United States District Court, D. Nevada
BROOK M. HURD, et al., Plaintiffs,
CLARK COUNTY SCHOOL DISTRICT, et al., Defendants.
M Navarro Chief-Judge United States District Judge
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
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).
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).
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.).
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).
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).
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.
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.
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).
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
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.
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.”
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