Wormuth v. Lammersville Union Sch. Dist., No. 2:15–cv–01572–KJM–EFB

• Court: United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
• Writing for the Court: Kimberly Mueller, UNITED STATES DISTRICT JUDGE
• Citation: 305 F.Supp.3d 1108
• Parties: Adrianna WORMUTH, Scott Wormuth and H.W., a minor, by and through his guardians ad litem Adrianna Wormuth and Scott Wormuth, Plaintiff, v. LAMMERSVILLE UNION SCHOOL DISTRICT, James Yeager, Dawn Ibbs, Teresa Haun, Kirk Nicholas, and Khushwinder Gill, and Does 1–30, Defendants.
• Decision Date: 22 January 2018
• Docket Number: No. 2:15–cv–01572–KJM–EFB

305 F.Supp.3d 1108

Adrianna WORMUTH, Scott Wormuth and H.W., a minor, by and through his guardians ad litem Adrianna Wormuth and Scott Wormuth, Plaintiff,
v.
LAMMERSVILLE UNION SCHOOL DISTRICT, James Yeager, Dawn Ibbs, Teresa Haun, Kirk Nicholas, and Khushwinder Gill, and Does 1–30, Defendants.

No. 2:15–cv–01572–KJM–EFB

United States District Court, E.D. California.

Signed January 22, 2018

305 F.Supp.3d 1114

Ian Hansen, Peter W. Alfert, Law Offices of Peter Alfert, Walnut Creek, CA, Rhonda Kraeber, Kraeber Law Office, Brentwood, CA, Todd Alexander Boley, Zoya Y. Yarnykh, Law Office of Todd Boley, Alameda, CA, for Plaintiff.

Stephanie Yee Jean Wu, Cornelius J. Callahan, McCormick Barstow, LLP, Modesto, CA, for Defendants.

AMENDED ORDER

Kimberly Mueller, UNITED STATES DISTRICT JUDGE

The court has issued an order granting defendants' motion for clarification under Federal Rule of Civil Procedure 60(a). ECF No. 181. The court explained it would issue the instant amended order granting in part and denying in part defendants' motion for summary judgment. Id.; see ECF No. 170 (Dec. 12, 2017 MSJ Order). The order is amended as reflected at page 24:18–26 and page 31:15–17 below; page 31:25–28 is now moot.

A five-year-old boy with a speech impediment was bullied and harassed at school. His parents, on his behalf, now sue the school district and several individual district employees for not preventing bullying and for not adequately responding to it. Plaintiff contends defendants' inaction amounts to equal protection and substantive due process violations, disability discrimination and negligence. Defendants move for summary judgment. Mot., ECF No. 102. Plaintiff opposes. Opp'n, ECF No. 113. The court held a hearing on September 22, 2017. Hr'g Mins., ECF No. 147. As explained below, the court GRANTS in part and DENIES in part defendants' motion.

I. BACKGROUND

A. Factual Disputes and Evidentiary Objections

The following facts are undisputed unless otherwise stated. Where a genuine dispute exists, the court draws reasonable inferences in plaintiff's favor. Tolan v. Cotton , ––– U.S. ––––, 134 S.Ct. 1861, 1868, 188 L.Ed.2d 895 (2014). Parties may object to the cited evidence that proves the undisputed facts. In re Oracle Corp. Sec. Litig. , 627 F.3d 376, 385–86 (9th Cir. 2010). But the evidentiary admission standard at summary judgment is lenient: A court may evaluate evidence in an inadmissible form if the evidentiary objections could be cured at trial. See Burch v. Regents of the Univ. of Cal. , 433 F.Supp.2d 1110, 1119–20 (E.D. Cal. 2006). "Admissibility at trial" depends not on the evidence's form, but on its content. Block v. City of L.A. , 253 F.3d 410, 418–19 (9th Cir. 2001) (citing Celotex Corp. v. Catrett , 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ). The court notes objections, if relevant, as they arise.

B. Factual Record

Two young boys, plaintiff ("H.W.") and another five-year-old child ("A.S."), were classmates in a transitional kindergarten class at Altamont School. Pl.'s Fact ("PF") 1, ECF No. 117. Plaintiff has special education needs and a noticeable speech impediment. Defs.' Fact ("DF") 3, ECF No. 103. Plaintiff started school on August 20, 2014, along with 15 to 24 classmates. PF 1, 5. This was H.W.'s first school experience. PF 2. Before school began, plaintiff's parents told the school about his disability. Yeager Decl. ¶ 7, ECF No. 102–3. Within the first week, plaintiff's teacher, Ms. Haun, noticed A.S. acting aggressive towards his classmates, particularly towards plaintiff. PF 9, 10. See also Alfert Decl. Ex. B ("Haun Dep."), ECF No. 131–2, at

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26:8–14. She immediately told the school principal, Mr. Yeager, about A.S.'s aggression. DF 19; Haun Dep. 26:9–14. Then, on August 26, 2014, Ms. Haun told Principal Yeager that plaintiff and A.S. should be assessed for special education services. PF 19.

Two weeks later, on September 11, 2014, plaintiff's parents met with the student study team ("SST"), which consisted of Principal Yeager, Ms. Haun and the District's speech and language pathologist Ms. Dawn Ibbs¹ to discuss plaintiff's potential special education needs. PF 24. Mrs. Adriana Wormuth, plaintiff's mother, contends she also discussed behavioral changes plaintiff had exhibited at home since school started, and she asked if anything at school could be causing these changes. See PF 24–25 (citing A. Wormuth Dep., ECF No. 131–15, at 19:12–19, 25:7–14).

Around this time, A.S.'s behavior escalated: He started habitually kicking his classmates and spitting on them. DF 21; PF 6–7. A.S. targeted H.W. the most and, at least once, made fun of plaintiff's teeth. DF 7; PF 6; A. Wormuth Dep. 271:9–24. Ms. Haun reported this behavior to Principal Yeager. DF 20, 24–25, 46. Principal Yeager met with A.S.'s mother to discuss A.S.'s behavior: A.S's mother assured Principal Yeager she was disciplining A.S. at home and working with Ms. Haun to correct A.S.'s behavior. DF 21. During class, Ms. Haun tried to do just that: She supervised A.S. more closely, counseled him, used motivational behavior charts, and separated him from other students. DF 16. She also asked Principal Yeager for more help supervising A.S., but received none; she became upset when a fellow teacher was supposed to help, but never did. See Haun Dep. 72:25–73:6.

A.S.'s behavior worsened. On September 17, 2014, he pushed plaintiff off a play structure and kicked him in the head, leaving a red bump. DF 22; PF 32. Mrs. Wormuth noticed the bump and then emailed Ms. Haun. PF 34. A.S. also threw plaintiff's lunch over the fence and continued to push, kick and spit on him and other children. DF 27, 29. Ms. Haun immediately reported these incidents to Principal Yeager. DF 22.

By October, Ms. Haun's concerns about A.S. charted new territory. Ms. Haun testified A.S. was following 60 to 80 percent of his classmates into the bathroom and either watching or touching them inappropriately. See PF 12; Haun Dep. 71:1–12. She emailed Principal Yeager a report about this behavior "immediately." PF 12; Haun Dep. 71:1–15. The bathroom at issue, directly accessible to two classrooms, has no bathroom doors; only curtains shield the stalls. See DF 36–37. Principal Yeager had never before received reports or complaints from "any students, staff, or parents" about inappropriate student behavior in any campus bathroom. DF 38.

But that changed on October 2, 2014. Two parents complained to Ms. Haun by e-mail about inappropriate bathroom contact: (1) the mother of G.W., a female student, said A.S. had opened the curtain and watched G.W. use the restroom; and (2) that morning, Mrs. Wormuth vaguely mentioned that her son was "expressing concern" about the bathroom, though he would not tell her what happened; only that something happened. DFs 32–33. Ms. Haun forwarded the emails to Principal Yeager. PF 31. Later that day Ms. Haun heard a student scream in the bathroom: She found a girl standing at the sink with A.S. behind her, and the girl said A.S. had pulled down her dress and panties. DF 34. After learning about these incidents, Principal Yeager immediately suspended A.S. DF 35. On October 5, 2014, three days

305 F.Supp.3d 1116

after this suspension, Mrs. Wormuth emailed Ms. Haun, revealing the details plaintiff told her about his bathroom incident. DF 40. Ms. Haun forwarded the email to Principal Yeager the next day. DF 40. But Ms. Haun had already known these details: On September 30, 2014, Ms. Haun had documented that A.S. touched plaintiff's bare bottom while plaintiff was urinating, but the record contains no evidence that she reported this information to Principal Yeager. Haun Dep. 108:22–2, 137:3–5.

During A.S.'s suspension, school officials met with A.S.'s parents and proposed transferring A.S. to a different elementary school. DF 41. His parents had previously asked to remove A.S. from Ms. Haun's class, but for unrelated reasons. Specifically, they had asked in mid-September if A.S. could be moved to a class that met earlier so he could go to school with his older brother; Principal Yeager denied the request because the class was full and in his view the change would disrupt A.S.'s routine. See DF 26. The SST team met with A.S.'s parents and agreed to transfer A.S., however, effective October 8, 2014. DF 42. That same day, plaintiff was taken to Stanford Children's Health and diagnosed with post-traumatic stress disorder. PF 85; Schwarzberg Decl., ECF No. 118, ¶ 51; Ponton Decl., ECF No. 119, ¶ 3. Mrs. Wormuth then homeschooled plaintiff throughout kindergarten. PF 85; Schwarzberg Decl. ¶ 51.

At all relevant times, defendant Kirk Nicholas was the District Superintendent and defendant Khushwinder Gill was the Assistant Superintendent. Nicholas Decl., ECF No. 102–4, ¶ 2; Gill Decl., ECF 102–2, ¶ 2. Nicholas's responsibilities as Superintendent include general management, oversight, budgeting and strategic direction. Nicholas Decl. ¶ 2. Gill was responsible, in part, for managing and overseeing employee, parent and community complaints. Gill Decl. ¶ 2. Principal Yeager met with Gill at least twice to discuss A.S.'s behavior, first in early September and again immediately after A.s.' suspension on October 3, 2014. Hansen Decl. Ex. C ("Yeager Dep."), ECF No. 114, at...