A.V. v. Panama-Buena Vista Union Sch. Dist.

292 F.Supp.3d 992

A.V., a minor, BY parent and Guardian ad Litem, Concepcion VARELA, Plaintiff,

v.PANAMA–BUENA VISTA UNION SCHOOL DISTRICT; Rita Pierucci, (in her official capacity and as an individual), Janet Clark, (in her official capacity), Darryl Pope, (in his official capacity and as an individual), Cindy Koepp–Romero, (in her official capacity), Patrick Calley, (in his official capacity and as an individual), Jane Cothern, (in her official capacity and as an individual), Brittany Gentry, (in her official and individual capacity), Matt Harper (in his official capacity), Does 9–20, Defendants.

No. 1:15–cv–00246–MCE–JLT

United States District Court, E.D. California.

Signed November 9, 2017

Filed November 13, 2017

Nicole Hodge Amey, Law Office Of Nicole Hodge Amey, Oakland, CA, for Plaintiff.

David Reis Mishook, Fagen Friedman & Fulfrost LLP, Oakland, CA, Jennifer Rebecca Rowe Gonzalez, Fagen Friedman & Fullfrost LLP, Fresno, CA, for Defendants.

MEMORANDUM AND ORDER

MORRISON C. ENGLAND, JR., UNITED STATES DISTRICT JUDGE

Through the present lawsuit, Plaintiff A.V. ("Plaintiff"), by his parent and guardian ad litem, Concepcion Varela ("Plaintiff's mother" or "Ms. Varela"), challenges various actions taken by Defendant Panama–Buena Vista School District ("District") with respect to A.V.'s educational placement. Plaintiff has already pursued two special education "due process" proceedings in accordance with the provisions of the Individuals with Disabilities Education Act, 20 U.S.C. § 1400, et seq. ("IDEA"), to rectify what he alleges were unlawful steps taken by the District against him. He now appeals adverse decisions rendered by the Office of Administrative Hearings ("OAH") following those proceedings and, in addition to IDEA violations, also claims violations of § 504 of the Rehabilitation Act of 1973, 29 U.SC. § 701 et seq. ("Section 504") as well as discrimination and retaliation on the basis of disability and national origin under both Section 504 and Title II of the Americans with Disabilities Act ("ADA").

Presently before the Court is the District's Motion to Strike Plaintiff's Second Amended Complaint ("SAC") under Federal Rule of Civil Procedure 12(f)¹ on grounds that the SAC was filed beyond the time parameters permitted by the Court, and further purports to add new Defendants without obtaining leave of court to do so. Alternatively, in the event the Court elects not to strike Plaintiff's SAC in its entirety, the District moves to dismiss Plaintiff's Fourth, Fifth and Sixth Counts on grounds that: 1) the District has sovereign immunity for any claims asserted against it under either 42 U.S.C. § 1983 or California's Unruh Act, consequently entitling the District to dismissal under Rule 12(b)(1) ; and 2) any remaining discrimination claims should be dismissed for failure to state a viable claim pursuant to Rule 12(b)(6). For the reasons set forth below, the District's Motion is DENIED in part and GRANTED in part.²

BACKGROUND³

Plaintiff's mother enrolled A.V. at the District's Stonecreek Junior High School prior to the first day of the 2014–15 school term. Plaintiff was twelve years old at the time of that enrollment. On August 18, 2015, the first day of school, Ms. Varela provided the District with a copy of A.V.'s most recent Section 504 plan along with a behavior support plan from the Bakersfield City School District where A.V. had previously attended classes. Plaintiff's mother claims she told the District that A.V. had a medical diagnosis of Attention Deficit Hyperactivity Disorder ("ADHD").

A.V. began to have behavioral incidents at school as early as August 21, 2015, just three days after classes commenced. He was referred to the office that day for provoking a fight with another student and for being combative. Thereafter, on August 27, 2014, A.V. allegedly threatened to injure another student and is also purported to have bullied, intentionally harassed and intimidated a group of students. This caused the District to suspend A.V. two days. That same day, however, the District also held a Section 504 team meeting and developed a Section 504 Accommodation Plan for Student. Ms. Varela attended the meeting with the assistance of a Spanish interpreter provided by the District and accompanied by an educational advocate. At that time, the District believed that A.V.'s behaviors could be addressed through accommodations in his Section 504 plan, and Plaintiff's mother consented to the District's proposals in that regard.

On September 11, 2014, after the District intervention counselor observed A.V. grabbing a female student's buttocks, A.V. was suspended for an additional three days, and the District scheduled a Section 504 "Manifestation Determination" meeting for September 18, 2014.⁴ In the meantime, on September 15, 2014, Plaintiff's mother sent the District a handwritten letter in English requesting that A.V. be assessed for eligibility for special education services. Thereafter, at the September 18, 2014 meeting, the District's psychologist told Ms. Varela, who again participated through a Spanish interpreter, that the District wanted to assess A.V. for special education (it appears that the psychologist was not aware of Ms. Varela's recent letter at that time). After Plaintiff's mother told District staff that she thought A.V. did better with male teachers and counselors, the District recommended that A.V. transfer to Thompson Junior High School where more support from male staff members was available. Ms. Varela consented to that transfer.

A.V. began attending Thompson the following day, September 19, 2014. On September 22, 2014, school psychologist Brittany Gentry generated a "Consent for Assessment" of A.V.'s special education eligibility that included both a functional behavioral assessment and an evaluation of any emotional disturbance and specific learning disability. Ms. Gentry made that decision both because of Ms. Varela's concerns and because she believed A.V.'s numerous defiant and inappropriate behaviors made such an evaluation appropriate. According to the District, it mailed the Consent for Assessment to Ms. Varela at her address of record but it was not returned. The initial Consent form was generated in English because that was the language Plaintiff's mother had used in her written letter requesting a special education evaluation.

Nonetheless, in a subsequent Section 504 amendment meeting on October 7, 2014, which Ms. Varela attended, District Special Education Assistant Director Janet Clark claims she provided Plaintiff's mother with, and reviewed, a Spanish language version of the September 22, 2014 assessment. Ms. Clarke and school psychologist Matt Harper allegedly told Ms. Varela why the District wanted to perform an assessment of her son, explaining that an evaluation was needed before determining what additional supports and services A.V. might need. When Ms. Clark asked Ms. Varela to sign the Consent, she states that Plaintiff's mother declined on grounds that she wanted to discuss the document with her husband. On October 15, 2014, after having not received the Consent back, another Spanish version was sent which, like the earlier English version mailed on September 22, 2014, was apparently never received back as undeliverable.

On November 14, 2014, after A.V. continued to engage in inappropriate behaviors, the District held yet another Section 504 Manifestation Determination team meeting at which time Ms. Clark claims she provided another Spanish version of the Consent form, in the presence of Ms. Varela's Spanish speaking educational advocate and with the assistance of a Spanish interpreter. Plaintiff's mother allegedly declined to sign, and according to the OAH's November 22, 2014 decision, she denied at the due process hearing that she ever received it. Although the District claims that it followed this up by sending additional copies by mail on November 22, 2014, December 2, 2014, and December 4, 2014, Ms. Varela again denied receiving any of the forms. The OAH hearing officer found this testimony not to be credible, particularly in the face of numerous District witnesses who "consistently and credibly" testified that she had been given the Consent forms directly at various Section 504 meetings with the forms explained through an interpreter, as well as District testimony that it had mailed copies of the documents in both English and Spanish to the parent's address of record on at least four different occasions without receiving them back as undeliverable.

According to Plaintiff, at the time of the November 14, 2014, meeting, the Section 504 team determined that A.V's behavior, which had allegedly included, inter alia, sexually inappropriate conduct, defiance and failure to follow directions, and banging his head against the wall in the principal's office, was not related to his ADHD condition. The District decided to expel Plaintiff based on this behavior.

On November 21, 2014, Plaintiff's mother filed an "expedited due process complaint" ⁵ with regard to the discipline her son had received and the fact that Plaintiff's disabilities had not been adequately considered.⁶ In accordance with the legal requirement that such an expedited hearing be conducted in short order, proceedings before an OAH hearing officer were conducted between January 6, 2015, and January 8, 2015. By decision dated January 23, 2015, the hearing officer denied Plaintiff's complaint on grounds that because Plaintiff's mother had not allowed the District to evaluate A.V. for special education eligibility, she did not meet her burden of establishing that A.V. was a child with a disability eligible for special education supports and services prior to being expelled in November of 2014. The fact that Ms. Varela finally returned a signed Consent form on the first day of the hearing, January 6, 2015, was deemed to be of no moment since no consent was forthcoming prior to A.V.'s expulsion despite numerous...