United States District Court, D. Oregon
LAURA POZOS LEON, individually and on behalf of M.D., a minor, Plaintiffs,
TILLAMOOK COUNTY SCHOOL DISTRICT, et al., Defendants.
Charese A. Rohny and Maria Witt, Charese Rohny Law Office,
LLC, Isaac P. Ersoff, Andrews Ersoff & Zantello, Of
Attorneys for Plaintiffs.
Barrett C. Mersereau, The Law Office of Brett Mersereau, Of
Attorneys for Defendants Tillamook County School District,
Northwest Regional Education Service District, Gwen Russell,
Jay Marugg, and Randy Schild.
Keating, Schulte, Anderson, Downes, Aronson & Bittner,
PC, Of Attorneys for Defendant Community Action Team, Inc. of
Columbia County, Oregon dba Tillamook Head Start.
OPINION AND ORDER
Michael H. Simon United States District Judge
November 3, 2017, United States Magistrate Judge Paul Papak
issued his Findings and Recommendation in this case. Judge
Papak recommends that the Court grant in part Defendants'
motions to dismiss Plaintiffs' claims pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure.
Specifically, Judge Papak recommends that the Court dismiss
with prejudice Plaintiffs' claims under 42 U.S.C. §
1983 alleging violations of the Fourth and Fourteenth
Amendments to the U.S. Constitution and that the Court
decline to exercise supplemental jurisdiction over
Plaintiffs' state law claims and dismiss those claims
without prejudice and with leave to refile in state court.
the Federal Magistrates Act (“Act”), the Court
may “accept, reject, or modify, in whole or in part,
the findings or recommendations made by the
magistrate.” 28 U.S.C. § 636(b)(1). If a party
files objections to a magistrate's findings and
recommendations, “the court shall make a de novo
determination of those portions of the report or specified
proposed findings or recommendations to which objection is
made.” Id.; Fed.R.Civ.P. 72(b)(3).
those portions of a magistrate's findings and
recommendations to which neither party has objected, the Act
does not prescribe any standard of review. See Thomas v.
Arn, 474 U.S. 140, 152 (1985) (“There is no
indication that Congress, in enacting [the Act], intended to
require a district judge to review a magistrate's report
to which no objections are filed.”); United States.
v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en
banc) (holding that the court must review de novo
magistrate's findings and recommendations if objection is
made, “but not otherwise”). Although in the
absence of objections no review is required, the Act
“does not preclude further review by the district
judge sua sponte . . . under a de novo or
any other standard.” Thomas, 474 U.S. at 154.
Indeed, the Advisory Committee Notes to Fed.R.Civ.P. 72(b)
recommend that “[w]hen no timely objection is filed,
” the Court review the magistrate's recommendations
for “clear error on the face of the record.”
Plaintiffs object to Judge Papak's recommendation that
the Court dismiss Plaintiffs' federal claims.
Accordingly, the Court has conducted a de novo
review of these issues. For the reasons stated below, the
Court finds that not all of Plaintiffs' claims under
§ 1983 should be dismissed, and thus the Court retains
jurisdiction over this case. The Court also considers
Defendants' motions to dismiss Plaintiffs' state law
claims, the merits of which were not addressed in the
Findings and Recommendation based on the recommendation to
decline supplemental jurisdiction after the dismissal of all
motion to dismiss for failure to state a claim may be granted
only when there is no cognizable legal theory to support the
claim or when the complaint lacks sufficient factual
allegations to state a facially plausible claim for relief.
Shroyer v. New Cingular Wireless Servs., Inc., 622
F.3d 1035, 1041 (9th Cir. 2010). In evaluating the
sufficiency of a complaint's factual allegations, the
court must accept as true all well-pleaded material facts
alleged in the complaint and construe them in the light most
favorable to the non-moving party. Wilson v.
Hewlett-Packard Co., 668 F.3d 1136, 1140 (9th Cir.
2012); Daniels-Hall v. Nat'l Educ. Ass'n,
629 F.3d 992, 998 (9th Cir. 2010). To be entitled to a
presumption of truth, allegations in a complaint “may
not simply recite the elements of a cause of action, but must
contain sufficient allegations of underlying facts to give
fair notice and to enable the opposing party to defend itself
effectively.” Starr v. Baca, 652 F.3d 1202,
1216 (9th Cir. 2011). All reasonable inferences from the
factual allegations must be drawn in favor of the plaintiff.
Newcal Indus. v. Ikon Office Solution, 513 F.3d
1038, 1043 n.2 (9th Cir. 2008). The court need not, however,
credit the plaintiff's legal conclusions that are couched
as factual allegations. Ashcroft v. Iqbal, 556 U.S.
662, 678-79 (2009).
complaint must contain sufficient factual allegations to
“plausibly suggest an entitlement to relief, such that
it is not unfair to require the opposing party to be
subjected to the expense of discovery and continued
litigation.” Starr, 652 F.3d at 1216. “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.” Iqbal, 556 U.S. at 678 (citing
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556
Laura Pozos Leon (“Pozos Leon”) is the mother of
a minor child, Plaintiff M.D. (“M.D.”). In March
2015, M.D. was four years old and in a special education
program in the Tillamook County School District
(“TCSD”). Defendant Community Action Team
Incorporation of Columbia County, Oregon (“CAT”)
is a private, not-for-profit organization that provides
educational services, including an early childhood
development preschool program in Tillamook County that CAT
runs under the assumed business name of Tillamook Head Start
(“CAT Head Start” or “Head Start”).
M.D. attended school at CAT Head Start. Defendant Northwest
Regional Education Service District (“NRESD”) is
a regional education unit of the State of Oregon, providing
services to Oregon school districts and students.
regularly rode a TCSD school bus to and from her CAT Head
Start program. On March 19, 2015, at approximately 7:30 a.m.,
M.D. was picked up from home by a TCSD school bus driven by
Defendant Gwen Russell (“Russell”). M.D. was
strapped into a child safety seat on one of the bus seats,
from which M.D. could not free herself, and M.D. fell asleep.
The bus drive, Russell, forgot about M.D. and failed to drop
her off at CAT Head Start. At approximately 8:15 a.m.,
Russell drove the bus to the TCSD transportation department,
parked the bus in the “bus barn” for repairs, and
left the bus. M.D. was still inside, asleep, and strapped
into child safety seat unable to escape.
adult other than Russell was on the bus, and TCSD does not
have a policy requiring any adult other than the bus driver
to ride on the bus. TCSD has a policy requiring drivers at
the end of their routes to check buses for cleanliness and
for persons or property left behind, and to leave a mark on
the windshield to verify that the check has been performed.
Russell admits that she failed to inspect the bus as required
under TCSD's policy. No person in the transportation
department inspected Russell's bus to see if the required
mark was on the windshield or otherwise checked whether
Russell had performed the required inspection.
awakened alone on the bus. She was in the dark and unable to
free herself from the child safety seat. According to
Plaintiffs, M.D. was traumatized and remains afraid of being
alone, being in dark places, and riding in school buses.
same day of March 19, 2015, Pozos Leon was scheduled to
chaperone a field trip for the CAT Head Start students. She
arrived at Head Start at approximately 9:10 a.m., and was
advised by a CAT employee that her four-year-old daughter,
M.D., had not been dropped off at school that morning. No one
previously notified Pozos Leon of M.D.'s absence. Pozos
Leon immediately telephoned Russell, demanding to know
M.D.'s whereabouts. Russell responded, “Oh my God!
. . . I'll call you right back, ” and she hung up
the telephone. A few minutes later Russell called back and
reported that she had found M.D. in the bus in the TCSD bus
barn. Russell advised Pozos Leon that someone would
immediately drive M.D. to CAT Head Start. M.D. arrived at CAT
Head Start approximately 20 minutes later. When M.D. was
brought to Pozos Leon, no one informed Pozos Leon that when
M.D. had been found, she was crying and visibly upset.
Approximately 75 minutes had elapsed from M.D.'s
confinement in the bus barn to her being transported to CAT
Leon called law enforcement. During a police investigation,
Defendant Jay Marugg, the TCSD Transportation Director and
Russell's supervisor, admitted that the procedures and
“route sheets” should be rewritten because they
were confusing for bus drivers.
Leon requested a meeting with Defendant Randy Schild,
TCSD's Superintendent. He was not available and Pozos
Leon met with his executive assistant, Gail Levesque. Ms.
Levesque told Pozos Leon that “things like this”
happen “4 or 5 times a year.” Ms. Levesque
falsely stated that M.D. was never alone and had adult
supervision at all time. Ms. Levesque promised to follow up
with a telephone call, but did not.
Leon was informed by CAT Head Start personnel that no one was
responsible for meeting children when they arrive on the bus
and that Head Start does not call families to check on
absences until the end of the day. Pozos Leon met with the
Head Start director, a Head Start teacher, Russell, and
Marugg. They admitted that: (1) what had happened to M.D. was
wrong and there was no excuse; (2) Russell had called in sick
the day of the incident but Marugg had required to her to
work due to a lack of available staff that day; (3) there
should be another adult on the buses, but TCSD had allocated
the funding for other items; (4) Russell failed to follow
procedures; (5) Russell not only forgot about M.D. but never
even stopped at CAT Head Start on the day of the incident;
(6) there is no system in place to ensure that drivers follow
and complete their routes each day; and (7) there is no
verification to ensure that drivers properly check their
buses after parking them in the bus barn. Russell and Marugg
also again stated, falsely, that M.D. was never alone and had
an adult with her at all times.
result of Defendants' alleged actions, Plaintiffs contend
that both M.D. and Pozos Leon suffered severe emotional
distress and incurred damages in the form of medical,
therapy, and other expenses. M.D. also incurred physical
injury and additional pain and suffering from exacerbation of
a preexisting hernia requiring surgery. Pozos Leon incurred
additional pain and suffering from an earlier stroke.
allege the following seven claims against all Defendants: (1)
violation of 42 U.S.C. § 1983 for infringement of
M.D.'s Fourth Amendment right to liberty; (2) violation of
§ 1983 for infringement of M.D.'s Fourteenth
Amendment right to substantive due process; (3) violation of
§ 1983 for infringement of M.D.'s Fourteenth
Amendment right to be free from foreseeable dangers created
by state actors; (4) violation of § 1983 for
infringement of Pozos Leon's Fourteenth Amendment rights
as a parent; (5) negligence under Oregon common law based on
the breach of a duty of care owed to M.D.; (6) negligence
under Oregon common law based on the breach of a duty of care
owed to Pozos Leon; and (7) negligent infliction of emotional
distress under Oregon common law. Plaintiffs seek
compensatory and punitive damages, injunctive relief,
attorney's fees, and costs. Before the Court are: (1)
CAT's motion to dismiss the four federal claims and the
negligence claim by Pozos Leon against CAT; (2) NRESD's
motion to dismiss all claims against NRESD; and (3) the TCSD
Defendants'motion to dismiss all claims against them.
Fourth Amendment Claim 1. State Actor
Findings and Recommendation concluded that CAT was not a
state actor for purposes of § 1983. Plaintiffs object
to that conclusion. Plaintiffs argue that CAT is a state
actor under the “joint action” test used by the
Ninth Circuit. The Ninth Circuit has described the
“joint action” test for a private party to be
held liable as a state actor as follows:
Under the joint action test, courts examine whether state
officials and private parties have acted in concert in
effecting a particular deprivation of constitutional rights.
The test focuses on whether the state has so far insinuated
itself into a position of interdependence with [the private
actor] that it must be recognized as a joint participant in
the challenged activity. A plaintiff may demonstrate joint
action by proving the existence of a conspiracy or by showing
that the private party was a willful participant in joint
action with the State or its agents.
Our cases have been careful to require a substantial degree
of cooperation before imposing civil liability for actions by
private individuals that impinge on civil rights.
Franklin v. Fox, 312 F.3d 423, 445 (9th Cir. 2002)
(quotation marks and citations omitted) (alteration in
allege in the Second Amended Complaint that CAT is part of a
state- and federally-established comprehensive program to
provide early childhood education for preschool children with
disabilities, as required under state and federal law.
Plaintiffs recite Oregon and federal statutes, regulations,
and rules that Plaintiffs allege govern the obligation to
provide free and appropriate public education to M.D. and
other similar students. Plaintiffs allege that the