SETTLE
United States District Judge

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ORDER - 18