Alexander v. Underhill, No. 03:05CV00178 LRH RJJ.

• Decision Date: 17 February 2006
• Docket Number: No. 03:05CV00178 LRH RJJ.
• Parties: Mary ALEXANDER, an individual; Ashley Ball, a minor, by and through her Guardian, Mary Alexander; Everette Ball, a minor, by and through his Guardian, Mary Alexander, Plaintiffs, v. Gary UNDERHILL, in his official and individual capacity; Bo Lorentzen, in his official and individual capacity; Ray Price, in his official and individual capacity; Mike Mieras, in his official and individual capacity; Eddie Bonine, in his official and individual capacity; Tom Kallay, in his official and individual capacity; Debbie Cylke, in her official and individual capacity; Washoe County School District; and Does 1 through 10, Defendants.
• Court: U.S. District Court — District of Nevada

416 F.Supp.2d 999

Mary ALEXANDER, an individual; Ashley Ball, a minor, by and through her Guardian, Mary Alexander; Everette Ball, a minor, by and through his Guardian, Mary Alexander, Plaintiffs, v. Gary UNDERHILL, in his official and individual capacity; Bo Lorentzen, in his official and individual capacity; Ray Price, in his official and individual capacity; Mike Mieras, in his official and individual capacity; Eddie Bonine, in his official and individual capacity; Tom Kallay, in his official and individual capacity; Debbie Cylke, in her official and individual capacity; Washoe County School District; and Does 1 through 10, Defendants.

No. 03:05CV00178 LRH RJJ.

United States District Court, D. Nevada.

February 17, 2006.

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Jeffrey S. Blanck, Winograd & Blanck, Ltd., Reno, NV, for Plaintiffs.

C. R. Cox, Debra O. Waggoner, Michael E. Malloy, Walther Key Maupin Oats Cox & Legoy, Reno, NV, for Defendants.

ORDER

HICKS, District Judge.

Presently before the court is a Motion to Dismiss (# 22¹) filed by defendants Gary Underhill, Bo Lorentzen, Ray Price, Mike Miens, Eddie Bonine, Tom Kallay, Debbie Cylke and Washoe County School District (collectively, "Defendants"). Plaintiffs Mary Alexander, Ashley Ball and Everette^* Ball (collectively, "Plaintiffs") filed an opposition (# 24) to which Defendants subsequently replied (# 27). Plaintiffs have also filed a Supplement to Plaintiffs' Motion to Dismiss (# 30) to which Defendants responded (# 33).

Also before the court is Plaintiffs' Request for Taking Judicial Notice (# 28). Defendants have filed an objection (# 29) to which Plaintiffs replied (# 31).

I. Factual Background

This is an action for damages arising out of the treatment of Plaintiffs following an affray at Hug High School ("HHS") in Reno, Nevada. HHS is within the Washoe County School District. Mary Alexander ("Alexander"), an African-American female, is the mother of two minor children, Ashley Ball ("Ashley") and Everette Ball ("Everette"). Ashley and Everette are students at HHS.

On October 7, 2004, Alexander took her children to HHS for Ashley to pick up a book. While at the school, Ashley and several African-American female friends were involved in a fight with several Hispanic female students. School police officers arrived after the fight had concluded and, according to Plaintiffs, began arresting all the African-American students in the vicinity without knowing who participated in the fight. Ashley and Everette were both arrested.

Alexander became distraught at the sight of her children being arrested. At this time, a school employee approached Alexander and asked her why she could not control her kids. Alexander responded with profanity. Alexander then went to the school office to find out where the school police officers took her children and learned that Ashley was in the back office. When Alexander approached the back office, Gary Underhill ("Underhill"), a school police officer, told Alexander that she could not see Ashley. Alexander complied and waited in the office until a student told her that Ashley was still in the back office. At this point, Alexander approached the back office for the second time. Underhill quickly shut the door and informed Alexander that she was under arrest.

Alexander was booked at county jail and released on her own recognizance. She was later convicted of violating County Ordinance 53.200, Resisting a Public Officer. Ashley and Everette were taken to juvenile hall. Ashley was released that night and Everette was released the next day. On October 10, 2004, Plaintiffs met with Eddie Bonine ("Bonine"), an administrator in charge of student services, and were informed that Ashley and Everette were both suspended and removed from HHS.

II. Legal Standard

In considering "a motion to dismiss, all well-pleaded allegations of material fact are taken as true and construed in a light most favorable to the non-moving party." Wyler Summit P'ship v. Turner Broad. Sys., Inc., 135 F.3d 658, 661 (9th Cir.1998) (citation omitted). However, a court does not necessarily assume the truth of legal conclusions merely because they are cast in the form of factual allegations in plaintiff's complaint. Clegg v. Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir. 1994).

There is a strong presumption against dismissing an action for failure to state a claim. Gilligan v. Jamco Dev. Corp., 108 F.3d 246, 249 (9th Cir.1997) (citation omitted). "The issue is not whether a plaintiff will ultimately prevail but whether [he or she] is entitled to offer evidence in support of the claims." Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), overruled on other grounds by Harlow v. Fitzgerald, 457 U.S. 800, 807, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Consequently, the court should not grant a motion to dismiss "for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); see also Hicks v. Small, 69 F.3d 967, 969 (9th Cir.1995).

III. Discussion

On March 28, 2005, Plaintiffs filed a complaint alleging twelve claims for relief: violation of their Fourth and Fourteenth Amendment rights enforceable through 42 U.S.C. § 1983; violation of Title VI of the Civil Rights Act, 42 U.S.C. § 2000d; Violation of their Procedural Due Process Rights enforceable through 42 U.S.C. § 1983; conspiracy in violation of 42 U.S.C. § 1985; a violation of 42 U.S.C. § 1986; battery; false imprisonment; intentional infliction of emotional distress; negligent infliction of emotional distress; violation of sections 388.132-388.135 of the Nevada Revised Statutes; negligent supervision and training; and violation of administrative regulations. Defendants are seeking to dismiss all of these claims. In their opposition to Defendants' Motion to Dismiss, Plaintiffs have acquiesced in dismissal of their claims arising under section 1985, section 1986 and Nevada Revised Statute sections 388.132-388.135. The court will discuss the remaining arguments relevant to each claim for relief in turn.

A. Federal Claims

1. 42 U.S.C. § 1983

Plaintiffs' first claim for relief is brought pursuant to 42 U.S.C. § 1983. Ashley and Everette allege violations of both the Fourth and Fourteenth Amendments to the United States Constitution. Alexander's section 1983 claim alleges a violation of her Fourth Amendment rights based upon an allegedly unlawful arrest.

a. Ashley and Everette's Equal Protection Claim is Subsumed by Title VI

In seeking dismissal of the first claim for relief, Defendants note that Ashley and Everette's second claim for relief, based upon the same set of facts alleged for the constitutional claims, alleges that Everette and Ashley were discriminated against based upon their race in violation of Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d. Since the first two claims for relief are based upon the same set of facts, Defendants argue that Ashley and Everette's section 1983 claim is subsumed by the Title VI claim and must be dismissed. In opposition, Ashley and Everette argue that their section 1983 claims are not subsumed by Title VI because "the underlying elements of the claims are different, the parties are different, and the remedies are different."²

42 U.S.C. § 1983 supplies a cause of action to a plaintiff when a person acting under the color of law deprives that plaintiff of any "rights, privileges, or immunities secured by the Constitution and laws [of the United States.]" However, "[w]hen the remedial devices provided in a particular Act are sufficiently comprehensive, they may suffice to demonstrate congressional intent to preclude the remedy of suits under § 1983." Middlesex County Sewerage Auth. v. Nat'l Sea Clammers Ass'n, 453 U.S. 1, 20, 101 S.Ct. 2615, 69 L.Ed.2d 435 (1981). In determining whether an act subsumes a section 1983 action, the court must determine whether Congress intended that act to supplant any remedy that would otherwise be available under section 1983. Id. at 21, 101 S.Ct. 2615. Such Congressional intent may be found directly in the statute creating the right or inferred when the statutory scheme is incompatible with individual enforcement under section 1983. City of Rancho Palos Verdes, Cal. v. Abrams, 544 U.S. 113, 125 S.Ct. 1453, 1458, 161 L.Ed.2d 316 (2005). The defendant bears the burden of demonstrating that Congress has expressly withdrawn the section 1983 remedy. Golden State Transit Corp. v. City of Los Angeles, 493 U.S. 103, 107, 110 S.Ct. 444, 107 L.Ed.2d 420 (1989).

The Ninth Circuit has not decided the specific issue of whether section 1983 is subsumed by Title VI. However, the Ninth Circuit has recognized the Supreme Court's Sea Clammers doctrine when construing other federal statutes and found that those statutes precluded a section 1983 remedy. See, e.g., Dittman v. California, 191 F.3d 1020 (9th Cir.1999); Dep't of Educ., State of Hawaii v. Katherine D., 727 F.2d 809 (9th Cir.1983). In addition, the District of Nevada has recognized that a section 1983 action is barred in the context of Title IX of the Education Amendments Act of 1972, 20 U.S.C. § 1681 et seq. Henkle v. Gregory, 150 F.Supp.2d 1067 (D.Nev.2001).

In the present case, this court is called upon to decide whether Title VI serves to bar an action brought pursuant to section 1983. While Title VI does not explicitly purport to limit section 1983 relief, 42 U.S.C. § 2000d, congressional intent to foreclose such a remedy can still be inferred from the creation of a comprehensive statutory scheme. Sea Clammers, 453 U.S. at 20, 101 S.Ct. 2615. Therefore, the first question this court must decide is whether Title VI is sufficiently comprehensive to demonstrate the congressional intent to foreclose a section 1983 remedy. If Title...