United States District Court, E.D. Washington
I.V., a minor child; and APRIL OLIVARES and FERNANDO OLIVARES VARGAS, parents of I.V., Plaintiffs,
WENATCHEE SCHOOL DISTRICT NO. 246, et al., Defendants.
ORDER GRANTING MOTION TO DISMISS 42 U.S.C. §
O. RICE, CHIEF UNITED STATES DISTRICT JUDGE.
THE COURT is Defendants Wenatchee School District, No. 246,
Taunya Brown, Jeremy Wheatley, Ronda Brender, Kelli Ottley,
and Ellen McIrvin's (collectively
“Defendants” for the purposes of this motion)
Motion to Dismiss (ECF No. 20). The Motion was submitted for
consideration with oral argument. The Court heard oral
argument from the parties on October 18, 2017. For the
reasons discussed below, the Motion to Dismiss (ECF No. 20)
Rule of Civil Procedure 12(b)(6) provides that a defendant
may move to dismiss the complaint or a particular claim for
“failure to state a claim upon which relief can be
granted.” To survive dismissal, a plaintiff must allege
“sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its
face.'” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). This requires the plaintiff to provide
“more than labels and conclusions, and a formulaic
recitation of the elements.” Twombly, 550 U.S.
deciding, the Court may consider the plaintiff's
allegations and any “documents incorporated into the
complaint by reference . . . .” Metzler Inv. GMBH
v. Corinthian Colleges, Inc., 540 F.3d 1049, 1061 (9th
Cir. 2008) (citing Tellabs, 551 U.S. at 322).
Plaintiff's “allegations of material fact are taken
as true and construed in the light most favorable to the
plaintiff[, ]” but “conclusory allegations of law
and unwarranted inferences are insufficient to defeat a
motion to dismiss for failure to state a claim.” In
re Stac Elecs. Sec. Litig., 89 F.3d 1399, 1403 (9th Cir.
1996) (citation and brackets omitted).
instant action arises out of an unfortunate series of events
that occurs all too often: bullying at school. Plaintiffs
allege that the minor Defendant Y.A.F. subjected the minor
Plaintiff I.V. to physical cruelty and public humiliation-
leading to serious emotional distress, anorexia and,
ultimately, severe medical complications culminating in a
suicide attempt. ECF No. 26 at 6-13. Specifically, Plaintiffs
allege Defendant Y.A.F. subjected Plaintiff I.V. to verbal
abuse (calling I.V. “fat” and “gay
boy”), threats (“if you tell anyone I will have
my brothers beat you up”; threats against I.V.'s
life), and physical harassment (Y.A.F. “twisted
I.V.'s nipples causing severe pain”) over an
extended time at Orchard Middle School (OMS), which is part
of the Wenatchee School District (WSD). ECF No. 26 at 6-8.
to the Complaint, although Y.A.F. subjected I.V. to continual
harassment beginning in September, 2013, I.V. did not tell
his parents about the harassment until early 2015,
refused to disclose the identity of Y.A.F. until January 3,
2016. ECF No. 26 at 6-9. On January 4, 2016, the day after
I.V. disclosed the identity of Y.A.F., Ms. Olivares
(I.V.'s mother) met with Ms. Brown, the principal at OMS,
and relayed the identity of Y.A.F. as the student bullying
I.V. During the meeting, I.V. “burst into the room
yelling ‘Y.A.F. just threatened to kill me!'”
ECF No. 26 at 9. Ms. Brown promised to take action, but the
Complaint alleges that she did nothing. ECF No. 26 at 9-10.
Olivares reported the bullying to the police. ECF No. 26 at
10. The next day, police arrested Y.A.F. for harassment. ECF
No. 26 at 10. Police investigation uncovered video evidence
of the harassment, and Y.A.F. admitted to threatening I.V.
ECF No. 26 at 10. On January 19, 2016, the Chelan County
Superior Court issued an Order of Protection restraining
Y.A.F. from any contact with I.V. and prohibiting Y.A.F. from
attending Orchard Middle School. ECF No. 26 at 10. On January
19, 2016, Ms. Olivares left a message for Ms. Brown relaying
the substance of the Court Order. ECF No. 26 at 10. However,
on January 29, 2016, Ms. Brown left a voice mail for Ms.
Olivares stating that Y.A.F. could attend OMS. ECF No. 26 at
February 1, 2016, I.V. reported to his parents that Y.A.F.
had been in school throughout the day. ECF No. 26 at 11. On
February 2, 2016, Ms. Olivares contacted OMS and confronted
Ms. Brown, indicating Y.A.F. had threatened I.V. the day
before. ECF No. 26 at 11. Ms. Brown claimed to have contacted
the school's attorney who told Ms. Brown Y.A.F. could
attend school. ECF No. 26 at 11. As the Complaint alleges:
What was ultimately determined is that WSD and OMS failed to
distinguish between a temporary order and a permanent order,
and due to their failure [Y.A.F.] could come back to OMS. . .
. Ms. Olivares tried repeatedly to get Ms. Brown and Ms.
Brenner to understand the distinction between the orders, but
she was repeatedly ignored and the issue was not addressed.
ECF No. 1 at 11. “On February 4, 2016, Ms. Olivares
contacted Mr. Helm, WSD Executive Director of Student
Services, who admitted the ‘school lawyer' could
not locate the permanent order but only the temporary order
and he blamed the attorney.” ECF No. 26 at 11-12.
Complaint is silent as to any relevant events for the
remainder of that school year. The next school year - the
fall of 2016 - Y.A.F. attended Westside High School, an
alternative high school operated by the Wenatchee School
District, while I.V. attended Wenatchee High School. ECF No.
26 at 12. The Complaint alleges:
On August 30, 2016, the first day of school, Y.A.F. was at
the Wenatchee High School and sought and encountered I.V.
Despite the restraining order he and three of his friends
stood 70 feet from I.V. using threatening body language and
were “sizing him up.” Ms. Olivares called Ms.
Brown to report the incident, who acknowledged Y.A.F. was not
supposed to be on the property and he would call Officer
Miller. Officer Miller called Ms. Olivares and said the next
time Y.A.F. will be arrested for trespassing.
ECF No. 26 at 12-13. According to the Complaint, “[d]ue
to the continued bullying and harassment, I.V. attempted,
unsuccessfully, to end his life in October, 2016[, ]”
and that, “[d]ue to the emotional stress and
flashbacks, I.V. is suffering a relapse of his anorexia and
[has] recently been hospitalized again.” ECF No. 26 at
filed suit against the Wenatchee School District and related
employees, asserting a cause of action for violation of civil
rights under 42 U.S.C. § 1983, alleging Plaintiff's
Due Process rights to be free from the invasion of bodily
integrity were infringed. ECF No. 26 at 17-18, ¶¶
21-23. The Wenatchee School District and its employees now
move the Court to dismiss the § 1983 claim, asserting
Plaintiff has failed to state a claim upon which relief may
be granted. ECF No. 20. This Motion is before the Court.
U.S.C. § 1983 allows private citizens to bring a claim
against a state or municipality where the state or
municipality deprives them of their constitutional rights.
Johnson v. City of Seattle, 474 F.3d 634, 638 (9th
Cir. 2007) (citing Monellv. Dep't of Soc.
Serv. of ...