EASON v. CLARK COUNTY SCHOOL DISTRICT 0017370

Docket Nº:0017370
Party Name:EASON v. CLARK COUNTY SCHOOL DISTRICT
Case Date:February 11, 2002
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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EASON v. CLARK COUNTY SCHOOL DISTRICT 0017370

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DERRICK EASON; SERENA EASON, Plaintiffs-Appellants, v. CLARK COUNTY SCHOOL DISTRICT; ROBERT T. HENRY; MILA KITT; EVERLY J. MINNEAR, Defendants-Appellees.

No. 00-17370; D.C. No. CV-97-01608-RLH

DERRICK EASON; SERENA EASON, Plaintiffs-Appellants, v. CLARK COUNTY SCHOOL DISTRICT; ROBERT T. HENRY; MILA KITT; BEVERLY J. MINNEAR, Defendants-Appellees.

No. 01-15749; D.C. No. CV-97-01608- RLH(LR1)

SHAWN WITTE, a Minor, by his next friend and Parent, Teresa Witte, Plaintiff-Appellant, and TERESA WITTE, Plaintiff, v. CLARK COUNTY SCHOOL DISTRICT; ROBERT T. HENRY; MACKE WOODARD; BEVERLY J. MINNEAR, Defendants-Appellees.

No. 00-17377; D.C. No. CV-98-00368-RLH

SHAWN WITTE, a Minor, by his next friend and Parent, Teresa Witte, Plaintiff-Appellant, and TERESA WITTE, Plaintiff, v. CLARK COUNTY SCHOOL DISTRICT; ROBERT T. HENRY; MACKE WOODARD; BEVERLY J. MINNEAR, Defendants-Appellees.

No. 01-15692; D.C. No. CV-98-00368- RLH/LRL

OPINION

Appeal from the United States District Court for the District of Nevada

Roger L. Hunt, District Judge, Presiding

Argued and Submitted

February 11, 2002—San Francisco, California

Filed September 11, 2002

Before: Stephen Reinhardt and Raymond C. Fisher, Circuit Judges, and Donald W. Molloy, District Judge.*

Opinion by Judge Fisher

*The Honorable Donald W. Molloy, United States District Judge for the District of Montana, sitting by designation.

COUNSEL

Barbara E. Buckley (argued) and Sara V. Winter, Clark County Legal Services Program, Inc., Las Vegas, Nevada, for the plaintiffs-appellants.

Rick D. Roskelley, Hicks & Walt, Las Vegas, Nevada, for the defendants-appellees.

Andrew J. Kahn, McCracken, Stemerman, Bowen & Hols-berry, Las Vegas, Nevada, for the amicus curiae Las Vegas Interfaith Council for Worker Justice.

OPINION

FISHER, Circuit Judge:

Shawn Witte and Derrick Eason appeal the dismissal of their actions alleging severe abuse and excessive corporal punishment inflicted by educators at Variety School, a public school attended exclusively by students with disabilities, in Nevada’s Clark County School District ("District"). Shawn and Derrick both sued the District and individual District personnel for violations of their constitutional rights to substantive due process and equal protection under § 1983, the Rehabilitation Act, the Americans with Disabilities Act and state law. In both cases, the district court held that all defendants were entitled to Eleventh Amendment immunity, dismissed all claims and taxed costs against Shawn and Derrick. We reverse the dismissal of the § 1983 and state law claims against all defendants, as well as the ADA and Rehabilitation Act claims against the District, because the Clark County School District is not an "arm of the state" and therefore does not enjoy Eleventh Amendment immunity. Plaintiffs do not appeal the dismissal of the ADA and Rehabilitation Act claims against the individual defendants.

FACTUAL & PROCEDURAL BACKGROUND

Shawn Witte, who is about 13 years old, has been diagnosed with Tourette syndrome, asthma, attention deficit hyp-eractivity disorder and emotional problems. For about three years, he attended Variety School, a public school in Nevada’s Clark County School District attended exclusively by students with disabilities. He alleges that he "suffered repeated physical, psychological and verbal abuse at the hands of District personnel pursuant to policies either approved by the District or ratified by the District’s failure to take action." The alleged severe pattern of abuse included the following: Shawn was force fed oatmeal, to which he is allergic, as well as oatmeal mixed in with his own vomit; he was strangled so he would run faster despite a physical deformity in his feet and legs; he was often subjected to the painful "take down procedure," in which he was pinned to the ground, his arms and legs forcibly crossed behind him, while a teacher applied pressure to his buttocks or spine; he was forced to run at high speeds on a treadmill with weights tied to his ankles; his food was thrown away if he did not use utensils properly; and he was squirted with water if unable to stay on task for long periods of time.

On March 2, 1998, Shawn, by his next friend and parent, Teresa Witte, sued the Clark County School District; Robert T. Henry, Director of Program Development in the District; Beverly J. Minnear, principal of Variety School, and Woo-dard Macke, a classroom teacher at Variety School, for violations of his constitutional rights to substantive due process and equal protection under 42 U.S.C. § 1983; § 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794; Title II of the Americans with Disabilities Act, 42 U.S.C. § 1231 et seq. and state law.

The district court dismissed all claims against all defendants on the ground that defendants were immune from suit in federal court under the Eleventh Amendment and subsequently awarded costs of $6,879.87 to defendants.1 Shawn timely appealed both orders.

Derrick Eason, who is about 12 years old, has been diagnosed with autism, cognitive impairment and attention deficit hyperactivity disorder. He attended Variety School from 1992, when he was three, to August 1997. Like Shawn, Derrick alleges that he suffered severe abuse at the hands of Variety School and District personnel, including being subjected to the "take down" procedure, being sprayed in the face with refrigerated water, being forced to run or walk on the treadmill with weights on his ankles or around a table continuously, having the teacher scream degrading comments at him, having numbing or noxious solutions applied to his mouth and lips to prevent him from biting himself and having vinegar put in his food.

Derrick, by his next friend and parent, Serena Eason, also

1The district court had previously dismissed the complaint, but we reversed in Witte v. Clark County School Dist., 197 F.3d 1271 (9th Cir. 1999).

sued the District, Henry, Minnear and Mila Kitt, Derrick’s teacher during the 1995-96 and 1996-97 school years. The district court dismissed all claims against all defendants on the basis of Eleventh Amendment immunity and later awarded costs of $8,484.62 to defendants. Derrick timely appealed both orders.

STANDARD OF REVIEW

We review de novo the district court’s Rule 12(b)(6) dismissal, "accepting as true all well-pleaded allegations of fact in the complaint and construing them in the light most favorable to the plaintiffs." Zimmerman v. City of Oakland, 255 F.3d 734, 737 (9th Cir. 2001). "We review de novo the issue of whether a party is immune from suit under the Eleventh Amendment." Sofamor v. Danek Group, 124 F.3d 1179, 1183 n.2 (9th Cir. 1997).

ANALYSIS

I.

[1] The Eleventh Amendment states:

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

U.S. Const. amend. XI. The amendment has been construed to bar suits by citizens against their own states, Papasan v. Allain, 478 U.S. 265, 276 (1986); Pennhurst v. Halderman, 465 U.S. 89, 100 (1984); Hans v. Louisiana, 134 U.S. 1, 18 (1890), and "[i]t has long been settled that the reference to actions ‘against one of the United States’ encompasses not only actions in which a State is actually named as the defendant, but also certain actions against state agencies and state instrumentalities." Regents of the Univ. of Calif. v. Doe, 519 U.S. 425, 429 (1997) (citations omitted) (holding that Califor-nia state university enjoys Eleventh Amendment immunity). In contrast, the Eleventh Amendment does not extend to counties and municipal corporations. Lincoln County v. Luning, 133 U.S. 529 (1890) (holding that Nevada counties are not immune under the Eleventh Amendment); see also Lake County Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391, 401 (1979) ("But the Court has consistently refused to construe the [Eleventh] Amendment to afford protection to political subdivisions such as counties and municipalities, even though such entities exercise a ‘slice of state power.’ "). Cf. Moor v. County of Alameda, 411 U.S. 693, 717-719 (1973) (holding that California counties are not arms of the state or alter egos of the state for purposes of diversity jurisdiction), overruled in part by Monell v. Dept. of Social Services, 436 U.S. 658 (1978) (overruling holding of Monroe v. Pape, 365 U.S. 167 (1961), that local governments are immune from suit under § 1983).

[2] The central question in this case is whether the Clark County School District is an "arm of the state," entitled to Eleventh Amendment immunity. Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 280 (1977). The Supreme Court has mentioned in passing that the Eleventh Amendment does not afford "local school boards" immunity from suit, Missouri v. Jenkins, 495 U.S. 33, n.20 (1990), and in Mt. Healthy, the Court held an Ohio school district subject to suit because it was "more like a county or city than . . . like an arm of the State." Id. at 280. Moreover, most courts have held that school districts are not entitled to Eleventh Amendment immunity.2

2See, e.g., Cuesta v. School Board of Miami-Dade County, 285 F.3d 962, 966 (11th Cir. 2002) (Florida); Cash v. Granville County Bd. of Educ., 242 F.3d 219 (4th Cir. 2001) (North Carolina); Duke v. Grady Municipal Schools, 127 F.3d 972 (10th Cir. 1997) (New Mexico); Ambus v. Granite Bd. of Educ., 995 F.2d 992 (10th Cir. 1993) (Utah); Stewart v.

[3] In Mitchell v. Los Angeles, 861 F.2d 198 (9th Cir. 1989), we articulated five factors to determine whether an agency is an arm of the state: (1) "whether a money judgment would be satisfied out of state funds," (2) "whether the entity performs central governmental...

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