ORDER RE MOTION TO DISMISS
Re: Dkt. No. 5
J.E.L. is a disabled minor who alleges that the San Francisco Unified School District and its employees failed to protect him from harassment and bullying at the James Lick Middle School. Dkt. No. 1-1. Through his mother and guardian, J.E.L. sued defendants in the Superior Court for the County of San Francisco for negligence and violations of the Americans with Disabilities Act, Section 504 of the Rehabilitation Act of 1973, and the California Education, Civil, and Government Codes. Defendants removed the case to this Court on federal question jurisdiction and seek to dismiss the complaint for failure to state a claim and other reasons, Dkt. Nos, 1, 5. The motion is denied for the most part, but the California Government Code Section 11135 claim is dismissed.
BACKGROUND
As alleged in the complaint, J.E.L. suffers from speech and cognitive impairments, epilepsy, microcephaly, developmental delays and short physical stature. Dkt. 1-1, Exh. A. When he began middle school at James Lick, school personnel knew that he “had previously been bullied at Sanchez Elementary on account of his disabilities” and that he could not defend against bullying on his own. Id. ¶ 29. Because of prior incidents, J.E.L.’s parents requested that he be assigned an aide at James Lick and that he always be supervised and not left alone when using the restroom.
During the 2013-2014 school year, R.M., another student at James Lick, started to harass J.E.L. R.M. called J.E.L. abusive names, followed him around school, and shoved and pushed him when they were unsupervised in restrooms or the locker room. The harassment took place on a daily basis in plain sight of teachers and an aide assigned to J.E.L., and continued after he complained to teachers and mentioned the incidents in writing projects. James Lick personnel did not investigate or report the bullying to J.E.L.’s parents. When J.E.L.’s parents found out about the harassment on a school visit in December 2013, the teachers and administrators acknowledged that it had occurred but downplayed its seriousness and said that J.E.L was being properly supervised, R.M. was reportedly given afterschool detention for bullying J.E.L.
After the winter break in January 2014, R.M. cornered J.E.L. in a school restroom, sat on him and attempted to force him to eat soap. J.E.L. alleges that he sustained a concussion and experienced post-traumatic stress and seizures. J.E.L.’s parents removed him from James Lick.
In the amended complaint, plaintiff alleges violations by the San Francisco Unified School District (“School District”) of the Americans with Disabilities Act (“ADA,” 42 U.S.C. § 12132), Section 504 of
DISCUSSION
I. STANDARDS
Defendants move to dismiss the claims of the complaint on a variety of grounds. Dkt. No. 5.'A complaint will survive a Rule 12(b)(6) motion to dismiss when it alleges “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,
II. ADA AND REHABILITATION ACT CLAIMS
In the amended complaint, plaintiff aheges that the School District discriminated against him and denied him equal access to educational benefits by acting with deliberate indifference to pervasive and offensive “peer disability harassment” in violation of the ADA. Dkt. No. 1-1, Exh. A, ¶¶ 68-70. Plaintiff also alleges a violation of Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. § 794) based on the same conduct.
In defendants’ view, these claims should be treated as alleged violations of plaintiffs free, appropriate public education (“FAPE”) rights and the Individuals with Disabilities Education Act (“IDEA”). Defendants contend that parents who are unhappy with any matter relating to a child’s education plan must exhaust administrative remedies before suing if they are seeking relief that is also available under IDEA. Dkt, No. 5 at 4-7. Because J.E.L. has not alleged that he first sought relief through the administrative process, defendants seek dismissal of these claims.
This theory is unavailing. Even accepting for the moment defendants’ wholesale rewriting of plaintiffs claims, the Ninth Circuit has held that exhaustion generally should be raised in a summary judgment motion, unless failure to exhaust is clear from the face of the complaint. Albino v. Baca,
While that disposes of defendants’ challenge to the federal claims, the Court notes that it is not clear that the remedies sought here trigger any need for IDEA exhaustion. Under Payne, exhaustion is required when “the genesis and the manifestations of the problem are educational.”
III. CALIFORNIA STATE CLAIMS
A. Education Code § 220
Plaintiff has adequately alleged a violation of California Education Code § 220, which proscribes “discrimination on the basis of disability.. .in any program or activity conducted by an educational institution that receives, or benefits from, state financial assistance or enrolls pupils who receive state student financial aid.” The parties agree this section is only violated by behavior so “severe” and “pervasive” that it has a “ ‘systemic effect of denying the victim equal access to an educational program or activity.’ ” Donovan v. Poway Unified Sch. Dist.,
Plaintiff has alleged “severe” and “pervasive” peer harassment in excess of “a single instance.” Specifically, he alleges offensive bullying by R.M. on a daily basis, in plain view of James Lick personnel, both before after school, over a five-month period from September 2013 to January 2014. He alleges R.M. regularly followed him around the school grounds and pushed and shoved him. The bullying escalated into a serious physical altercation in January 2014. The School District’s alleged failure to check the ongoing offenses resulted in health consequences and post-traumatic fear, leading to J.E.L. being removed from James Lick and home schooled for the next year and a half, and resulting in the “systemic effect of denying” J.E.L. access to that educational activity. These allegations state a claim under Section 220.
Defendants’ reply abandons their notice argument and effectively concedes that plaintiff has met the “actual notice” requirement for a Section 220 claim. See Donovan,
B. Government Code § 11135
This claim is dismissed for failure to exhaust. While Government Code Section 11139 states that Section 11135 and any “regulations adopted pursuant to this article may be enforced by a civil action for equitable relief, which shall be independent of any other rights and remedies,” without mention of exhaustion requirements, regulations implementing the section plainly refer to an exhaustion requirement. See Comm. Concerning Cmty. Improvement v. City of Modesto, No. CV-F-04-6121 REC/DLB,
C. Civil Code §§ 51 and 54
Defendants’ scattershot attack on the California Civil Code claims is unpersuasive. Defendants’ opening papers rely on cases dealing with employment discrimination and Civil Code Section 52.1, none of which are germane here. See Dkt. No. 5 at 10-11. In their reply papers, defendants concede that .these Section 51 and 54 claims are viable if based on a viable ADA claim, but argue that the claim still must be dismissed due for failure to exhaust administrative remedies for the ADA claim. Dkt. No. 14 at 6. Because the Court will not dismiss plaintiffs ADA claim based on exhaustion, defendants’ challenge to the Civil Code claims fails as well.
D. Negligence
Defendants have produced no on-point' authority showing that plaintiffs negligence claim against the individual defendants is precluded by failure to meet presentment requirements. To the contrary, “[presentation of a claim against a public employee or former public employee for injury resulting from an act or omission in the scope of his public employment is not a prerequisite to the maintenance of an action against the employee, but presentation of a claim against the employing public entity is a prerequisite to bringing such an action.” Olden v. Hatchett,
E. Government Code § 820.2 Immunity
The Court denies defendants’ request to dismiss the amended complaint as a whole under California Government Code Section 820.2, which provides that “a public employee is not liable for an injury resulting from his act or omission where
F. Punitive Damages
The parties agree that punitive damages are not available against the School District, which is immune under California Government Code § 818. For the individual defendants, the California Government Code appears to contemplate that punitive damages may be assessed against them even when “based on an act or omission of an employee or former employee acting within the course and scope of his or her employment as an employee of the public entity.” Cal. Gov’t Code § 825(b)(1) (describing circumstances under which the public entity may pay punitive damages assessed against an employee); see Runyon v. Superior Court,
Under California Civil Code Section 3294, punitive damages are available only when the defendant has acted with “oppression, fraud, or malice.” Cal. Civ. Code § 3294(a). Although plaintiffs general allegations that defendants’ acts were “negligent, careless, reckless, and malicious” are not very factually detailed, see Dkt. No. 1-1, Exh. A ¶ 111, these allegations are plausible in the context of the amended complaint, and Federal Rule of Civil Procedure 9(b) allows state of mind, including malice, to be “alleged generally.” See Ashcroft,
CONCLUSION
The motion to dismiss is denied except for the Section 11135 claim, which is dismissed.
IT IS SO ORDERED.