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Leon v. Tillamook County School District

United States District Court, D. Oregon

May 11, 2018

LAURA POZOS LEON, individually and on behalf of M.D., a minor, Plaintiffs,

          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.

          Guy E. Keating, Schulte, Anderson, Downes, Aronson & Bittner, PC, Of Attorneys for Defendant Community Action Team, Inc. of Columbia County, Oregon dba Tillamook Head Start.


          Michael H. Simon United States District Judge

         On 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.

         Under 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).

         For 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 federal claims.


         A 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).

         A 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 (2007)).


         Plaintiff 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.

         M.D. 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.

         No 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.

         M.D. 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.

         On that 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 Head Start.

         Pozos 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.

         Pozos 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.

         Pozos 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.

         As a 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.


         Plaintiffs 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;[1] (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'[2]motion to dismiss all claims against them.

         A. Fourth Amendment Claim 1. State Actor

         The Findings and Recommendation concluded that CAT was not a state actor for purposes of § 1983.[3] 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 original).

         Plaintiffs 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 state-designated ...

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