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Hurd v. Clark County School District

United States District Court, D. Nevada

October 1, 2017

BROOK M. HURD, et al., Plaintiffs,


          Gloria M Navarro Chief-Judge United States District Judge

         Pending before the Court is the Motion to Dismiss, (ECF No. 20), filed by Defendants Clark County School District, Kristy Keller, and Shawn Paquette (collectively “Defendants”). The Motion is joined by Defendant James P. Doran, (ECF No. 30). Plaintiffs L.M.V., M.H., S.S. (“the Students”) and Brook M. Hurd, Geraldine C. Hurd, Luis O. Villalobos, Olivia N. Espinoza, Zerkrollah Sanaei, and Elham Eghdamian (“the Parents”) (collectively “Plaintiffs”) filed a response, (ECF No. 24), and Defendants filed a reply, (ECF No. 25). For the reasons discussed herein, Defendants' Motion to Dismiss is GRANTED in part and DENIED in part.[1]


         This action arises out of the alleged physical and verbal abuse of three special education students-M.H., L.M.V., and S.S-at Forbuss Elementary (“Forbuss”). (Am. Compl. ¶¶ 18-22, ECF No. 14). Defendant Doran (“Doran”) was a Clark County School District (“CCSD”) teacher at the time of the alleged abuse. (Id. ¶ 11). Defendant Shawn Paquette (“Paquette”) was the principal at Forbuss, and Defendant Kristy Keller (“Keller”) was the Assistant Chief Student Achievement Officer. (Id. ¶ 12, 13).

         On or about August 24, 2014, the Students were assigned to Doran's special education classroom at the school. (Id. ¶ 19). While enrolled, Plaintiffs allege that Doran subjected the Students to a “litany of physical and verbal abuses.” (Id. ¶¶ 23-26). With respect to L.M.V, these abuses allegedly included “being pushed and grabbed, having his hands forcefully slapped and hit, and being thrown into classroom furniture.” (Id. ¶ 23). With respect to M.H., these abuses allegedly included being “grabbed and shoved into a wall” and lifted off the floor by her hair. (Id. ¶ 24). With respect to S.S., these abuses allegedly included “being grabbed hard enough to leave marks, being grabbed by the arm so hard as to cause the muscles and/or tendons and/or bones of his arm to be seriously injured, having [his] feet stepped on by DORAN [] and being kicked by DORAN as he lay on the floor.” (Id. ¶ 25). In addition to the direct abuse, Plaintiffs allege that the Students observed Doran abuse other class members. (Id. ¶ 26).

         Plaintiffs further allege that Paquette and Keller were aware of what was going on in Doran's classroom but “failed to take prompt action to protect the children in their care or to report the abuse to law enforcement or to parents.” (Id. ¶ 32). While the families of L.M.V. and M.H. did eventually receive reports from CCSD that Doran had used prohibited “aversive interventions” on their children, Plaintiffs assert that Defendants tried to “minimize the nature of the abuse” by falsely telling the families that the incidents were a “one-time only” occurrence. (Id. ¶ 34). Furthermore, Plaintiffs assert that Defendants did not even inform the Parents that Doran was under a criminal investigation at the time. (Id.).

         In July 2015, a formal criminal complaint was filed against Doran, charging him with three counts of battery for willfully and unlawfully using force or violence against L.M.V. (Id. ¶ 35). According to Plaintiffs, however, Defendants still did not inform the Parents of the criminal charges. (Id.). Furthermore, during the six week intervening period between the criminal complaint and Doran's eventual arrest, Plaintiffs assert that Doran was permitted to continue teaching the students. (Id. ¶ 35). Plaintiffs claim that although they learned some of the details of the abuse after reading about it in a Review Journal article on August 26, 2015, Defendants have still failed to formerly notify the Parents of the extent of the abusive acts. (Id. ¶ 37).

         On October 27, 2016, Plaintiffs filed their Amended Complaint (the “Complaint”) before the Court. (ECF No. 14). In their Complaint, Plaintiffs allege a number of federal and state law causes of action, including: (1) violation of constitutional rights under 42 U.S.C. § 1983; (2) discrimination in violation of the Americans with Disabilities Act; (3) violation of the Rehabilitation Act of 1973; (4) battery; (5) criminal violations motivated by characteristics of the victim; (6) intentional infliction of emotional distress; (7) negligence; (8) negligent supervision; and (9) enhanced damages for injury or loss suffered by a vulnerable person. On December 1, 2016, Defendants filed the instant Motion to Dismiss. (ECF No. 20).


         Rule 12(b)(6) of the Federal Rules of Civil Procedure mandates that a court dismiss a cause of action that fails to state a claim upon which relief can be granted. See North Star Int'l v. Ariz. Corp. Comm'n, 720 F.2d 578, 581 (9th Cir. 1983). When considering a motion to dismiss under Rule 12(b)(6) for failure to state a claim, dismissal is appropriate only when the complaint does not give the defendant fair notice of a legally cognizable claim and the grounds on which it rests. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). In considering whether the complaint is sufficient to state a claim, the Court will take all material allegations as true and construe them in the light most favorable to the plaintiff. See NL Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986).

         The Court, however, is not required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences. See Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). A formulaic recitation of a cause of action with conclusory allegations is not sufficient; a plaintiff must plead facts showing that a violation is plausible, not just possible. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 555) (emphasis added). In order to survive a motion to dismiss, a complaint must allege “sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Id. “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.” Id.

         “Generally, a district court may not consider any material beyond the pleadings in ruling on a Rule 12(b)(6) motion . . . . However, material which is properly submitted as part of the complaint may be considered on a motion to dismiss.” Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990) (citations omitted). Similarly, “documents whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the pleading, may be considered in ruling on a Rule 12(b)(6) motion to dismiss” without converting the motion to dismiss into a motion for summary judgment. Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994). Under Federal Rule of Evidence 201, a court may take judicial notice of “matters of public record.” Mack v. S. Bay Beer Distrib., 798 F.2d 1279, 1282 (9th Cir. 1986). Otherwise, if the district court considers materials outside of the pleadings, the motion to dismiss is converted into a motion for summary judgment. See Fed. R. Civ. P. 12(d); Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 925 (9th Cir. 2001).

         If the court grants a motion to dismiss, it must then decide whether to grant leave to amend. Pursuant to Rule 15(a), the court should “freely” give leave to amend “when justice so requires, ” and in the absence of a reason such as “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of the amendment, etc.” Foman v. Davis, 371 U.S. 178, 182 (1962). Generally, leave to amend is only denied when it is clear that the deficiencies of the complaint cannot be cured by amendment. See DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992).


         In the instant Motion, Defendants argue that Plaintiffs' federal law causes of action should be dismissed because Plaintiffs failed to exhaust administrative remedies. (Mot. to Dismiss 7:6-11:19, ECF No. 20). In addition, Defendants argue that Plaintiffs' federal and state law causes of action should be dismissed for failure to state a claim. (Id. 11:20-19:12). Defendants further argue that, even if Plaintiffs sufficiently stated a claim, Paquette and Keller are entitled to qualified and discretionary immunity on the section 1983 claim and certain state law claims. (Id. 20:4-22:15). The Court addresses the sufficiency of each argument in turn.

         A. Administrative Exhaustion

         Defendants argue that Plaintiffs are required to exhaust administrative remedies pursuant to the Individuals with Disabilities Education Act (“IDEA”). (Id. 7:7-12). In support of this argument, Defendants assert that “Plaintiffs appear to seek recovery based at least in part on allegations related to the education and educational service provided to the Student Plaintiffs.” (Id.).

         The Individuals with Disabilities Act (“IDEA”), codified at 20 U.S.C. § 1400 et seq., is a comprehensive federal scheme that “confer[s] on disabled students a substantive right to public education and provide[s] financial assistance to enable states to meet their financial needs.” Hoeft v. Tucson Unified Sch. Dist., 967 F.2d 1298, 1300 (9th Cir.1992). “Federal funding is conditioned upon state compliance with the IDEA's extensive substantive and procedural requirements.” Id. “To qualify for federal funds, the state must have in effect ‘a policy that assures all children with disabilities the right of a free appropriate public ...

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