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Young v. Mariscal

United States District Court, D. Nevada

June 12, 2017

MELISSA YOUNG, et al., Plaintiffs,
ANDRES MARISCAL, et al., Defendants.


         The action was referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(c) and LR IB 2-1. Before the court is defendants' motion to dismiss (ECF No. 17). Plaintiffs opposed (ECF No. 25), and defendants replied (ECF No. 29). For the reasons stated below, the court denies defendants' motion to dismiss (ECF No. 17).


         On November 22, 2016, Melissa Young ("plaintiff) filed a complaint on behalf of herself and her minor son, J.B.R., as his guardian ad litem, against defendants Washoe County School District (the "District" or "WCSD") and Andres Mariscal ("Mariscal") (collectively "defendants") for violation of the Fourth and Fourteenth Amendments, battery, negligence, and for intentional infliction of emotional distress. (ECF No. 17 at 3.) On December 30, 2016, plaintiffs amended their complaint by eliminating their Fourteenth Amendment claim. (ECF No. 10.) Plaintiffs' amended complaint brings a claim under 42 U.S.C. § 1983 for violation of J.B.R.'s Fourth Amendment protection against excessive force and seizure, battery, intentional infliction of emotional distress, and negligence. (ECF No. 10 at 5-8.)

         The alleged events giving rise to plaintiffs' amended complaint are as follows. J.B.R. was a 14-year-old general education student enrolled in Mariscal's Spanish class at Sparks Middle School ("SMS") during the 2015-2016 school year. (ECF No. 25 at 2.) On December 3, 2015, Mariscal repeatedly denied J.B.R. access to a water fountain when J.B.R. felt ill, nauseous, and light headed. (ECF No. 10 at 3.) Without Mariscal's permission, J.B.R. left the classroom for the school drinking fountain. (Id.) According to a SMS surveillance video, Mariscal exited the classroom to approach J.B.R. and allegedly grabbed J.B.R's right wrist forcefully while J.B.R. was bent over at the water fountain. (Id.) The surveillance video also showed Mariscal pulling J.B.R. up by his right wrist and spinning him around to restrain him. (Id.) Bruises were allegedly left on J.B.R's wrist due to Mariscal's forceful grab. (Id.) The surveillance video later showed Mariscal placing his face inches away from J.B.R.'s face as he appeared to be angrily saying something to J.B.R. (Id.) Mariscal proceeded to allegedly strike J.B.R. using his right shoulder which forced J.B.R. to hit the wall behind him. (Id.)

         On December 4, 2015, J.B.R. reported the incident to Young who later reported the incident to Vice Principal Patti Allyn ("Allyn"). (Id.) On December 7, 2015, Allyn reported the incident to Principal Jerry Endres ("Endres"), who immediately placed Mariscal on administrative leave from the school, and contacted the Washoe County School District Police Department ("WCSDPD"). (Id. at 3-4.) WCSDPD Officer Michael Hughes ("Officer Hughes") investigated the incident, and interviewed J.B.R. (Id. at 3.) Detective Ernest Lorentzen ("Detective Lorentzen") reviewed the videotape and wrote, "...Mariscal grab[bed] [J.B.R.] abruptly by the right arm and pull[ed] him toward the classroom door away from the fountain...[J.B.R.] did not make any aggressive motions towards Mariscal during the confrontation, and had his hands down at his waist. As the confrontation continue[d]...[Mariscal] use[d] his right shoulder to quickly strike [J.B.R.] in the left shoulder pushing him toward the classroom. The strike, or 'shoulder check' had enough force to push [J.B.R.] against the wall. [J.B.R.] continued to not retaliate in any way." (Id. at 4.)

         On December 9, 2015, Mariscal was interviewed by school police where he claimed he thought J.B.R. was going to punch him, so he "shoulder checked" J.B.R. to protect himself. (ECF No. 17 at 5.) Officer Lorentzen responded "...that was clearly not the case as [J.B.R.] is backing up and [Mariscal] is in his face. I stated the issue I have with the incident is [Mariscal] hit [J.B.R.] with his shoulder and the video is clear." (ECF No. 10 at 4.)

         As part of an investigative report dated December 17, 2015, Officer Hughes wrote that Mariscal "went right up to [J.B.R.] who was still bent over at the water fountain, and grabbed [J.B.R.'s] right wrist. Mariscal then pulled [J.B.R.] up and spun him around...Then Mariscal appeared to be saying something to [J.B.R.]. Then the video showed Mariscal shoulder check[ed] [J.B.R.] with his right shoulder..." (Id.) Detective Lorentzen requested a warrant be issued for Mariscal to be charged with simple battery, but Mariscal pled down to a charge of disturbing the peace following negotiations with a Sparks City Attorney. (Id. at 5.)


         Dismissal of a complaint for failure to state a claim upon which relief may be granted is provided for in Federal Rule of Civil Procedure 12(b)(6). The ruling is a question of law. N. Star Int'l v. Ariz. Corp. Comm'n, 720 F.2d 578, 580 (9th Cir. 1983). The court is to grant dismissal when the complaint fails to "state a claim for relief that is plausible on its face[, ]" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007), or fails to articulate a cognizable legal theory, Taylor v. Yee, 780 F.3d 928, 935 (9th Cir. 2015). When analyzing a motion under Rule 12(b)(6), courts accept as true all well-pled factual allegations, set aside legal conclusions, and verify that the complaint states a plausible claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). While detailed factual allegations are not necessary, the complaint must offer more than "a formulaic recitation of the elements of a cause of action, " Twombly, 550 U.S. at 555, and include sufficient facts "to give fair notice and to enable the opposing party to defend itself effectively, " Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). In conducting the dismissal analysis, the complaint is construed in a light most favorable to the plaintiff. Chubb Custom Ins. Co. v. Space Sys./Loral Inc., 710 F.3d 946, 956 (9th Cir. 2013). Moreover, the court takes particular care when reviewing the pleadings of a pro se party, for a more forgiving standard applies to litigants not represented by counsel. Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th Cir. 2010).


         A. Civil Rights Claims Under § 1983: Fourth Amendment

         Plaintiffs bring their claim under Title 42 U.S.C. § 1983 and allege that J.B.R. had a constitutional right under the Fourth Amendment to be free from unreasonable seizures and excessive physical force, and that Mariscal, a public educator, violated those rights. (ECF No. 10 at 5-6.) Defendants move to dismiss plaintiffs' complaint for failure to state a claim under the Fourth Amendment. (ECF No. 17.) Defendants claim that plaintiffs fail to allege that J.B.R. sought medical treatment for the incident, or that any physical injuries, other than apparent bruising on his wrist, occurred as a result of the incident. (ECF No. 17 at 5.) Moreover, defendants claim that plaintiffs fail to allege that J.B.R. was unable to return to class, that he was forced to stay by the drinking fountain, or that he was unable to return to school as a result of the incident. (Id.)

         42 U.S.C. § 1983 aims "to deter state actors from using the badge of their authority to deprive individuals of their federally guaranteed rights." Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006) (quoting McDade v. West, 223 F.3d 1135, 1139 (9th Cir. 2000)). The statute "provides a federal cause of action against any person who, acting under color of state law, deprives another of his federal rights[, ]" Conn v. Gabbert, 526 U.S. 286, 290 (1999), and therefore "serves as the procedural device for enforcing substantive provisions of the Constitution and federal statutes." Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). Claims under § 1983 require a plaintiff to allege (1) the violation of a federally-protected right by (2) a person or official acting under the color of state law. Warner, 451 F.3d at 1067. Further, to prevail on a § 1983 claim, the plaintiff must establish each of the elements required to prove an infringement of the underlying constitutional or statutory right.

         The Ninth Circuit has said "that excess force by a [school official] against a student violate[s] the student's constitutional rights." Preschooler II v. Clark Cnty. Sch. Bd. of Trs.,479 F.3d 1175, 1180 (9th Cir. 2007) (quoting P.B. v. Koch,96 F.3d 1298, 1302-03 (9th Cir. 1996)) (affirming the denial of qualified immunity for allegations of the violation of § 1983). The educator's alleged use of excessive force is analyzed under the "reasonableness" rubric of the Fourth Amendment. Preschooler II, 479 F.3d at 1180; Roe v. Nevada,621 F.Supp.2d 1039, 1053 (D. Nev. 2007). Existing law plainly prohibits excessive hitting, dragging, or throwing of public school children. Preschooler II, 479 F.3d at 1182. ...

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