Walsh v. Tehachapi Unified Sch. Dist.

• Decision Date: 28 October 2011
• Docket Number: Case No. 1:11–cv–01489 LJO JLT.
• Citation: 279 Ed. Law Rep. 694,827 F.Supp.2d 1107
• Parties: Wendy WALSH, Plaintiff, v. TEHACHAPI UNIFIED SCHOOL DISTRICT, et al., Defendants.
• Court: U.S. District Court — Eastern District of California

279 Ed. Law Rep. 694

827 F.Supp.2d 1107

Wendy WALSH, Plaintiff,

v.TEHACHAPI UNIFIED SCHOOL DISTRICT, et al., Defendants.

Case No. 1:11–cv–01489 LJO JLT.

United States District Court, E.D. California.

Oct. 28, 2011.

Daniel Rodriguez, Charles R. Chapman, Joel T. Andreesen, Rodriguez And Associates, Bakersfield, CA, for Plaintiff.

Daniel Phillip Barer, Pollak, Vida & Fisher, Los Angeles, CA, Michael Charles Kellar, Robinson & Kellar, Bakersfield, CA, Arnold J. Anchordoquy, Clifford & Brown, Bakersfield, CA, for Defendants.

ORDER ON DEFENDANTS' MOTIONS TO DISMISS

LAWRENCE J. O'NEILL, District Judge.

Pending before the Court are Defendants' motions to dismiss. Defendants Tehachapi Unified School District (“School District”), Superintendent Richard Swanson (“Swanson”), Principal Susan Ortega (“Ortega”), and Vice Principal Paul Kaminski (“Kaminski”) filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). Similarly, Defendants Shari Kabonic (“Kabonic”), Laura Haight (“Haight”), Annette Kirby (“Kirby”), and Martin Feehan (“Feehan”) filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). Plaintiff Wendy Walsh (“Walsh”) has opposed the motions. Upon careful consideration of the parties' submissions and the entire record in this case, the Court GRANTS IN PART and DENIES IN PART Defendants' motions.

I. BACKGROUND

Walsh is the mother and successor-in-interest of Seth Walsh (“Decedent”), a thirteen-year-old boy who committed suicide in September 2010. (Doc. 1–3, Am.Compl., ¶¶ 4, 51.) Swanson, Ortega, and Kaminski are the Superintendent of the School District, the principal of Jacobsen Middle School, and the vice principal of Jacobsen Middle School, respectively. ( Id. ¶¶ 8–10.) Kirby, Haight, Kabonic, and Feehan are all teachers at Jacobsen Middle School. ( Id. ¶¶ 11–14.) Walsh alleges the following regarding the circumstances surrounding her son's death.

Decedent was homosexual, and in the beginning of the sixth grade, Decedent informed others of his sexual orientation. ( Id. ¶ 6.) As a result, many students at Jacobsen Middle School were openly hostile to Decedent. ( Id. ¶ 19.) Some students routinely called Decedent derogatory names such as “faggot,” “pussy,” “pansy,” and “sissy.” ( Id. ¶¶ 18–19.) Other students expressed disgust at Decedent and told him to “burn in hell” or “kill himself.” ( Id. ¶ 18.) Oftentimes Decedent was pushed into the lockers by his peers. ( Id. ¶ 19.)

At the end of Decedent's sixth grade, Walsh met with Kaminski to express concern over the harassment. ( Id. ¶ 21.) Kaminski indicated that he was aware of the harassment; faculty and students generally perceived Decedent to be homosexual. ( Id. ¶¶ 6, 21.) Kaminski, however, did not take any remedial action. ( Id. ¶ 21.) Kaminski explained that “in a perfect world” Decedent would be treated equally, but students in Decedent's class were at a difficult age and he could not change attitudes that were developed at home. ( Id.)

The harassment only intensified when Decedent entered the seventh grade. ( Id. ¶ 22.) Verbal harassment became widespread and more sexually explicit. ( See id. ¶¶ 23, 25.) Physical harassment became more confrontational. For example, students bumped Decedent and obstructed his path while he walked; students hit food out of Decedent's hands; and students threw food, water bottles, pencils, and erasers at Decedent. ( Id. ¶ 24.) On one occasion, a student attempted to shove a pencil up the seat of Decedent's pants. ( Id.)

Teachers also made disparaging comments about Decedent. Kirby told a student that she and other teachers had taken bets on when Decedent would “come out.” ( Id. ¶ 35.) Haight told a student that she wanted to ask Decedent and his boyfriend what was “wrong” with them. ( Id. ¶ 36.) Kabonic called Decedent “fruity” in front of a classroom of students. ( Id. ¶ 37.) On another occasion, a teacher made fun of homosexuals to a student and specifically mentioned Decedent by name. ( Id. ¶ 45.) Other teachers suggested that Decedent was somehow ugly or was “in need of help” because of his sexual orientation. ( Id.)

Ortega, Kaminski, and Feehan were well-aware of the harassment Decedent was subjected to. Walsh directly contacted and complained to Ortega and Kaminski multiple times. ( Id. ¶¶ 28, 33.) In addition, Decedent spoke with Kaminski twice regarding ways Decedent could learn to cope with the harassment. ( Id. ¶ 33.) Kaminski and Feehan were even present at times when students harassed and insulted Decedent. ( See id. ¶¶ 38, 41.) Nevertheless, Ortega, Kaminski, and Feehan did not seriously investigate the problem, did not speak with the students harassing Decedent, and did not take steps to remedy the situation. ( See id. ¶¶ 31, 38, 41, 48.) As a result, for a few weeks during his seventh and eighth grade years, Walsh was forced to place her son in independent study (home schooling). ( Id. ¶¶ 29, 31, 47.) Decedent's grades fell. ( Id. ¶ 46.)

On September 19, 2010, Decedent and a friend encountered a student from Jacobsen Middle School and three students from a high school in the School District. ( Id. ¶ 50.) The students taunted, threatened, and physically assaulted Decedent. ( Id.) That afternoon, Decedent hanged himself from a tree in his own backyard. ( Id. ¶ 51.) Decedent left a suicide note thanking his family for their support. ( Id. ¶ 52.) Decedent was later discovered by Walsh and Decedent's younger brother and was taken to the hospital. ( Id. ¶ 51.) After being comatose for more than a week, Decedent finally passed away on September 28, 2010. ( Id.)

Based on the above allegations, Walsh seeks to recover monetary damages individually and as the successor-in-interest to Decedent. Walsh asserts eight claims to this end: (1) failure by the School District to prevent sex, gender, and sexual orientation based harassment in violation of Title IX of the Education Amendments Act of 1972 (“Title IX”); (2) discrimination by all the defendants, except the School District, in violation of the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution; (3) deprivation of familial relationship and companionship by all the defendants, except the School District, in violation of the First and Fourteenth Amendments of the United States Constitution; (4) discrimination by the School District in violation of the equal protection provision of the California Constitution and California's Sex Equity in Education Act; (5) discrimination by all the defendants in violation of California's Unruh Civil Rights Act; (6) negligence by all the defendants in violation of California Government Code sections 815.2, 815.6, and 820; (7) wrongful death; and (8) bystander emotional distress. (Doc. 1–4 at 2–17.)

On September 8, 2011, the School District, Swanson, Ortega, and Kaminski filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. 7.) A day later on September 9, 2011, Kabonic, Haight, Kirby, and Feehan also filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. 8.) Walsh filed an opposition to both motions to dismiss on October 10, 2011. (Doc. 12.)

II. LEGAL STANDARD

A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) is a challenge to the legal sufficiency of a claim presented in the complaint. Navarro v. Block, 250 F.3d 729, 732 (9th Cir.2001). Where there is a “lack of a cognizable legal theory” or an “absence of sufficient facts alleged under a cognizable legal theory,” dismissal under Rule 12(b)(6) is proper. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir.1990).

To survive a motion to dismiss under Rule 12(b)(6), a complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “Naked assertion[s],” “labels and conclusions,” or “formulaic recitation[s] of the elements of a cause of action will not do.” Id. at 555, 557, 127 S.Ct. 1955. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). Although the plausibility standard is not akin to a probability requirement, “it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id.

In deciding a motion to dismiss under Rule 12(b)(6), the court accepts the factual allegations of the complaint as true and construes the pleadings in the light most favorable to the party opposing the motion. Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.2001). However, the court may disregard allegations that are contradicted by matters properly subject to judicial notice or by exhibit. Id. The court may also disregard allegations that are “conclusory” or are the product of unreasonable deductions and inferences. Id. Finally, if the court concludes that dismissal under Rule 12(b)(6) is warranted, the court should not dismiss the complaint “unless it determines that the pleading could not possibly be cured by the allegation of other facts.” Cook, Perkiss & Liehe, Inc. v. Northern California Collection Serv. Inc., 911 F.2d 242, 247 (9th Cir.1990).

III. DISCUSSION

A. FEDERAL CLAIMS1. Title IX

Walsh seeks to recover damages against the School District under Title IX on two theories: (1) the School District failed to prevent student-on-student harassment; and (2) the School District failed to prevent teacher-on-student harassment. (Doc. 1–4 at 2.) The School District challenges the second theory in its motion to dismiss. Specifically, the School District argues that Walsh fails to allege any facts demonstrating that a teacher harassed Decedent. (Doc. 7 at 30–31.) In the School District's view, Walsh alleges, at most, that two unidentified teachers directed stray...