S.B. v. Cal. Dep't of Educ.

Decision Date27 August 2018
Docket Number1:17-cv-01507-LJO-BAM
Parties S.B., a minor, BY AND THROUGH her guardians ad litem KRISTINA B. and Michael B., and Kristina B. and Michael B., individually, Plaintiffs, v. CALIFORNIA DEPARTMENT OF EDUCATION and The State of California, Governor Edmund Gerald Brown, Jr., in his official capacity, and Thomas Torlakson, in his official capacity, Defendants.
CourtU.S. District Court — Eastern District of California

F. Richard Ruderman, Christian Knox, Colleen A. Snyder Holcomb, Ruderman & Knox, LLP, Sacramento, CA, for Plaintiffs.

Julia R. Jackson, Attorney General of California Department of Justice, Sacramento, CA, Kate Starn Legrand, California Department of Education, Sacramento, CA, for Defendants.

MEMORANDUM DECISION AND ORDER RE DEFENDANTS' MOTIONS TO DISMISS

(Docs. 25, 28)

Lawrence J. O'Neill, UNITED STATES CHIEF DISTRICT JUDGE
I. INTRODUCTION

Pending before the Court are two Motions to Dismiss filed by Defendants: the first (Doc. 25) was filed by the California Department of Education ("CDE") and Thomas Torlakson (Torlakson) (collectively, Agency Defendants); the second (Doc. 28) was filed by the State of California (the State) and Edmund Gerald Brown, Jr. (Brown) (collectively, State Defendants). Both motions are accompanied by requests for judicial notice. Plaintiffs oppose both motions. For the reasons set forth below, State Defendants' motion (Doc. 28-1) is GRANTED and all claims against the State and Brown are DISMISSED. Agency Defendants' motion (Doc. 25) is GRANTED in part; all claims against CDE are DISMISSED; and Agency Defendants' motion to dismiss the Section 1983 claim against Torlakson is DENIED.

II. FACTUAL BACKGROUND 1
A. S.B.'s Relevant School-Placement History

Pursuant to the allegations of the First Amended Complaint (FAC), Plaintiff S.B. is a 16-year old student who is eligible for special education due specific health and learning disabilities. She has been diagnosed with Bipolar Disorder

with Mood-Incongruent Psychotic Features, Oppositional Defiant Disorder, Attention Deficit Hyperactivity Disorder (ADHD), Major Depressive Disorder with auditory and visual hallucinations, along with a specific learning disability.

During the 2014-2015 school year, S.B. was in the seventh grade and enrolled in the Fresno Unified School District (Fresno Unified). In August 2014, S.B.'s individualized Education Plan (IEP) placed her in a mild/moderate special day class four periods per day and provided a behavior intervention plan that provided 10 minutes per day of behavior intervention services. (Doc. 26-1, Amended Due Process Cmplt. (ADPC) ¶¶ 4-9.)

In July 2015, S.B. was placed on an involuntary psychiatric hold for being a danger to herself or others and she remained in a psychiatric hospital until August 5, 2015. (Doc. 26-1, ADPC, ¶ 13.) After her release from the hospital, she was placed at Phoenix Secondary Academy, within Fresno Unified, during the 2015-2016 school year. (Id. ¶ 14.) S.B's mental health continued to decline. In October 2015, she was again admitted to the hospital on an involuntary psychiatric hold due to suicidal ideation

, was admitted to an acute psychiatric facility in November, and after release, was again placed on an involuntary psychiatric hold for suicidal ideation. (Id., ¶ 16.) S.B. returned to school at the beginning of December 2015. By December 16, 2015, S.B. was suspended for two days for disruptive behavior – i.e., yelling profanity at staff and peers, and she was thereafter again placed on an involuntary psychiatric hold as being a danger to herself or others. (Id. , ¶ 30.)

In February 2016, Fresno Unified IEP team met to change S.B.'s placement and offered a nonpublic school with 10 minutes per day of behavior services, and 30 minutes per week of individual counseling. (Id. , ¶ 33.) In early March 2016, S.B. was again placed on an involuntary psychiatric hold as a danger to herself or others; she was discharged a week later, only to be readmitted again on March 29, 2016, on the same basis. (Id. , ¶ 40.)

On April 5, 2016, Fresno Unified convened a 30-day IEP to review the non-public placement; Fresno Unified again offered a nonpublic school placement with 10 minutes per day of behavior services, and thirty minutes per week of individual counseling. (Id. , ¶ 42.) On April 16, 2016, S.B. was placed in juvenile hall for acts of physical aggression Plaintiffs maintain resulted from her mental health deficits. (Id. , ¶ 49.)

The juvenile hall school was operated by Fresno County Office of Education which offered an interim IEP to S.B. of 150 minutes of specialized instruction, 10 minutes per day of behavior services, and thirty minutes per week of counseling services (essentially the same IEP as offered by Fresno Unified). (Id., ¶ 55.) In May 2016, Fresno County convened a 30-day IEP team meeting, which resulted in the same IEP offer as before. For the remainder of the school year, S.B. continued to struggle with her behavior, lack of work completion, and mental health issues. (Id. , ¶ 60.)

Because S.B. was now under the auspices of the Fresno County Juvenile Probation, that agency determined her ninth-grade placement for the 2016-2017 school year. Fresno Juvenile placed S.B. at Victor Treatment in Santa Rosa, California. (FAC, ¶¶ 25-26.) According to Plaintiffs, this change in Local Educational Agency ("LEA") was mandated by California Education Code § 56162 and § 56156.4. In relevant part, Section 56162 requires that students with exceptional needs placed by a public agency (other than an educational agency) in a children's institution shall be considered residents of the geographical area where the children's institution is located for purposes of special education and related services. Section 56156.4 provides direction as to how and which local agency would provide special education services. As a result of these provisions, Sonoma County Office of Education, not Fresno Unified, was charged with overseeing S.B.'s IEP and educational needs.

S.B.'s placement at Victor Treatment did not go well. She received at least ten major behavior reports for leaving the program, self-injurious behavior, assaultive behavior, property destruction, and running away from staff; she had to be restrained and, on at least seven occasions in a two-week period, was hospitalized for being a danger to herself or others. Her placement at Victor Treatment was terminated on September 7, 2016, and because she was ostensibly returned to Fresno, her LEA changed back to Fresno County Office of Education. Because S.B. was only within Sonoma County's jurisdiction for 3 weeks, she was not assessed, no IEP was convened, and S.B.'s parents did not have time to exercise their right to obtain a new assessment or IEP. (FAC, ¶¶ 29-30.)

On October 3, 2016, Fresno Juvenile placed S.B. at Milhous in Elk Grove, California. As a result, S.B.'s supervising LEA changed to Elk Grove Unified School District. S.B. was hospitalized within two days of her admittance to Milhous, and she remained in a psychiatric hospital until November 7, 2016, when she was again returned to juvenile hall by Fresno Juvenile. Again, her LEA changed from Elk Grove back to Fresno County Office of Education. (FAC, ¶¶ 32, 34, 35.)

In early January 2017, Fresno Juvenile transferred oversight of S.B. to Fresno County Department of Social Services (Fresno DSS), as Plaintiffs maintain Fresno Juvenile could not meet S.B.'s needs. (FAC, ¶ 37.) Fresno DSS placed S.B. in a group home in Kern County, and her supervising LEA changed yet again, this time to Kern County High School District. (FAC, ¶ 38.) Kern County failed to make any interim placement offer and S.B. was put on an independent study program, but no comprehensive assessment or new IEP was formulated. (FAC, ¶ 39.) From January 9, 2017, through February 15, 2017, S.B. refused to perform work, left class without permission, exhibited aggression toward staff, engaged in self-injurious behaviors, and attempted inappropriate sexual conduct. S.B.'s parents also believe she was hospitalized during this time as being a danger to herself or others. (FAC, ¶ 40.)

On February 17, 2017, Fresno DSS changed S.B.'s placement to Charis Youth Center in Grass Valley, which changed S.B's supervising LEA for the eighth time in less than a year to Nevada Joint Union High School District. (FAC, ¶ 42.) S.B. was moved again after about 6 weeks to a group home in the Redlands Unified School District. (FAC, ¶ 44.) S.B. exhibited all the previous behavioral problems including refusal to work, leaving class without permission, aggression toward staff, and self-injurious behaviors including intentionally stepping into oncoming traffic. On April 19, 2017, Redlands Unified suspended S.B. for five days for assaultive behavior and on April 28, 2017, S.B. was discharged from the group home for running away. (FAC, ¶ 45.)

Fresno DSS placed S.B. in a group home in Fresno under the educational supervision of Fresno Central Unified School District, but she was never enrolled in school. (FAC, ¶¶ 48-49.) By May 15, 2017, S.B. was again placed in juvenile hall due to assaultive behavior in the group home, and her LEA changed once again to Fresno County Office of Education. S.B. was returned to the group home in Fresno Central Unified (again changing her LEA from Fresno County Office of Education to Fresno Central Unified), but by May 25, 2017, S.B. was again admitted to a psychiatric hospital as a danger to herself or others. (FAC, ¶¶ 54-55.)

In June 2017, Fresno Juvenile or Fresno DSS (it is unclear which) placed S.B. at Victor Treatment Center in Lodi, changing her LEA to Linden Unified School District. (FAC, ¶ 56.) In October 2017, this placement was terminated, and Fresno DSS placed S.B. with her mother for 6 days, during which time Fresno Unified was her assigned LEA. On October 9, 2017, S.B. was placed in a group home in Ventura County, but within two days she had run away and was hospitalized as a danger to herself. (...

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