S.R. v. Pasco School District et al, No. 4:2016cv05112 - Document 63 (E.D. Wash. 2017)
Court Description: ORDER granting in part and denying in part 19 Defendants' Motion for Summary Judgment. Signed by Chief Judge Thomas O. Rice. (BF, Paralegal)
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1 2 3 4 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6 7 S.R., a minor by and through his guardian ad litem, JESSICA JUAREZ, NO. 4:16-CV-5112-TOR 8 Plaintiff, 9 v. 10 ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT PASCO SCHOOL DISTRICT and RATREE ALBERS, 11 12 Defendants. 13 14 BEFORE THE COURT is Defendants’ Motion for Summary Judgment 15 (ECF No. 19). This matter was submitted for consideration without oral argument. 16 The Court has reviewed the motion, the record and files herein, and is fully 17 informed. For the reasons discussed below, Defendants’ Motion for Summary 18 Judgment (ECF No. 19) is GRANTED in part and DENIED in part. 19 // 20 // ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 1 1 BACKGROUND 2 Plaintiff S.R., a minor by and through his guardian ad litem Jessica Juarez, 3 commenced this action on August 15, 2016, alleging that S.R. was subjected to 4 “ongoing verbal, psychological and physical abuse” while attending Robert Frost 5 Elementary. See ECF No. 1 at ¶¶ 13–14. Plaintiff’s remaining claims1 at issue in 6 Defendant’s Motion include 42 U.S.C. § 1983 claims against Defendant Ratree 7 Albers (Ms. Albers) and the Pasco School District (District) for violating 8 Plaintiff’s Fourth Amendment rights. Plaintiff also asserts a disability 9 discrimination claim against the District under the Americans with Disabilities Act 10 of 1990 (ADA) and the Rehabilitation Act of 1973 (§ 504). ECF No. 30 at 2. 11 Defendants move for summary judgment on all remaining claims. ECF No. 12 19 at 3. Plaintiff contends there are genuine issues of material fact for each 13 remaining claim. ECF No. 30 at 2. 14 FACTS 15 The following are the undisputed facts unless otherwise noted. S.R. was 16 17 1 Defendants previously filed a Motion to Dismiss Plaintiffs’ Claims Against 18 the Individually-Named Defendants in their Official Capacities and Plaintiffs Ivan 19 Romero and Jessica Juarez’s § 1983 Claims pursuant to Fed. R. Civ. P. 12(b)(6), 20 which was unopposed by Plaintiffs and granted by this Court. ECF. No. 8. ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 2 1 diagnosed with autism, qualifying him for special education. ECF Nos. 31 at ¶¶ 6– 2 8; 20 at ¶¶ 1–2. In November 2013, S.R. was transferred to Robert Frost 3 Elementary to attend a special education class taught by Ms. Albers. ECF Nos. 31 4 at ¶¶ 12–13; 20 at ¶ 7. S.R.’s mother alleges that his behavior and attitude changed 5 dramatically after transferring schools, noting he was more worried, frustrated, 6 mad, and unusually quiet. ECF No. 31 at ¶¶ 20–22. After transferring out of 7 Robert Frost in April 2014, S.R.’s mother claimed he returned to “his normal 8 happy-go-lucky self immediately.” Id. at ¶¶ 13, 26. 9 In February 2014, a complaint was made against Ms. Albers for allegedly 10 hitting another student in the back and allowing a female student to pinch the 11 student. ECF Nos. 20 at ¶¶ 15–16; 31 at ¶¶ 27–28. Defendants state that the 12 District reported these allegations to law enforcement, which determined that no 13 criminal acts occurred. The District found in its own investigation that the 14 allegations were unfounded. ECF No. 20 at ¶¶ 17–18. Plaintiff contends that the 15 District failed to discipline Ms. Albers after placing her on administrative leave for 16 ten days. ECF No. 31 at ¶¶ 36–38. 17 In March 2014, Plaintiff alleges that S.R. was afraid of a particular book, 18 which Ms. Albers used to get him to sit down and listen. Id. at ¶ 30. Defendants 19 argue that there is no evidence of Ms. Albers using a book to scare S.R. ECF Nos. 20 19 at 11; 20 at ¶ 35. Feliz Liudahl, a para-educator with special education students ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 3 1 at Robert Frost Elementary, affirmed in her deposition that she saw Ms. Albers 2 grab an ocean book that scared S.R. and put it in his face to get him to sit down. 3 ECF Nos. 1 at ¶ 31; 32-1 at 7, 11. Additionally, Plaintiff asserts that Ms. Albers 4 would yell at the students and slam her hand down on the table. ECF No. 31 at 5 ¶ 31. Defendants emphasize that Ms. Albers observed other teachers hit their 6 hands on a desk and speak loudly to get students’ attention. ECF Nos. 19 at 12, 20 7 at ¶ 36. Ms. Liudahl stated that she had seen other teachers act that way toward 8 students. ECF Nos. 20 at ¶ 36; 32-1 at 8. 9 Plaintiff claims that, on several occasions, when S.R. would try to stand up, 10 Ms. Albers would push him into the table so that he could not get out. ECF No. 31 11 at ¶ 41. Plaintiff states that S.R. had bruises on his thighs, which were consistent 12 with being forcefully pushed forward into a table and consistent with the 13 timeframe. Id. at ¶ 60. S.R.’s father claims he had never noticed bruises on S.R. 14 before the transfer of schools and has not seen any bruises since S.R. transferred 15 out of Robert Frost Elementary. Id. at ¶ 23. Plaintiff’s father took pictures of the 16 bruising. ECF No. 32-4 at 6. Defendants contend that any bruising on S.R.’s shins 17 and thighs was a “one-time” thing and S.R.’s parents never shared photos or 18 information about the bruising. ECF No. 20 at ¶ 40. Defendants claim, “It can 19 hardly be said this observation is indicative of any type of event that occurred in 20 Ms. Albers’s classroom as opposed to elsewhere.” Id. ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 4 1 On April 7, 2014, S.R was not staying on task and Ms. Albers took him to 2 the bathroom. ECF Nos. 31 at ¶¶ 45–47; 20 at ¶¶ 20–21. Plaintiff claims Ms. 3 Albers grabbed S.R. hard by the upper arm and completely closed the door with 4 the lights remaining off inside the bathroom for three minutes. ECF No. 31 at ¶¶ 5 47–50. When S.R. came out of the bathroom he was quiet, which was unusual and 6 indicated he was upset. Id. at ¶ 54. Defendants disagree and state that Ms. Albers 7 took S.R. to the bathroom so she could help him wash snot off his hands and face. 8 ECF No. 20 at ¶¶ 20–21. She kept the bathroom light off because S.R. was already 9 overly stimulated and the bathroom door was ajar to let in ambient light from the 10 classroom. Id. at ¶ 22. Defendants contend that at no time did S.R. act like he was 11 in distress. Id. at ¶ 23. 12 Ms. Liudahl asserted in her deposition that no student in the classroom 13 required assistance in going to the bathroom and she had never taken a student to 14 wash their hands. ECF No. 32-1 at 3. She also stated that when Ms. Albers took 15 S.R. to the bathroom, “It was just awkward because I had never seen her go into 16 the bathroom with any of the students. And she had went in there and shut the 17 door but the light was not on.” Id. Ms. Liudahl knew the light was not on because 18 she could see a gap underneath the bathroom door. Id. She affirmed that the light 19 was off for about three minutes and the door was fully closed. Id. at 6. After three 20 ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 5 1 minutes, the light turned on and Ms. Liudahl heard Ms. Albers tell S.R. to wash his 2 hands. Id. 3 4 5 6 In April 2014, S.R. withdrew from Robert Frost Elementary. ECF Nos. 20 at ¶ 43; 31 at ¶ 13. DISCUSSION Summary judgment is appropriate when “there is no genuine dispute as to 7 any material fact and the movant is entitled to judgment as a matter of law.” Fed. 8 R. Civ. P. 56(a). For purposes of summary judgment, a fact is “material” if it 9 might affect the outcome of the suit under the governing law. Anderson v. Liberty 10 Lobby, Inc., 477 U.S. 242, 248 (1986). A material fact is “genuine” where the 11 evidence is such that a reasonable jury could find in favor of the non-moving party. 12 Id. The moving party bears the initial burden of showing the absence of any 13 genuine issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 14 (1986). The burden then shifts to the non-moving party to identify specific facts 15 showing there is a genuine issue of material fact. Anderson, 477 U.S. at 256. 16 In ruling on a motion for summary judgment, the court views the facts, as 17 well as all rational inferences therefrom, in the light most favorable to the non- 18 moving party. Scott v. Harris, 550 U.S. 372, 378 (2007). The court must only 19 consider admissible evidence. Orr v. Bank of America, NT & SA, 285 F.3d 764 20 (9th Cir. 2002). There must be evidence on which a jury could reasonably find for ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 6 1 the plaintiff and a “mere existence of a scintilla of evidence in support of the 2 plaintiff’s position will be insufficient.” Anderson, 477 U.S. at 252. 3 4 A. § 1983 Claims Plaintiff alleges that Defendants violated S.R.’s Fourth Amendment right to 5 be free from unreasonable seizures and the use of unreasonable force. ECF No. 30 6 at 5. Under § 1983, a cause of action may be maintained “against any person 7 acting under color of law who deprives another ‘of any rights, privileges, or 8 immunities secured by the Constitution and laws,’ of the United States.” S. Cal. 9 Gas Co. v. City of Santa Ana, 336 F.3d 885, 887 (9th Cir. 2003) (quoting 42 U.S.C. 10 § 1983). The rights guaranteed by § 1983 are “liberally and beneficially 11 construed.” Dennis v. Higgins, 498 U.S. 439, 443 (1991) (quoting Monell v. N.Y. 12 City Dep’t of Soc. Servs., 436 U.S. 658, 684 (1978)). 13 1. Ms. Albers 14 Defendants contend that Ms. Albers is entitled to qualified immunity. ECF 15 No. 19 at 4. Qualified immunity shields government actors from civil damages 16 unless their conduct violates “clearly established statutory or constitutional rights 17 of which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 18 223, 231 (2009). Qualified immunity balances the two important interests of 19 holding public officials accountable when they exercise power irresponsibly and 20 also the need to shield officials from harassment, distraction, and liability when ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 7 1 they perform their duties reasonably. Id. When this immunity is properly applied, 2 “it protects all but the plainly incompetent or those who knowingly violate the 3 law.” Ashcroft v. al-Kidd, 563 U.S. 731, 743 (2011) (quoting Malley v. Briggs, 4 475 U.S. 335, 341 (1986)). 5 In determining a state actor’s assertion of qualified immunity, a court must 6 assess (1) whether the facts, viewed in the light most favorable to the plaintiff, 7 show that the defendant’s conduct violated a constitutional right; and (2) whether 8 the right was clearly established at the time of the alleged violation such that a 9 reasonable person in the defendant’s position would have understood that his 10 actions violated that right. Saucier v. Katz, 533 U.S. 194, 201 (2001), overruled in 11 part by Pearson, 555 U.S. at 236. A court may, within its discretion, decide which 12 of the two prongs should be addressed first in light of the particular circumstances 13 of the case. Pearson, 555 U.S. at 236. If the answer to either inquiry is “no,” then 14 the defendant is entitled to qualified immunity and may not be held personally 15 liable for his or her conduct. Glenn v. Washington County, 673 F.3d 864, 870 (9th 16 Cir. 2011). 17 a. Constitutional Violations 18 When viewed in the light most favorable to Plaintiff, the Court finds Ms. 19 Albers conduct could support a finding that she violated Plaintiff’s constitutional 20 rights under the Fourth Amendment. The right to be free from unreasonable ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 8 1 seizures “extends to seizures by or at the direction of school officials.” Doe ex rel. 2 Doe v. Hawaii Dep’t of Educ., 334 F.3d 906, 909 (9th Cir. 2003) (quoting Hassan 3 v. Lubbock Indep. Sch. Dist., 55 F.3d 1075, 1079 (5th Cir. 1995). A seizure occurs 4 when “there is a restraint on liberty to the degree that a reasonable person would 5 not feel free to leave.” Id. (citing United States v. Summers, 268 F.3d 683, 686 6 (9th Cir. 2001)). Such a seizure violates the Fourth Amendment when “it is 7 objectively unreasonable under the circumstances.” Id. (citing Santos v. Gates, 8 287 F.3d 846, 853 (9th Cir. 2002)). In the school context, the reasonableness of a 9 seizure is considered in light of the educational objectives the school official was 10 trying to achieve. Id. Reasonableness is assessed “in light of the age and sex of 11 the student and the nature of the infraction.” Preschooler II v. Clark Cty. Sch. Bd. 12 Of Trustees, 479 F.3d 1175, 1180 (9th Cir. 2007) (citation and quotation omitted). 13 Additionally, force is analyzed under the reasonableness standard and excessive 14 force by a school official “against a student violate[s] the student’s constitutional 15 rights.” Id. (quoting P.B. v. Koch, 96 F.3d 1298, 1302–03 (9th Cir. 1996)). 16 Here, Plaintiff contends that Ms. Albers seized S.R. by grabbing his arm, 17 escorting him to the bathroom, and closing the door. ECF No. 30 at 6. Plaintiff 18 argues that under such circumstances, “no reasonable seven-year-old student with 19 severe autism … would believe he was free to leave.” Id. Defendants assert that 20 there is no evidence Ms. Albers physically dragged S.R. to the bathroom or ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 9 1 invoked her authority as a teacher to unreasonably restrain him. ECF No. 19 at 10. 2 She merely escorted S.R. to the bathroom to help him wash snot off his face and 3 hands. Id. Yet, Defendants misconstrue the standard that constitutes a seizure. 4 When viewing the facts in the light most favorable to Plaintiff, a reasonable seven- 5 year-old autistic child may well feel restrained in being taken to the bathroom by a 6 teacher and having the door closed for three minutes in the dark, as Plaintiff alleges 7 and Ms. Liudhal confirmed. While Ms. Albers may have had the educational 8 objective of not over-stimulating S.R. with light, it is still not objectively 9 reasonable under the circumstances considering S.R.’s age and disability. When 10 viewed in the light most favorable to Plaintiff, the Court finds that Ms. Albers 11 confining Plaintiff in a dark bathroom could be considered an unreasonable 12 seizure. 13 Additionally, Defendants assert that there was no unreasonable restraint 14 when Ms. Albers and other staff members would stand behind S.R. while he was 15 seated. ECF No. 19 at 11. Defendants contend that this action was merely a 16 teaching strategy. Id. It is unlikely that standing behind a child in a classroom is 17 considered a seizure, but regardless, the seizure would be reasonable. The 18 educational objective of assisting students with their work and helping them stay 19 on task is a reasonable intention. Defendants also contend Ms. Albers slamming 20 her hand on the desk would also not be an unreasonable seizure, as it was a ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 10 1 technique practiced by the teachers to gain the students’ attention. See ECF Nos. 2 32-1 at 8; 19 at 12. Therefore, Ms. Albers standing behind S.R. or slamming her 3 hand on a desk are not in and of themselves an unreasonable seizure, but when 4 viewed in context and in light of all the evidence, her actions could be considered 5 unconstitutional as shown below. 6 Defendants deny that Ms. Albers restrained S.R. and used a book to scare 7 him. ECF No. 19 at 11. Yet, Plaintiff cites the deposition of Ms. Liudahl who 8 confirmed that she witnessed Ms. Albers scare S.R. with an ocean book. ECF No. 9 32-1 at 7. Defendants are then incorrect and this claim can still form the basis of a 10 § 1983 claim. See ECF No. 19 at 11. When viewed in the light most favorable to 11 Plaintiff, Ms. Albers’s use of the book could be considered an unreasonable seizure 12 as it confined a young autistic child to his chair through the use of fear so that he 13 reasonably felt he could not leave. Lastly, Defendants argue that the bruising on S.R.’s legs is not enough to 14 15 constitute excessive force or seizure.2 Id. at 12. Defendants note that unexplained 16 17 2 18 because he claims that excessive force was not addressed in Defendants’ Motion 19 for Summary Judgment. ECF No. 30 at 5 n.1. Yet, Defendants assert that they 20 seek to dismiss all of Plaintiff’s claims. ECF No. 41 at 1–2 n.1. Therefore, while Plaintiff does not address the issue of excessive force in the Response ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 11 1 bruises or scratches do not rise to the level of a constitutional violation. Id.; see 2 Preschooler II, 479 F.3d at 1181. Defendants are correct that unexplained bruising 3 alone may be insufficient to substantiate excessive force, but Plaintiff provides 4 other evidence of Ms. Albers grabbing and pushing S.R., which could constitute 5 excessive force. ECF No. 32-1 at 6. 6 When viewing all the evidence in the light most favorable to Plaintiff, Ms. 7 Albers aggressive actions towards S.R. of grabbing him, confining him in a 8 bathroom, slamming her hand on a desk, pushing him into a table and frightening 9 him with a book reveals evidence which could be found to be an unreasonable 10 seizure and the use of excessive force beyond mere unexplained bruising. 11 b. Clearly Established Law 12 Ms. Albers’s constitutional violations must have been clearly established at 13 the time of the alleged harm. A right is clearly established when it is “sufficiently 14 clear a reasonable officer would understand that what he is doing violates that 15 right.” Anderson v. Creighton, 438 U.S. 635, 640 (1987). A case need not be 16 directly on point, but existing precedent must have placed the constitutional 17 18 Plaintiff does not address the use of excessive force in his Response, he asserts the 19 claim in the Complaint and Statement of Facts attached to the Response and so the 20 Court will still address this claim. See ECF Nos. 1; 31. ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 12 1 question beyond debate. al-Kidd, 563 U.S. at 741. The clearly established inquiry 2 “must be undertaken in light of the specific context of the case, not as a broad 3 general proposition.” Saucier, 533 U.S. at 201. 4 Here, Defendants argue that, in the school setting, courts have found 5 unreasonable seizure when there was a clear use of physical force or a show of 6 authority in restraining a student’s liberty. ECF No. 19 at 8. Defendants cite an 7 incident where a site administrator taped an eight-year-old student’s head to a tree 8 for five minutes, constituting an unreasonable seizure. Id.; Doe, 334 F.3d at 907– 9 09. Defendants also note an unreasonable seizure of a special education student 10 where the teacher grabbed the student’s hand repeatedly, slapped him, hit his head 11 and face, and body slammed him into a chair. ECF No. 19 at 8; Preschooler II, 12 479 F.3d at 1178. Yet, in the same case, making the student walk barefoot on 13 asphalt did not rise to the level of a constitutional violation, as it was not 14 unreasonable to teach the student not to remove his shoes. ECF No. 19 at 8–9; 15 Preschooler II, 479 F.3d at 1181. Defendants argue such instances were not 16 present in this case. 17 Plaintiff emphasizes that “the right of a student to be free from excessive 18 force at the hands of teachers employed by the state was clearly established as 19 early as 1990.” Doe, 334 F.3d at 910 (citing Koch, 96 F.3d at 1303 n.4); ECF No. 20 30 at 8. The Ninth Circuit noted, “There need not be a case dealing with these ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 13 1 particular facts to find [Defendant’s] conduct unreasonable.” Id. While Ms. 2 Albers actions are not as physically extreme as the cases cited by Defendants, this 3 does not mean that the rights were not clearly established. A reasonable teacher in 4 Ms. Albers position would recognize that confining an autistic child in a bathroom 5 without turning on the lights for multiple minutes violates that child’s rights. This 6 unique situation need not be exactly similar to a teacher body slamming a student 7 or tapping a child’s head to a tree. If a jury were to find that Ms. Albers pushed 8 Plaintiff into a table so that he could not get out, slammed her hand on a desk to 9 frighten him, frightened him with a book and inflicted injury sufficient to cause 10 bruising, all these actions would also clearly violate a child’s rights. Taken in light 11 of the specific context of a disabled child, a reasonable special education teacher 12 would be aware these were constitutional violations. 13 Therefore, Ms. Albers is not entitled to qualified immunity because the 14 conduct alleged would violate S.R.’s clearly established constitutional rights. The 15 Court denies Defendants’ Motion for Summary Judgment as to Ms. Albers’ alleged 16 conduct. 17 2. The District 18 Plaintiff alleges a § 1983 claim against the District for its alleged official 19 policy of sending teachers to the classroom without warning, training, or 20 disciplining the teacher despite a constitutional violation. ECF No. 30 at 11. To ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 14 1 prevail on a claim under § 1983 against a local government entity, a plaintiff must 2 prove that the entity violated his or her constitutional rights by engaging in an 3 “action pursuant to official municipal policy of some nature.” Monell, 436 U.S. at 4 691–94 (concluding that § 1983 does not permit respondeat superior liability 5 against municipalities). To establish the official municipal policy, a plaintiff may 6 articulate any of the following four theories: (1) action pursuant to express policy 7 or longstanding practice or custom;3 (2) action by a final policymaker acting in his 8 or her official policymaking capacity; (3) ratification of an employee’s actions by a 9 final policymaker; and (4) failure to adequately train employees with deliberate 10 indifference to the consequences. Christie v. Iopa, 176 F.3d 1231, 1235–40 (9th 11 Cir. 1999). “Liability for improper custom may not be predicated on isolated or 12 sporadic incidents; it must be founded upon practices of sufficient duration, 13 frequency and consistency that the conduct has become a traditional method of 14 carrying out policy.” Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996) (citation 15 omitted). 16 17 18 3 Plaintiff alleges this first theory. ECF No. 30 at 9. Even though Defendants 19 argue against most of the following theories (ECF No. 40 at 3–7), only the first 20 theory will be addressed by the Court. ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 15 1 Here, Defendants contend that Plaintiff has failed to establish that Ms. 2 Albers committed a constitutional violation or demonstrate any of the theories 3 outlined above. ECF No. 19 at 15. Plaintiff asserts that Ms. Albers committed a 4 constitutional violation pursuant to a formal government policy or long-standing 5 practice or custom by the District. ECF No. 30 at 9. Plaintiff cites that the 6 Principal, Nora Flores, was aware that Ms. Albers required one student to pinch 7 another student, struck a student with a closed fist, required a student to slap 8 another student’s arm, and slammed her hand on the children’s tables and yelled at 9 them. Id. at 10. Plaintiff contends that Ms. Flores merely sent Ms. Albers back to 10 work without disciplining her, providing her additional training, or reprimanding 11 her. Id. at 11. Plaintiff argues that the District then had an official policy of 12 sending teachers back to the classroom without taking any precautionary or 13 preventative measures after a constitutional violation. Id. 14 As discussed above, Ms. Albers arguably violated S.R.’s constitutional 15 rights, but Plaintiff fails to show Ms. Albers’s actions were part of a larger District 16 policy. After the pinching and closed fist incidents, the District reported the 17 allegations to law enforcement and conducted its own investigation, both finding 18 no misconduct. ECF Nos. 20 at ¶¶ 17–18; 32-6 at 5–6. These incidents by a single 19 teacher are not enough to create sufficient duration, frequency, and consistency to 20 constitute an official policy of not disciplining teachers. See Trevino, 99 F.3d at ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 16 1 918. Additionally, Plaintiff fails to show that the District was deliberately 2 indifferent to the constitutional right and the “moving force behind the 3 constitutional violation.” Rivera v. Cty. of Los Angeles, 745 F.3d 384, 397 (9th 4 Cir. 2014) (quoting Edgerly v. City & Cnty. of San Francisco, 599 F.3d 946, 960 5 (9th Cir. 2010)). There is no evidence that the District was deliberately indifferent 6 to the students’ constitutional rights after it investigated Ms. Albers and decided to 7 return her to the classroom nor is there any evidence that the District and Ms. 8 Flores were the driving force behind Ms. Albers constitutional violation of S.R.’s 9 rights. Plaintiff is then unable to establish an official policy by the District. 10 In Plaintiff’s recently filed Trial Brief, and not in response to Defendants’ 11 Motion for Summary Judgment, Plaintiff contends the District is liable under the 12 danger creation exception to liability for injuries caused by third parties. ECF No. 13 59 at 7. Plaintiff reasons that the District was aware of complaints about Ms. 14 Albers abusing special needs children in her care, yet affirmatively returned her to 15 the classroom. While Plaintiff belated makes these allegations in his Trial Brief, 16 he has not come forward with evidence to support this assertion, thereby 17 preserving a genuine issue of material fact for trial. Absent a genuine dispute as to 18 any material fact, the Defendant is entitled to judgment as a matter of law. Fed. R. 19 Civ. P. 56(a). 20 ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 17 Accordingly, Defendants’ Motion for Summary Judgment is granted in part 1 2 and Plaintiff’s § 1983 claim against the District is dismissed. 3 B. Disability Discrimination Claims 4 Plaintiff brings claims under Title II of the Americans with Disabilities Act 5 of 1990, 42 U.S.C. § 12131 et seq. (ADA) and under § 504 of the Rehabilitation 6 Act of 1973, 29 U.S.C. § 701 et seq. (§ 504). ECF No. 30 at 11–12. According to 7 Ninth Circuit precedent, “There is no significant difference in analysis of the rights 8 and obligations created by the ADA and the Rehabilitation Act …. Thus, courts 9 have applied the same analysis to claims brought under both statutes.” Zukle v. 10 Regents of Univ. of California, 166 F.3d 1041, 1045 n.11 (9th Cir. 1999) (citation 11 omitted). Courts also routinely look at Rehabilitation Act case law to interpret 12 rights created by the ADA.4 Id. A plaintiff must show under the ADA that (1) he 13 is a qualified individual with a disability; (2) he was excluded from participation in 14 or denied the benefits of a public entity’s services, programs, activities, or 15 otherwise discriminated against by the public entity; and (3) such exclusion, denial 16 of benefits, or discrimination was by reason of his disability. Duvall v. Cty. of 17 18 4 The parties dispute whether these discrimination claims must be analyzed 19 separately. ECF Nos. 30 at 12; 41 at 8. After careful review of the case law, the 20 Court determines that the claims may be evaluated coterminously. ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 18 1 Kistap, 260 F.3d 1124, 1135 (9th Cir. 2001) (citing Weinreich v. Los Angeles Cty. 2 Metro. Transp. Auth., 114 F.3d 976, 978 (9th Cir. 1997)). Title II of the ADA was 3 modeled after § 504, where a plaintiff must show that (1) he is disabled; (2) he is 4 otherwise qualified to receive the benefit; (3) he was denied the benefits of the 5 program solely by reason of his disability; and (4) the program receives federal 6 financial assistance. Id. (citation omitted). 7 Under both the Rehabilitation Act and Title II of the ADA, a public entity is 8 liable for the vicarious acts of its employees. Duvall, 260 F.3d at 1141. The Ninth 9 Circuit has “held that, under § 504 of the Rehabilitation Act (upon which the ADA 10 was explicitly modeled), we apply the doctrine of respondeat superior to claims 11 brought directly under the statute, in part because the historical justification for 12 exempting municipalities from respondeat superior liability does not apply to the 13 Rehabilitation Act, and in part because the doctrine ‘would be entirely consistent 14 with the policy of that statute, which is to eliminate discrimination against the 15 handicapped.’” Id. (citation omitted). 16 Here, it is not contested that S.R. is disabled and the first element in both 17 claims is met. ECF No. 19 at 17–18. It is also clear that the District receives 18 federal financial assistance as part of the public school system. ECF No. 13 at ¶ 7. 19 Plaintiff specifically argues that the District provided a worse-quality education 20 than to comparable non-disabled students and Ms. Albers discriminated against ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 19 1 S.R. due to his autism. ECF No. 30 at 12–14. The question then becomes whether 2 S.R. was denied the benefit of a quality education by reason of his disability. 3 In sum, and in the light most favorable to Plaintiff, genuine issues of 4 material fact exist as to whether Ms. Albers discriminated against S.R. based on his 5 disability.5 Viewed in the light most favorable to Plaintiff, there is sufficient 6 evidence for the trier of fact to find that Ms. Albers was motivated by S.R.’s 7 disability. 8 9 10 Therefore, the Court denies Defendants’ Motion for Summary Judgment on the ADA and § 504 claims. ACCORDINGLY, IT IS HEREBY ORDERED: 1. Defendants’ Motion for Summary Judgment (ECF No. 19) is DENIED 11 12 in part and GRANTED in part. 2. Defendants’ motion concerning Plaintiff’s 42 U.S.C. § 1983 claims 13 14 against Ms. Albers is DENIED. 3. Plaintiff’s 42 U.S.C. § 1983 claim against the Pasco School District is 15 16 DISMISSED. 17 18 5 Plaintiff asserts that the ADA and § 504 claims differ because § 504 requires 19 a showing that S.R.’s disability was the sole cause of discrimination. ECF No. 30 20 at 15. Regardless, genuine issues remain for the trier of fact. ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 20 1 4. Defendants’ motion concerning Plaintiff’s claims against the Pasco 2 School District under Title II of the Americans with Disabilities Act of 3 1990, 42 U.S.C. § 12131 and under § 504 of the Rehabilitation Act of 4 1973, 29 U.S.C. § 729 are DENIED. 5 6 7 The District Court Executive is directed to enter this Order and furnish copies to counsel. DATED October 23, 2017. 8 9 THOMAS O. RICE Chief United States District Judge 10 11 12 13 14 15 16 17 18 19 20 ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ~ 21
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