A federal judge from the Eastern District of California has granted a school district’s motion to dismiss in a case in which it was sued by the parent of a cheerleader, who claimed his daughter was denied certain Constitutional protections and that she was retaliated against after he filed a Title IX complaint.
One of the main reasons the court granted the motion was because Richard Davis III, the cheerleader’s father could not show sufficiently that he was a victim of the defendant’s actions.
By way of background, Davis’ daughter, Danielle, had been “a decorated and accomplished cheerleader for the Vista del Lago High School cheerleading squad,” according to the plaintiff. In January of 2009, the plaintiff emailed John Dixon, Vista del Lago’s Principal and Robert Reed, the school’s Athletic Director, regarding the plaintiff’s concerns about Darcy Amiss, the school’s new Cheer Advisor, possibly holding cheerleaders to higher academic standards than male athletes in other sports. Three months later, higher academic standards for cheerleaders at Vista Del Lago High School were implemented. As a result, an African American cheerleader, and “two other girls” failed to make the team, according to the plaintiff. His daughter, however, did make the team.
Nonetheless, the plaintiff “filed a Title IX complaint” with Principal Dixon on behalf of the three girls who failed to make the team.
Dissatisfied with the response he got from the officials, the plaintiff escalated the complaint to Patrick Godwin, the District Superintendent, and the board members of the Folsom Cordova Unified School District. After that allegedly went nowhere, he filed a complaint with the California Department of Education (DOE) on June 23, 2009.
The environment involving his daughter and the coach began disintegrating as she was allegedly “limited” on the team. The plaintiff also claimed he felt “publicly embarrassed and humiliated,” sitting by himself at events.
On November 4, 2009, the California DOE “ruled against” the plaintiff’s Title IX complaint.
The plaintiff ultimately sued the district, and 12 individual defendants, alleging retaliation in violation of the First Amendment, violation of the Equal Protection Clause of the Fourteenth Amendment, violation of the Due Process Clause of the Fourteenth Amendment and retaliation in violation of Title IX.
The defendants moved to dismiss, pursuant to Federal Rule of Civil Procedure 12(b)(6).
Looking first at the count that alleged a violation under Title 42 U.S.C. § 1983, the court noted its purpose that “every person who, under color of [state law] … subjects, or causes to be subjected, any citizen of the United States … to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”
The court wrote that “in order to state a cognizable claim under § 1983 the plaintiff must allege facts demonstrating that he was deprived of a right secured by the Constitution or laws of the United States and that the deprivation was caused by an individual acting under color of state law. West v. Atkins, 487 U.S. 42, 48, 108 S. Ct. 2250, 101 L. Ed. 2d 40 (1988). It is the plaintiff’s burden in bringing a claim under § 1983 to allege, and ultimately establish, that each of the named defendants were acting under color of state law when they deprived him of a federal right. Lee v. Katz, 276 F.3d 550, 553-54 (9th Cir. 2002). Moreover, supervisory personnel are generally not liable under § 1983 for the actions of their employees under a theory of respondeat superior and, therefore, when a named defendant holds a supervisorial position, the causal link between him and the claimed constitutional violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978).”
Labeling the plaintiff’s allegations as “vague and conclusory concerning the involvement of official personnel in civil rights violations,” the court wrote that these “are not sufficient to state a cognizable claim. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).”
Next the court turned to the plaintiff’s allegation of a violation of the First Amendment, which “forbids government officials from retaliating against individuals for speaking out. Hartman v. Moore, 547 U.S. 250, 256, 126 S. Ct. 1695, 164 L. Ed. 2d 441 (2006). To recover under § 1983 for such retaliation in violation of the First Amendment, a plaintiff must allege and prove: (1) he engaged in constitutionally protected activity; (2) as a result, he was subjected to adverse action by the defendant that would chill a person of ordinary firmness from continuing to engage in the protected activity; and (3) there was a substantial causal relationship between the constitutionally protected activity and the adverse action. See Pinard v. Clatskanie School Dist. 6J, 467 F.3d 755, 770 (9th Cir. 2006).
“Here, with respect to his First Amendment retaliation claim, the plaintiff alleges … that he ‘stood up for other children in his community’ and was ‘bullied by school administration and discriminated against’ in retaliation for his complaints to, and about, school officials.”
This conflicts, however, with “respect to the alleged adverse action element,” where the plaintiff alleged “that it was his daughter who suffered the alleged adverse action, not (him). Indeed, the plaintiff acknowledges this when he alleges:
“’I am not trying to defend my daughter’s rights, I am merely stating, that the defendants violate my rights, when they intentionally violate my daughter’s rights, because they violate her rights, in retaliation for me speaking out on discrimination, in order to mentally abuse me for my Freedom of Speech.’”
“While it is clear … that plaintiff experienced emotional distress over the perceived mistreatment of his daughter, the … complaint fails to allege that the plaintiff himself suffered any actual, direct, adverse action at the hands of any defendant. Accordingly, the second amended complaint fails to allege the necessary elements of a First Amendment retaliation claim.” See D.B. ex rel. Elizabeth B. v. Esposito, 675 F.3d 26, 43 (1st Cir. 2012)
Next the court turned to the plaintiff’s claim involving the Equal Protection Clause, which “requires that persons who are similarly situated be treated alike.” City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439, 105 S. Ct. 3249, 87 L. Ed. 2d 313 (1985).
The plaintiff alleges that “he was intentionally discriminated against based on his membership in a protected class. This conclusory allegation, however, is not followed up by any explanation or discussion of precisely how it is that plaintiff is a member of a protected class.” See Barren v. Harrington, 152 F.3d 1193, 1195 (9th Cir. 1998)
Turning to the claim of a violation of the Due Process Clause of the Fourteenth Amendment, the court wrote that the clause “guarantees both procedural and substantive due process, protecting individuals against the deprivation of a liberty or property interest by the government.”
The plaintiff “failed to state whether he is attempting to allege a substantive Due Process claim or a procedural Due Process claim” in his claim. Moreover in order to state a substantive or a procedural due process claim, plaintiff must allege and prove that he was deprived of an interest protected by the Due Process Clause.” See Johnson v. Rancho Santiago Community College Dist., 623 F.3d 1011, 1029 (9th Cir. 2010); Shanks v. Dressel, 540 F.3d 1082, 1087 (9th Cir. 2008); Hynes v. Squillace, 143 F.3d 653, 658 (2nd Cir. 1998). “(The) plaintiff fails to identify a protected property or liberty interest that he was deprived of and fails to allege conscious-shocking behavior on the part of any named defendant,” wrote the court.
Lastly, the court addressed the Title IX claim.
“Title IX … permits a private right of action that ‘encompasses suits for retaliation because retaliation falls within the statute’s prohibition of intentional discrimination on the basis of sex,’” wrote the court, citing Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 178, 125 S. Ct. 1497, 161 L. Ed. 2d 361 (2005).
Specifically, the Supreme Court has held that “retaliation against a person because that person has complained of sex discrimination is another form of intentional sex discrimination encompassed by Title IX’s private cause of action. Retaliation is, by definition, an intentional act. It is a form of ‘discrimination’ because the complainant is being subject to differential treatment.” Jackson, 544 U.S. at 173.
The instant court noted that “the elements of a prima face case of Title IX retaliation are (a) that plaintiff was engaged in protected activity, (b) that plaintiff suffered an adverse action, and (c) that there was a causal link between the two,” citing Emeldi v. University of Oregon, 698 F.3d 715, 724 (9th Cir. 2012).
While satisfying the first element, the court found that the plaintiff failed to show that he “suffered any adverse action at the hands of any named defendant.”
Richard D. Davis, III v. Folsom Cordova Unified School District, et al.; E.D. Cal.; No. CIV S-11-1242 KJM DAD PS, 2013 U.S. Dist. LEXIS 9225; 1/23/13
Attorneys of Record: (for plaintiff) Pro se, Folsom, CA. (for defendants) James Thomas Anwyl, LEAD ATTORNEY, Anwyl Scoffield & Stepp, LLP, Rancho Cordova, Ca Sacramento, CA; Lynn A. Garcia, LEAD ATTORNEY, Anwyl Scoffield & Stepp, LLP, Sacramento, CA.
