The court denies Defendants Orange Unified School District and Jayme Barks?s Motion for Summary Judgment/Adjudication to the Complaint of Plaintiff Andrew Ashline, by and through his guardian ad litem, Joanna Ashline.
Objections
Plaintiff failed to file a separate document in the required format and therefore to the extent he attempts to object to evidence in the moving papers, it is overruled.
As to Defendants? objections submitted on Reply, the court overrules objection nos. 1-3, 5, 6, 8-15, and sustains objection nos. 4, 7, 16-18.
Exhaustion of Administrative Remedies
The court finds that Plaintiff is required to exhaust his administrative remedies for the first and second causes of action only for disability discrimination under Rehabilitation Act of 1973 ? 504 and violations of the Americans With Disabilities Act (42 USC ? 12101 et seq.), respectively.
The court finds that Plaintiff is seeking to enforce rights that arise as a result of alleged denial of a free appropriate public education to provide the basis for the cause of action, although not plead as an IDEA claim.
The court finds, however, that there are issues of disputed fact as to whether Plaintiff?s 9/4/13 proceeding before the Office of Administrative Hearings addressed the issues raised by this complaint.
Inasmuch as summary judgment is a drastic procedure and should be used with caution, the moving party?s papers are strictly construed, while the opposing party?s papers are liberally construed. (Committee to Save Beverly Highland Homes Ass?n v. Beverly Highland (2001) 92 Cal.App.4th 1247, 1260.)? A court may not make credibility determinations, or weigh the evidence, on a motion for summary judgment, and all evidentiary conflicts are to be resolved against the moving party. (McCabe v. American Honda Motor Corp. (2002) 100 Cal.App.4th 1111, 1119.? Finally, if there is any doubt about granting a motion for summary judgment, then the motion should be denied. (Miller v. Bechtel Corp. (1983) 33 Cal.3d 868, 874.)
First and Second Causes of Action for Disability Discrimination and ADA Violations
Plaintiff?s mother consented to the use of restraints and Ms. Tyrell acknowledged that there was a behavioral intervention plan in place.? Further, there appears to be no dispute that when Plaintiff was restrained, Defendants honestly believed that he was a danger to himself or others.? Ms. Tyrell testifies that she would have used a different ?instructional style? and some of the restraints were not ?necessary?, which is not evidence of gross misjudgment.
However, Ms. Tyrell details other incidents that a jury needs to consider to determine if Defendants acted with deliberate indifference or gross misjudgment towards Plaintiff including forcing him to watch movies that frightened him, grabbing Plaintiff by the collar or back of his shirt and forcing him onto the ground to pick up items he had thrown, preventing him from using his stroller and dragging him instead during a field trip.? After the incidents of March 1, 2013, Ms. Tyrell was so troubled by Plaintiff?s perceived mistreatment that she went to her supervisor and requested that she be re-assigned. A report of child abuse is not required to maintain these claims.
The court denies summary adjudication.
The court will bifurcate the issue of administrative exhaustion with regard to these two causes of action to be heard in a court trial prior to the jury trial.
Third Cause of Action for Violation of 42 USC 1983?
Plaintiff does not dispute that Ms. Barks may not be liable under 42 USC section 1983 for acts performed in an official capacity.
But sued in her personal capacity, Defendant argues that Ms. Barks may be subject to suit, but here enjoys qualified immunity from civil damages.? Excess force by a school official against a student may violate the student’s constitutional rights.? (P.B. v. Koch, 96 F.3d 1298, 1302?03 (9th Cir.1996).) The consequences of a teacher’s force against a student at school are generally analyzed under the ?reasonableness? rubric of the Fourth Amendment, although historically courts applied substantive due process analysis under the Fourteenth Amendment’s ?shocks the conscience? test. (See Doe, 334 F.3d at 908?09 (9th Cir.2003).)
The court finds that there are disputed issues of fact as to Defendants? conduct as discussed above based on Ms. Tyrell?s testimony that require a jury?s decision.? The court denies summary adjudication.
Fourth Cause of Action for Violation of Civil Code ?? 51 et seq. and 52
The court finds that Plaintiff does not have to show intentional discrimination but has to show that he was denied an accommodation. The court finds that there are disputed issues of fact as to Defendants? conduct as discussed above based on Ms. Tyrell?s testimony that require a jury. Ms. Tyrell?s testimony that Plaintiff?s communicating device, his iPad was taken away, and he was not permitted to use his stroller are facts that could constitute denial of accommodations.? ?The court denies summary adjudication.
Fifth and Sixth Causes of Action for Breach of Duty of Care and Negligence
Defendants argue that Plaintiff may not assert claims based on negligence because the gravamen of his claim arise out of his contention that he was improperly restrained by Ms. Barks.? Plaintiff is required to prove deliberate indifference, gross misjudgment or bad faith to maintain such claims.? However, there are issues of disputed fact as to whether this standard is met.? See above.
Seventh Cause of Action for IIED
Whether Ms. Barks engaged in extreme and outrageous conduct involves issue of disputed fact.? The court denies summary adjudication.
Eighth, Ninth, and Tenth Causes of Action for Assault, Battery, and False Imprisonment
While the undisputed evidence shows that Plaintiff was engaging in self-injurious and/or dangerous behavior prior to each restraint, there is testimony from Ms. Tyrell of other incidents beyond restraints. ?The court denies summary adjudication.
Plaintiff is ordered to give notice.