United States District Court, D. Oregon, Portland Division
JASMINE DOVE-ANNA GRAHAM, SIRCHARLES MARC-ANTHONY JONES, and SAVANNAH JADE-MARIE MULLEN, Plaintiff,
PORTLAND PUBLIC SCHOOL DISTRICT #1J, JOLLEEN PATTERSON, KARL LOGAN, CAROL SMITH, KRISTIE CUNIN, T.J. FULLER, RUTH TUCKER, TAMMY JACKSON, and CARLA RANDALL Defendants.
FINDINGS AND RECOMMENDATION
JOHN V. ACOSTA, Magistrate Judge.
Jasmine Dove-Anna Graham ("Graham") filed this lawsuit in May 2013, individually and on behalf of her two children Sircharles Marc-Anthony Jones ("Sircharles") and Savannah Jade-Marie Mullen ("Savannah") (collectively "Plaintiffs"). She brings suit against Portland Public School District #1J, Jolleen Patterson, Karl Logan, Superintendent Carol Smith, Christie Cunin ("Cunin"), T.J. Fuller, Ruth Tucker, Tammy Jackson, and Carla Randall (collectively "Defendants") for race discrimination, intentional infliction of emotional distress ("lIED"), defamation, and violations of the Individuals with Disabilities in Education Act ("IDEA"). Defendants moved to dismiss Plaintiffs' complaint under Federal Rule of Civil Procedure 12(b)(6). After reviewing the parties' briefs, the court concludes Defendants' motion to dismiss should be granted, and Plaintiffs' claims dismissed.
Graham and her two children, Sircharles and Savannah, reside in Portland, Oregon. (First Amended Complaint ("Compl.") at 1.) Although Graham identifies herself as "biracial" and claims to appear "light-skinned with a unique and attractive mix of ambiguous physical features, none of which reveal any evidence of her African-American ancestry, " she alleges Sircharles and Savannah inherited their father's darker skin tone and "African American... features." (Compl. at ¶ 3.)
In March 2012, Graham enrolled her children at Rigler School ("Rigler"), a kindergarten-through-eighth-grade school in the Portland School District. (Compl. ¶ at 10.) At that time, Sircharles was in fifth grade and Savannah in first grade. (Compl. at ¶ 10.) Shortly after enrollment, both children began experiencing problems at school. (Compl. at 14.) Sircharles suffers from oppositional defiant disorder ("ODD") and attention deficit hyperactivity disorder ("ADHD"). (Compl. at ¶ 1.) Partly because of these disabilities, Sircharles has behavior problems at school. (Compl, at ¶ 6.) Graham has on several occasions requested the school administer a special-education evaluation and implement an Individualized Education program ("IEP") as required by the IDEA. (Compl. at ¶ 4.) Instead of evaluating Sircharles, teachers and administrators told Graham that Sircharles was "not a suitable candidate" for a special-education evaluation. (Compl. at ¶ 5.) Graham and Rigler administrators eventually came to an agreement that Graham would complete all the necessary paperwork, and the school would evaluate Sircharles the following school year. (Compl. at ¶ 5.) However, Graham never received the paperwork and the school never evaluated Sircharles. (Compl. at ¶ 5.) Sircharles was eventually expelled from Rigler for behavior which Graham alleges derived from his disabilities. (Compl. at 4.)
The children allegedly faced constant harassment by their classmates and teachers. (Compl, at ¶ 22.) Graham alleges Sircharles was constantly bullied and ridiculed, but school staff refused to take any action. On one occasion, Assistant Principle Fuller "rough[ed]... up [Sircharles] by his clothes, and curs[ed] at him" after a field trip. (Compl. at ¶ 14, ) Moreover, Sircharles and Savannah were insulted repeatedly by classmates, and the school failed to act even when the children were called "niggers, black q-tips, and burnt pieces of toast." (Compl. at ¶ 32.) Savannah was ridiculed for her weight and the appearance of her hair, but school officials did not respond or inform Graham of the problems. (Compl. at ¶ 11.) On one occasion, Savannah teased another child about her backpack. (Compl. ¶ 27.) The following day, the other child's mother came to Rigler with her child, cornered Savannah, and verbally assaulted her. (Compl. at ¶ 27.) The school again took no action against the student or the parent, and did not inform Graham, who learned of the incident from her daughter. (Compl. at ¶ 27.)
Graham alleges she also faced disparate treatment by Defendants. When she first arrived at Rigler to enroll her children, Rigler staff greeted her in Spanish and gave her Spanish-language enrollment forms. (Compl. at ¶ 10.) After Graham informed Rigler staff she was not Hispanic or a Spanish speaker, the school staff apologized. (Compl. at ¶ 10.) Graham continually expressed concern regarding the racism her children faced at school, but the Rigler administration was not receptive to her complaints. (Compl. at 10-11.) In fact, she developed a contentious relationship with the administrators at Rigler. She alleges that, after she complained about Sircharles's treatment at school, the principal of Rigler made disparaging remarks to Rigler teachers and administrators about Graham's fitness as a parent. (Compl. at 4-5.)
Graham filed this matter pro se in May 2013. (Dkt. No. 1.) In part because Graham sought relief on behalf of her minor children, the court attempted on five occasions to procure pro bono counsel to represent her and her children. (Dkt. Nos. 7, 13, 18, 20, 29.) Each appointment was declined. (Dkt. Nos. 10, 15, 19, 24, 39.) Defendants moved to dismiss in October 2013, but Graham did not file a response. On October 22, 2013, the court held a status conference at which it advised Graham on her options moving forward with her claims and granted her leave to file an amended complaint. (Dkt. No. 54.)
Graham filed her First Amended Complaint pro se in April 2014. (Dkt. No. 2.) In her First Amended Complaint, Graham specifically articulates claims for racial discrimination and TIED. However, in the body of her complaint, Graham makes allegations that Defendants violated the IDEA and made defamatory statements about her. Graham is pro se, so the court will liberally construe her claims. Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004) (construing liberally a pro se plaintiff's claims). On May 19, 2014, Defendants again moved to dismiss for failure to state a claim. (Dkt. No. 60.) In response, Graham filed a "Notice of Documents to be Considered, " which consists of documents related to Portland Public School Policy. (Dkt. No. 64.) Defendants filed a "Response to Plaintiffs Notice of Documents to be Considered, " which the court treats as their reply. (Dkt. No. 65.)
Defendants move to dismiss all of Graham's claims. They argue that Graham's claims brought on behalf of her children fail because she is not an attorney, and she cannot represent her children in a legal matter. Further, they argue Graham fails to state a claim for her own claims because she: (1) improperly asserts her children's claims as her own; (2) failed to provide timely notice of her claims under the Oregon Tort Claims Act (the "OTCA") with regard to her state-law claims; (3) failed to exhaust her administrative remedies under the IDEA; and (4) "fails to allege facts sufficient to support the elements of her claims...." The court will address each of Defendants' arguments in turn.
I. Graham's Representative Claims on Behalf of Her Children
It is unclear from Graham's complaint which claims she intended to bring on behalf of her children. The court construes her First Amended Complaint to state one count of "[d]iscrimination based on race, " one count of IIED on behalf of both Sircharles and Savannah, and one claim for violation of the IDEA on behalf of Sircharles. Defendants contend all of these claims should be dismissed because Graham, as a pro se litigant, cannot bring suit ...