Estate of Torres v. Kennewick Sch. Dist. #17, : 4:19-CV-5038-RMP

ESTATE OF JONNY TORRES, by and through his Personal Representative MANUEL BANDA;JAMIE VALENCIA, parent of Jonny Torres; and MARIA M. TORRES, parent of Jonny Torres, Plaintiff, v. KENNEWICK SCHOOL DISTRICT #17;a quasi-governmental agency and agents thereof with knowledge and responsibility;TAMARA VASQUEZ, individually and in her capacity as Nurse at Highlands Middle School, Defendants.

NO: 4:19-CV-5038-RMP

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON

August 2, 2019

ORDER GRANTING DEFENDANTS' MOTION FOR PARTIAL DISMISSAL, GRANTING DEFENDANTS' MOTION FOR COSTS AND FEES, AND DENYING PLAINTIFFS' MOTION TO STRIKE

BEFORE THE COURT are Defendants' Motion for Partial Dismissal, ECF No. 7, and Plaintiffs' Motion to Strike, ECF No. 15. Defendants Kennewick School District #17 and Tamara Vasquez moved for partial dismissal of the claims in the complaint filed by Plaintiffs Estate of Jonny Torres, Manuel Banda, Jamie Valencia, and Maria M. Torres. ECF No. 7. After the briefing was completed for Defendants' Motion to Dismiss, Plaintiffs filed a Motion to Strike a portion of Defendants' reply brief. ECF No. 15. Having reviewed the briefing and the relevant law, the Court is fully informed.

BACKGROUND

This case involves several Washington state and federal claims against Kennewick School District #17 and Tamara Vasquez, a nurse employed by Highlands Middle School, regarding the death of Jonny Torres. ECF No. 1. Specifically, Plaintiffs allege that Defendants are liable for wrongful death, negligence, violations of the Rehabilitation Act and the American with Disabilities Act ("ADA"), and violations of Jonny Torres's constitutional rights. Id. At one point, the complaint also identifies Kristi Lakey and Kara Beauchamp, employees of Highlands Middle School, as defendants, but they were not listed as defendants in the case caption. ECF No. 1 at 4.

In preparation for the parties' scheduling status teleconference with the Court, counsel for the parties discussed the contents of a Rule 26(f) joint status report. ECF No. 14-1. During those discussions, defense counsel alerted plaintiffs' counsel to portions of the complaint that were unclear or unsupportable, including ADA and Rehabilitation Act claims against Ms. Vasquez, a claim for negligence per se, and identifying Ms. Lakey and Ms. Beauchamp as defendants despite not being named as defendants in the caption. Id. Defense counsel suggested clarifying the claims and defendants in the parties' joint status report, and although plaintiffs' counsel initially agreed, they later stated that they did not want to place conclusions of law in the joint status report. Id. at 3.

After these discussions, Defendants filed the present Motion for Partial Dismissal, asking the Court to dismiss the Rehabilitation Act and ADA claims against Ms. Vasquez; the 42 U.S.C. § 1983 claim against Ms. Vasquez in her individual capacity to any extent the claim is supported by violations of the Rehabilitation Act and ADA; the negligence per se claim; and any claims against Ms. Lakey and Ms. Beauchamp. ECF No. 7. Plaintiffs responded by stating that Defendants misunderstand their complaint and that the complaint does not allege any of these claims. ECF No. 10. Defendants replied to Plaintiffs' response by asking for costs, expenses, and fees under 28 U.S.C. § 1927 because, according to Defendants, counsel for Plaintiffs vexatiously and unreasonably caused Defendants to file a motion to dismiss that Plaintiffs did not dispute. ECF No. 13 at 9.

Following Defendants' reply, Plaintiffs filed a Motion to Strike Defendants' request for costs, expenses, and fees under 28 U.S.C. § 1927. ECF No. 15. Plaintiffs argue that the Court should strike Defendants' request because it is improper to raise a new issue in a reply brief. Id.

LEGAL STANDARD

To avoid dismissal under Federal Rule of Civil Procedure 12(b)(6), a plaintiff must state "enough facts to state a claim for relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible if the court can reasonably infer that the defendant is liable under the law for the acts or omissions that are alleged. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Although the Court assumes Plaintiff's factual allegations to be true at this stage in the case, conclusory allegations or unreasonable inferences may not overcome a Rule 12(b)(6) motion to dismiss. Teixeira v. Cty. of Alameda, 873 F.3d 670, 678 (9th Cir. 2017). The Court's review is limited to the allegations contained in the complaint and any exhibits that are incorporated by reference and attached to the complaint. Id. at 679 n.11.

DISCUSSION

Defendants move to dismiss the Rehabilitation Act and ADA claims against Ms. Vasquez; the section 1983 claim against Ms. Vasquez in her individual capacity to any extent that it is based on violations of the Rehabilitation Act and ADA; the negligence per se claim; and any claims against Ms. Lakey and Ms. Beauchamp. ECF No. 7. Defendants also moved for fees and costs under 28 U.S.C. § 1927. ECF No. 13 at 9. Plaintiffs moved to strike Defendants' request for fees and costs. ECF No. 15.

Rehabilitation Act and ADA Claims Against Ms. Vasquez

Defendants move to dismiss Plaintiffs' Rehabilitation Act and ADA claims against Ms. Vazquez. ECF No. 7 at 4. Plaintiffs argue that the complaint does not allege Rehabilitation Act or ADA claims against Ms. Vasquez. ECF No. 10 at 4.

Title II¹ of the ADA states that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132. To establish a Title II ADA violation, a plaintiff must allege that "(1) she is a qualified individual with a disability; (2) she was excluded from participation in or otherwise discriminated against with regard to a public entity's services, programs, or activities; and (3) such exclusion or discrimination was by reason of her disability." Lovell v. Chandler, 303 F.3d 1039, 1052 (9th Cir. 2002).

Section 504 of the Rehabilitation Act provides that "[n]o otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service." 29 U.S.C. § 794(a). A plaintiff establishes a Section 504 claim by alleging that "(1) she is handicapped within the meaning of the RA; (2) she is otherwise qualified for the benefit or services sought (3) she was denied the benefit or services solely by reason of her handicap; and (4) the program providing the benefit or services receives federal financial assistance." Lovell, 303 F.3d at 1052. ADA and Rehabilitation Act claims are analyzed together because "[t]here is no significant difference in analysis of the rights and obligations created by the ADA and the Rehabilitation Act." Zukle v. Regents of Univ. of Cal., 166 F.3d 1041, 1045 n.11 (9th Cir. 1999).

The defendant to an ADA or Rehabilitation Act claim must be a government entity. The ADA prohibits discrimination by a public entity, which is defined as a state or local government or any state or local government's "department, agency, special purpose district, or other instrumentality." 42 U.S.C. § 12131(1). The Rehabilitation Act prohibits discrimination by any program or activity receiving federal financial assistance, which is defined as a state or local government's "department, agency, special purpose district, or other instrumentality," or "a local educational agency," among other things. 29 U.S.C. § 794(b). Because individuals are not public entities and do not receive federal financial assistance as defined in the Rehabilitation Act, individuals cannot be liable for violations of the ADA or the Rehabilitation Act. Grzan v. Charter Hosp. of Nw. Ind., 104 F.3d 116, 119-20 (7th Cir. 1997) overruled on other grounds; Becker v. Oregon, 170 F. Supp. 2d 1061, 1067 (D. Or. 2001).

Plaintiffs' complaint identifies Ms. Vasquez as a defendant in the caption and the "Parties" section, and then later alleges that "Defendants failed to comply with Section 504" and that "Defendants caused Jonny Torres to be discriminated against." ECF No. 1 at 18-19. Plaintiffs' complaint also alleges in the same section that the School District violated the ADA and the Rehabilitation Act, rather than all Defendants. ECF No. 1 at 21 ("The School District's violations of the ADA and Section 504 of the Rehabilitation Act . . ."). Plaintiffs argue that Defendants misunderstand their complaint because it does not allege ADA or Rehabilitation Act violations against Ms. Vasquez, but the Court disagrees; some statements in Plaintiffs' complaint imply that they allege these claims against Ms. Vasquez as well. ECF No. 10 at 4. To any extent that Plaintiffs' complaint alleges ADA or Rehabilitation Act claims against Ms. Vasquez, those claims are dismissed with prejudice.

Defendants also move for dismissal of Plaintiffs' section 1983 claims against Ms. Vasquez in her individual capacity for violations of the Rehabilitation Act and Title II of the ADA. ECF No. 7 at 6. "[A] plaintiff cannot bring an action under 42 U.S.C. § 1983 against a State official in her individual capacity to vindicate rights created by Title II of the ADA or section 504 of the Rehabilitation Act." Vinson v. Thomas, 288 F.3d 1145, 1156 (9th Cir. 2002).

Plaintiffs argue that, once again, Defendants misunderstand their complaint because Plaintiffs do not allege Rehabilitation Act or ADA violations against Ms. Vasquez. ECF No. 10 at 4. To any extent that Plaintiffs' complaint alleges a section 1983 claim against Ms....